Hathoway and Hathoway
[2017] FCCA 2884
•5 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HATHOWAY & HATHOWAY | [2017] FCCA 2884 |
| Catchwords: FAMILY LAW – Parenting – whether the children should continue to live with their father in Town A, or move to live with their mother in Wollongong. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA. |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS HATHOWAY |
| Respondent: | MR HATHOWAY |
| File Number: | WOC 403 of 2016 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 9 and 10 November 2017 |
| Date of Last Submission: | 10 November 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 5 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Flaherty |
| Solicitors for the Applicant: | Hansons Lawyers |
| Counsel for the Respondent: | Mr Fowler |
| Solicitors for the Respondent: | Landon & Rodgers |
| Counsel for the Independent Children's Lawyer: | Mr Stagg |
| Solicitors for the Independent Children's Lawyer: | Dillion-Smith Lawyers |
ORDERS
The parents have equal shared parental responsibility of the children namely:
(a)[X] born (omitted) 2008
(b)[Y] born (omitted) 2010;
(c)[Z] born (omitted) 2012
The Mother be permitted to relocate the children’s residence to the (omitted) region and enrol the children into School A or any other school as agreed between the parents.
The children spend time with the Father as follows;
(a)During each school term as agreed but failing agreement as follows:
(i)From after school each alternate Friday to 6pm Sunday or in the event that the weekend falls on a long weekend then to 6pm on Monday;
(ii)From after school to 7pm on any weeknight in the alternate week on the basis that the Father nominates this time at least 3 days prior and that the time takes place in and around the (omitted) region;
(iii)On all other occasions as agreed.
(b)For all school holidays as agreed but failing agreement as follows;
(i)For the first 10 days of each term 1, 2 and 3 New South Wales Public School holiday periods from after school on the last day of each term to 6pm on the 10th day thereafter (for nine consecutive nights);
(ii)During the term 4 Christmas Holidays each year on a week about basis in weeks 1,3 and 5 in each even numbered year and in week 2,4 and 6 in each odd numbered year with the time to commence at 12noon and conclude at 6pm on those days unless otherwise agreed;
(iii)Each odd numbered year from 3pm Christmas Eve to 3pm Boxing Day;
(iv)On the Father’s Birthday in the event that it falls on a weekday or otherwise the children are not in his care from after school or 9am (on a non school day) to 7pm or otherwise as agreed;
(v)On Father’s Day each year from after school on the Friday of the weekend coinciding with Father’s Day to 6pm on Father’s Day;
(vi)On the Children’s Birthdays as agreed but failing agreement, in the event that the Father travels to Wollongong or the (omitted) then for a period of 3 hours after school on a school day or otherwise 6 hours on a non-school day as agreed;
(vii)via telephone or skype at any reasonable time.
In the event that the Father relocates to the (omitted) region/area and in suitable accommodation then the children shall spend time with the Father as agreed, but failing agreement as follows;
(a)During each school term as agreed but failing agreement as follows, on a fortnightly rotating basis:
(i)Week 1 from after school Friday to before school Monday; and
(ii)From after school Wednesday to before school Friday.
(b)For all school holidays as agreed but failing agreement as follows;
(i)For the first half of each term 1, 2 and 3 New South Wales Public School holiday periods from after school on the last day of each term to 6pm on the middle day thereafter calculated from the last day of school term to the first day of the new term;
(ii)During the term 4 Christmas Holidays each year on a week about basis in weeks 1,3 and 5 in each even numbered year and in week 2,4 and 6 in each odd numbered year with the time to commence at 12noon and conclude at 6pm on those days unless otherwise agreed;
(iii)Each odd numbered year from 3pm Christmas Eve to 3pm Christmas Day and each even numbered year from 3pom Christmas Day to 3pm Boxing Day;
(iv)On the Father’s Birthday in the event that it falls on a weekday or otherwise the children are not in his care from after school or 9am (on a non school day) to 7pm or otherwise as agreed;
(v)On Father’s Day each year from after school on the Friday of the weekend coinciding with Father’s Day to 6pm on Father’s Day;
(vi)On the Children’s Birthdays as agreed but failing agreement for a period of 3 hours after school on a school day or otherwise 6 hours on a non-school day as agreed but failing agreement from 11am to 3pm;
(vii)via telephone or skype at any reasonable time.
The Father’s time with the children be suspended on the following occasions;
(a)Each even numbered year from 3pm Christmas Eve to 3pm Boxing Day in accordance with Order 3 or 3pm Christmas Day to 3pm Boxing day each odd numbered year and 3pm Christmas Eve to 3pm Christmas Day in each even numbered year in accordance with Order 4;
(b)On Mother’s Day from 9am to 6pm but in the event that the children are not residing with the Mother then from after school on the Friday coinciding with Mother’s Day to 6pm on Mother’s Day.
(c)On the Mother’s Birthday from after school or 9am on her Birthday to 7pm unless otherwise agreed;
(d)On the children’s birthdays and the Father has relocated to the Wollongong area from after school to 5pm or on a non school day from 11am to 3pm.
For the purposes of facilitating changeover the Father is to collect the children from school on any school day and return the children to school on any school day, and on all non-school days the parents are to meet at a location as agreed or otherwise (omitted) McDonalds.
Each parent is to maintain a mobile telephone number and establish a Skype account and the parents are to exchange their skype addresses within 48 hours of these Orders and in the event of any changes to their telephone or skype details or numbers they are to notify the other parent within 24 hours of that change.
For the purposes of communicating the parents are to communicate via email about all non-urgent matters or otherwise via telephone about any urgent matters.
Irrespective of which party the children are with on any particular date, each party is entitled to attend all events involving the children, including but not limited to:
(a)extra-curricular activities or sporting events that allow for parental attendance or participation; and
(b)any school functions or events that allow for parental attendance or participation.
Each party may liaise directly with the children’s school principal or teacher to obtain any information about the children’s progress at school or including information about events such as swimming carnivals, sports days, parent/teacher interviews and other educational activities or to arrange for the sending out of newsletters, school photos and academic report cards directly from the school.
The parents will keep each other informed as soon as reasonably practical of:
(a)Any significant medical problems or illnesses suffered by the children whilst in their care;
(b)Any medication that has been prescribed for the children; and
(c)Any medical appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children.
