I and C

FEDERAL MAGISTRATES COURT OF AUSTRALIA

I & C

[2001] FMCAfam 122

FAMILY LAW – Children – separation of siblings – shared parenting – home schooling

Applicant:

T H I

Respondent:

L M C

File No:

ZP 1097 of 2000

Delivered on:

23 August 2001

Delivered at:

Parramatta

Hearing Date:

7^th, 8^th and 9^th August 2001

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr Shaw

Solicitors for the Applicant:

Hal Ginges & Co, 81 Lurline Street, Katoomba 2780

Counsel Advocate for the Respondent:

Mr Dunkley

Solicitors for the Respondent:

McPhee Kelshaw, 170 Macquarie Road, Springwood 2777. DX 26729 Springwood

ORDERS

IT IS ORDERED BY CONSENT:

That N C I born 23 April 1987 and A M I born 24 November 1988 live with the Applicant Father.
That K E I born 18 August 1992 and X P H I born 28 March 1994 live with the Respondent Mother.

IT IS FURTHER ORDERED:

That other than provided in Orders 1 and 2 of these Orders all existing parenting orders are discharged.
That the Father have contact to the children X and K as follows:
(a)From 4.00PM Friday to 8.30AM Monday each alternate weekend commencing 31 August 2001;
(b)From 4.00pm Tuesday to 8.30AM Wednesday in the week following a weekend when the children have been with the Mother;
(c)For one half of all school holiday periods being the second half in years ending in an odd number and the first half in years ending in an even number;
(d)By telephone and in this regard the children are to call the Father no less than twice a week;
(e)For three hours on each child’s birthday in years ending in an odd number and three hours on the day after each child’s birthday in years ending in an even number;
(f)If contact falls on Mother’s Day contact is suspended from 3.00PM Saturday;
(g)On Fathers Day from 3.00PM Saturday until 6.00PM Sunday;
(h)Otherwise as agreed between the parties.
That the Mother have contact to the children A and N as follows:
(a)From 4.00 PM Friday to 6.00PM Sunday each alternate weekend to coincide with weekends that K and X live with her, commencing 2 months from the date of these orders;
(b)From after school until 7.00 PM on the 2^nd and 4^th Tuesday of each month;
(c)For one half of all school holiday periods being the first half in years ending in an odd number and the second half in years ending in an even number;
(d)By telephone and in this regard the children are to call the Mother no less than twice a week;
(e)For three hours on each child’s birthday in years ending in an odd number and three hours on the day after each child’s birthday in years ending in an even number;
(f)If contact falls on Father’s Day contact is suspended from 3.00PM Saturday;
(g)On Mother’s Day from 3.00 PM Saturday until 6.00PM Sunday;
(h)Otherwise as agreed between the parties.
That the Mother is to deliver the children in her care to the Father at the commencement of his contact AND the Father shall return them to the Mother at her home at the end of his contact.
That the Father is to deliver the elder children to the Mother at the commencement of her contact unless they are coming directly from school AND the Mother is to return them to the Fathers home at the end of her contact.
That during periods when the children are living with the Father the Father is to ensure that the children attend their extra curricular activities.
That the Father and the Mother have joint responsibility for making decisions about the long term care, welfare and development of the children.
That the Father have responsibility for making decisions about the day to day care development and welfare of the children when they are in his care.
That the Mother have responsibility for making decisions about the day to day care development and welfare of the children when they are in her care.
SCHOOL HOLIDAY CONTACT:
1.SHALL commence at 9.00AM.
2.SHALL conclude at 2.00PM.
3.WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.
4.Pupil free days are deemed to be school holidays.
5.Christmas 2001/2002 is defined as a year ending in an odd number and the children shall be in the care of the Mother during the first half of the holidays.
6.Years ending in a zero are defined as years ending in an even number.
If contact occurs on a day adjacent to a public holiday, contact shall be extended to include the public holiday. If the public holiday is a Friday the contact shall start at the usual time on the Thursday and if it is a Monday shall conclude at the usual time on the Monday.
That until X and K are old enough respectively to commence high school, both children are to be home schooled by the Mother unless she determines that one of the children should start external schooling.
If the Mother determines that either X or K should start external schooling then both children are to start external schooling.
After a period of school holiday contact, contact shall resume on the first weekend after school has resumed to the parent who has had the care of the children during the first half of the holidays AND on the second weekend to the parent who has had the care of the children during the second half of the holidays.
That each of the parties be entitled to obtain directly from any school attended by the children or from any health or welfare professional 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 children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
That each party not denigrate the other party or members of the other parties family to or in the children's hearing.
That both parties shall forthwith do all things necessary to resume counselling with Unifam "Keeping contact" and shall ensure that the children in their care attend as required by the program co-ordinator.
That all outstanding applications are otherwise dismissed.
That all exhibits be returned at the expiration of one calendar month unless an appeal is lodged.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

ZP 1097 of 2000

T H I

Applicant

And

L M C

Respondent

REASONS FOR JUDGMENT

The proceedings

The proceedings are for parenting orders. They relate to contact and the form of education the parties’ children should receive. The proceedings concern N C I born 23 April 1987, A M I born 24 November 1988, K E V I born 18 August 1992 and X P H I born 28 March 1994 (“the children”).

