HEMMING & BOLTON (No.2)

[2018] FCCA 3877

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEMMING & BOLTON (No.2) [2018] FCCA 3877

Catchwords:
FAMILY LAW – Parenting orders – intractable conflict – one child estranged from his mother – other child spends equal time with both parents – both parents seek orders tantamount to sole parental responsibility for that child – order for shared parental responsibility.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Rice & Asplund [1979] FLC 90-725

Applicant: MS HEMMING

Respondent: MR BOLTON

File Number: DNC 104 of 2015

Judgment of: Judge Young

Hearing dates: 14, 15, 16 February & 1 May 2018

Date of Last Submission: 1 May 2018

Delivered at: Darwin

Delivered on: 24 December 2018

REPRESENTATION

Counsel for the Applicant: Ms Franz

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: Ms Truman of Counsel

Solicitors for the Respondent:	De Silva Hebron
Counsel for the Independent Children’s Lawyer:	Ms Lee

Solicitors for the Independent Children’s Lawyer:

THE COURT ORDERS BY CONSENT

(1)That the orders made on 24 August 2015 be discharged.

(2)That the contravention application filed by the Applicant mother on 7 January 2016 be dismissed.

Live with arrangements

(3)That unless otherwise agreed between the parties the child [X] born …2004 (“[X]”) live with the father.

(4)That the child [X] spend time and communicate with his mother at all times that he expresses a wish to do so.

(5)That the father actively encourage [X] to have a relationship with his mother.

(6)That unless otherwise agreed between the parties and except as provided for in these orders, during school terms, [Y] shall live with the parties on a 2 week rotating basis as follows with exchange after school on Friday or should Friday be a public holiday or school pupil free day then at 2.30pm the day prior to such public holiday or school pupil free day:

(a)With the mother for 7 days; and then

(b)With the father for 7 days.

(7)That unless otherwise provided for in these orders, the live with arrangements for [X] as set out in order 6 above shall commence on the first Monday of the week that school recommences each term.

(8)That unless otherwise agreed between the parties and for the purposes solely of changeover of the child [Y] during school terms; changeover shall occur as follows:

(a)From school or after school care centre; or

(b)In the case of a public holiday or school pupil free day at 2.30pm the day prior to such public holiday or school pupil free day.

School holiday arrangements for the child [X]

(9)That unless otherwise agreed between the parties, in relation to the school holidays at the end of term 1, the child [X] born …2008 (“[X]”) shall live with the father for the entirety of those school holidays. 

(10)That solely for the mid-year school holiday in 2018:

(a)[X] shall live with the mother for the first two weeks of the school holiday;

(b)[X] shall live with the father for the last week of the school holidays and for the first week of term 3 during which time [X] will be permitted not to attend school for the first week of term 3;

(c)The father shall then deliver [X] to school on the Monday morning of the second week of term 3 for [X] to recommence school.

(11)That as and from 2019, unless otherwise agreed between the parties, during the mid-year school holidays:

(a)     [Y] shall live with the mother for the first two weeks of the school holidays;

(b)    [X] shall live with the father for the last week of the school holidays and the father is to return [X] to school on the first day of term 3.

(12)That unless otherwise agreed between the parties, during the school holidays at the end of term 3:

(a)     [X] shall live with the father for the first half of the school holidays in even numbered years and the second half of the school holidays in odd numbered years;

(b)    [X] shall live with the mother for the second half of the school holidays in even numbered years and the first half of the school holidays in odd numbered years;

(c)    With exchange as per these orders during these school holidays taking place at 5.00pm on the second Sunday during that holiday period.

(d)    The parent with whom [X] is living with at the end of the school holidays will ensure that [X] returned to school on the first day of term 4.

(13)That unless otherwise agreed between the parties, during the Christmas school holidays:

(a)     In odd numbered years, [X] shall live with the mother for the first half of the holidays;

(b)    In even numbered years, [X] shall live with the mother for the second half of the school holidays;

(c)    In even numbered years, [X] shall live with the father for the first half of the holidays;

(d)    In odd numbered years, [X] shall live with the father for the second half of the school holidays.