Each party will advise the other as soon as possible in the event that either of the children suffers serious illness, injury or hospital admission whilst in that parent’s care and each party is at liberty to contact any doctor, hospital or other medical professional treating the children to obtain information about the children.
The parents shall communicate in a civilised and respectful manner at all times regarding the ongoing welfare and care of the children.
The Mother and Father are hereby each restrained by injunction from:
(a)abusing, insulting or denigrating the children, or any of the other parties, or a member of their family or household to or in the presence of the children, and from permitting another person to do so;
(b)discussing any allegation made or evidence given in these proceedings to or in the presence of the children and from permitting another person to do so;
(c)exposing the children to any form of domestic violence including verbal violence or using abusive language to, within, or in the hearing of the children;
(d)physically disciplining or striking the children.
The above Orders are to commence from the conclusion of school term 4, 2017.
IT IS NOTED that publication of this judgment under the pseudonym Hathoway & Hathoway is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 403 of 2016
| MS HATHOWAY |
Applicant
And
| MR HATHOWAY |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about three children: [X], 9; [Y], 7; and [Z], 5. These Reasons for Judgment explain why the Court has ordered that the children should live with their Mother and spend time with their Father.
This was a very difficult decision to make. The children's Mother explained to the Court in cross-examination that both parents want the children to live with them; both parents love the children; the children love both parents, and nothing less could be expected in this family. The Court accepts this insightful summary of the predicament that this family finds itself in. This also explains why the decision has been such a hard one to make.
Background Facts
The Mother is the Applicant in this case. She is 45 years old, lives and works in the Wollongong area and is in a relationship with Mr C, also 45 years old. The Father is 50 years old. He is presently not working and lives in Town A on the south coast of New South Wales in the former matrimonial home with the children.
The parents commenced their relationship in 2001 and started living together in either 2004 or 2005. They married in 2006. It is common ground between the parents that because of the Father's work commitments, the Mother was the primary carer for the children until 2013. During the relationship the family lived in Town A and in (omitted) in Queensland. Either in late 2014 or early 2015, the parents agreed that the Mother would work in Sydney and the Father and the children would return to Town A.
For all practical purposes from the beginning of 2015 the Father and the children lived in Town A and the Mother lived in Wollongong, either working in Sydney or, more recently, working in Wollongong. The children attend school in the Town A area. The children have been spending regular time with their Mother in this period. It appears that the parties considered themselves separated as from March 2015. The period between the date of separation and the date of trial was a difficult one for the parents and, to a lesser extent, the children.
Despite the fact that both parents acknowledge the good relationship that each has with the children and their undeniable love for the children, and the children's undeniable love for both of them, the parents' relationship was, nonetheless, one of distrust and poor communication. In this period, there were disagreements about where the children should go to school; how exactly the children were progressing; whether the youngest child, [Z], should have started school in 2017; whether the children needed support in terms of their learning and development.
There were relatively minor issues and misunderstandings between the parents about contact arrangements. For a period, there was some ambivalence in the relationship, at least from the Father's perspective. The Father probably said and did things not meaning for the Mother to interpret his actions and communications in the way that she did. All of these things are evident from the volume and nature of communication between the parents since separation. Both the Mother and the Father are good people who have been through an emotional upheaval in their lives.
The quasi-adversarial nature of parenting litigation often leads parents (and those who advise them) to focus on the negative aspects of the other parent's actions, attitudes and attributes. This is unfortunate because it focuses on the negative minutiae of life, rather than the generality of the positive. In a finely balanced case like this, the expert evidence takes on an even greater significance than it normally would. The Family Report of Dr O will be discussed below.
There are no issues about credit in this case. Both parents gave their evidence in a matter-of-fact and plausible manner. Where they made errors, these were attributable to lapses in memory. The Mother's evidence about her tenure at her current accommodation was vague. The Father's evidence about his financial circumstances was, likewise, vague. Neither of these matters are determinative. The Mother presented in cross-examination as, sometimes, carrying the burden of guilt on her shoulders for leaving the children with their Father in the first place. The Father presented in his evidence, at times, as being angry or resentful at the fact that the Mother has moved on in terms of relationships but he, apparently, has not. Neither of these matters are determinative.
All of the above reflects the frailty of both parents who are caught up in the maelstrom of litigation about their children. None of this detracts from the reality which the Court finds. The Mother and Father are both good parents who could just as capably provide for the care of their children as the other. Litigation focuses on marginal differences and, as it turns out, those marginal differences result in an order that the children live with their Mother rather than their Father.
There were property proceedings between the parents when the hearing commenced. They settled this before the hearing concluded. The orders give the Father the opportunity to retain the former matrimonial home at Town A.
The Evidence
In the Mother's case, she relied on the following documents:
a)Amending Initiating Application, filed 20 October 2017;
b)Affidavit of the Mother, filed 20 October 2017;
c)Affidavit of Mr C, filed 20 October 2017; and
d)Family report by Dr O, dated 14 November 2016.
Both the Mother and her partner, Mr C, were cross-examined.
In the Father's case, he relied on the following documents:
a)Further Amended Response, filed 20 October 2017;
b)Affidavit of the Father, filed 20 October 2017;
c)Financial Statement, filed 20 October 2017;
d)Affidavit of Ms M, filed 17 March 2017; and
e)Family report by Dr O, dated 14 November 2016.
Only the Father was required for cross-examination. A Family Report was prepared in this case by Dr O, a Regulation 7 Family Consultant. Her report, dated 14 November 2016, became Exhibit “ICL1”. Dr O was cross-examined.
Competing Proposals
The Mother seeks orders for equal shared parental responsibility, the children relocate to Wollongong from Town A to live with her and spend time with the Father each alternate weekend from after school Friday to 6pm Sunday, and on one weeknight in the alternate week in the (omitted). The Mother also seeks orders for the children to spend time with the Father during school holidays and on special occasions, as well as orders if the Father relocates to the (omitted).
The Father also seeks an order for equal shared parental responsibility but seeks that the present arrangement remain in place, i.e. that the children live with him in Town A and spend time with the Mother on each alternate weekend. He also seeks orders for school holiday time and special occasions as well as ancillary orders such as non-denigration and overseas travel orders.
