GREEN & TOWNSEND
[2016] FamCA 859
•7 October 2016
FAMILY COURT OF AUSTRALIA
| GREEN & TOWNSEND | [2016] FamCA 859 |
| FAMILY LAW – CHILDREN – Parenting – Where the mother unilaterally relocated overseas with first child – Where there were Hague proceedings – CHILD SUPPORT – Where the mother would be assisted by substantial financial contribution by the father – Where the father should consider offering further financial contribution to assist the mother with expenses |
| Family Law Act 1975 (Cth), ss 60CC, 64B |
| APPLICANT: | Ms Green |
| RESPONDENT: | Mr Townsend |
| INDEPENDENT CHILDREN’S LAWYER: | Rowley & Associates |
| FILE NUMBER: | (P)PAC | 3527 | of | 2013 |
| DATE DELIVERED: | 7 October 2016 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 18-20 November 2015, 4 March 2016 and 12-13 September 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Druitt |
| SOLICITOR FOR THE APPLICANT: | Mahoney Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Snelling |
| SOLICITOR FOR THE RESPONDENT: | John Spence & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Rowley & Associates |
Orders
All previous parenting Orders in relation to B born … 2004 and C born … 2012 (“the children”) are discharged.
That the parents shall have equal shared parental responsibility for the children.
That the children live with the mother.
That the children spend time with the father as follows:
(a) In Term Four 2016:
(i)In alternate weeks from after school/preschool on Friday until before school/preschool the following Monday.
(b) During school terms commencing Term One 2017:
(i)In alternate weeks from after school/preschool on Friday until before school/preschool the following Wednesday commencing on the first Friday of term and recommencing on the first Friday of each school term.
(c) School holidays commencing in 2017:
(i)During all school term holidays from 5.00 pm on the last day of term for a period of seven consecutive nights returning at 10.00 am on the eighth day, [for example 5.00 pm on Friday to 10.00 am following Friday].
(d) During Christmas school holidays periods:
(i)2016/2017:
A.For a period of seven consecutive nights from 5.00 pm 20 December 2016 to 10.00 am 27 December 2016; and
B.For a period of seven consecutive nights from 5.00 pm 14 January 2017 to 10.00 am 21 January 2017.
(ii)In odd numbered years commencing 2017/2018 for a period of 28 consecutive nights from 5.00 pm 30 December 2017 until 10:00am on the last Saturday before the new school term begins, [for example from 5.00 pm 30 December 2017 until 10.00 am Saturday 27 January 2018].
(iii)In even numbered years commencing 2018/2019 from 5.00 pm of the last day of the school year for a period of 14 consecutive nights returning at 10.00 am on the 15th day, [for example 5.00 pm on Thursday 20 December 2018 to 10.00 am Thursday 3 January 2019.
(e)On Father’s Day if the children are not otherwise due to spend time with the father from 6.00 pm on the Saturday prior to Father’s Day to return to school/preschool Monday following.
In the event that Mother’s Day falls when the children are spending time with the father that time is suspended from 6.00 pm on the Saturday prior to Mother’s Day until conclusion of school Monday.
The parties, or either of them, may provide a copy of these Orders to the Principal of S School before or at the time of enrolment of C at that school.
The Independent Children’s Lawyer shall provide a copy of these Orders to:
(a) Director of T Preschool;
(b) Principal of S High School.
Changeovers for all periods of time NOT effected at school/preschool shall be, unless otherwise agreed in advance, at the home of the paternal great grandparents and in the event that the paternal great grandparents are unavailable at U Club.
Each parent shall permit the children when in that parent’s care to make, and in the case of C assist to make, a telephone call to the other parent at any reasonable time.
In the event that B asks for assistance from Unifam or the school counsellor, both parents shall do everything necessary to authorise and assist him to access that assistance.
The Independent Children’s Lawyer shall meet with the children to explain these Orders and answer any questions about them that the children may have.
Each of the parents shall be at liberty to travel outside the Commonwealth of Australia with B and C for the purpose of holidays and to visit with extended family members overseas commencing in the 2017/2018 Christmas school holiday period.
Restraints
That each of the parties is restrained from changing the enrolment of B at S High School without the prior written consent of the other party.
The mother is restrained from changing the enrolment of C (other than for progress to school) from T Preschool without the prior written consent of the father.
That the mother may enrol C at S School, and thereafter each of the parties is restrained from changing the enrolment of C at S School without the prior written consent of the other party.
That each party is restrained from taking the children, or either of them, to a psychologist/counsellor or any other person offering therapeutic intervention without the prior written consent of the other party.
That each party is restrained, other than in a medical emergency requiring hospitalisation, from obtaining specialist medical treatment for the children without the prior written notice to the other parent of an appointment with a specialist.
That each party refrain from using corporal punishment to discipline the children, or either of them.
Notation
The parties have engaged and intend to continue doing so with Unifam, to obtain assistance about effective ways to communicate with each other in making parenting decisions.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Green & Townsend has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: (P)PAC 3527 of 2013
| Ms Green |
Applicant
And
| Mr Townsend |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are competing applications for the two children of the relationship between the parties; B aged 12 and C aged 4 years.
The applicant is the mother. Her household consists of herself and the children. She does not refer to any current partner. The mother is aged 43 and was born in England. She has lived in Australia for 16 years.
The respondent is the father. His household consists of himself, his wife Ms V (41), their child W aged eight months, his wife’s children from her first marriage, two girls, X aged 11 and Y aged six. The father is aged 41 and was born in Australia.
The parties live in reasonable proximity to each other, about 25 minutes by car, in the southern suburbs of Sydney.
History of Relevant Events
The parties began a relationship late in 2000, the year the mother moved to Australia. They began living together in 2001.
In 2004 the first child B was born. When the child was about 14 months old the parties separated. Without notice to the father the mother left Australia with the child and returned to live in England.
Hague proceedings were initiated by the father and an Order for Return of B to Australia was made.
In September 2005 the mother and child returned to Australia and soon after the mother commenced proceedings for relocation of the residence of the child to the United Kingdom. Interim orders were made for time for the child with the father.
In May 2007 there was a five day hearing in this Court. Orders were made for equal shared parental responsibility, residence with the mother in Australia, defined time (5 nights per fortnight progressing to equal time) with the father, provision for overseas holiday travel.