(14)That unless otherwise agreed between the parties, in relation to the Easter long weekend should the Easter long weekend fall outside of the term 1 school holidays:

(a)     In even numbered years [X] shall live with the mother for the duration of the Easter long weekend;

(b)    In odd numbered years [X] shall live with the father for the duration of the Easter long weekend.

(15)That for the purposes of determining when certain holiday periods commence and cease:

(a)     The school holiday period for the end of terms 1 and 3 shall commence at the completion of school (e.g. 2.30pm) on the last day of school prior to the commencement of the relevant school holiday period and cease at 8.00am on the first day back at school at the completion of the relevant school holiday period;

(b)    The school holiday period for the Easter long weekend shall commence at the completion of school (e.g. 2.30pm) on the last day of school prior to the commencement of the Easter long weekend and cease at 8.00am on the first day back at school at the completion of the Easter long weekend;

(c)    The school holiday period for the mid-year school holidays:

(i)Shall commence at the completion of school (e.g. 2.30pm) on the last day of school prior to the commencement of the relevant school holiday period;

(ii)With exchange as per these orders during those mid-year school holidays taking place at 5.00pm on the second Sunday during that holiday period; and

(iii)Shall cease at 8.00am on the first day back at school at the completion of the mid-year school holiday period.

(d)The school holiday period for the Christmas school holidays:

(i)Shall commence at the completion of school (e.g. 2.30pm) on the last day of school prior to the commencement of the relevant school holiday period;

(ii)With exchange as per these orders during those Christmas school holidays taking place at 5.00pm on the fourth Sunday during that holiday period; and

(iii)Shall cease at 8.00am on the first day back at school at the completion of the Christmas school holiday period.

(16)That unless otherwise agreed between the parties and for the purposes solely of changeover of the child [Y] during school holidays; changeover shall occur as follows:

(a)     On school days; at [X]’s school or after school care centre.

(17)That unless otherwise agreed between the parties, on occasions of special significance (“special days”) the child [X] shall spend time with the parties as follows and any other orders providing for time shall be suspended for that special day:

(a)     With the father on Father’s Day from 2.30pm on the Friday prior, until 8am the following Monday.

(b)    With the mother on Mother’s Day from 2.30pm on the Friday prior, until 8.00am the following Monday.

Communication by phone with [X]

(18)That [X] be freely permitted to contact either parent by his phone in accordance with his wishes.

Communication by phone with [Y]

(19)That the parent who does not have [Y] in his/her care may communicate with [Y] as follows:

(a)     On Wednesday between 6.30pm and 7.30pm, except if [Y] is overseas or interstate then communication shall occur once every 7 days on a date and at a time agreed between the parties in writing.

(b)    If an event arises which would result in change to the times nominated in sub-paragraph (a) above, the parent who has the child [Y] in their care at that time shall notify the other parent as soon as is practicable to organise an alternative time to contact [Y];

(c)    If there is a missed call from a parent in accordance with these orders, the parent who has the child [Y] in their care will ensure the call is returned by the child [Y] as soon as reasonably possible;

(d)    On Christmas day, either between 8.00am and 10.00am or in the evening between 5.00pm and 7.00pm;

(e)    On the child’s birthday or either of the parent’s birthdays, either between 8.00am and 9.00am or 5.00pm and 6.00pm.

(20)That during such telephone communication as set out in order 19 above:

(a)     The parties shall ensure the child [Y] is available to take the call;

(b)    That during any phone call the children are to be given privacy for such phone calls by the parent whose care they are in.

(21)That in addition to the orders set out above:

(a)     The parent who has the child [X] in their care shall permit the child to communicate with the other parent and facilitate a call to the other parent at all reasonable times, when the child states that she wishes to do so;

(b)    That either of the children may telephone their parents or any member of their parent’s family at any reasonable time.

Interstate or overseas travel

(22)That during the periods in which the child [Y] is spending time with either of the parties in accordance with these orders, either party may take [Y] overseas, interstate or more than 100 km from Darwin.

(23)That should either party take the child [Y] interstate or overseas for their holiday period, that party shall provide to the other party at least 28 days’ notice prior to departure together with details of their destination, a general itinerary and details as to where the child shall be staying during such period.

General matters

(24)That unless otherwise agreed in writing, the parties shall communicate with one another via email, except in the case of an emergency with respect to the said children.