The ICL sought, in her case outline document, that the parents resolve the matter by one or the other moving closer to each other ‘so that the children can have a significant and meaningful relationship with both parents’. However, the ICL recognised this may not occur and seeks that the children live with the Mother given the views expressed by Dr O and by the children themselves. By the time of closing submissions, the Independent Children’s Lawyer proposed that the children live with their Mother.
Outline of Reasons for Judgment
The applicable law will be set out. Dr O's evidence will then be discussed. The evidence of the parents and remaining witnesses will then be considered, but in the broader context of an analysis of the various considerations referred to in the Family Law Act 1975 (‘the Act’). The Court will then make conclusions and formulate orders.
The Applicable Law
The applicable law is, of course, Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Expert Evidence of Dr O
Dr O met with the family in November 2016, a year before the final hearing. Before she gave evidence, however, she had access and had regard to the evidence filed by the parties and, indeed, she had recently met the children. The matters of background that she refers to in her report are consistent with the factual findings made by the Court, many of which are reproduced above. When she saw the family in November 2016, there were a number of contentious issues that the parents were dealing with, including the nature of the Mother's accommodation in Wollongong at the time (and its suitability for the children) as well as the issue of whether [Z] was ready for school in 2017.
The Mother's perspective at the time of the report interviews, consistent with that held by her at the time of the hearing, is set out at paragraph 16 of Dr O's report:
16.Ms Hathoway justified her proposal in the same terms as set out in affidavit material. She expresses individual concerns for each child. She is concerned that [Z]’s language is delayed and that the father has enrolled him for 2007 without consultation with her. She expressed concern that the father does not read to the child every night as she used to for the two older children, so her son is not getting the enriched language stimulation that he needs. [Z] also displays extreme separation anxiety, according to Ms Hathoway. She said that [Z] screams at the handover from Dad to Mum although not from Mum to Dad. She commented on the child’s extreme separation anxiety- for example that he gets frantic if he loses side of his mother momentarily in public. She also claimed that [Z] was reluctant to talk to his father on the telephone when his father rang during her weekends.
The Mother went on to explain to Dr O her concerns about the children's progress at school, a concern that continued at the hearing. She felt that she was the children's main attachment figure, and was more aware of, and sensitive to, their feelings and needs and thus was better able to support them emotionally, socially, and educationally. Indeed, at paragraph 20, Dr O found as follows:
20.Ms Hathoway was child focused, rather than rights focused or emotions focused in her responses to probing about the benefits of her parenting proposal, but sometimes drifted onto tangential issues - for example, how the Father was unhelpful - rather than sticking to describing their special needs...
The Court finds Dr O's observation of the Mother to resonate with its own impression of the Mother in cross-examination. She was undoubtedly child focused, but allowed herself to drift at times into criticism of what the Father had done, said, failed to do or failed to say, either in relation to her or the children. Indeed, her affidavit evidence could easily be described as a catalogue of perceived faults of the Father. The Court accepts that this is only partially the basis for her concern for the children and proposal to the Court, and that the evidence was probably primarily driven by the adversarial context of the litigation.
Dr O recorded how the Mother expressed concern, and gave examples about seemingly being excluded from information relating to the children about their health and education. The Court finds there is some substance to this, but it is not a significant factor. Even now it is not entirely clear why the Mother did not become more proactive or assertive in obtaining information from the children's school over the period since separation.
When Dr O met the Father, he emphasised the benefits to the children of stability "living in a fixed routine and familiar home environment" (paragraph 27). He emphasised the benefits of the country lifestyle that they enjoy, as well as the school at which the children were enrolled and all it had to offer. In relation to schooling, however, Dr O noted an inconsistency between the Father's perspective and the objective information. At paragraph 27, for example, she notes:
27.He noted that the small classes at School BSchool B's offered more one‑to‑one interaction with the teacher which would help [X] with her concentration difficulties. He said that he believed the child's school performance had improved. (NB This is inconsistent with the child's NAPLAN results which he did not mention). He claimed that [X] was happy at school where she had close friends. He made very similar observations about [Y] and [Z]. He spoke of the children in generalisations which were not supported by detailed observations about each child's individual temperamental differences and developmental needs.
At the time of the Report, a live issue between the parents was their developmental and educational progression. At paragraph 28, Dr O records:
28.Mr Hathoway seemed dismissive of some of the developmental and educational problems Ms Hathoway had raised. He tended to minimise [X]’s academic struggles. Initially he tried to refute observation that [Z]’s language was immature for age but faced with my persistent evidence-based assertions, eventually seemed able to consider the implications. He did not expand on why he thought it would be suitable to enrol his son for school in 2017 or why he had taken this decision without consulting the child’s mother. I explained why I thought it would not be to [Z]’s advantage to be enrolled next year and why a speech therapy assessment would be beneficial.
Her summary of the interview with the Father is found at paragraph 34 of the report:
34.Overall, there were some mixed indicators about Mr Hathoway’ parenting capacity. Mr Hathoway seemed sincerely concerned about his children’s welfare but at the same time unaware of their special needs or developmental progress. While he seems to be a loving father he also seems to have some expectations of controlling things which are not within his remit, which probably detracts from his child-focus. He denied or minimised some problems of co-parenting which aggregated information indicates to be valid concerns. He has not attended any post-separation parenting courses.
Dr O conducted a number of psychological assessments and observations of the family which are set out in detail in the Report. As one of the main issues between the parents was the question of whether [X] had special needs, and how these could be met, it is important to set out paragraphs 52 and 53 of Dr O's report where she records her interaction with the principal of School B, Mr I:
52.Mr I, Principal of School B, was interviewed by telephone on 11 November 2016 (at interview both parents had given me permission to speak to Mr I). Mr I noted that his is a very small school - [X]’s class has only15 pupils - thus, he knows all the children and can monitor their progress. He was aware of [X]’s poor NAPLAN results and her need for special learning support. He described [X] as someone who “vagues out”. It is his practice to wander around to check what is going on in the classrooms. In [X]’s classroom, he often notices that she is off task while the other children are working. He is aware that she is easily distracted although he noted that she does not display behavioural problems and has made some good friends at the school. He expressed some disappointment that he had arranged a free class for her in a holiday drama activity which she missed due to conflict between the parents about where she should be spending her time. He was not apportioning any blame, just noting that the parents’ lack of cooperation had disadvantaged the child. He expressed hope that this would not be a continuing pattern.