There was no appeal from these orders.
In early 2011 the parties reconciled.
During the second half of 2011 the mother became pregnant with the parties’ second child.
In 2012 the second child, C, was born.
When C was a few weeks old the parties again separated. They have not reconciled. Thereafter, B lived week about between his parents and C spent two daytimes per week with the father.
In March 2013 the Department of Family and Community Services (“the Department”) became involved with the family due to B’s anxiety manifesting in behavioural problems at school. He had also developed a rash on his face from constantly licking his lips and around his mouth.
The Department proposed to the parents that B spend one school term in Western Australia with his paternal grandparents as respite from parental conflict.
In June 2013 the parents met in a cafe to discuss their son’s proposed travel to Western Australia. The parties provided conflicting versions of events referred to later in these reasons. As a consequence of events on that day, the mother applied for, and the father consented to, an Apprehended Violence Order (“AVO”).
On 3 July 2013 that Final Apprehended Domestic Violence Order was made for 12 months for the protection of the mother from the father, by consent.
The additional Order[1] was as follows:
The Defendant must not go within 100 meters of the premises at which the protected person(s) may from time to time reside or work, or other specified premises:[Z Street, Suburb S]
[1] Mother’s Affidavit filed 20/10/2015, Annexure O
Ultimately, on 15 July 2013 B travelled to Western Australia. The intervention was successful in terms of B’s mental and physical health. B returned to NSW, somewhat reluctant to leave his grandparents, in late September 2013.
Short History of Current Proceedings
On 19 August 2013, while B was in Western Australia, the mother filed the Initiating Application which gave rise to these proceedings. She sought sole parental responsibility for both children, residence with her and the appointment of a single expert. If successful, the application would have resulted in no defined time for the children with their father.
I conclude that the mother made the application when she did as a back-up position in the event that the intervention by the Department for B did not result in an overall parenting outcome satisfactory to her. The mother, I am satisfied, is a strategic thinker.
The application in July 2013 for an AVO was made in the context of the looming uncertainty about parenting arrangements after B’s time away. The order effectively, although not explicitly, kept the father away from the children until supervised time began in early 2014.
Together with the Application, the mother also filed a Notice of Risk setting out allegations of abuse of her by the father going back to 2003. I will refer to these allegations elsewhere in these Reasons.
On 16 September 2013 the father filed a Response proposing some transitional arrangements for baby C but with an ultimate proposal for the final Orders made in 2007 (for B) to now apply to both children.
On 26 September 2013 interim Orders were made in this Court as follows:
a)Suspend prior Orders;
b)That the mother have sole parental responsibility and residence; and
c)That the father have supervised time with the children.
It is apparent that this outcome suited the mother and she hoped for continuation on a final basis although preferably with no time between the children and their father at all. Supervised time did not begin for several months.
On 24 October 2013 the Department informed the Court that The Secretary would not be intervening in proceedings in this Court.
In November 2013 the parties and children participated in a Court directed Child and Parents Issues Assessment. The Summary[2] was prescient:
This assessment provides initial expert advice to the family and to the Court about the issues and the children’s needs.
It is of concern that there will be such a delay in the children spending time with their father, especially given [C’s] young age and [B’s] strong desire to see his father. The Court will need to make a determination as to whether there is unacceptable risk to [B] and [C] spending time with [Mr Townsend], even if the parents do not come in contact with one another. The Court may also be assisted by obtaining further information from FACS in this regard.
On Interview, [B] reported witnessing conflict perpetrated by both parents and them both informing him of other incident and speaking negatively of the other parent. It appears that [B] has been significantly affected by the parental conflict he has witnessed and he appears aware of issues beyond what is developmentally appropriate. This is likely to have a negative impact on [B] and [C], if they continue to be exposed to this behaviour.
Both parents have made allegations against the other regarding Police interventions and accessing medical treatment for [B] that contradicts the other parent’s views. It may be of assistance for the Court to determine the veracity of these allegations, in order to determine the parenting capacity of each parent.
[2] Child and Parents Issues Assessment dated 18/11/2013
In December 2013 the mother and children travelled to the United Kingdom for a holiday.
On 6 February 2014 the father changed his position before the Court. He filed an Amended Response seeking sole parental responsibility, residence with him in Western Australia and supervised time for the children with the mother. (The father no longer pursues relocation to Western Australia).
On 7 March 2014 the hearing was expedited for hearing in September/October 2015.
On 25 March 2014 the Interrelate supervised contact sessions began, and continued until November 2015 (with a period of suspension between May to September 2015).
On 25 August 2014 the hearing dates were vacated and further dates in November 2015 allocated.
On 19 December 2014 a single expert Child Adult and Family Psychiatrist was appointed and in June 2015 the report was released. The recommendations in that report were:
a)That the children remain in the care of the mother unless the mother perpetuated a picture of the father as abusive (which in the opinion of the Single Expert he was not);
b)That the children have regular unsupervised overnight time with the father; and
c)That there be shared parental responsibility unless conflict had worsened.
The matter proceeded to final hearing and came before me commencing 18 November 2015. The hearing ran for 3 days. Interim Orders were then made by consent providing for unsupervised time for the children with their father. The matter was adjourned until March 2016 with some expectation that the matter might resolve.
The parties became concerned that one additional hearing day would not be sufficient. The March date was vacated and two additional days allocated commencing 12 September 2016.
In June 2016 the parties attended a Legal Aid Mediation Conference and agreed on a further variation of orders to enable more time for the children with their father.
On 12 and 13 September 2016 the hearing was concluded.
Pending delivery of reserved judgment, I made interim Orders providing for expanded weekend time, including overnight time for C, and school holiday time.
Evidence
The documents relied on were as follows:
Applicant mother
(a)Amended Initiating Application filed 20/10/2015;
(b)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 19/08/2013;
(c)Affidavit of the mother filed 20/10/2015;
(d)Affidavit of the mother filed 11/08 2016;
(e)Affidavit of the maternal grandfather filed 30/10/2015;
Respondent father
(f)Amended Response filed 6/02/2014;
(g)Affidavit of the father filed 30/10/2015;
(h)Affidavit of the father’s wife filed 4/11/2015;
Reports
(i)Family Consultant Memorandum by X Morgan dated 18/11/2013; and
(j)Family Report by Dr AA dated 15/05/2015
The Mother
The mother presented as a calm witness with a formidable will.
