Lanzing & Balzano
[2024] FedCFamC2F 1886
•13 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lanzing & Balzano [2024] FedCFamC2F 1886
File number(s): MLC 10845 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 13 December 2024 Catchwords: FAMILY LAW – Parenting – interim hearing – where the father be ordered to have sole decision-making responsibility in relation to decisions pertaining to education for the children – where the father must still consult the mother of any decision he intends to make – where there is a concern of the children’s school attendance while in the mothers care – where the court balanced the best interest of the children in determining where the children should live – where the court is satisfied the children’s attendance at school will improve in the father’s care – where residence of the children be moved to the fathers primary care – where the children still live with the mother on a shared care arrangement – where the form of the orders show that the children “live with” both parents – where the mother has increased school holiday time with the children Legislation: Family Law Act 1975 (Cth) ss 60CA & 60CC Cases cited: Goode & Goode (2006) FLC 93-286 Division: Division 2 Family Law Number of paragraphs: 65 Date of hearing: 12 December 2024 Place: Melbourne Counsel for the Applicant: Ms Sdraulig Solicitor for the Applicant: Kelly & Mc Hale Family Lawyers Solicitor for the Respondent: Mr Strong of Yarra Family Lawyers Counsel for the Independent Children's Lawyer: Ms Glaister Solicitor for the Independent Children's Lawyer: Southern Family Law ORDERS
MLC 10845 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LANZING
Applicant
AND: MS BALZANO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
13 DECEMBER 2024
THE COURT ORDERS THAT:
UNTIL FURTHER ORDER:
1.Order 2 of the Final Parenting Orders dated 10 March 2020 is hereby discharged.
2.From 24 December 2024, Order 3 of the Final Parenting Orders dated 10 March 2020 is hereby discharged.
3.From 24 December 2024, Order 2 of the Interim Parenting Orders dated 18 September 2024 is hereby discharged.
THE COURT ORDERS UNTIL FURTHER ORDER:
4.Mr Lanzing ('the Father') have sole decision-making responsibility in relation to decisions pertaining to education for the children W, born in 2009, X, born in 2012, Y, born in 2015, and Z, born in 2015 (collectively "the children"), including but not limited to executing all necessary documents to give effect to school enrolment, and the following conditions apply:
(a)The Father must consult with Ms Balzano ('the Mother') in writing in relation to any proposed education decision in a timely manner and consider any timely response from her;
(b)The parties must make a genuine effort to come to a joint decision; and
(c)Should the parties not agree, the Father shall still have sole decision-making responsibility; and
(d)The parents communicate courteously at all times.
5.Notwithstanding paragraphs 4(a) to 4(c), the Mother and the Father do all acts and things to cause:
(a)W remaining in attendance at B School in 2025;
(b)That X be enrolled in B School forthwith;
(c)Z and Y remaining in attendance at C School; and
(d)A copy of these sealed orders to the school the children or any of them attend.
6.Save as provided herein, from 27 January 2025, the children live with the Father.
7.Commencing on Friday, 7 February 2025, the children live with the Mother as follows:
(a)During school term, every second Friday from the conclusion of school (or 3:30pm if a non-school day) until before school on the following Monday (or Tuesday if the Monday is a non-school day) and each alternate weekend thereafter; and
(b)During school term, each Wednesday from the conclusion of school (or 3:30pm if a non-school day) until 7:30pm; and
(c)During school term for one additional weekend overnight period (each four weeks) as agreed between the parties in writing and in default of agreement on a 4 week rotation, on the 2nd weekend of the what would otherwise be the Father's weekend (and the third weekend of that 4 week rotation), from the Friday after school until 5.00pm the following Saturday.
(d)For such part of each term holidays as is agreed between the Mother and the Father in writing and in default of agreement in writing for 10 days of each school term holidays and in default of agreement the first 10 days of those holidays.
(e)During the 2025/2026 long summer holidays for one half of those holidays as agreed in writing and in default of agreement in writing on a week about basis and in default of agreement the Mother to have the first week of those holidays.
(f)That as far as practicable, the Children's time on the usual celebration days be shared as agreed between the parties in writing and in default of agreement:-
(i)on Christmas as follows with the Mother from 5.30 pm on 24 December to 9.00 am on 26 December in each year;
(ii)on X's birthdays from 6.00 pm on the evening before X’s birthday to 9.00am on the day following X’s birthday in each year;
(iii)on W's birthday from 6.00 pm on the evening before W’s birthday to 9.00am on the day following W’s birthday in each year;
(iv)on Y and Z's birthday from 6.00 pm on the evening before Y and Z’s birthday to 9.00am on the day following Y and Z’s birthday in each year;
(v)on the Mother's birthday from 6.00 pm on the evening before the Mother’s birthday to 9.00am on the day following the Mother’s birthday each year;
(vi)on Mother's Day from 6.00 pm on the evening before Mother's Day until 9.00 am on the day following Mother's Day in each year;
8.Notwithstanding any order to the contrary, the children spend time with the parties during the 2024/2025 long summer holiday period as follows:
(a)With the Mother from 24 December 2024 at 5:30pm until 26 December 2024 at 9:00am;
(b)With the Father from 26 December 2024 at 9:00am until 10 January 2025 at 9:00am;
(c)With the Mother from 10 January 2025 at 9:00am until 27 January 2025 at 7:30pm; and
(d)With the Father from 27 January 2025 until the commencement of school in Term 1 in 2025.
9.Changeover shall occur as follows:
(a)At school when the children are in attendance at school;
(b)When the children are not in attendance at school, at D Store, Suburb E; and
(c)At all other places as agreed between the parties in writing.
10.For the purpose of these orders "in writing" includes SMS/text messages via AppClose and email.