53.Mr I noted that the essential first step in obtaining funding for [X]’s special needs was to obtain a diagnosis from a paediatrician or a psychologist. In this case a psychologist seems the most appropriate. Thereafter the school can apply for funding for additional support staff hours. Mr I confirmed that there are appropriately qualified individuals in the community who can be hired once the funding is obtained. He could not comment about whether there would be better funding or support in the government system as he understood the requirements for funding were equivalent in both systems. He also noted that when the NDIS rolls out there may be additional funds available although it is not clear whether [X] would attract a relevant diagnosis. Mr I mentioned a local psychologist called Mr D who has previously provided psychoeducational assessments to pupils at the school for the purpose described previously. Mr I seems to be a very concerned principal with a good understanding of [X]’s needs. The pastoral care at his small school would probably be good. Mr I said he was not aware that [Y] had any problems that were causing any great concern.
In her evaluation, Dr O found both parents to be normative parents who had neither psychiatric nor psychological maladjustments. She found both were deemed capable of meeting minimum community standards of child care and protection. She found the Mother to be more child focused than the Father who was, nonetheless "mostly child focused even if limited in his ability to imagine his children's inner worlds" (paragraph 58). Because the Mother displayed more accurately nuanced understandings of her children's inner worlds and developmental progress, Dr O felt that she was better placed to assist the children overcome obstacles to their progress.
Nonetheless, Dr O did have some concerns about the Mother, noted at paragraph 59 of her report, namely, that she might underestimate the complexity of the challenges associated with parenting these children, especially in a blended family. Consistent with the Court's observation of the parents, Dr O found that co‑parenting was poor, and communication about the logistics pertaining to the children's care was not frank and full. At the time of the report interviews, Dr O mentions, at paragraph 61, that both parents expressed hope for future improvement in their co‑parenting. Regrettably, by the time of the hearing, the Court saw little evidence for this.
Dr O believed that the Mother had progressed much more than the Father in disengaging from their past relationship. The Court finds that the evidence before it was consistent with this observation. Specifically in relation to the children, Dr O found, in paragraph 65:
65.All the children seem to be very distressed by the separation from their mother. [X] requires remediation so she can reach her potential, and so that school failure does not destroy her self-esteem. [Z] is not ready for school in 2017 and needs enriched language stimulation. [Y] seems to be coping at age/grade level, but seems to be overly dependent on 1:1 encouragement.
It is important to record at this point that notwithstanding her observation about [Z], [Z] was, in fact, enrolled by his Father and commenced school in 2017. At the interim hearing to deal with this issue, the Court's impression was that the Mother ultimately accepted Dr O's observation in cross-examination (at that time) that given that [Z] had started school, there was probably little point in taking him out now. Any objective appraisal of the evidence about how [Z] is progressing at school, as at the date of the hearing, would probably incline the objective observer to conclude that Dr O was probably right, at the end of 2016, to suggest that [Z] was not ready for school.
From the Court's perspective, and with the benefit of hindsight, the Father lacked insight and child focus in starting [Z] at school in 2017. But, in his defence, it was not unreasonable for him to rely on the Report that he had obtained from School B's about [Z]'s readiness for school. It is just that subsequent events suggest that Dr O was right in the first place. However, the Mother probably made the right decision at the interim hearing by not forcing the issue because it would have been difficult for [Z] to then be taken out of school having commenced it. By the time of the interim hearing, he had been there over a month. The parents' lack of trust and their problematic communication is evidenced from this unfortunate situation relating to [Z].
In terms of the children's relationship with their parents, this is reported at paragraphs 66 to 67:
66.All three children have warm, trusting relationships with both parents. Their mother is their primary attachment and seems to be more effective external stress-regulator for all three children. There is no reason to believe Mr Hathoway is incapable of normal nurturance. Even though all three children prefer their mother to their father they seem able to move between parents without inconsolable distress. The parents seem able to insulate the children from serious conflict at handovers.
67.All three children seem amiably disposed towards Mr C and are reported to have warm relationships with his daughter [D]. Mr Hathoway shows more tendency to intrude unhelpfully on the children’s relationship with other people (such as the mother and her partner) than is true in reverse for Ms Hathoway. She shows less emotional dependence on the children than the father so is better placed to support the children’s psychological individuation.
At paragraph 67 above, Dr O refers to Mr C, the Mother's partner, who gave evidence and was cross-examined. As a result of this evidence there is no concern on the Court's part about any role that he would play in the children's lives. He is in a solid, permanent relationship with the Mother. He is willing to support her in the parenting of the children. He has a good relationship with the children.
Dr O assessed the children's views, at paragraph 68, in the following terms:
68.[X] expressed a residential preference for her mother and indicated she finds her mother to be a more effective parent. [Y] and [Z]’s responses indicate a clear residential preference for their mother. The cognitive immaturity of all three children means that they cannot objectively evaluate all relevant issues. While their preferential attachment to their mother should be given due weight, is not the only factor.
She was asked to, and did comment on the proposed and actual home environments offered by the parents. She reports, at paragraphs 69 and 70, as follows:
69.Currently the father’s home environment seems more suitable for meeting the children’s material needs. At present the mother faces residential instability. She would need to find a 3 or 4-bedroom house before it would be comfortable for the children to reside with her full-time, or even during the current visitation schedule given that another child visits on the same alternate weekends. Ms Hathoway claims that once she receives the $40,000 agreed in the property settlement she will be able to furnish the children’s bedrooms properly.
70.No finding of fact is made about whether there is better extended family support on either side. The paternal grandmother has been reported (by both parents) to have acted in ways which are emotionally destructive for the children, but according to the father she will conform to his expectations henceforth or be dismissed from the children’s lives. Time will tell. Clarification on this point may require further enquiry. In the meantime, it seems Mr Hathoway has better on-call support with child care. It is not in dispute that in Town A the children enjoy the benefits of established social relationships in a familiar community, school and home environment.