The applications

T H I (“the father”) filed an application for final orders on 12 March 2001. His application related to residence of the parties’ four children. At trial, he sought the orders contained in Exhibits B and C. Exhibit B contains the orders sought by him if the younger two children are home-schooled and Exhibit C identifies the orders sought by him should the children attend a public school. Exhibit B is in the following terms:
(1)That the children of the marriage N C I born 23 April 1987 and
A M I born 24 November 1988 reside with their father.
(2)That the children of the marriage K E V I born 18 August 1992 and X P H I born 28 March 1994 reside with their mother.
(3)That the parties have responsibility for the day-to-day care, welfare and development of the children when the children are in their respective care.
(4)That the parties have joint responsibility for the long-term care, welfare and development of the children.
(5)That the mother have contact with N and A in accordance with their wishes.
(6)That the father have contact with K and X as agreed between the parties and in the absence of agreement the following:
(a)For each alternate weekend from the end of school
3.00 pm Friday to beginning of school 9.00 am Monday;
(b)On each alternate Monday from beginning of school
9.00 am until end of school 3.00 pm Wednesday;
(c)To facilitate weekend and midweek contact, the father shall collect and return the children from school;
(d)For half of all New South Wales gazetted school holiday periods being the first half in even-numbered years from 9.00 am on the day following the last day of school and the second half in odd-numbered years until 6.00 pm on the day before the first day of school;
(e)To facilitate school holiday contact, the father shall collect the children at the commencement of such contact from Street, B and the mother shall collect the children at the end of such contact from B Road, F;
(f)On each of the children’s birthdays for three (3) hours on a school day and for six (6) hours on a non-school day and shall include all of the children;
(g)On the father’s birthday in accordance with Order 6(f);
(h)If a contact period falls on the mother’s birthday, then contact shall be suspended in accordance with 6(f);
(i)On Father’s Day from 6.00 pm on the evening preceding Father's Day until 6.00 pm on Father’s Day;
(j)If Mother’s Day should fall on a contact weekend, then contact shall be suspended from 6.00 pm on the evening preceding Mother’s Day until 6.00 pm on Mother’s Day;
(k)On Christmas Day in odd-numbered years from 2.00 pm on Christmas Day until 6.00 pm on Boxing Day;
(l)On Christmas Day in even-numbered years, contact shall be suspended from 2.00 pm on Christmas Day until
6.00 pm on Boxing Day;
(m)On Easter Sunday in odd-numbered years from 2.00 pm on Easter Sunday until 6.00 pm on Easter Monday;
(n)On Easter Sunday in even-numbered years, contact shall be suspended from 2.00 pm on Easter Sunday until
6.00 pm on Easter Monday.
(7)The mother to cause the children to telephone their father on Tuesday and Thursday evenings between 7.30 pm and 8.30 pm on a non-contact weekend.
(8)The mother provide all necessary educational material to the father so as to facilitate the father home schooling on his designated days.
(9)That all overseas travel be only by the consent of both parties and that all the children be placed on the ‘PASS’ system at all international departure points.
(10)That the weekend contact shall commence on the weekend of the 17^th, 18^th, 19^th of August 2001.
(11)That midweek contact shall commence on Monday, the 13^thAugust 2001.
(12)That the mother provide sufficient clothing for weekend and holiday contact.
Exhibit C is in identical terms to Exhibit B other than in two respects. Proposed Order 6(b) is that contact occur “on each alternate Monday from after school 3.00 pm until beginning school 9.00 am Wednesday”. Order 8 proposes “That the children K and X attend formal schooling at a school agreed upon between the parties.”
L M C (“the mother”) filed a response on 4 April 2001. At the commencement of the hearing, her advocate tendered a Minute of the orders proposed by her. These are contained in Exhibit A. The orders proposed by her are:
(1)That N C I born 23 April 1987 and A M I born 24 November 1988 live with the husband.
(2)That K E V I born 18 April 1992 and X P H I born 28 March 1994 live with the wife.
(3)That each party be responsible for the day-to-day care, welfare and development of that child or those children as shall live with them.
(4)That the husband have contact with K and X from 4.00 pm Friday to 6.00 pm Sunday each alternate week.
(5)The wife have contact with N and A from 4.00 Friday to 6.00 pm Sunday of the weekends that the husband does not have contact with K and X pursuant to Order 4 hereof, first contact to commence two (2) months hence.
(6)That the husband have contact with K and X from 4.00 pm to 7.00 pm each first and third Wednesday of each month.
(7)That the wife have contact with N and A from 4.00 pm to
7.00 pm each second and fourth Wednesday of each month.
(8)That the husband have contact with K and X for the second half of each school holiday period in years ending in an odd number and for the first half of each school holiday period in years ending in an even number or zero.
(9)That the wife have contact with N and A for the first half of each school holiday period in years ending in an odd number and for the second half of each school holiday period in years ending in an even number or zero, such contact to commence in December 2001.
(10)That the husband shall have contact with all four children on Father’s Day and the wife shall have contact with all four children on Mother’s Day.
(11)Each party shall have reasonable contact by telephone with all or any of the children as shall not be in their care from time to time.
(12)Each party shall have such other contact with the children not in their care as the parties shall from time to time agree.

Short history

The father was born on 4 August 1955 and is 46 years old. The mother was born on 28 March 1959 and is now aged 41 years.
Both parties were born in New Zealand and in 1984 migrated to Australia.
The parties commenced cohabitation in October 1981 and were married on 3 April 1982.
Separation occurred on 2 March 2001. The marriage still subsists.
There are four children of the marriage, N I, A I, K I and X I.
The father continues to reside in the former matrimonial home, a rented property at Faulconbridge. The two elder children live with him. The mother and younger children live nearby in a property recently rented by her. The younger children have regular contact to their father.

The evidence

The applicant father relied on the following evidence:
·His affidavit sworn 2 August 2001 and filed 3 August 2001, together with his oral testimony;
·Affidavit of D C sworn 3 August 2001 and filed that day. Ms C was not required for cross-examination and I accept her evidence;
·Affidavit of T H sworn 3 August 2001 and filed that same day. Mr H was not required for cross-examination and I accept his evidence;
·Affidavit of M W sworn 3 August 2001 and filed that same day, together with her oral testimony;
·The father’s affidavit sworn 5 August 2001;
·Affidavit of D H sworn 5 August 2001 and filed that day, together with his oral testimony;
·Affidavit of P H sworn 7 August 2001 and filed that day, together with her oral testimony.
The respondent mother relied on the following evidence:
·Her affidavit sworn 26 July 2001 and filed 27 July 2001, together with her oral testimony;
·Affidavit of D C sworn 5 April 2001 and filed 6 April 2001. Mr C was not required for cross-examination and I accept his evidence;
·Affidavit of P C sworn 5 April 2001 and filed 6 April 2001, together with her oral testimony;
·Affidavit of W R sworn 24 July 2001 and filed 27 July 2001. Ms R was not required for cross-examination and I accept her evidence;
·Affidavit of D R sworn 24 July 2001 and filed 27 July 2001. Mr R was not required for cross-examination and I accept his evidence;
·Affidavit of R D sworn 24 July 2001 and filed 27 July 2001. Ms D was not required for cross-examination and I accept her evidence;
·Affidavit of R L sworn 25 July 2001 and filed 27 July 2001. Ms L was not required for cross-examination and I accept her evidence;
·Affidavit of C B sworn 26 July 2001 and filed 27 July 2001, together with her oral testimony;
·Affidavit of G K sworn 26 July 2001 and filed 27 July 2001. Ms K was not required for cross-examination and I accept her evidence;
·Affidavit of R H sworn 26 July 2001 and filed 27 July 2001. Ms H was not required for cross-examination and I accept her evidence.
A Family Report was prepared by a Court Counsellor Greenfield, which report is dated 24 July 2001. The report became an exhibit in the proceedings. The court counsellor conducted interviews between the mother and the two children in her care on 6 July 2001, the father and the two children in his care on 11 July 2001, joint interviews between the parties on 18 July 2001 and observation sessions of the children with the mother, and the children with the father, that same day. The court counsellor recommended:
1.That N and A primarily reside with their father and that K and X reside primarily with their mother.
2.That N and A have flexible contact with their mother including, but not restricted to, after-school contact.
3.That K and X have liberal contact with their father, at least the equivalent of two days and two nights per week.
4.That Unifam continues to work with this family, with an explicit brief to facilitate and support N and A’s reconciliation with their mother.