(25)The father is to provide and maintain a mobile phone for [X].

(26)That should the children require their passport to be renewed; both parties shall sign and return to the requesting party a passport application for either or both of the children within 48 hours of such request being made.

(27)That should either party refuse to sign a passport application as requested in accordance with these orders; this order shall serve as an authority of that party for the purpose of a passport application.

(28)That both parties shall immediately notify the other of any serious illness or injury or any other emergency involving the children when the children are in in their care.

(29)That the parties shall keep other informed of their current residential and postal address, telephone numbers, and email addresses and advise of any changes within 48 hours of such change.

(30)That both parties shall be entitled to obtain directly from any school attended by the children or from any health, welfare or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the said children.

(31)That both parties are to use their best endeavours to promote a positive image of the other party, the partner of the other party and family members of the other party, to the children, and:

(a)     Avoid arguing in the presence of the children;

(b)    Refrain from sending each other threatening and abusive messages;

(c)    Refrain from intimidating each other;

(d)    Refrain from denigrating the other parent within the hearing of the children;

(e)    Refrain from involving the children in parenting issues and any disputes between parties; and

(f)     Refrain from unreasonably interfering in communication between the children and the other parent.

(32)That unless otherwise agreed the parties shall continue to support [X]’s continued enrolment at School 1.

(33)That in relation to the child [Y], the parties may attend at any extracurricular or school event (“the event”) which parents may be invited to attend or expected to attend, and further the parent with whom the child [Y] is living at the time of the event will notify the other parent within 24 hours of receiving notice of such event.

(34)In relation to the children’s sporting and other significant extracurricular activities:

(a)     The parties shall ensure that any vouchers issued in relation to the children and received by either parent shall be used to pay the enrolment costs and any additional costumes/uniforms for that respective child’s activities and shall not be withheld for the benefit of either child.

(35)That within 14 days of the date of these orders the Independent Children’s Lawyer (ICL) meet with both children and explain these orders to the children.

(36)That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

THE COURT FURTHER ORDERS

(37)That the parents shall have equal shared parental responsibility for [X] born …2008.

(38)In the event that the parties cannot come to a joint decision about a major long-term issue regarding [X], or disagree about the interpretation of these orders, they shall do all things necessary to participate in a family dispute resolution with a person authorised under section 10G of the Family Law Act.

(39)That the parties may attend any extracurricular or school event which parents may be invited to attend or are expected to attend and, further, the parent with whom the child is/children are living at the time who received notices of the event will notify the other parent of the event within 24 hours. 

(40)Changeover for [X] is to take place at her school and, during school holidays, at the curb of the street at the mother’s residence.

(41)That the parties enrol in and attend mediation and/or counselling at Relationships Australia without delay.  After initial mediation and/or counselling between the parties, [X] is to be involved in the counselling if the counsellor considers it appropriate.  There are to be no preconditions set by either party or [X] before the parties participate, including any precondition for an apology in writing or otherwise by the mother to [X].

(42)The parties are to notify the independent children’s lawyer once they have attended the first mediation/counselling session. The independent children’s lawyer is to notify the court when that has occurred and the independent children’s lawyer will then be discharged.

(43)The independent children’s lawyer has liberty to apply.

IT IS NOTED that publication of this judgment under the pseudonym Hemming & Bolton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 104 of 2015

MS HEMMING

Applicant

And

MR BOLTON

Respondent

REASONS FOR JUDGMENT

1. This is a parenting application about two children: [X] who is 14 ½ years old and [Y] who is 10, soon to be 11, years old.  The parents entered into consent orders on 24 August 2015 that provided for the parties to have equal shared parental responsibility for the children and for the children to spend time/live with each parent on a week about basis and for half of the school holidays.  The orders contained various ancillary orders, including an order that the parties were to arrange for the children to enrol at School 2.  There was a notation to the orders that the parties agreed to share school fees equally and other related education costs.