She changed her position over the course of this hearing which commenced in November 2015 and concluded 10 months later. The mother has complied with the interim Orders and permitted more time on occasions.
The ultimate position of the mother was for regular time for the children with their father although she baulked at any overnight time for C.
Whether this change represents insight by the mother into the needs of the children or is pragmatism in the face of a contest for residence is unclear. On balance I conclude it is the latter motivation.
Intermittently since she returned from England in 2005, and certainly since the second separation in 2012, the mother has held the view that she had an obligation to protect the children from their father not to promote a relationship between them.
Her reflection in 2015, on her unannounced return to England in 2005, was: “I decided it was in B’s and my best interest to be surrounded by family” by which of course she meant her own extended family.
My impression is that the mother regarded the father as having disqualified himself from participating in family life so that returning to England to be with her own family of origin was the natural thing to do.
After her return to Australia and the hearing in this Court in 2007 the mother made a life for herself in Australia.
The parties reconciled in 2011 and had another child. The mother reacted very similarly when the relationship once again ended, apparently deciding the father’s behaviour, which offended her, disqualified him from an ongoing relationship with his children. She resolutely set about minimising his involvement. I conclude that she believed that she was acting in the children’s best interest in doing so.
Whilst she has slowly come to terms with the fact through these legal proceedings, that that view of hers is unlikely to prevail. It appears to me that she is still doubtful about the value of a full and meaningful relationship between the children and their father.
I am confirmed in that view by the mother having a typed Minute of Order to hand up prior to submissions at the conclusion of the proceedings in 2016. One paragraph of that Minute, which provided for progression to overnight time for C and her father, was struck out in biro. A last minute change of heart clearly, referred to by counsel for the mother as “nervousness”.
The strength of the mother’s case for continuing residence with her is that she has been compliant with orders. The limit on her capacity is that she does not accept or believe that the children have a very positive and loving relationship with the father and that the behaviour of the father which so much offends and upsets her, does not have that effect on the children. She does not appear to accept that their relationship is a healthy one, a loving one, and one they need. I consider that she complies in order to avoid legal consequences of non-compliance. Having said that, I am satisfied that she does not actively undermine the relationship between the children and the father, rather her motivation has been in her view, “to save” or “to protect” them from their father.
The mother does pick up comments made by the children of a negative kind and repeats them in her affidavit. To the extent that they make positive remarks about their father and the extended paternal family those remarks have not appeared in affidavit material.
The attitude of the mother to the father has extended to the paternal family in a way that has been adverse to the children. B spent one whole school term in 2013, aged nine, with his paternal grandparents in Western Australia to provide him with respite and restoration of health. Prolonged exposure to his parents’ conflict was undoubtedly causing him to be anxious.
Despite this very positive contribution by the paternal family, both grandparents and the paternal aunt, the mother made no effort to encourage that relationship to continue, even by telephone calls, when the child returned to NSW.
The mother said she stopped B seeing his paternal grandparents because he did not want to see them. I conclude that it suited the mother to act on B’s expressed wishes when they accorded with her own wishes. However, B has expressed on many occasions, in the contact centre, to the Single Expert Dr AA and to the Independent Children’s Lawyer, that he has wanted more time with his father and has feared being kept away from him. Nevertheless, the mother has felt strongly that it was better for the child for her not to act on those positive wishes about the father. The mother is blinkered in this respect and it is a limit on her capacity.
In relation to C, after the parties separated in August 2012, for about a year, B spent week about shared time with the father and C spent two whole days a week and other special times with her father. After B’s time away with his grandparents in September 2013, C did not see her father again until supervised contact got underway in a contact centre in April 2014. It was an enormously long period of time for an infant and she did not immediately recognise her father when contact resumed.
Given this attitude of the mother, if the only child to be considered were to be B, given the strength of his wishes, it would be more appropriate for B to live with his father. However there are two children to consider and C has now fully restored and developed a loving relationship with her father but has never spent an overnight visit with him and is dependent on her mother for her day to day needs to be met.
The mother is quite self-protective. One example of this is that the whole paternal family came from Western Australia in May 2015 for the father’s wedding to his current wife. The children did not attend the wedding. The mother said that she was unaware of any requests for them to attend. When the paternal aunt and the grandmother asked to be able to at least see the children whilst they were in New South Wales, the mother said “No”. Her explanation was “Given the proceedings and mudslinging, I didn’t want to expose myself to complaint”. This showed a complete lack of focus on the interests of the children who undoubtedly would have enjoyed being part of such an important extended family gathering for their father’s marriage.
Given the opportunity to respond to what time the children could spend with the paternal family in future, the mother said that depended on the orders that were made, but if the Court granted the orders she sought, that is no contact with the father, then in her view, “It would be awkward, but the paternal great grandparents could see them”. This is a reference to the fact that the father’s grandparents live close by. They have attended contact centre visits, not without protest by the mother, and their home has been the place for changeover of the children since unsupervised time began in November 2015. They are an important connection for the children with their paternal family.
When asked whether the mother was trying to completely exclude the paternal family from the lives of the children, the mother’s answer was instructive, “I am conscious of none of my family being around them”. Again, this was a lack of child focus on the fact that the children do only have one set of grandparents in Australia and to cut them off is a significant loss for the children. The mother has apparently seen it as a matter of personal equity and fairness for her and her family.
I conclude that the mother has struggled to understand that B has a very different relationship with his father than she does. He understands his father and is untroubled by what he describes as occasional “rants” whereas the mother is horrified and backs away.
The mother also struggles with understanding B’s emotional needs. She conceded, “I had to learn to respond to his emotional needs, build empathy. His behaviour has begun to settle and calm”.
The mother also reflected that through the Resilience Children’s Project she had learned that aggressive and emotional outbursts from B could reflect confusion on his part and that she could help him to modify his behaviour by understanding his emotions. This is not something that has come easily to the mother. She had perceived B’s behaviour as a matter for discipline and improvement and had not appeared to understand that he was a child who had twice experienced the separation of his parents, with all the disappointment of hopes of reconciliation being permanent, dashed.