Issues before the Court

These issues appear to be:
1.The duration and frequency of the father’s contact with K and X.
2.Whether K and X should continue to be home-schooled.
3.Whether K and X should commence school at St. Finbar’s School.
4.The father’s role in the children's education if the children continue to receive home schooling.
5.The nature of the mother’s contact with N and A.
6.The effect on the children of living separately from each other.
7.The attitude of the parents to the responsibilities of parenting.

The father’s circumstances

The father and two elder children live at 3 B Road, F. This property is rented from the Department of Housing. It comprised the family home for some years prior to separation. The father has worked in a variety of positions including managing a bookstore, part-time TAFE teaching and as a youth worker with the unemployed. He taught psychology and co-ordinated a labour market program. More recently, he has worked as a journalist preparing material for publication in the Sydney Morning Herald newspaper. He last worked externally from the home in 1991. In 1991 he developed chronic fatigue syndrome, a debilitating illness that impacted adversely upon his health. The father receives a disability pension as a consequence of his illness. N and A attend Blaxland High School. They attend Boys’ Brigade on Wednesday night between 6.45 pm and 9.00 pm. Both boys are skilled musicians. Since being in the father’s exclusive care they have reduced their attendance at music and now only attend orchestra. The two elder boys are communion members of the Catholic Church. They currently attend church at Glenbrook Baptist Church.

The mother’s current circumstances

The mother and two younger children live in Department of Housing accommodation at Unit 6/21 Hope Street, Blaxland. This is a three-bedroom townhouse. K and X are home-schooled by the mother. K started home schooling when she would have been in Year 1, in February 1999 and X started when he would have been in kindergarten, in February 2000. The mother is registered by the Board of Studies to home-school both children. K attends Girls’ Brigade at a Baptist church on a Monday, singing lessons each second Monday and flute lessons each week. She is a member of the Blue Mountains Orchestra, which involves a weekly rehearsal. X attends Boys’ Brigade at the Baptist church on Tuesday evening. He has soccer practice on Thursdays and participates in competition games on Saturday mornings in the Nepean Soccer Association. Both X and K will commence the sacramental program at St. Finbar’s Catholic Church in September 2001. They will take their first communion at Easter 2002. The children exercise contact to the father each alternate weekend and one night in the second week.

Current orders

On 9 April 2001, interim parenting orders were made. The orders were as follows:
1."That Orders 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 made 19 March 2001 be discharged.
2.
That A M I born 24 November 1988, N C I born 23 April 1987,

X P H I born 28 March 1994 and K E I born 18 August 1992 live with the Mother other than as provided in Order 3.
3.That the children live with the Father:
(1)From after school Friday to before school Monday each alternate weekend.
(2)From after school Tuesday until before school Wednesday morning in the week following a weekend when the children have been with the Mother.
(3)For the second half of all school holiday periods.
(4)By telephone and in this regard the children are to call the Father no less than twice a week.
(5)From after school for three hours on each child’s birthday.
(6)Otherwise as agreed between the parties.
4.That the Mother is to deliver the children to the Father at the commencement of contact unless the elder children are coming directly from school (in which case she must deliver the younger children).
5.The Father is to return the children to the Mother at her home at the conclusion of contact unless the elder children are returning directly to school (in which case he must deliver the younger children).
6.Order 2 is to be implemented no later than 5.00 pm on 14 April 2001.
7.That during periods when the children are living with the Father the Father is to ensure that the children continue to attend their extra curricular activities."
Subsequent to the making of the orders, the elder two children left the mother’s care on 3 May 2001. They have lived with their father since that time and had only limited communication with the mother.
The family has been attending the Unifam “Keeping Contact” program since shortly after the interim hearing.

Credit

This is one of those unusual matters in which it is necessary and proper to make credit findings. The fathers evidence in a number of material respects was unsatisfactory, not as a consequence of inadvertence but rather because I am satisfied he deliberately attempted to mislead the court. For example in his affidavit evidence he deposed that the mother left him without any shopping[1] or any money at separation. When pressed in cross examination he retreated and asserted that he meant only that he had $20.00 pocket money. This concession was necessary because he had money in his joint account. Similarly the parties cheque book[2], showed that a $266.44 cheque was drawn to Shopfast, internet grocers, on 21 February 2001. This corroborated the mother’s evidence that she had fully stocked the pantry a few days prior to separation.
[1] sworn 5/8/01at para 35.7
[2] exhibit G
Shortly prior to separation the mother borrowed $540 from a friend and established her own bank account. On 3 March 2001 the husband accessed her account and withdrew her money. He did not have her authority to do so. During cross examination the husband attempted to attribute responsibility for the withdrawal to St George Bank. He was coy and disingenuous in the manner with which he dealt with this event. The parties joint account held about $100.00. The father gave no evidence that indicated he had any basis for deciding that he was entitled to withdraw this larger sum of money. While he may have unwittingly accessed the account, he had no basis for continuing the transaction and taking the mothers money. He has been asked by the bank to repay the money but has failed to do so.
In spite of the fact that the mother told the Court Counsellor and the father during their joint interview that she was not seeking an order that N and A live with her, the father maintained in his affidavit filed

5 August 2001[3] that he had only become aware that this was so after he had filed his primary affidavit. The court counsellor confirmed the mothers evidence.
[3] para 2
I accept the submission made by the mothers advocate that where there is a conflict between the father’s evidence and the mother’s I should prefer the mother’s By comparison to the father the mother was a more honest witness. I am satisfied she tried to give an honest account of events, including those that had the potential to adversely affect her application.