2. The orders were made after the publication of a family report dated 22 May 2015. That family report noted that [X] was struggling with his parents’ conflict and this was reflected in difficult behaviours exhibited by him.  There had been an incident in February 2015 between [X] and his mother when he threatened self-harm with a knife.  The family consultant observed that the mother appeared unable to handle [X]’s behaviour.  The consultant was also critical of the mother's propensity to use physical means to enforce discipline on [X] including slapping him on the face on one occasion and hitting him with a stick on another.  The family consultant recommended that the mother consult a child psychologist to devise strategies to help her handle [X]’s behaviour and suggested that [X] have some input into that process. Unfortunately, the mother does not appear to have acted on that advice.

3. The family consultant identified the central issue as a lack of parental alliance.  He saw both parties as having contributed to the dysfunctional dynamics of the family and considered that the family would be likely to continue to struggle with co-parenting issues and that would have a negative impact on the well-being and adjustment of [X] and, most likely, [Y] if those issues were not addressed in a timely manner.  The family consultant observed that little had been done to address the fundamental problem that led to the litigation in the first place, that is, [X]’s psychological adjustment and his troubled relationship with both his parents.  The family consultant recommended that the parents and children engage in family counselling as a matter of urgency to address issues of parental communication and cooperation and to promote a functional parenting relationship.

4. The arrangements in the consent orders of 24 August 2015 broke down very quickly.  In September 2015 there was an incident between the mother and [X] which resulted in a physical altercation.  What happened is not clear but it appears that [X] may have made derogatory remarks about the mother's partner, the mother replied by telling [X] to go to his room, [X] refused and the mother began to push him which resulted in a physical altercation.  There is no clear evidence that [X] was injured in any way, although the father asserted that he suffered bruises from being hit on the legs.  However, a police report at the time noted that [X] "did not show any obvious signs of injury".

5. [X] left the mother's home with the father’s sister who, with the father's permission, reported the matter to the police.  The police investigated, including interviewing the child, and decided to take the matter no further.  [X] subsequently refused to spend time with his mother.  [X] has continued to spend week about time with each parent.

6. The mother’s response to [X]’s refusal to spend time with her was to initiate proceedings on 7 January 2016 where she sought orders that she have sole parental responsibility for both children and that the children live with her and spend alternate weekends with the father.  She proposed orders that the children spend half of the holidays with each parent.  She also filed contravention proceedings against the father claiming that, among other things, the father refused to facilitate [X] spending time with her.  The father filed a response where he sought sole parental responsibility for [X] and equal shared parental responsibility for [Y].  He sought orders that [X] spend time with the mother according to [X]’s wishes.

7. On 4 October 2016 a second family report was released by the same family consultant who had prepared the earlier family report.  The second family report noted that the mother accepted little responsibility for the incident with [X] and that her attitude was "blaming and accusative" towards the father.  The family consultant also noted that [X] had brought a letter with him to his interview saying that he did not want to see his mother.  He said that he would be willing to resume communication with his mother and gradually work toward spending overnight time with her but for this to occur she would need "to take responsibility for her actions" and acknowledge that it was "wrong" for her to have hit him.  He also said that she needed to change her parenting style and she ought to provide proof that she had completed a parenting class.  He said she needed to demonstrate that she was "taking responsibility" for her actions.  He acknowledged that he needed to take responsibility "for swearing at her and being cheeky" and he acknowledged that his missed his mother “a little bit" and had enjoyed times with his mother in the past. The family consultant considered that [X]’s comments showed signs of adult influence, particularly his notion of his mother "accepting responsibility" and his reference to a parenting course for his mother.  The family consultant considered that it was possible these comments emanated from the father but also considered it likely that the comments derived from [X]’s participation in counselling. 

1. The consultant considered that [Y] seemed to be happy with the current week about arrangement but she was clearly distressed by the family conflict.  The family consultant viewed the mother as "firmly enmeshed" in the parental dispute and as "overwhelmed by her own emotional response to the issues that have been raised and what has occurred". He said of the mother that:

   She is deeply distressed by her fractured relationship with [X], but also presents as unwilling to accept even some responsibility for what has occurred, instead focusing upon the father's role in allegedly alienating her from [X] and seeking to punish her for past wrongdoing through his alleged use of the children.

2. The family consultant also assessed the father has as having contributed to the dysfunctional dynamics within the family.  In the earlier report he pointed to the father's apparent disdain for the mother and felt that [X]’s misbehaviour in his mother's household and apparent good behaviour in his father’s household possibly reflected fear of misbehaviour in his father's household because the father was the stricter parent who used corporal punishment as a means of discipline.  The family consultant saw [X] as having a troubled relationship with both parents.