The mother was taken to the notes from the contact centre revealing a quick restoration for C of knowledge of her father and then a delighted smiling and giggling, kisses and hugs for her father and lots of engaging and imaginative play with him. Having read the reports and conceded the positive reaction of both children, but particularly C, the mother reflected on the possible damage to the children of losing that love and attention with this statement, “On balance, the negative outweighs the positive behaviour”. By that, she meant that the negative aspects of the personality and behaviour of the father outweighed the positive behaviour he displayed with the children in the centre.
The mother was cross examined in November 2015. She was at that time steadily opposed to any more time between the children and the father. She agreed that she was doing nothing to actively promote the relationship and that is consistent with her view that the conclusion of the proceedings should see an end to the contact. She could see no value in it.
A passage from the Single Expert Report was drawn to the mother’s attention about the father:[3]
On balance I formed the view that he was a capable, caring parent. I believe that he would be able to provide for the children. I don’t believe that he is an unacceptable risk to the children. [B] clearly wants to have a strong relationship with his father and there is a very strong bond between them. The conflict appears to be restricted to difficulties between [Ms Green] and [Mr Townsend]. I form the view that their conflict was specific to their relationship, that neither of them were a danger or a risk to the children or anyone else.
[3] Single Expert Report, Pg 32, lines 1 to 7 and following
The mother did not accept this professional opinion, either because she did not understand it or because she simply rejected it. Either way she was unmoved by the evidence of the strength of B’s bond with his father and his wish for the restoration of substantial time.
In her focus on negative incidents, the mother was particularly drawn to a report in the Family and Community Services documents that:
On 8 March 2013 the father “… was observed to be screaming at [B] in the playground at school and held him against a wall. This was witnessed by staff, students and parents. [Mr Green] has been working with a domestic violence counsellor but father will not allow [B] access to a counsellor”.
This document was tendered into evidence. The father was cross examined and denied that he had held the child against a wall or screamed at him, although there had been a conversation between them in the school yard. An application was made (and refused) to call the relevant DOCS officer who prepared the report to amplify it.
The mother rejected the conclusions of Dr AA who had observed the children and parents, read all of the relevant material and come to some carefully considered conclusions and recommendations. An item such as the DOCS report of ‘somebody’ reporting to the Department an incident in the school playground in March 2013 she considered as a compelling reason to exclude the father from the children’s lives. It is an irrational response.
However, it may be that the oral evidence of Dr AA had some impact on the mother who by 20 November 2015 had consented to orders for the children to resume seeing their father outside a contact centre. After almost 18 months of that limited, somewhat artificial experience, it was a change well overdue. However the mother did so consensually.
In relation to child support the mother gave evidence in November 2015 that she was receiving $46.50 per fortnight as the assessed amount together with reduction in arrears. The assessed amount being $7 per fortnight at that time. The assessed amount has since reduced to nil. The father asserts and the mother denies that all arrears have been brought up to date.
The mother is in employment on the three days a week when C is in childcare. Current evidence is that C is at preschool now four days a week so it may be that the mother has increased her employment. There is no doubt that she would be assisted by substantial financial contribution by the father.
The mother agreed that she had not discussed with the father where C would go to preschool, where she would go to school, or more particularly in which year. There is currently a dispute between the parents as to whether she should start in 2017 (the father) or 2018 (the mother). The mother did discuss with the father where B would go to high school which led to a disagreement. The mother wanted a particular Christian high school with fees; the father was incredulous and probably rude in responding to the likelihood of the parties being able to afford that.
On an interim basis the mother has had sole parental responsibility. She has exercised it by not inviting the father to any events at school despite her concession that B might have enjoyed his father being present. It is apparent that she has enjoyed the freedom from having any need to contact the father that comes with total decision making however, it is a worrying indicator for the future. The mother presses for a final order for sole parental responsibility for both children. It is likely that she would continue to take the view that since she was not obliged to include the father in any decision making she would not do so. Further, that having made decisions herself, she would not tell him what decisions she had taken.
The Maternal Grandfather – Mr Green
The maternal grandfather lives in England. He described an incident which took place when he travelled to Australia for a holiday with his wife in January 2013. Together with the mother and both children they went away on a short holiday.
It is apparent that the father was not told about it and that B knew that the father had not been told about it. He became very distressed and asked did his father know where they were going? Was his father coming? and “Have you told Dad where we are going?”
There is no indication in the affidavit that the child was given any direct information. He was simply reassured. When the child asked again and again “Is Dad coming?” “Does Dad know where we are?” “Are we going back home?” The only information he was apparently given was “It will all be ok.” The child was upset, crying and had difficulty controlling his breathing for over two hours. It was strangely insensitive treatment of a child, by then aged almost nine, close to his father and wanting his father to know where he was and even more that the father might participate.
The Father
The father presented as disconcertingly self-assured. I ultimately concluded that this presentation helps him to remain calm and is not the revelation of arrogant superiority which it might first appear to be.
It is likely that the father despaired of maintaining his relationship with his children after B returned from staying with the father’s parents in the fourth term of school in 2013. The father was unable to see either child, after B’s return, until April 2014 and then only in a supervised setting.
His frustration and opposition to the need for supervision erupted from time to time in the contact centre with unconsidered remarks in front of the children about there being no need for the supervision to go on. He was critical of the mother. He was in that respect, his own worst enemy; contact was suspended for a period of months between May and September 2015 to the detriment of the children.
When challenged about his statements made at the centre to the children that they would soon be coming to his home, the father gave the following evidence, “I was out of line giving the children false hope. I felt really bad. I didn’t mean to do that. It reduced me to tears”.
However the contact centre records reflect an attuned, loving, interested and imaginative engagement with the children. In that setting C moved from barely recognising her father to being fully engaged and full of love and affection for him.
I conclude that the father takes being a father seriously. He has a focus on the mother as being the source of all his difficulties in having time with his children. He too sought sole parental responsibility. He indicated that if he had that authority he would quickly move to equal time, week about, provided that worked for the children. If not he would reduce time as necessary.
I am satisfied that that level of control would not be in the best interests of the children. Equal time week about would be disruptive for both of them given their history and the likelihood that if something went wrong, time would suddenly be reduced, could be nothing other than adverse especially in combination with the proposed change of residence. I consider that the intention to exercise parental responsibility that way, although well intentioned, was without insight as to the impact on the children. More than anything, they need certainty as to being able to see and spend substantial defined time with each of their parents without further disruption or conflict.