Background facts

I infer that once the wife fell pregnant with N, the father gave up his studies and returned to the paid workforce full-time. There is no indication on the evidence that the mother returned to her employment after N was born until 2000. In 1991 the father was diagnosed as suffering from chronic fatigue syndrome. In January 1992 he commenced to receive a disability pension and continues to do so as a consequence of his illness. From 1992 until 1995 he was too unwell to leave the home at night. He started to recover in 1996 and began to contribute to computer magazines and the computer section of the Sydney Morning Herald, working from home. In 1999 the father contracted the Sydney Flu, his chronic fatigue inflamed and his health deteriorated. He retired from work and has not worked since.
Because of the father’s illness, the mother primarily cared not only for the children but also for the father. The father alleges that both prior to and subsequent to separation he was the children’s prime caregiver. The mother concedes that when she was absent from the home attending the children’s activities, those children not participating were cared for by the father. The father is an early riser, arising before the rest of the family. He put the dogs out, prepared breakfasts and he says did all the washing and ironing. Prior to the litigation he wrote to the mother's parents and gave a different description. He wrote:

"
… A bit tough on an invalid pensioner who has trouble with memory and body function – but understandable if you look at it as a 10 year (so far) sentence of no money and limited help etc. … with no end in sight."[4] I am satisfied that this statement is a more accurate description of his role in the home.
[4] e-mail 27 February 2001
N has always attended school, either in the State or Catholic education system. A attended school until 1999, when the parties agreed that he should be home-schooled. The parties believed that one child only being home schooled was not an ideal model. Hence K, who would have been in Year 1, started her home schooling that year and X started home schooling the following year when he would have been in kindergarten.
Prior to starting home schooling, the mother was registered by the Board of Studies as a Home School Teacher. The father has never registered.
Because of his illness, the father alleges that the parties agreed that the mother would be primarily involved in the children’s external school activities and their extra-curricular activities. She accepted this responsibility and actively involved herself in community life. She set about identifying and organising activities that included guitar and flute lessons, singing, violin and orchestra memberships for the children. The children enrolled in Boys’ and Girls’ Brigades, took swimming lessons, played soccer and attended art and pottery classes. She arranged for N and A prior to separation to receive the Sacraments at St. Finbar’s. As a consequence of her energy and commitment, the children have flourished musically and are active members of Boys’ Brigade and Girls’ Brigade. X is a keen soccer player. She attended N and A schools and maintained contact with the school concerning their educational progress. In an attempt to moderate the fees payable she undertook part time work, some of it voluntary, with the organisations that the children were involved in. Thus she was often with them when they participated in musicals, orchestra and excursions.
The father also alleged a substantial involvement in the children’s home schooling. He overstated his role in caring for the children, the house and participation in home education. The education books produced by the mother upon which the father was cross-examined revealed that the father had almost no involvement in marking the children’s work or setting out the structure of the curriculum and classes. He had a significantly lesser role than the mother’s.
During 2000 the mother worked one Wednesday morning per month, during which time the father cared for the children being home-schooled and attended to their home schooling. She also worked in the evenings, sometimes as frequently as 2 or 3 times a week. This work involved the children's activities. The father cared for those children who remained at home.
The parties’ marriage deteriorated significantly during the Christmas 2000/2001 school holidays. The decision to end the marriage was the mother’s. As the marriage was ending, the parties were verbally abusive of each other - abuse that was on occasion overheard by one or more of the children. Until this period, all four children were closely attached to the mother. As the parental disputation continued, N and A increasingly aligned themselves with the father and became oppositional and defensive with the mother. By February 2001 the mother’s relationship with N was problematic and culminated in an incident when N told the mother to “fuck off”. She slapped N across the cheek and he grabbed her wrist. The next day, the father withheld N from school and took him to a family friend also a counsellor, P H. This counsellor told the father and N that there was a possibility that the children may be placed into foster homes. This was a terrible comment to make that had no basis. It has had serious consequences. This comment was unprofessional and it suggests a lack of professional distance and objectivity in the role he purported to exercise.
During the week commencing 26 February 2001, the mother became aware that the father had been forwarding e-mails to numerous family and friends ostensibly, he alleges seeking pastoral and personal support. Some of the e-mails comprise annexures to the mother’s affidavit. The contents of the e-mails are hostile to the mother and comprise a detailed list of behaviours that the recipient could only have found concerning about her mothering. They include:
“N and A have been going to a family counsellor, and he has told L he will be informing the Department of Community Services (Child Welfare) about L’s violence towards N … and there is some small chance that we may lose custody of the kids to foster homes.”[5]
and —
“The boys have missed school again today — due to the stress of last evening’s conflict and the unrelenting harping on from L this morning.”[6]
and —
“By now we have had a couple of incidents of violence towards the kids, especially N … “[7]
[5] 26 February 2001 to John Bruin
[6] John Bruin supra
[7] 27 February 2001 to mothers parents
On 1 March 2001 an e-mail was sent from A’s computer to the mother’s parents, D and J C. The mother and her parents do not accept that A sent this e-mail. They believe that it was constructed and sent by the father without A’s input. J C gave evidence. She travelled from New Zealand to do so. She was an impressive witness. She and her husband have received e-mails from the children, including A, for a long time. I accept her evidence that the structure of this e-mail, sent at 11.02 PM, was significantly different from those she and her husband receive from their grandson. It stands in stark contrast to the e-mails sent by A on 12 March 2001.[8] It differs in sentence structure, materially differs in content and in manner of address to the recipients. I am satisfied that the child did not send the e-mail of 1 March 2001. It is a document created by the father to further inveigle the mother’s parents in the matrimonial dispute in a desperate attempt to prevent the mother bringing the marriage to an end. Because of her concerns about the content of the father’s communication with family and friends, the mother arranged with Telstra for a bar to be placed on the family telephone, preventing overseas calls.