3. The family consultant observed:

   This matter continues to be a difficult and complex matter for the Court to determine given the failed implementation of consent orders in relation to parenting arrangements, the high level of conflict within the family, and the troubled relationship existing between the mother and [X] and his current refusal of contact with the mother.  As mentioned in the previous family report this is a matter that tests the capacity of the Court to regulate family relationships and is a matter that would be best dealt with by way of family counselling rather than litigation, especially given the adversarial nature of the current proceedings and the emphasis on finding fault and gathering evidence to discredit the other. 

4. On 17 October 2016 the court, in response to that observation, ordered the mother to contact Relationships Australia to set up an appointment with the aim of working towards a process of joint counselling with [X].  Relationships Australia was chosen because [X] was apparently having counselling with that organisation.

5. On 16 March 2017, Relationships Australia wrote to the independent children's lawyer referring to that order and commenting relevantly as follows: 

   All three parties (Ms Hemming, [X] and Mr Bolton) have a demonstrated a willingness to be involved in this assessment/preparation process.  However, despite the best efforts of all involved, the process has reached an impasse.  Mr Bolton and [X] have requested a specific apology in writing from Ms Hemming before [X] would be willing to attend joint counselling with Ms Hemming and for Mr Bolton to support that.  Ms Hemming is willing to make an apology within the joint counselling process.  However, not in writing, prior to that.

   Mr D [the counsellor] is of the opinion that the joint counselling is an opportunity for [X] and Ms Hemming to have a facilitated discussion about what happened between them and the hurt and pain that has resulted.  Responsibility-taking, apology and reconciliation will generally be the outcome of such a process and not the beginning.

   Therefore we believe that there is insufficient readiness at this stage for joint counselling to commence.  However, should there be a resolution of this impasse in the future and all parties express a willingness to resume the assessment/preparation process with Relationships Australia, we would be prepared to be involved.

6. Nothing had changed by the time of trial.  The mother annexed her earlier affidavits to her trial affidavit detailing her criticisms of the father. The father's trial affidavit consisted of 48 pages, comprising 223 paragraphs, along with an additional 257 pages of annexures.  Some of the father's material dealt with the contravention application but the bulk of it contained detailed criticism of the mother, allegedly illustrated by a large amount of annexed e-mail correspondence. Broadly speaking, the case concept of each party was to portray the other party as uncooperative and unreasonable and to portray themselves as cooperative and reasonable. Each party      had some success with the first part but less with the second.

7. However, at the commencement of trial, after indication of a preliminary view from the bench, the parties agreed that they would have equal shared parental responsibility for [X] but, after a process of consultation, the father would be allowed make the decision about [X] in the event of disagreement.  Agreement was reached that [X] should live with the father and that [Y] should spend a week about living with each parent. There was agreement about holiday arrangements for [Y] and various ancillary matters such as [Y] communicating with each parent. 

8. The parties agreed that they were to have equal shared parental responsibility but, as each asserted the other could not be trusted to act in [Y]’s best interests, they each wanted a mechanism giving themselves the final say in the event of disagreement. The principal issue at trial thus became a relatively narrow one about whether, in the event of disagreement about parental responsibility issues, the mother or the father should have the final say in relation to [Y]. The parties also sought orders about which school [Y] is to attend when she commences middle school in year 7 in 2020; who would determine which sporting events [Y] would participate in and the place of changeover for [Y].

9. I accept the observations and opinion of the family consultant expressed in both reports.  I do not propose to make factual findings about each fact in dispute between the parties. The written material particularly that attached to the father’s affidavit demonstrates, on the part of the mother, a belligerent and accusatory tone and, on the part of the father, a belligerent and disdainful tone.