The father has been developing a business for the past five or six years but it has not come to the point where it provides full time work for him. There is also the fact that he and his current wife now have a child born in 2016, aged eight months at time of trial. There is change foreshadowed in the household. The husband’s wife was a beneficiary of an inheritance, now expended, which allowed them to rent a home and live comfortably without either of them having to be in full time employment. The father is now seeking employment and his wife, whose evidence I unreservedly accept, intends to return to employment in or around January 2018 when their child W is two.
The father has his wife, their infant child and his wife’s two children aged 11 and six as members of his household.
Since November 2015 when the subject children have been coming to the household things have gone well and he has begun to be hopeful that there will be no further disruptions to his time with them. However his clear position was that the children come to live with him. Realistically if they did so, a significant part of the day to day care would fall not only on him but his wife and the full time household of five children aged between 12 years and eight months is an untested one on a permanent basis.
The father is a believer in shared care but this is not a case where the children would have the benefit of the fluid, easy, cooperative parenting that gives rise to constructive shared care.
The father has embraced assistance for parenting and emotional self-regulation for himself. He found Interrelate helpful and counselling from BB Centre and a psychologist he has been seeing regularly in 2016.
It is a positive aspect of the father’s capacity as a parent that he persisted with time at the contact centre from April 2014 until November 2015 despite his own disappointment and the restrictions implicit in contact centre visits.
I accept that the father had believed that supervised contact as a result of the interim Orders, would not go on as long as it did and was drawing on his experience of having had shared care of the children in the past, particularly B. The father missed only one access visit and even that was when an overseas flight was either delayed or the father underestimated the time of arrival.
The father did accept Dr AA’s assessment of him as having an abrasive manner “He is qualified to judge me. I am not going to argue with him.” I conclude that the father did learn from the Family Report in combination with his attendance on psychologists that there are different ways of reacting and that emotional regulation will assist him in important relationships.
Child Support
I consider that the father has underestimated the impact on the mother of the minimal amount of child support he has paid, particularly when B has reported back on the father having a boat and having gone on an overseas holiday just prior to the one access visit that was missed. The mother is living on a Centrelink benefit and no doubt struggles from time to time meeting the financial requirements of the children. It is likely to affect real improvement if the father makes a more substantial contribution especially as B moves now into his teenage years with all the associated extra-curricular activities that come with that.
When his cross examination resumed in September 2016 the father was disappointed that he and the mother were unable to agree on when C should start school. He thought she was ready and it was worth sending her in 2017. The mother is confident she is not and wants to send her in 2018. The Court cannot come to a conclusion about that. The parents will have to consult with the preschool that C attends, perhaps with the principal of the school proposed and otherwise one will have to make the concession that the other one should decide if they cannot agree after having received that advice.
The father was challenged with the affidavit that the mother had filed updating the position since November 2015. The mother had chosen not to include the fact that she had changed C’s preschool but did include a list of negative statements attributed to the father and said to have been reported to her by B. The father denied that he had made the majority of the statements. It is possible that B made the statements he did to please or impress or antagonise his mother but it seems unlikely that the father would make salacious comments about his pregnant wife or his own vasectomy and intimate life with his wife to his son. That is uncharacteristic of all prior evidence but the possibility remains that B has made those comments to the mother falsely attributing them to the father. It would be important for the mother to consider all possibilities rather than simply accepting that the father would speak in that way to the child.
The father gave impressive advice about managing C’s distress when she has to leave contract periods. Part of her difficulty is that she knows that B is spending overnight time and she is not allowed to. She has made a friend of the younger daughter of the father’s wife and enjoys her time in the household. She simply does not want to leave. The father described that his method was to say goodbye as quickly as possible, say “I love you, see you soon”, drop her off and let her go.
The father was insightful when asked for his explanation as to why a teacher was complaining that B made silly noises in the classroom and would not stop. He considered several possibilities: that the child might not understand the subject; that he might be being distracted by friends or that the teacher was not suited to teaching that subject to B. He also thought he might be showing off for his mates or the girls in the classroom.
The father spoke with great affection about his son, that what characterised him was “His kindness and understanding beyond his years, that he was empathetic. He is not cruel as kids his age can be.” Sadly, part of the explanation for the child’s understanding beyond his years is likely to be his exposure to his parents’ inability to manage themselves and to promote good relationships between himself and the other parent.
The father too may have listened carefully to Dr AA. He has continued to engage with a psychologist in order to learn emotional regulation. His ability to do so was certainly on display in the witness box on the last two days of hearing in September 2016.
The Paternal Grandmother – Robyn Townsend
In 2013 the paternal grandmother did not hesitate when contacted by the Department in New South Wales to agree to have B come to stay in her household, to give him some relief from his parents’ conflict. She was told that he had been demonstrating unusual behaviours in class and was very upset for no reason.
The paternal grandmother is a school teacher and readily understood the seriousness and urgency of what she was told.
The paternal grandmother was restrained in her evidence but has obviously been sad and disappointed that after B left her home, there has been little effort by the mother to assist him to maintain that relationship. There have been disputes. The children were not permitted to come to the father’s wedding and there has been no easy communication. The paternal grandparents were last in Sydney at Easter 2016 and they now maintain regular Facetime and telephone contact with both children in their father’s care. That has become much easier since November 2015.
Unfortunately, C has spent little time with her paternal grandparents. As an infant she came with her mother to Western Australia to see where B would be staying.
Both paternal grandparents and the paternal aunt are very much open to holiday time and to as much contact as possible with them.
The paternal grandmother and no doubt the paternal grandfather, have a great deal to offer both children.
The Paternal Aunt – Ms CC
The paternal aunt was an impressive witness, candid, straight forward and affectionate about her nephew. She agreed that B missed his parents when he stayed in Western Australia and that the family had accommodated his need for privacy but also supported him when he was talking to his mother.
She stated that she had been worried that B must have been teased at school as a result of the sore mouth and red rash on his face from his habit of anxious licking.
She was not critical of the mother. She said, and I accept that she could be amicable if she saw the mother and ended her evidence with this comment, “It would make the children happy if all of this stopped and everyone just got on. It is not nice you know”.
The Father’s Wife – Ms V Townsend
Ms Townsend was a candid, straight forward, reliable witness. She gave her evidence by telephone because her youngest daughter, the child she has with the father, was ill.