[8] Annexure "E" Phyllis C
The parties separated on 2 March 2001 when the mother took the two younger children and left the home. The elder two children remained in the home with the father. Two days later, N telephoned the mother and during the conversation said, “Mum, you’re the strong one, you’ll make a go of anything you do in life. Dad’s not. He needs me and I need to look after A.” Her retort was harsh and unsympathetic to her son’s dilemma.
At separation the mother retained the family car.
After the conclusion of the interim hearing on 9 April 2001, the father telephoned the elder children from Court and advised them that the Court had ordered that they live with their mother until the final hearing. The elder children remained in the father’s care until the orders required that they moved to their mother’s home. On 14 April 2001, the father arranged for a family friend, Ms H, to take A and N to their mother. The children arrived at her home at about 5.00 PM, A with a school backpack and N a small bag and school backpack. A handed his mother a letter, which letter stated that he would not live with her. T H witnessed the letter. A telephoned his father and thereafter was abusive and rude towards the mother. N was somewhat cool towards her but did not behave in the same way as his younger brother.
A continued to be rude and oppositional with his mother. The children returned to their father for the second half of the Easter school holidays and then returned to their mother on 29 April 2001for the start of the next school term.
On 23 April 2001, the mother telephoned N to wish him happy birthday. She also asked to speak to her daughter who X advised was out with the father. The mother called again at 8.00 PM and the father answered the phone. K was sitting on the couch and the father says that she pulled her legs up and curled herself back into the couch and started to cry. She said, “I don’t want to talk to Mummy, I don’t want to talk to Mummy.” The mother alleges she heard the child calling out, “I want to talk to Mummy.” The father’s proximity to the child makes his account of this incident more reliable.
On 30 April 2001 the mother was preparing to take K to Girls’ Brigade. She asked all four children to get ready. The younger two complied and took themselves to the car. N dawdled whilst A said, “I’m not, I’m staying here.” The mother repeatedly asked him to get ready. He refused. She then took his left wrist, pulled his arm behind his back and said, “Get up, you’re going.” A broke free and ran into the bedroom. The mother followed him and took his mobile phone from him. She again grabbed his left wrist and he broke free. A then jumped around swinging mock punches at her. The mother wrapped her arms around him because she needed to prevent A from hitting her and herself from hitting him. N had got into the front seat of the car and X and K were sitting in the back. K was crying. The mother managed to get A out the door and to the rear door of the car. X got out of the car and was kicking A’s legs, which the mother shouted at him to stop. The mother tried to push A into the rear of the car but he resisted, again swinging punches towards her. A neighbour overheard the melee and came to assist. At the mother’s request, the local Police arrived, about 30 minutes after the incident started. The neighbour took K and X to Girls’ Brigade and the mother and A spoke to the Police. The children spoke to their father that evening, who advised them to report the incident to the school counsellor the following day.
On 2 May 2001 the family attended a counselling session at Unifam. That was the last occasion upon which there was a joint family counselling session.
On 3 May 2001 at about 7.00 PM, N told the mother that he and A were returning to live with the father. She did not try to stop them. The children rang the father from the railway station from Warrimoo Station. Having told his father that they had left their mother, the father made no inquiry of the children about why or what had occurred between the children and their mother. He told the children that he would try and have someone meet them when they got off the train and that if no-one was there they should start walking to his place. There was no attempt by the father to encourage the children to stay with the mother, in compliance with the interim orders then or later.
The following Sunday was Mother’s Day. All children were with the father. The father asked the children if they had made the mother a Mother’s Day card. K prepared one, while the boys did not. On Mother’s Day, the father and children left home early as the father planned that the children would call in and wish their mother a happy Mother’s Day. N and A were “a little bit rude” and all boys refused to see their mother. On the way home from church, K went in to the mother’s home and wished her happy Mother’s Day.
Since early May, the mother has seen N and A when they have attended Blue Mountains Orchestra. She has been there with K. The boys have refused to talk to her. On a couple of occasions she has approached them. When she has done so, the father has stood beside the boys, particularly A. He has done this because A would say that he felt sick and he wished to reassure A he was all right. I accept Mr Dunkley’s submission that a more adequate response from the father would have been to reassure the child/children that conversation with the mother at orchestra was to be enjoyed. His actions were in fact restrictive and sent a subtle message that Alexander did need protection from the mother.
On 28 June 2001, the mother asked N and A to join her and the younger children on a family holiday to the South Coast. N agreed and A said, “Yeah. That sounds OK.” On 4 July, K told the mother that her elder brothers were not coming on holidays. The following day the mother wrote to the father seeking his cooperation and support for the planned family holiday. He says he actively encouraged the children but was unable to get them to go on the holiday, even for a few days.
The last counselling session with Unifam took place on 5 July 2001.
N has been absent from school this year on 23 days and A 20 days. The father explained the absences as days when the children were attending Unifam and counselling at the Court. The mother, father and children attended counselling at Unifam on about four occasions. The children attended counselling at the Court three times. Mr H's affidavit does not suggest regular counselling and the father's answer does not adequately explain the magnitude of the children's absence from school. Combined with the identified homework difficulties reported by the teachers, absences of the frequency currently accumulating have a significant capacity to limit the children’s capacity to achieve academically.
Since being in the father’s care, A has not attended his violin lessons and neither N nor A have been to the Penrith Police Citizens Youth Club where they previously played saxophone and clarinet. Their attendance at Orchestra has fallen.
The mother has complied with the interim orders concerning the younger children’s contact with the father. On 3 August 2001, the weekend prior to the hearing, K became very distressed prior to contact and for an hour sobbed and argued against going to the father. The mother encouraged her to go and ultimately was able to make the child attend.

Relevant law

Contact and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.

Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.