10. However, I should deal with some particular incidents that were highlighted in cross-examination.  The father alleged that the mother had acted unreasonably in relation to counselling.  The consent order of 24 August 2015 provided that the parties were to enrol in a counselling or mediation service nominated by the mother.  The mother nominated Catholic Care for that purpose.  It was suggested to the mother in cross-examination that she was the one unwilling to participate in that process.  I am satisfied that the mother nominated Catholic Care and the father effectively refused to participate.  He gave various explanations for his failure, including that his personal counsellor, also a counsellor at Catholic Care, was critical of the process proposed by the mother's counsellor at Catholic Care.  I found his explanation unsatisfactory and do not accept that his refusal to participate in counselling at Catholic Care was reasonable or genuine.  The father's reluctance to attend counselling with the mother was also demonstrated by the letter from the Relationships Australia dated 16 March 2017 referred to above.  The father was cross-examined about that letter and attempted to suggest that it was [X] who imposed the condition and that the father was not responsible for the rejection of the proposal for counselling.  Again, I found the father’s explanations unsatisfactory. I am satisfied that he minimises his responsibility for the failure of attempts at counselling or mediation involving the mother.  The imposition of the condition as to the written apology from the mother prior to counselling constituted an effective refusal to participate in counselling.  I do not accept that the father was unable to persuade [X] to participate in counselling without that condition.

11. Another example of the father minimising his responsibility and role constituted the involvement of the police following the physical altercation between [X] and his mother.

12. A police case note dated 29 September 2015 was produced on subpoena.  It read relevantly as follows:

    Member E reports Mr Bolton, father of [[X]] attended at Suburb A station and requested the police further investigate the incident involving [X] and his mother ….

    When member attended the original incident, a complaint of assault was not taken as Mr Bolton did not wish to subject his son through (sic) anymore court proceedings, given a six month custody battle had just concluded.  [[X]] at this time did not show any obvious signs of injury.

    Mr Bolton informed member that he was seeking sole custody of [[X]] and now wanted his son to pursue a complaint of assault.

    A CFI to be conducted on Tuesday, 29 September 2015 at 930 hours with Sgt F to conduct interview.  At the conclusion of the interview it will be determined whether this matter will be further pursued.  (Material in square brackets redacted in original)

13. The father denied that this note was an accurate record of his involvement with the police.  Again the father attempted to minimise his responsibility.  I am satisfied that, in broad outline, this note accurately records the police impression of the father’s motivation and actions.

14. At a later time the father also took [X] to see the father’s solicitor in these proceedings.  The father said that his intention was to permit [X] to obtain some legal advice about the consequences of, as the father put it, [X] “pressing charges” against his mother.  I was somewhat perplexed by this evidence as it appeared that the police decided not to charge the mother soon after the complaint was made.  There was some evidence that the father was unhappy with that decision.  He may have been seeking to have it changed.  In any event, I consider that taking [X], who was then about 12 or 13 years old, to speak to the father’s solicitor in these proceedings was a deliberate exposure of the child to the parental conflict and a serious abnegation of parental responsibility.

15. Another matter that was the subject of cross-examination concerned [X]’s enrolment at School 1 middle school in 2016.  This was done without reference to the mother and when she found out she attended at school on the first day of the school year and complained to the school authorities.  It appears that [X] was called out from class and, from his point of view, subjected to an embarrassing scene.  He later wrote a letter to the mother condemning her conduct.  The mother denied that she had intended to have [X] called out from class or to create a scene.  I expect the mother was angry but appears to me this could have been handled by her in a less confrontational way, for example by making a telephone call and discussing the issue with the principal in the first instance.  Her angry response did not help.

16. However, it is noteworthy that the student enrolment form completed on behalf of [X] stated that the mother was not “responsible for parenting” and was not to receive school reports.  It also stated she was not to be contacted in an emergency.  In a panel headed “special family circumstances” the following was written: “Due to an incident on 12/9/2015 [X] now lives solely with father and currently has no relationship with mother.  If further information is required please contact David DeSilva from DeSilva Hebron lawyers”.  The mother, not surprisingly, took umbrage at the way this form was completed.  In evidence the father said that the enrolment form had been completed by Ms G, his current partner, who had, unfortunately, completed it wrongly.  In my view, this was a matter that ought to have been attended to by the father personally and it was inappropriate for him to leave the matter to Ms G.  As well as being legally inaccurate, the completion of the form in this way was arrogant and disdainful of the mother.   