By the time of the hearing, the Mother's residential instability had abated considerably. Whilst the Mother's evidence at the hearing about whether her lease had expired or was about to expire was a bit vague, there is no suggestion whatsoever that she and Mr C could not find suitable alternative accommodation for themselves and the children. One criticism that could be made of her case, however, is that more detail could have, indeed should have, been provided to the Court in this regard. This is not a significant issue, however. The Court finds that both the Mother and Mr C would do what it takes to ensure that the children have appropriate accommodation should they come to live with them.
It is important to record that Dr O had expressly recognised that the Father was more physically available to the children because he was not working. The reality in this case is if the Court makes an order that the children live with their Mother, as indeed it will do, the children will move from the Father's care - where he is available for them all of the time before and after school - to the Mother's household where she will have to work and will, thus, have to either make appropriate changes to her work hours or implement before and after school care arrangements. The Court recognises this. Dr O recognised this. It is a factor that is taken into account. Physical availability for children is important, but emotional attunement is even more important.
The theme continues at paragraphs 71 to 73 of Dr O's report:
71.If the mother had commodious and appropriately furnished accommodation, then the two proposals would be equivalent in many regards. Under both conditions the residential parent must work full-time and the children must attend after school care. According to both proposals, the children will spend alternate weekends and half school holidays with the non-residential parent. The transport, travel and handover arrangements are equivalent in both cases. Both parents seem equally likely to comply with Court Orders about visitation.
72.One significant point of difference is that under the mother’s proposal the children must accommodate to life in a blended family. Significant adjustments would be required all around. Mr C appears to be a man of a different temperament to Mr Hathoway. He is unlikely to take offence easily as he seems to be of an amiable, optimistic bent, to have normal distress-tolerance and to value social affiliation above social dominance. He displays good empathic perspective-taking skills, and appears to be benevolently disposed towards the children and towards their relationship with their father. Ms Hathoway confidently expects Mr C to be flexibly adaptive and supportive to her in her parenting role. However, the couple is still in the honeymoon stage, which means high oxytocin levels fuel (possibly naïve) optimism. If there was a change of residence for the children Mr Hathoway may react with jealousy, bitterness and negative parenting practices - for example, interrogating the children about their home life during visits, or expecting them to comfort him in his sorrow. This is a risk with the current arrangement, if Ms Hathoway is to be believed.
73.A reason to favour the mother’s proposal is that she shows a better understanding of the children’s developmental needs, including their educational needs. It is not clear that the special support which [X] needs would be better in the (omitted) than in (omitted). Given the small classes sizes and apparently good pastoral care, at School B, a key point of difference would be whether more funding for learning support could be accessed in the public sector. Preliminary enquiry suggests that funding is equally available in both sectors, depending on diagnosis, and that the necessary supports can be obtained in (omitted) once funding is obtained. Should the Court find that, as she claims, Ms Hathoway has been proactive and vigilant about the children’s health and allied health care needs, whereas Mr Hathoway has been blasé (NB. She does not allege gross medical neglect) then this suggests she will provide better advocacy for them in obtaining funding/remedial treatments as required.
The Court observes, as it has previously observed, that there are no concerns before it about appropriate accommodation.
The Court accepts, having heard evidence from both the Father and Mr C, that Dr O's observation of Mr C' different temperament to the Father is entirely correct. Moreover, there was no suggestion in the evidence before the Court that any special needs of the children could not be met in Wollongong should the Court order them to live with their Mother.
At paragraphs 74 and 75, Dr O expresses her concerns about [Z]'s readiness for school in 2017. As foreshadowed earlier in these reasons, with the benefit of hindsight, Dr O was probably right. Paragraph 76, however, deals with [X]'s educational needs:
76.That [X] is performing significantly behind her age/grade level despite apparently normal intelligence, points to a specific learning difficulty and most likely a double deficit – that is to say, deficits in the areas of attentional control and/or working memory as well as deficits in language processing. Auditory language processing problems are under-diagnosed. Research suggests that ~20% of children entering high school cannot fully comprehend spoken sentences of the length routinely uttered by teachers. A child who is not performing to her potential in the classroom feels very demoralised, and school becomes an aversive experience. The problem needs to be addressed before the end of primary school to avert high school drop-out, and mental health problems. Parents must be proactive. To get the diagnosis funding requires [X] needs to be assessed urgently. This implies that the parents should arrange and pay for this privately, either with a local psychologist recommended by the school or by a specialist service such as (omitted) in Wollongong (which is likely to be more expensive but may be more authoritative about diagnosis and treatment planning).
In the discussion of the evidence below, this issue is explored further.
Dr O's opinion and recommendations are set out at paragraphs 78 to 86 inclusive:
78.All three children love both their parents and are suffering because of the family separation. It would be in the children’s best interests if the parents lived in geographical proximity to each other and participated weekly in the children’s lives.
79.If neither parent is willing or able to relocate, then the children should live with one and visit the other every second weekend and for half the school holidays. If the residential parent cannot take leave during his/her week of any given term break and would therefore rely on childcare services, then it may be better for the children to visit the non-residential parent for the whole holiday break, if that parent is more available.
80.Both parents seem to be normally protective, but the mother is deemed a more effective parent. She is the children’s primary attachment.
81.It would not be in the best interests of the children to live with their mother, unless/ until she has suitably furnished, commodious accommodation, and unless/until it has been established that the special educational support [X] needs can be accessed as readily in the mother’s local area as at School B..
82.[Z] should not start school in 2017. He requires developmental assessment.
83.[X] requires a psycho-educational assessment to access funding for special learning support. The parents should arrange this privately as a matter of urgency.
84.The parents should each attend a post-separation parenting course such as KKIM.
85.The parents should subscribe to Our Family Wizard.
86.Orders for Christmas/Christmas holidays 2016-17 should minimise stressful transitions.
The evidence of both parents adequately explains to the Court why each parent reasonably believe that relocation to be more geographically proximate to the other (and, thus, to the children) is not feasible. No criticism is made in this regard. The Mother's reasons for not relocating closer to Town A was based on her relationship with Mr C, the time that his daughter spends with them and her employment prospects.