Section 68F(2) — determining the children's best interests

The children’s wishes

Both parents acknowledge that N and A wish to live with their father and K and X with their mother. This is confirmed by the children’s discussions with Court Counsellor Greenfield. The children obviously love both parents and are loved in return. Both N and A wish to reconcile their differences with the mother and resume contact with her. N believes that this will be easier once the Court proceedings are completed. A agrees that completing the proceedings is important, as this will help the mother “calm down a bit”. Both boys plan to drop into the mother’s home on the way home from school, sharing a meal with her and A postulated, “Perhaps going for the weekend eventually”. Both boys spent approximately 45 minutes with the mother recently whilst the father was seeing a chiropractor. I am satisfied that the elder boys love their mother, value their relationship with her and wish to resume it. Their strategy is a cautious one, compromised, I am satisfied, by the mother’s at times heavy-handed approach to them and the father’s subtle undermining of their relationship with her.
K preferred that the decision about residence/contact be taken by the Court saying, “… (it is) not fair for a child to take sides”. Consistent with this view she suggested a shared parenting arrangement, that she spend one week with the mother and the next with the father. She told P H that she looked for a “50/50” outcome. When discussing X's preference she told the counsellor "… and that X would like to live with his mother and herself." This answer presupposes that K too is living with the mother. When discussing the separation with the counsellor, she said, “It’s much better than I thought”. K is attached to her three brothers and enjoys their company. I place greater weight on the child's indirect comments disclosed while talking about X, given her clearly expressed concern for neutrality. Her shared parenting preference is more likely to be a reflection of her concern to remain neutral than a maturely formulated preference that focused on her needs rather than her parents.
X expressed a preference to the counsellor that he would “probably want to live with my Mum” and “would like a little bit more time with Dad than now”. Immediately thereafter he said he would “probably like to see Dad the same as now”. The qualification reflects his loyalty to the mother. Given that she is his prime carer this is understandable. I am satisfied he wishes to have meaningful time with his father and is missing him to some extent.

The nature of the children’s relationship

The mother concedes that all four children have a loving relationship with the father. She recognises that her relationship with N and A has suffered since the start of the failure of the marriage. N reported to the counsellor that his prior relationship with the mother had been good and “before all this happened, she was warm; I found her easier to talk to than my Dad”. He is sad that he can no longer relate to her. During the observation session N chatted happily with the mother and at its end "kissed and hugged his mother with abandon".[9] The child's presentation during the observation session confirms an underlying relationship with the mother that is strong and positive. Its current difficulties have their genesis in his concern for the father and A and the mother's hostile responses to his expressed allegiance to these people.
[9] Family report page 15
A reported that prior to separation the mother had been “good to talk to”. He believes that the mother’s attempt to force him into the car amounts to an assault and is currently very critical of her. His criticisms are, in almost all respects identical to the criticisms the father makes of the mother’s parenting. During the observation session A was reserved and found it difficult to look his mother in the eye. At its end he would only shake her hand. I agree with the counsellor that A and the mother need to continue to work with Unifam to address their relationship difficulties.
The elder children perceive that they have a calm and loving relationship with the father. For his part, he does not challenge the boys in any meaningful way, although he has recently started to promote their relationship with the mother, with some small success. N told the mother that he wanted to remain with the father so that he could care for A. Because of their close attachment to the father, there is a likelihood that both children perceive that he is at least physically, if not also emotionally, in need of their care and commitment. They have aligned themselves with him.
K perceives that both parents are "nice" and "kind". The mother has been her prime carer, before and since separation. She is deeply attached to her. During the observation session she related happily with the father and her brothers. She is closely attached to him and to her brothers.
X too is deeply attached to the mother. He loves and is loved by his siblings and father.
An aspect of the children's relationship with the father that is most concerning is the extent to which, in his care, the children are unable to express their affection for the mother. They feel constrained in what they say and do. K's inability to take the mother's telephone call on 23 April 2001 and her deep distress is one example. The boys’ refusal to speak to her on Mother’s Day and at music are others. These events are significant because they are not isolated incidents. I am satisfied that the inability to respond warmly to the mother, even if in a guarded manner in the elder boys case, whilst with him indicates that their relationship with the father has an unhealthy quality to it. Just as he sent double messages in his e-mails to family and friends, he has sent double messages to the children about the mother. The elder boys told the counsellor that their father wishes them to reconcile their relationship with the mother. He says that he does and has devised a "battle plan" that is written up on a white board at his home. This must be contrasted with his failure to facilitate telephone calls[10] and the other matters to which I have made reference. Whilst the children's relationship with the father is a loving one, it is one that over-emphasises the father's emotional needs to which currently the children's needs are secondary.

The effect of changing the children's circumstances

[10] For example para 61 Mothers affidavit.