17. The 2015 consent orders provided for the parents to enrol [X] and [Y] at the School 2 for their middle school education.  The arrangement quickly broke down in a welter of recriminations.  The father sought an assessment for child support against the mother, presumably based on his full-time care of [X].  The mother said the agreement about sharing the costs of the private school fees at School 2 were based on an assumption that the father would not seek child support (although the orders of 24 August 2015 say nothing about child support). She said she would not contribute equally to the fees.

18. At trial the mother indicated that she was willing to pay all the private school tuition fees at School 2 but she expected the father to contribute 50% of the other non-tuition fees.  In that case the mother indicated that she would also seek a variation of the child support assessment to recognise her payment of the tuition fees.  The father was unwilling to agree to [Y] being enrolled at School 2 under any circumstances.  He said he could not afford to pay any fees.  Coincidently, he had resigned from the family business before the trial.  He said this was because, variously, of a downturn in the industry in Darwin, an injury to his shoulder and the fact that he may wish to pursue some other career.  Given my reservations about the father's credibility, I have some doubts about these explanations but it is unnecessary to make any finding.  [Y] will not be ready to attend middle school until 2020.  Her views about school will presumably be taken into account by both parents.  Not surprisingly, they disagree about what her present views are.  Another factor is that [Y] may wish to attend the same school as her brother, although when she begins year 7 he will begin year 11.  At this stage it is simply speculation about which school it is in the best interests of [Y] to attend and her views may develop further and change, whatever they might be at the moment.  I do not consider it appropriate for the court to make an order about this subject.

19. The parents also disagreed about which sports and extracurricular activities [Y] should participate in.  It is not apparent to me that either parent is better qualified to make decisions about this than the other.  Presumably, as [Y] grows older, she would be better able to express her own views and they will be taken into account by her parents.

20. Another issue that was agitated by the parties concerned the place for [Y]’s changeover.  The father lives at a relatively isolated place in the rural area and the mother alleged that she was afraid to go to that property.  She sought to have changeover take place at a public place in Suburb A.  There was no real evidence of family violence in this case, although [X] did tell the family consultant at one point that he had heard his father threaten to punch his mother during an argument some years ago.  The mother appeared to assert that there was some risk of family violence but I do not accept there is such a risk.  Changeover for [Y] will take place at school except for three occasions during school holidays. The father said that he was willing to pick up [Y] and drop her off at the curb outside the mother's home in Suburb A.  There is no reason why the mother needs to leave the house or the father to enter the property as she lives in a unit in a complex well away from the road.  I consider that is an appropriate resolution of the issue.

21. Another issue agitated by the father was the allegation that [X] was embarrassed when his mother came unannounced to school or sporting events and he sought an order that she provide notification in advance.  There seem to have been a couple of occasions at most and whether or not [X] was put out was not clear.  I am not satisfied that any restriction on the mother’s freedom of movement in this way is appropriate.

22. Neither party expressly referred to the so-called rule in Rice & Asplund [1979] FLC 90-725 which prohibits re-litigation of issues unless it can be seen to be in the best interests of the children involved. The events flowing from [X]’s altercation with his mother in September 2015 have necessitated a reconsideration of the arrangements for [X] in the consent orders of 24 August 2015. I am not satisfied, however, that any significant change should be made in the arrangements for [Y], particularly in relation to parental responsibility, for the reasons set out in these reasons.

23. The resolution of a parenting dispute under the Family Law Act (“the Act”) requires adherence to the legislative pathway set out in Part VII of the Act.

24. In determining what is in the best interests of the child, the court must consider the matters in subsections (2) and (3) of section 60CC.

25. The primary considerations in subsection (2) 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 with the latter factor to be given greater weight.

26. I am satisfied the children have not been subjected to or exposed to abuse, neglect or family violence.  Nevertheless, I am also satisfied that the conflict to which these children have been exposed has been psychologically harmful to [X] and, in all likelihood, [Y] too.

27. Notwithstanding [X]’s estrangement from his mother, I am satisfied that both children will benefit from a relationship with both parents.

28. The additional considerations are set out in subsection (3) in parts (a) to (m). 

29. In relation to (a), the children’s views, [X] has expressed a view that he does not wish to spend time with his mother.  Regardless of the reasons why that view developed it is not in real doubt that that is his view.  [Y] wishes to spend equal time with both parents. 