The Father's reasons for not relocating to Wollongong included the fact that the former matrimonial home was in Town A, the children's school was there and, from his perspective, it was their home. Having said this, the Court's impression is that it is more likely that the Father will move closer to Wollongong if the children live with their Mother than the reverse situation. Unlike the Mother so far as Town A is concerned, the Father has connections to Wollongong, including a close friend who has previously offered accommodation both to him and the children.
Dr O was cross-examined at the hearing after the evidence of the parents had been tested in cross-examination. She confirmed that when she had recently met the children again (at the request of the Independent Children’s Lawyer, and with the consent of the parents) the children had expressed views. She explained that [Z] continued to want to spend more time with the Mother. [Y] wanted her parents to live closer together. She felt the current arrangement was unfair, but it would be better if it were equal time. [X] also wanted more time with the Mother and also felt it was also more fair if it was equal time. Dr O explained that the children did not understand the logistical issues involved with relocation or equal time. A common theme, however, was that the children wanted to spend more time with their Mother. When it was suggested to her that perhaps the children did not understand that more time with their Mother meant less time with their Father, Dr O explained that the children were not at a developmental stage where they could consider the consequences of what they are saying, and the practical implications of it.
Dr O was asked about the feasibility, on the facts of this case, of equal shared care if the parents did move into proximity with each other. She thought that equal shared care was contraindicated in this case because of the communication and trust difficulties that the parents were experiencing. That is not to say, however, that there could not be an arrangement like 10:4 or 9:5 with shared school holidays, should there be geographical proximity. She did emphasise, however, that week-about or equal shared care was not appropriate for children whose parents were litigating. Her experience, indeed the research that she had regard to, strongly suggested that the capacity to co-ordinate parenting arrangements inherent in an equal time arrangement was not present in this case.
Dr O was asked to clarify whether she now had a clearer view as to where the children should live. She said that she felt the Mother was always the better parent, even at the time of the report interviews. At that time, however, she did not have suitable accommodation. Her recommendation to the Court was that if the Mother’s accommodation was now suitable, the children should be living primarily with her. The children are positively attached to her, as they were to the Father. However, his parenting style was more rigid and dismissive, as compared to the Mother who seemed more attuned to the children’s needs.
Dr O was taken to [Z]’s school reports for semester 1 2017. On hearing aspects of the report Dr O expressed no surprise given her assessment that he was immature to go to school. Whilst she acknowledged that he was not failing, [Z] was clearly struggling. Dr O expressed the view that the Father may have sent [Z] to school for reasons of his own. Thus, she asserted he prioritised his own needs, over those of [Z]. The Court does not agree with this assessment. There is no evidence to suggest that there was any need of the Father at that time, that was prioritised over a need of the child at that time. With the benefit of hindsight the wrong decision was made but, as foreshadowed earlier, the Father did not act unreasonably in relying on the assessment from School B’s about [Z]’s readiness for school. Dr O’s criticism of the Father, however, that this evidence demonstrates lack of attunement to [Z]’s needs is correct.
Taken to [X]’s semester 1 2017 report, Dr O observed that [X] is therefore a child who will need a lot more support, both in the classroom and at home. She was clearly not achieving to her potential at school. Dr O felt that the Mother, being more emotionally attuned to [X]’s needs, would thus be more responsive than the Father.
Dr O predicted that if the Court ordered the children to live with their Mother, the Father might be resentful of this. The risk would be that the children would be exposed to the Father’s resentment, but of course they would be seeing him less than they do now. She described the children as sensitive to the Father’s feelings. The Court’s impression of the Father, however, is twofold: first, the Court doubts very much that the Father will be surprised by this decision. Second, the Court believes that the Father is of a much deeper character than that he would allow his resentment about the decision, and the Mother, to get in the way of an existing good relationship with his children. In the Mother’s care, Dr O felt that the children would progress better educationally and they would better individuate psychologically. They would always miss their Father.
Dr O was extensively cross-examined by Mr Fowler, Counsel for the Father. He probed how, exactly, Dr O formed the view that [Z] wanted more time with his Mother. The Court is satisfied that an expert in her position was entitled to make the conclusions she did from what [Z] said to her and the surrounding context of that statement. Mr Fowler challenged Dr O’s concerns about [X]’s educational progress pointing, for example, to the progress report for [X] dated 11 October 2017 from her school which suggested good progress since the assessment one year earlier. Dr O explained, however, that the concerns that she expressed, based on the test completed and referred to at paragraph 51 of her report measured something quite different. In any event, the progress report of 11 October 2017 accentuated the positive, whilst seemingly (in her opinion) minimising the problems that [X] was having with concentration.
Dr O acknowledged, in cross-examination, the advantages to [X] of her existing school, with a much smaller class size (15). In addition, she added that the school principal seemed very proactive, and attentive. She acknowledged that the class sizes at the school proposed by the Mother were greater. She acknowledged this could present a struggle for [X]. Indeed, it could adversely affect [X]’s self-esteem, one of the concerns raised in paragraph 51 of her report. But Dr O also explained that she was confident that the Mother would be most attentive of [X]’s transition and her possible self-esteem issues. She explained that childhood stress was mitigated by parental sensitivity and that in this case the Father was less attuned to [X]’s needs than the Mother.
Counsel for the Father put it to Dr O that the Father was reasonably entitled to rely on the readiness report relating to [Z] that he obtained from the school. Indeed, the Court notes, it has already found that the Father was reasonable in so doing. Dr O’s response, however, was to suggest that the reasonableness of the Father’s actions had to be considered in light of the clear recommendations that she had already made, by the time he obtained the readiness assessment. She emphasised that there was, in fact, nothing to be lost by holding [Z] back for one year. She reiterated the view she had expressed earlier in cross-examination - that he prioritised his needs over [Z]’s and explained that this was because he felt it would advantage his case to start [Z] at school.
Moreover, Dr O emphasised that the Father knew that the Mother did not want [Z] to go to school and had expressed her reasons for doing so. As the Court has already indicated, though it bears repeating here, even though Dr O clearly doubted the Father’s motives in enrolling [Z], the Court makes no adverse finding against him in this regard. The issue for the Court is not whether the Father acted reasonably or not, the issue is the underlying attitude that was dismissive of the Mother’s concerns and Dr O’s professional opinion. It is this attitude that the Court finds is actually consistent with Dr O’s impression of him as not being attuned to his son’s needs, as much as the Mother was. Dr O was quite right in persistently asking the question, in effect, why send him to school in 2017? [Z] would not have lost out. That is not to say that he has lost out as a result of going to school. Again, the significance of this issue is not the event itself, but the underlying attitude that emerged from it.