Both parties seek to change the children's circumstances. The first proposal is the father's application that K and X start external schooling. The mother is deeply committed to continuing their home schooling. The father properly conceded that the mother is a skilled teacher and that the children have achieved well academically under her tutelage. They are socially adept and creative. P H emphasised their capacity for sophisticated conversation.
The fathers primary concern regarding home schooling is that there is only "one voice" (as teacher), the mother's. His view is that this gives her too much control over the children, a submission forcefully made by his counsel. His other concerns identified in his oral testimony were really distractions as neither party had sought to enrol the younger children externally when this current academic year started. If the mother is able to continue to home school he seeks orders that will include his involvement and extra time with the children to facilitate this. He is not a registered home teacher and does not know if he is qualified for registration. I have already made findings that the father gave an exaggerated account of his earlier involvement in the children's home schooling. I do not repeat them. Whilst he played some part, he was not involved in curriculum development nor marking. There is no evidence that activities undertaken beyond the home involved him.
The mother is part of a vital home schoolers network in the Blue Mountains. With other home schoolers she participates in class excursions and group sessions. These include sports days, bushwalking, science experiments and music. She attends an annual home school conference at the University of Western Sydney.
I am not persuaded that the children should change the nature of their education and start at St. Finbars. The parties agree that if the children are to start school, this is the appropriate place. Both children are undertaking advanced studies in subjects that reflect their interests. They are bright and the evidence is that they are thriving under the mother's guidance. There is no evidence that their education has suffered because the father is not involved. The home school network and the children's vibrant extra curricular lives adequately address aspects of education beyond academia. The mother has discussed with the children the possibility that they start school. This consideration is at the forefront of her thinking when planning the children's education. She agrees that the children will start school but says that this decision should be taken when they wish it and it is in their best interests. I agree. K discussed with P H that she was interested in starting school. To the mother and counsellor, however, she made it clear that she enjoys the current structure as I am satisfied she does. Once one child is ready to receive an external education, both should start. The current environment is enriched by the fact the two children are educated together. Because these children are close in age, both are likely to benefit from starting a new school at the same time. In spite of the value of the home schoolers network, there is a risk that one child at home alone will fall behind socially such that the benefits may be outweighed by the detriments.
Involving the father in the children's education is problematic. His opposition to home schooling is based on his concern about the mother’s influence. By inference he sees it as detrimental unless tempered by his own. Home schooling is enriching because although days’ activities are planned carefully, the lessons can develop spontaneously taking up a particular theme or issue. If classes move onto a tangential matter, it is important that any planned lesson is taken up later. If more than one teacher is involved it is necessary that the two teachers can co-operate. Without that, the child's education would suffer. This requires effective communication. These parties are currently unable to communicate, something neither considers is likely to change. At separation the mother removed some of her teaching aids, but not all of them. Although the father has not been involved as a teacher since separation, he has refused to allow the mother to retrieve the balance. She has asked for one of three computer notebooks, the whiteboard, their wall charts, maps, answer pages and reserve workbooks.[11] His failure to give up these items reinforces that he does not have the capacity to co-operate with her to the degree necessary to join her home schooling.
[11] Paragraph 81 Mothers affidavit
The counsellor saw benefits to the children extending their time with the father so that he could be involved in their education. K perceived no difficulties with this notion. Were the parents able to work as a team, I would agree. There is a difference between supervising a child's work and teaching, the father's experience being limited to the former. The father says he would deliver the classes the mother devised. He has the intelligence and knowledge to do so. However he does not have Board of Studies approval to do it. Unless he has approval, the court should not order it.
Does it follow from the finding that the parents cannot jointly home school, that the children should receive an external education? It does not. In the mother's care the children have maintained their relationship with the father and elder brothers. Her influence on the younger children is healthy and mostly appropriate. Their academic and social attainments reflect that she is able to meet their educational needs. The evidence does not support the father’s submission that her influence is too strong or that it is contrary to the children's interests.
The mother gave considered evidence about how she annually reviews the appropriateness of home schooling. I am satisfied that she is able to make a competent decision based on relevant criteria about when the children need to receive an external education. Ideally she should discuss this with the father.
The next issue is whether the current orders concerning the children's time with the father should alter. The mother seeks to reduce the length of the weekends and that the children not spend a midweek night with the father. This arrangement has been in place for four months. Her evidence is that it is disrupting the children's education. Classes are delayed either because the father returns them late, about 9.30AM on occasions, or the children are unsettled from contact. The interim orders did not specify a time that the children were to be returned to the mother. They were predicated on the basis that all children were living with the mother and required that all be returned before school. 9.30AM is beyond the reasonable scope of the order and the orders will provide that the children are returned no later than 8.30AM. This is enough time to ready them for classes.
The effect of contact is a different matter. Four weeks ago K returned from contact and said to the mother, "Mummy, Daddy told me you had an abortion, that you killed one of my brothers or sisters." The father denied this but said that the mother had lost a child was known to the children. The mother has not had an abortion. She has endured two miscarriages and a curette after she was diagnosed as having a blighted ovum, which meant the pregnancy was non-viable. The mother cried when giving evidence about K's remarks. I accept that the child said them. Abortion is likely to be anathema to this Roman Catholic family. Even taking into account his current antipathy to the mother, I do not accept that the father made the statements the child attributed to him. He was apparently unconcerned when this matter was being addressed in cross-examination and I am satisfied this is because his denial was honest and the children did know about the miscarriages. What is concerning is that with this knowledge, in the fathers environment K extrapolates the history as she did. Because the children return from contact unsettled by stories of the type referred to, the mother has joined with another parent so that all children are at her home and the Wednesday classes are joint sessions. This is a sensible strategy as it has the effect of diverting the children from matters relating to their family and requires them to immerse themselves in class.
I accept that moving between the two homes is very difficult for the children, however, because the siblings are separated midweek, contact should be maintained. Whilst the alternate Monday and Wednesday morning classes will be disrupted, reducing the contact may have damaging effects on the sibling relationships. The children would also miss the father and the proposal that they share a mid-week meal is an inadequate response to their attachment to him.
However, because his environment is one that places the children's relationship with the mother under pressure, the benefits of additional time are outweighed by the detriments. There is too great a risk in my view that increased time in the father’s care will result in the children's long term alienation from their mother. The counsellor’s favourable opinion towards additional contact was formulated without a complete understanding of the level of parental antipathy and the effect it has had on the children. She gave evidence that current social science literature supports "parallel parenting". This is when children share time between parents who do not communicate. That may be so. These parents not only fail to communicate but also cannot co-operate on matters as fundamental as the children's education. Court Counsellor Greenfield considered that home schooling increased the time available for the children to share between the parties. This is only so if both parents are involved as teachers. Otherwise the children either forego classes, or here, the mother uses weekend time when the children are with her to make up for lost class time. Once the elder boys are coming on contact with her, this means that the children's time would be divided. The spectre of the younger ones in class while the older boys play has only to be stated for its unreality to be apparent. For her part the mother could not do both.
There is an obvious need to reintroduce contact between the mother and elder boys. Court Counsellor Greenfield agreed that there is value in an order for contact in this situation. I infer because it sends a positive message to the children and father that contact is in the children's best interest. It also creates an expectation in the children and those involved in their care that there is a structure in place for contact that must be implemented. The structure proposed by the mother is a sensible one. It cautiously addresses the recent impasse with the children. Combined with a resumption of counselling, the children's desire for reconciliation with the mother and their strong relationship with their siblings, the stepped up program she proposed is likely to be successful. If there are difficulties she has the capacity to respond sensitively. She did when the boys returned to the father after the interim orders were made. If she is heavy handed, as she has been on occasion, she could further harm her relationship with her sons, something she must guard against.

The practical difficulty and expense of contact

The parties live nearby to one another. N and A attend school, which is 15 minutes walk from the mother's home. The father complains that the mother has taken the family car and that this makes his capacity to be on time vis change over and ensuring the children meet their extra curricular activities onerous. The area is reasonably well serviced by trains and buses and although it would be easier if both parties had a motor vehicle the difficulties that arise are not substantial. This is particularly so as the children in his care are teenagers and able to transport themselves about their local community without his supervision.