She spoke positively about her husband and candidly about the relationship between the children. She said her older daughter X, and B, had taken time to get to know each other, “They are both adjusting.” She said her daughter found it a little bit difficult, “Not used to having boys in the household” but that she had come to “Enjoy conversations and learning things from each other.”
She readily agreed that B had chores to do in her household, “He blows the leaves on the driveway, picks up dog poo, puts out the trash, cleans out the pool, he’s a willing worker”.
Ms Townsend is supportive of the children coming to live with herself and her husband if that is what the Court orders, but more than that, I conclude that she is supportive of the children themselves in their relationship with their father and with her.
Unfortunately, she has not met the mother and I accept her evidence that she would be happy to do that.
She candidly stated that she could not comment on B’s problems at school if he had them, “I don’t know him well enough yet to comment”. She also spoke positively about a developing relationship she has with B, “He’s opening up now. Day to day he speaks to me about work, school, scouts and friends”. She described him as respectful of her.
C too has developed a relationship with her step-mother and a strong friendship with six year old Y, her younger daughter. Ms Townsend said this, “She tells me funny little stories, she is happy talking to me, mainly about her dog and toys at home”.
Ms Townsend has a flexible working arrangement with the father of her two older children and she is clearly strongly supportive of that relationship between the girls and their own father.
I am satisfied that Ms Townsend will provide a stable, calm, affectionate home life for the children whilst ever they are members of her household and that she is not a person who would be critical of their mother or undermine their important relationship with her to any extent.
Single Expert – Dr AA
In his oral evidence in November 2015 Dr AA did not resile from the recommendations in his report which were that the children remain living with their mother and spend substantial time with their father, provided that the mother was not continuing to present the father as abusive. In that event there should be a change of residence.
The mother had continued to present the father as abusive in this final hearing. However she agreed to interim Orders for unsupervised time during a period of adjournment of the hearing. When the hearing resumed she had stepped back from her proposal to cut off all contact until age 16 for each of the children.
Dr AA said he thought the mother was the more insightful and competent parent but the father was also a competent parent. B identified very strongly with the father and in B’s mind it was tragic that he was not allowed to see his father as much as he wanted.
Dr AA was very clear to say that B’s problems such as they are and have been “Are not caused by the father, they are caused by 1) B’s temperament and 2) B internalising the problems between the parents”. This observation is in stark conflict with each parent blaming the other.
In relation to C, Dr AA said that she had a solid attachment to the mother and a good attachment to the father and was fond of her brother. She could develop healthy self-esteem growing up without the father in her life however, in the long term she would be damaged by the absence of her father.
Dr AA analysed the parents in his oral evidence as follows “The mother was trying to protect the children. She was not empathic without guidance (which is consistent with her own evidence of learning how to be empathic)”.
An example of the mother’s difficulties with empathy was that in the Doctor’s view the mother thought when B misbehaved that he was copying his father whereas in fact he was expressing his own emotional frustration.
He also described the mother as “Insensitive, she runs her own race, she is isolated”. That strongly accords with my impression that the mother feels isolated and disadvantaged by being so far from her own family of origin.
Dr AA described the father as “trying to cut through to restore relationships, insensitive, abrasive, indifferent or unaware of his impact on others”.
Dr AA had some words of advice for the father through his cross examination. He said the father needed to focus on building the self-esteem of his children, with particular reference to B, who may blame himself for his father “getting into trouble” or for the fact that he has not been able to see him. He recommended that the father contribute to building up the child’s self- confidence and to watch out for how he reacted to authority figures.
Interestingly, Dr AA noted that the father had found it difficult to accept the seriousness of the assessment [by him the Doctor], “He tried to befriend me by making facetious and light hearted remarks”.
I note the comment of the Single Expert that the risk for B is that if a compromise is not found, his adjustment to adolescence could be affected by emotional problems. This is a significant matter given that B is now aged 12 and a half and that he has experienced everything from week about care to no time at all in an erratic pattern since the first separation of his parents when he was little more than one year old.
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests ;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
These children do have meaningful relationships with both their parents which should be maintained.
The mother has shifted in her position of wanting to close down all contact between the children and the father although that has only happened since November 2015. She now proposes weekend and holiday time for B and day time contact only for C. The fact that she withdrew from overnight time having proposed it at least when C was eight years old in her Minute of Order, is a clear indication of some uncertainty about her commitment to the relationship between C and the father.
In that respect I accept the evidence of Dr AA that the children need a full relationship with both of their parents and will be damaged if they do not.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
In my view, B in particular, has been exposed to psychological harm and C to a lesser extent.
On his return from Western Australia in September 2013 B did not resume week about time pursuant to then current Family Court orders. Instead, all time was shut down. Interim orders, based on allegations by the mother of historical risk took months to be implemented and B became increasingly worried that he would be withheld from his father.
It is unfortunate that interim orders which provided for supervised time only continued for as long as they did, especially in circumstances where there was no real triggering factor for supervision to be introduced other than the Department’s involvement. That involvement was clearly on the basis that B needed respite from both his parents in the sense of exposure to their hateful and conflicted relationship. It was making him intolerably anxious and affecting his behaviour.
Whilst each parent blamed the other, the Department saw that both parents were creating a problem. The intervention was a successful one but the follow up was not so successful. The Department did not intervene which would have been helpful and for various reasons, supervised time went on for nearly 18 months. C lost her knowledge of her father for a period of months but happily was able to restore that relationship. B has been asking repeatedly for more time with his father and is now on the verge of adolescence.
There is a need to put in place orders that allow the children to spend substantial and significant time with each parent, while providing stability of current arrangements.
I accept the evidence of Dr AA that the children would do well to remain with the mother. The issue of whether or not the mother has continued to present the father as abusive which was Dr AA’s qualifying factor is a difficult one.
The mother was strongly continuing to raise abusive aspects of the father in her oral evidence in November 2015 and to some extent in the updating affidavit she filed in August 2016.
Interestingly, during submissions when counsel for the mother raised her wish to have the ability to take the children for overseas holidays, I asked what the mother’s attitude was to the father having overseas holidays with the children. Spontaneously the mother spoke and said that would be no problem. This was strangely inconsistent with her current position that C should not spend any overnight time with the father. It could be positive in that she now recognises that the progress for the children will continue and that her earlier position is untenable.