30. In relation to (b), the nature of the relationship of the children with their parents and any other persons, [X] is presently estranged from his mother but, given the observations of the family consultant and my conclusion that the father has not protected [X] from exposure to conflict, there are indications that his relationship with his father is now or may become problematic in future. I have no doubt that [X] has been harmed by exposure to parental conflict and his relationship with his mother undermined by it. This is a tragedy for [X].  [Y] appears to have a close relationship with both parents.  There was no evidence of any other significant relationships although the maternal grandparents live in Darwin.  There appeared to be some indications, principally little real effort at contact, that the father does not strongly encourage a relationship between [X] and the maternal grandparents. 

31. In relation to (c), the extent to which each of the parents has taken, or failed to take, the opportunity to participate in decision-making about major long-term issues for the children and spending time with and communicating with the children, both parents have, on one level, sought to be actively involved in decisions about the children’s lives but both parents have been unable to effectively rise above the conflict with the other to effectively participate in decision-making about their children.    

32. No issue has been raised in relation to maintenance of the children under part (ca).

33. In relation to (d), the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child or other person with whom they have been living, no change in circumstances is contemplated. 

34. In relation to (e), the practical difficulty and expense of the children spending time with and communicating with a parent and whether that will substantially affect the children’s right to maintain personal relations and direct contact with both parents, this is not relevant.    

35. In relation to (f), the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs, I have already referred to serious concerns about each parent but the principal concern is the failure to protect the children from exposure to the conflict.  In other words, both parents have failed to provide for the emotional needs of the children. 

1. In relation to (g), the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child the court thinks are relevant, there is no relevant issue. 

2. In relation to (h), the children are not Aboriginal or Torres Strait Islander children.

3. In relation to (i), the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, both parents love their children but their capacity as parents suffers from the limitations described above. The commitment of each parent to ongoing conflict and their unwillingness or inability to find means, through counselling, mediation or otherwise, to ameliorate that conflict means that neither parent is able to consistently place the children’s needs above their own. 

4. In relation to (j) and (k), any family violence involving the child or a member of the child’s family, apart from the historical mention by [X] of hearing his father threaten to punch his mother, there is no evidence of family violence. 

5. In relation to (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 children, I am conscious that refusing to make the type of order sought by both parties giving one or other of them final decision-making power about long-term issues, may, or is even likely to, lead to further proceedings.  However, I am not satisfied that giving one parent final decision-making power in relation to [Y] is less likely to lead to further proceedings because I have no confidence at all that the other parent would accept that result.  Further, I am not satisfied that either party is likely to use such a power responsibly.

6. In relation to (m), any other fact or circumstance that the court thinks is relevant, there is no other relevant fact or circumstance. 

7. As the family consultant observed, this matter “tests the capacity of the Court to regulate family relationships and is a matter that would be best dealt with by way of family counselling rather than litigation”. I wholeheartedly agree with that observation.  Although mediation and counselling have so far proved unsuccessful in this matter, I propose to make another order for the parties to attend mediation and/or counselling at Relationships Australia.  After initial mediation and/or counselling between the parties, [X] is to be involved in the counselling if the counsellor considers it appropriate.  There are to be no preconditions set for the parties to participate, including preconditions for an apology in writing or otherwise by the mother to [X].

8. The parties, by their consent orders of 15 February 2018, agreed to discharge in their entirety the consent orders of 24 August 2015.  The 2018 orders altered the parental responsibility order in respect of [X] but I have concluded that the parental responsibility order in respect of [Y] should remain unchanged.  I will repeat the 2015 order in respect of [Y] and make a further order in relation to change over. 

9. I also propose to make a further order in relation to counselling and/or mediation for the parties. The parties are to arrange mediation/counselling through Relationships Australia without delay. If the counsellor considers it appropriate, the parties are to involve [X] in the counselling. No preconditions are to be imposed by the parties or by [X].

10. The parties are to notify the independent children’s lawyer when they have attended the first counselling session. The independent children’s lawyer is to notify the court when that happens and the independent children’s lawyer will then be discharged. I will give the independent children’s lawyer liberty to apply in the event that one or both of the parties refuse to comply with this order.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 24 December 2018