Dr O acknowledged that she made no assumption whatsoever that the educational outcomes for the children would be better if they lived with their Mother, compared with their Father. Moreover, she acknowledged that any order for the children to live with their Mother would be a significant change in their lives, even if it were a welcome change. There is no doubt that Dr O considered it a welcome change, but there is equally no doubt in the Court’s mind that she had considered, indeed quite carefully, the impact on these children of moving from the parent with whom they have lived for several years, from the home in which they have spent most of their lives, and in the school that they are most closely associated with, to a completely different environment. Nonetheless, Dr O was of the view that the advantages outweighed the disadvantages. She acknowledged the risks to the children of the Father’s resentment if such an order was made. Dr O acknowledged the adjustment difficulties that would be experienced by the children in relation to the Mother’s partner’s daughter, [D]. She acknowledged that the children might not have their own bedroom as they do now with their Father.
The Court accepts that at the end of a searching cross-examination, Dr O was of the view that, on balance, the children were better off living with their Mother who, she felt, would be more attuned to their emotional needs, and arguably their educational needs. She acknowledged the significant change that this would bring about in the children’s lives. She accepted that the children would miss their Father. She acknowledged the possibility that the Father would be resentful, and that the children, already sensitive to their Father’s emotional state, may well detect this. Notwithstanding all of that, she remained quite firmly of the view that the children would be better in their Mother’s full time care, although spending substantial and significant time with their Father.
The Court accepts Dr O’s evidence. It is independent, expert evidence. Where Dr O forms a view, reaches a conclusion and makes recommendations, the Court is amply satisfied that she had a solid basis for so doing. The evidence that the Court heard is consistent with Dr O’s own observations.
Meaningful Relationship
The children have a meaningful relationship with both parents. No one contended otherwise. No one suggested that it would not be beneficial to them for this to continue. No one suggested that a meaningful relationship would be lost if the orders suggested by the other parent were made. All of this is undoubtedly correct on the evidence.
Risk of Harm to the Children?
There is no risk of harm to these children on any scenario. Insofar as the Mother’s case was framed, even tacitly, as there being a risk of emotional harm to the children in their Father’s care, the Court does not accept that the evidence establishes this. Indeed, the Mother’s own proposal is inconsistent with such a contention. It is unfortunate that the quasi-adversarial parenting proceedings forces parents, and their lawyers, to make contentions that are not borne out by the evidence. The Mother’s case in this regard was plainly overstated.
The Views of the Children
The objective expert evidence before the Court from Dr O indicates that the children would prefer to spend more time with their Mother. The Court does not ignore this, but neither does it place significant weight on this. Dr O quite correctly acknowledged that the level of maturity of the children contraindicates placing significant weight on what they have said. This case has certainly not been decided by whatever the children have said is their preference.
The Nature of the Children’s Relationships
There is no doubt that the children have a very strong bond with each parent. To argue over who has the strongest attachment is unhelpful in the context. The Court’s view, based on a completely objective analysis of the evidence before it, both expert and lay, is that the children have such a strong relationship with both parents that this relationship will subsist notwithstanding a move from one parent’s care to the other. These children have been fortunate to have both their Mother and Father as their primary carer at different stages in their life. Even with the intrusion of parental separation, the children seemed to have coped well with this. There is no suggestion of relationship disruption between the children and the Mother since they have been in the Father’s care. There is no evidence before the Court that would cause it to be concerned about the prospect of relationship disruption with the Father, should they go into the Mother’s care. All of this is testament to the fact that both parents have not done anything which has interrupted the excellent relationships that exist between each parent and each child.
Participation in Decision Making
The Mother experienced the Father as excluding her, whether deliberately or otherwise, from decisions about the children. The Court accepts that there is evidence in support of this. The Father enrolled [Z] into primary school in May 2016 without consulting her and without obtaining her consent. The Father was complicit to School B’s preparing a school readiness assessment for [Z] without telling the Mother. Even if the situation were, as the Father contends, that the school initiated the assessment rather than he, that did not discharge the Father’s responsibility to tell the Mother about this. The Court accepts the Mother’s concerns that she was not told about things relating to the children’s education in a timely fashion. The Court does not accept that this was a deliberate strategy by the Father to exclude the Mother from the children’s lives. There is nothing to suggest he was so motivated. It does, once again, provide evidence in support of Dr O’s concern about the Father in that he is less attuned to the children’s needs than the Mother. The Father failed to understand the importance to the children of their Mother being involved in decision-making about them.
To the extent that the Mother sought to criticise the Father for missed opportunities for telephone contact and failing to adequately reschedule weekends because of other commitments, the Court simply does not accept that the situation is as she contended. The impression formed after listening to both parents in cross-examination is that their capacity to communicate, and their lack of trust for each other had simply inhibited their ability to make into reality the opportunities that arose for flexibility in the contact and communication arrangements with the children.
The Likely Effect of Change
The Court acknowledges that this is the consideration that has weighed most heavily on its mind. It was, arguably, a cornerstone of the Father’s case. Dr O acknowledged the nature and extent of the change that would occur in the lives of the children if her recommendation was adopted by the Court. The Mother’s case, indeed her own evidence in cross-examination, may have minimised the nature and extent of the change for these children. Indeed, she was perhaps somewhat naïve when questioned about how she would facilitate the children’s adjustment to a new life in her household and the problems that she might expect.
For these children living with their Mother will mean significant physical change. A new house, a new school, a new community. It will mean new friends. It will mean new curricular and extracurricular activities.
Emotionally, it will be a wrench for them to move away from the daily care of their Father, who seems available to them both before and after school. But it also means emotional gain in the sense of being close to the parent who they say they want to spend more time with, and the parent who, the Court finds, is more attuned to their emotional needs.
The Court does not accept that the financial circumstances of one parent is any better or worse than the other.