There are two things that are the major considerations:
a)The mother has been compliant with Orders and I consider that she will continue to be compliant. Dr AA also commented on that; and
b)She has been assessed as being the more attuned parent and to the extent that she has difficulty interpreting behaviour, both of the father and of B, she has been open to learning more, to be guided into empathy in that respect.
Additional Considerations
Views
B
To the Family Consultant in 2013 B, then aged nine, ordered his preference for living arrangements as:
a)For his parents to reconcile and that they all move to Western Australia to be near the paternal extended family; or
b)For him to live in a week about arrangement with his parents in Sydney; or
c)If he was required to pick a home base in Sydney, he live with his paternal great grandparents and visit both his parents; or
d)He move to Western Australia with his father and visit his mother in Sydney.
He wanted his sister to live with him in all those scenarios.
B’s views were, when informed on 25 March 2014 by Interrelate that he would be seeing the father again, said “It is the best idea ever”. He was most excited about seeing his father “It’s an awesome idea”.
By October 2014 B was bored with the centre and the father incautiously said to him “Well here we are, still stuck in limbo”. He should not have said that to the child however it was clearly sympathetic to B’s feelings about wanting more time and obviously outside the centre.
In November 2014 B stated at the contact centre that he did not want to miss another Christmas with his father. [4]
[4] Exhibit 4
Also in November he spontaneously commented during access visits “I love you Dad, why won’t Mum let me go to your home?” On that occasion the father simply said “I know” and gave the child a hug.
To the Single Expert in May 2015, B expressed his wish to see both his parents and his negative view of only 2 hours with his father at a contact centre.
To the Independent Children’s Lawyer in 2016 B did not say where he wished to live but did say he wanted more time with his father particularly in school holidays.
B has been expressing a consistent view about the importance of his father in his life. He is 12 and a half years. I give significant weight to his view, particularly as it is supported by the Single Expert.
C
In 2014, aged almost two years, C quickly re-engaged with her father in the contact centre.
In observation by the Single Expert in May 2015 she was really pleased to see her father and was sitting on his lap.
Since November 2015 she has enjoyed becoming an occasional member of the father’s household. She has hidden to avoid having to leave.
At four C has understandably not been asked to express a view to the Independent Children’s Lawyer.
C’s reactions in my view reveal that she has a loving affectionate and fun filled relationship with her father which needs to be supported.
Relationships
The children have their most important relationships with each of their parents. Both children, B already and C potentially, have very important relationships with the paternal grandparents, the paternal aunt and her family, and the paternal great grandparents. Those relationships should be supported, including by family holidays in Western Australia.
The children also have a relationship with the maternal grandparents in England. Travelling overseas for family holidays to visit them would be a benefit in understanding their connection with England and their extended maternal family. Provision for overseas travel will be made to that end.
Decision Making
In relation to making decisions, once the mother was given sole parental responsibility she made decisions and they have not been inappropriate in terms of education and health but she has happily excluded the father from decision making and knowledge of decisions taken.
It is important for the children that both parents be involved in decision making and knowledge of decisions taken. Parental responsibility should be shared. However, given their history the best way forward appears to be to minimise the number of important decisions to be taken.
To that end, equal shared parental responsibility is appropriate but with orders made as to the children’s school and specialist medical treatment with change away from those orders only by agreement between the parents. There is absolutely no doubt that both parents wish to be involved in important decision making. Their contempt for each other however causes them to immediately reject the position taken by the other.
Financial Responsibility
The mother is carrying the burden of financially providing for the children. She does so on a Centrelink income and some weekly income from paid employment. The impact of that has been to reduce the father’s obligation to nil.
The evidence is that the father will be returning to full time employment which will likely see a Child Support Assessment providing the mother with some contribution. However, the father should consider offering to assist with special expenses such as camps and sports and other activities for both children as soon as he is able to do so. It is likely to create the beginning of a more trusting relationship.
Capacity
Each parent has limits on their capacity to meet the needs of the children.
The main limit of the mother is her capacity to understand the independent need of the children for a relationship with their father which is a different relationship from the one she has with the father. She otherwise meets the day to day needs and emotional and intellectual needs of the children quite well. The children attend school, are well fed and well clothed. The mother struggles with meeting B’s emotional needs and interpreting his behaviour but is open to assistance.
The limit on the capacity of the father is that he blames the mother for all his difficulties in maintaining relationships with the children and is at times angry and dismissive of her, frustrated by her reactions to him. He has however been open to participating in parenting courses and in obtaining advice and assistance from a personal therapist/psychologist in how to regulate his own emotions and improve his communication.
The parties are intending to go ahead with assistance in learning to communicate by emails which do not react but are simple business like and informative. Tendered into evidence were emails between the parents which are a model of unemotional, business like and effective communication. I consider that the parents do have the capacity to communicate well if they choose to set their minds to do it.
Maturity, Sex, Lifestyle and Background of the Children
This is an important issue. The children are a 12 and a half year old boy who is completing his first year at High School and a four year old girl who is either about to start school or will do so in 12 months times. They are very different in their stage of life but it is important because of the strength of the bond between them that they are allowed to be siblings together and not have differential treatment.
Family Violence
Family violence is a significant matter because it has been so amplified by the mother. In her mind, it is the main reason why the children should spend no time or little time with their father. However I conclude that although there have been two AVOs and that the mother has made allegations of abuse, when closely analysed there is no relevant family violence which would be a rebuttal of the presumption of equal shared parental responsibility or which would persuade the Court that the children’s safety was at risk.
Apprehended Violence Orders
There have been two AVOs made for the protection of the mother from the father.
The first AVO was made on 1 August 2003. It was retracted soon afterwards on the application of the mother when she learned she was pregnant with B. The parties lived together throughout the application for, and dismissal of, the order.
The second AVO was made in July 2013.
It arose from these events[5] which the parties agree on to the following extent:
that they met in a café in June 2013 to discuss B travelling to WA
that the father came with C because she was in his care that day
that they sat opposite each other at a bar style table and baby C passed between them.
[5] Mother’s Affidavit filed 20/10/2015, pars 97-99 and Father’s Affidavit filed 30/10/2015 pars 126-128
The father says their knees were locked to form a platform for C to sit or stand on. The mother says “[Mr Townsend] kept putting his hand on my knee” In the circumstances the father’s hand probably touched the mother’s knee.