The parents’ capacity to meet the children's needs

I have already made findings concerning this and will not repeat them.
The mother has the capacity to meet the children's physical and intellectual needs to a very high standard. She has done so over many years. At present she is unable to meet the elder boys emotional needs. This is because she is distressed and angered by their alignment to the father. Putting aside matters of influence, at their ages, it is reasonable for them to have decided that they choose to live with a parent who they love and needs them. Her response to their decision, taken as it has been over months, has been harsh. She has treated their views as rejection of her parenting. She ought to have been able to acknowledge, without confrontation, that their decision was reasonable given their circumstances. Had she done so, much of the conflict that has developed in their relationship may have been avoided. Recently she has demonstrated a much more sensitive approach to the elder boys one that has every prospect of enabling their previously strong relationship to resume.

The father has undermined the children's relationship with the mother. He has exposed her to public criticism in their community and family circle. The children are aware of this and some situations have directly involved them. For example on 27 February 2001 he took the elder children with him to the family doctor, Dr S. During the consultation and while the children were present he chose to raise matters concerning the mother. Dr S stopped him. On another occasion he wrote a note explaining a school absence which said "A has been abused by his mother". He was unable to suggest a reason why this was necessary and why something such as "absent for family reasons" was insufficient. He did not adequately emphasise to the elder children that P H's suggestion that they might end up in foster care was incompetent nonsense. Not only did he fail to disabuse the children of the notion but he then communicated it as a possibility to members of the mothers family. This context is important because it is against this background that subsequent messages of support for contact with the mother must be evaluated. The elder children certainly, and probably also the younger children have been materially affected by these messages that have undermined the mother. For the children to now receive encouragement of their relationship with the mother must be confusing. Although a parent in the high emotion of a family breakdown may make inappropriate remarks to children, one expects that competent parents at some stage develop some insight into the effects of their behaviour on the children. At this stage the father does not demonstrate that he has any meaningful insight into the damaging effects of his behaviour.
Now that he has continuing responsibility for the elder children's primary care he must make greater efforts to encourage them to complete their homework and ensure that they attend school and their extra curricular activities regularly and on time.

Child's maturity ,sex and cultural background

These children all have achieved age appropriate maturity. Only when torn between their parents is their capacity for reflective evaluation at an age appropriate level under pressure. Even so, given the elder boys ages material weight must be given to their wishes. It is in consent order entered at the beginning of the hearing. For reasons already given I do not consider that an open ended order should made relating to their contact with the mother.
Because of the pressure the younger are under I find that their wishes do not have the appropriate level of mature reflection that would enable them to have greater weight than I give them. In any event there are other matters that require an outcome different to that articulated by K and perhaps also sought by X.

The need to protect the children from physical and psychological harm

In these reasons I have already emphasised the need for both parties to promote the children's relationship with the other parent. If they fail to do so, there is a significant possibility that the children will suffer not only in the short term psychologically but also in the long term. The mother demonstrated greater insight into the effect of her behaviour when she was critical of the father's behaviour.[12] Because she has greater insight and the magnitude of her negative comments are much less than the father's have been I find that the mother presents a lesser risk of psychological harm to the children that he does.
[12] Paragraph 29 Mothers affidavit
The incidents contained in paragraphs 31 and 39 of these reasons are incidents in which the children have been hit or man handled by the mother. On both occasions she was greatly provoked by teenagers behaving badly. She should not have slapped Nicholas nor maintained her physical struggle with Alexander. As the adult in the situation it was her responsibility to find another way to deal with this aberrant behaviour other than by resort to violence. Even if just to walk away. These were incidents that took place at a time of considerable crisis in this family. Because they were isolated incidents and inconsistent with years of competent parenting I do not consider that there is an unacceptable risk that the mother will hurt the children. The likelihood that events of the type referred to will recur is minimal.
There remains a greater risk that the father will continue to undermine the mother's relationship with the children, an important consideration in this matter. It may be that with the completion of the proceedings he, as many litigants do, will feel less pressured about his parenting and relax now that he has a final order providing that the elder boys live with him.

The attitude to the children and the responsibilities of parenting

Both parties have a deep desire to be competent parents and are committed to their children's success. The extent of any deficiencies is already identified and does not need restating. It is enormously sad that the compatible approach taken to parenting that had benefited the children so well prior to the failure of the parental relationship has been lost. Both parents need a long period of time before they could recover a relationship that might allow them to trust each other as parents again. Were they ever able to do so, they and the children would reap enormous benefits. It is their responsibility as parents to try.

Family violence and family violence orders

There are no current family violence orders. There is no family history that suggests that future violence is probable.

Achieving finality

The children and parties all need an end to these proceedings. They have been under great strain and this matter requires that orders be made that minimise the likelihood of further proceedings. I am satisfied that the orders I make will do that. From the children's perspective they have a clearly defined structure that will facilitate regular periods with both parents and each other. This is particularly important for N and A. The parents have clearly identified obligations created by the orders as well as areas of specific responsibility. Parenting orders are never final in the sense that further applications can be made if the children's interests require it. Rather than look to courts to address any perceived need to alter the orders these parents should try to find a way to improve their capacity to consult and respect each others views. If they do, this will reduce even further the possibility of future litigation.

Conclusion

I am satisfied that the orders I will make promote the best interest of all the children. Orders that separate siblings are not orders that are routinely made. However such an order enables all children to live with the parent whom they choose. The children themselves are separated by age and education style. Regular contact between the children is ensured by extended alternate weekends and midweek contact. Once the elder boys start regular weekends to the mother the children will live together 6 nights in each 14. Because of their close sibling relationships this will maintain and nourish their future relationships.
The children are highly sensitised to the parental disputation. The elder boys have aligned themselves to the father at the expense of their relationship with the mother. In a material way this has been caused by the father’s uncontained distress and behaviour since the failure of the marriage. The mother has been unable to hide her feelings at times, which has caused the younger children to promote neutrality or align themselves with her. She has much greater insight into the effects of her behaviour than the father does.
The parties are unable to communicate about important matters concerning the children and do not trust each other. Neither can see a time when this might change. Communication and co-operation are factors essential to successful joint parenting, particularly when children are home schooled. The younger children's interests require that the are able to continue to have the benefits of a home based education. There is no compelling reason to disrupt their education and start them in an external system prematurely. The antipathy between the parents stands in the way, as does his lack of authorisation, of the father’s involvement as co-teacher to the children. Involving him is highly likely to exacerbate the tensions between the parents and undermine the effectiveness of the home education.
For these reasons I make the orders identified at the commencement of this judgment.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date: 23 August 2001

[2001] FMCAfam 122

8 October 2001