The Court does not accept that extended family played any significant role in these children’s lives, and that the effect of relocation on them will be significant in any way.
One of the changes in their life will be the introduction of Mr C as a step-father, but they already know him, and he presented as supportive of both the Mother and the children. The concerns that the Father raised in relation to Mr C are, in this Court’s view, mere manifestations of the parental distrust, rather than any reason to be concerned about Mr C’ role in their life.
The Court accepts that there is the possibility that these children will need to use before and after school care if they move to their Mother’s care. That is not a matter that the Court believes will adversely affect the children. It will simply be different to that which they have experienced so far.
For [Z] and [X], of course a change to school could mean disruption to their education, particularly with the needs they have. However, Dr O, and indeed the Court, is comfortably satisfied that the Mother will manage this transition and will be attentive to their particular needs. She will provide them with the additional support they need.
At the end of the day the Court accepts Dr O’s view that, on balance, the change was beneficial, and the benefit in effect exceeds the burden.
Issues of Practical Difficulty and Expense
This is a case where for many years the parents have successfully navigated the issues of distance between their respective homes in Town A and Wollongong. The Court accepts there have been difficulties at times. The Court could not understand the Father’s inflexibility about the changeover arrangements. The Court believes that there were times during the last 12 months when the Father was already in Wollongong on Sunday afternoons and thus could have spared the Mother the drive down to the agreed changeover venue but, for his own reasons, chose not to. This had no adverse effect on the children. They would have travelled in the car anyway. The issue was: whose car? Regrettably, this evidence once again lends support for the concerns expressed by Dr O about the Father’s lack of attunement to the children’s emotional needs. He plainly could not understand that making the Mother travel unnecessarily may well have been making it that little harder for her to provide for the children’s needs. This is not a major consideration. Indeed, there are very few parents who could have successfully managed the parenting arrangement that these two have managed for the time, and over the distance, that they have. It’s just that little incidents often demonstrate an inflexibility, a rigidity of thinking, an attitude that reflects poorly on a parent. In a finely balanced case, such as this one, it can make a difference.
Parental Capacity
In many ways history speaks for itself in this case. If one paints with a broad brush, the Father’s capacity to meet all of the needs of these children, and the Mother’s capacity to do likewise, is evident from the lengthy periods when they have had primary responsibility to care for these children. It is only when the broad brush is abandoned in favour of the fine brush that differences start to emerge. The Father’s capacity to meet the children’s physical needs is unquestioned. The Father’s capacity to meet their emotional needs, i.e., his emotional attunement, has already been discussed at length in these reasons. It is a major concern for Dr O. It is a concern for the Court. What emerged during the evidence is a legitimate concern that the Father was perhaps not as able as the Mother was, and can be, to meet the educational needs of the children. He struggles with his own reading, and this the Court accepts is not an issue at this stage of the children’s education. His parenting style is different to that of the Mother’s, and this might reflect in attitudes about things such as homework, assignments and so forth. The concerns about [Z] and readiness for school have already been discussed. Even though the Mother is working, the Court is confident that as the children grow older, and their educational needs increase, that she will be just as capable as the Father, if not more in meeting those educational needs.
The main difference, the Court finds, in terms of parental capacity is in relation to meeting the children’s emotional needs. There is a rigidity about the Father’s attitudes that concern the Court. As the children grow older and start to assert their own autonomy, the Court wonders whether the Father’s rigidity will create problems. The Mother presented as being more flexible in her thinking, and in her approach to the children.
Parental Attitudes
There is no need to revisit the issue of parental attitudes once again. Insofar as Dr O’s concerns about emotional attunement should be characterised as matters of parental attitude rather than matters of parental capacity, then the comments can be restated here. The very critical way in which the Mother conducted her litigation does not reflect an attitude that, the Court believes, should be attributed against her. The Court doubts very much if the Mother formulated the litigation strategy for her case. The attitude that counts, for present purposes, is the Mother’s attitude towards the children (which is primarily focused on their needs, not hers) and the Mother’s relationship towards the children’s relationship with their Father (which the Court accepts has been in the past, and will continue to be, one of positive encouragement).
Family Violence
To the extent that the Mother’s case was framed, implicitly, or explicitly, as involving allegations of family violence against the Father, the Court does not accept that any of these allegations are pertinent. Indeed, the Mother’s own proposals are quite inconsistent with any such case.
The Order Least Likely to Lead to Further Proceedings?
It is always difficult to hypothesize about the possibility of future litigation. There is the risk of an appeal, over which the Court has no control. The Court’s experience, as well as a detailed consideration of the evidence, leads it to hypothesize that in the Father’s care the children’s longing to spend more time with their Mother would grow with the risk that the Father’s capacity to meet their evolving emotional needs would be challenged. This might cause conflict in the household which might lead to the children choosing, at a later stage in their life, to remain in their Mother’s care. With this of course comes the prospect of further litigation. This is not a determinative consideration but, the Court believes, putting the children in the Mother’s care might be a more enduring solution for the children.
Orders in the Best Interests of the Children?
As foreshadowed, the Court believes this is a finely balanced case, and one which it has found very difficult to decide. As previously stated, these are two good parents who love their children, who are loved by their children, who seem to give their children the freedom to love the other parent, but who lack trust in each other and struggle to communicate. The Father has shown himself, on balance, to be not as emotionally attuned to the children’s needs as is the Mother. As the children grow older, the significance of this potentially becomes greater and greater. On balance, the Court finds, that the children are better off in their Mother’s care and this is a change that should be implemented in time for the commencement of school term 1, 2018.
The Court believes that, having regard to the evidence, the orders proposed by the Mother are in the best interests of the children. If the Father chooses to remain in Town A, he will nonetheless see the children each alternate weekend. If he relocates to the (omitted) region, the Mother’s proposal will result in the children living with him 5 nights each fortnight.
The presumption of equal shared parental responsibility applies. The Court has considered equal time and concludes, based on the evidence before it, that it is not in the best interests of the children. The Court is satisfied that the order it makes approximates to substantial and significant time, is in the best interests of the children, and is reasonably practicable.
These orders should commence from the conclusion of school term 4 2017, in order to give the children time to adjust before starting a new school in 2018.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 5 December 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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