The mother says the father “Put his hand up my skirt”. He denies behaving inappropriately.
The father says he commented on the mother staring at the CCTV camera. The mother says the father made an insulting remark and told her to sit down.
The parties left the café soon after, C returning to her mother’s care by arrangement.
On either version of events I could not find that there was an assault or family violence. Both parties may have felt annoyed.
The mother subsequently applied for an AVO with the father consenting provided the children were not named for protection. He may not have understood the consequences of the specific order restraining him from approaching the mother at her home and workplace and at schools.
Notice of Risk
The allegations raised fall into four categories:
a)Matters which predated the Final Orders made in 2007.
[I did not take those matters into account. Conduct prior to hearing was considered and assessed by the trial judge in 2007 hearing].
b)Allegations of assaults and abuse of the mother said to occur between the date of final Orders (May 2007) and the reconciliation of the parties in (2011).
[I did not take those matters into account. If true, they were not of sufficient concern to the mother to dissuade her from reconciliation with the father.]
c)Generalised allegations of physical and verbal abuse of B with no identification of date of events.
[I did not take those matters into account given the absence of particularity of time date and place.
d)Allegations of verbal abuse and threat post second separation (August 2012)
Those allegations are as follows:
Verbal abuse and name calling by the father of the mother on a daily basis in 2012
In August 2012 verbal abuse and threat, controlling when the mother could speak
June 2013 in a café the father put his hand up the skirt of the mother without her consent [Second AVO].
It is apparent that angry outbursts and insults were regularly exchanged between these parties, neither steps back from verbal self-defence and each is instantly provoked by perceived criticism. That this conduct was more frequent around the time of separation seems probable.
Whilst this conduct may fall within the definition of family violence, I do not consider that it represents conduct of a kind which is so damaging to children that that either parent should be excluded from their young lives.
In his oral evidence Dr AA described the father as behaving abrasively, having difficulties with adults and authority figures. I have no difficulty accepting that the mother has experienced him as rude and abrasive, however, and most significantly, the children do not experience him in that way.
Dr AA stated firmly that the father’s behaviour was not harmful to the children. He had seen a close and loving relationship, a healthy relationship between father and children. B was keen not to lose it, having despaired at being kept away from his father.
This observation of the Single Expert highlights the lack of insight of both parents that the children relate very differently to each of them, than the parents do to each other.
Each child enjoys a warm close safe relationship with each parent.
What hurts them is hearing and seeing contempt and criticism of one parent by the other and also attempts by each parent to “save” the children from the perceived “badness” of the other parent.
To Dr AA, B commented that it was difficult only seeing his father for two hours. He spoke positively about his paternal grandparents. He wanted more time with his father.
For C, once she was restored to spending time with her father in April 2014 she quickly became thrilled with him, called out to him, hugged and kissed him. To Dr AA she explained “I need Daddy” and repeated “I go Daddy” more than once.
C’s relationship with her father has developed well; she is now suffering from only spending day time contact knowing that her brother spends overnight; she wants that too. I accept the evidence of the father’s wife that C sometimes employs delaying tactics such as hiding her clothes or hiding herself at about the time she has to leave. I consider that she is expressing her view that she too should be spending overnight time in the father’s household where there are a range of relationships and a special friendship for her with Y.
Any Other Fact or Circumstance
Travel
For these children, overseas travel is a possibility despite their parents’ financial circumstances. The mother has travelled back to England with the children in 2013 and wishes to do so again. The father has travelled overseas with his wife and also wishes to take the children for interstate and overseas trips.
The holiday periods at Christmas have been designed so that one parent has the children for the first period including Christmas and the other has four weeks which would be suitable for taking children away overseas.
Overseas travel at alternative times can be agreed between the parties.
The father was opposed to removal of the children from the overseas watchlist but there is a real value to the children in connecting with their maternal extended family and having a holiday with their mother. There is a real value to the children travelling interstate and overseas with the father and his wife and having a holiday with them.
I consider there is minimal prospect of the mother failing to return with the children to Australia, given the strength of her bond to the children.
She must surely understand, having been represented by a solicitor and counsel, the consequences of such a serious contempt of Court orders and the consequences for the children in the possible loss of their relationship with her if such a thing happened. However I conclude that the mother will behave responsibly and the children will benefit from travel.
Accordingly an order is made for discharge of all previous orders and hence removal of the children from the airport watchlist.
The first opportunity for extended overseas travel, unless the parties agree otherwise, will not be before the 2017/2018 Christmas school holiday period.
Education
The parties disagree about schooling. The father would choose to change B’s High School. The mother would keep him in his current High School.
There is no evidence on which the Court could make such a decision.
On the basis of minimising conflict an order is made for B to continue at his current High School unless the parties agree otherwise.
The parties disagree about when C should start formal education. As stated in these reasons the parties will need to consult with the people best informed to advise them about C’s social and intellectual readiness for school.
However again for the sake of minimising conflict an order is made for C to be enrolled in the school which is close to her mother’s home and which B attended unless the parties agree otherwise.
Medical and other therapeutic Treatment
For the same reason as for education, other than in a genuine emergency the parties will be restrained for taking the children for identified medical and psychological treatment without prior written consent.
Conclusion
This was a most finely balanced matter where arguably both children could have been moved into the care of their father given the mother’s past antagonistic resistance to allowing time between the children and their father and to allow it to progress in a reasonable way.
The mother has changed her position since this hearing commenced in November 2015 and that is to her credit.
I consider that the relationship of both children living full time with the father or at least having the majority of time with him is an untested arrangement, especially in circumstances where there would be a blended household and a change possibly of where the family lives and who would be working in the next one to two years.
There is certainty in the mother’s household and continuity.
It would particularly be difficult for C to move out of her mother’s full time care, she has had her needs well met other than the qualification that the mother has simply underestimated the significance of C’s relationship with her father and has likewise, underestimated and dismissed the significance of relationships with the wider paternal family.
I consider that C does need a period of time where she steps up in the time spent especially with overnight time. However by 2017 both children will be, in my view, quite comfortable with spending five nights in each fortnight with their father and substantial holiday time.
Orders are made accordingly.
I certify that the preceding two hundred and seventeen (217) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 5 October 2016.
Associate: J Gilmour
Date: 7 October 2016
Key Legal Topics
Areas of Law
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Family Law
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