11.In regard to the children's medical treatment and assessment, the Mother and the Father be at liberty to:
(a)liaise with the practitioner/s;
(b)provide their opinion and feedback to the practitioner/s regarding any possible diagnoses;
(c)receive feedback from the practitioner/s;
(d)attend any scheduled appointments; and
(e)provide a copy of these orders to the practitioner/s.
12.The parties communicate via the parenting application AppClose, save in case of an emergency.
13.Within 14-days from the date of these Orders, the Father attend upon his General Practitioner and obtain a referral to a psychologist for ongoing counselling to assist with emotional regulation, and thereafter follow all recommendations of the psychologist, and the Father must to supply a copy of Ms F’s short form report dated 24 November 2024 to the psychologist.
14.Within 14-days from the date of these Orders, the Mother attend upon her General Practitioner and obtain a referral to a psychologist or ADHD coach for ongoing counselling to assist her with implementing routines and strategies to develop her executive functioning (time management, planning, organisation), and thereafter follow all recommendations of the psychologist, and the Mother must to supply a copy of Ms F’s short form report dated 24 November 2024 to the psychologist/ADHD coach.
15.Within 14-days, the Mother and Father enrol in and thereafter complete a Tuning into Teens program and forthwith supply the other parent's solicitor with a certificate of completion forthwith upon completion.
16.The parties shall communicate with the Children, or either of them, by telephone during the periods in which the Children or either of them, are not in their care at all reasonable times and the parties to facilitate such communication occurring and to assist the Children to initiate the telephone call as requested.
17.The parties shall keep the other advised of their current residential address and mobile telephone number and notify the other in writing no less than 14 days prior to any change of residential address and within 48 hours of any change of their mobile telephone number.
Education
18.The parties ensure that the Children regularly attend school and participate in any and all extra-curricular activities while in their care.
19.The parties shall be permitted to liaise with the Children's school to obtain information about the Children's progress and obtain copies of reports, photographs, newsletters and all other documents usually provided to parents (at their own expense) and that these Orders shall act as authority for the same.
20.The parties shall be at liberty to attend any significant school or extra-curricular activity to which parents are ordinarily invited, including but not limited to school concerts, sporting events and parent teacher interviews and the like.
Medical
21.The parties shall immediately inform each other of any serious illness or injury sustained by the Children, or either of them, whilst they are in their respective care and further provide any particulars of any treatment received by the Children, or either of them, together with the name and address of the treatment provider and / or location at which the Children, or either of them, is a patient and that these Orders shall act as authority for the same.
22.The parties shall be permitted to liaise with the Children's medical practitioners to obtain information about the Children's medical care and to obtain copies of any relevant documents (at their own expense) and that these Orders shall act as authority for the same.
Travel
23.The parties be permitted to travel with the Children interstate within the Commonwealth of Australia and outside of the Commonwealth of Australia, with the party intending to travel provide to the other party, no later than 7 days for interstate travel, or 14 days for international travel, prior to the intended date of departure, with written confirmation of the following:-
(a)the places and / or countries, and intended itineraries as far as practicable, to which the Children will travel;
(b)the intended airlines, and bookings, upon which the Children will travel (if applicable);
(c)the date upon which the Children will depart from and return to the State of Victoria and/or the Commonwealth of Australia;
(d)the addresses, and accommodation bookings, at which the Children shall reside and a telephone number on which the other party can communicate with the Children during the travel period; and
(e)details of proposed comprehensive travel insurance for the Children (if applicable).
24.The parties take all necessary steps and execute all necessary documents as may be required to renew the Children's passport six months prior to expiring with costs of the passports to be borne by the parties in equal shares and the parties shall make all payments required as and when they fall due.
Restraints
25.Without admitting the necessity for the same, the parties, their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking, intimidating, harassing or otherwise denigrating the other parent to or in the presence or hearing of the Children or any of them and permitting any other person to so;
(b)passing messages through the Children to the other parent;
(c)discussing parenting disputes and/ or issues with or in the presence of the Children or any of them and permitting any other person to do so;
(d)exposing the Children to any conflict between the parties and permitting any other person to do so;
(e)discussing the Court proceedings including any ancillary proceedings with or in the presence or hearing of the Children or any of them and permitting any other person to do so; and
(f)allowing the Children to have access to any documents relating to the Court proceedings including any ancillary proceedings.
26.The Mother and Father do all acts and things to cause and ensure that any note, record or copy (including electronic record or copy in an email or other form) of any document or information produced on subpoena by the Department of Education and released to the parties lawyers is immediately destroyed and/or deleted and then within 7 days confirm in writing to the Court, solicitor's of each party and the Independent Children's Lawyer that they have done so.
27.The Independent Children's Lawyer do all acts and things to cause and ensure that a copy of these sealed orders and ex tempore judgment delivered this day (when settled) be provided to the Department of Families, Fairness and Housing ('Child Protection') for the purpose of these documents being readily available in the event there is further involvement by Child Protection.
28.Notwithstanding any other provision in these orders, the Mother and the Father do all acts and things to cause and ensure that the Mother attend with each of the children on the medical appointments being:
(a)Y's appointment on 9 January 2025; and
(b)X's appointment on 16 January 2025; and
(c)W's appointment on 28 January 2025.
AND THE COURT NOTES THAT:
A.The matter remains listed before Judicial Registrar Smith on 22 January 2025.
B.Pursuant to ss.65DA(2) and 62B 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 Annexure A and these particulars are included in these orders.
C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
In the matter of Lanzing and Balzano, the parents of four children need the assistance of the Court to determine the children’s living arrangements and their schooling for 2025 onwards. The matter came before me as an interim hearing on 12 December 2024 with both parents and the Independent Children’s Lawyer (‘ICL’) represented by counsel. I was assisted significantly by their submissions to me. The primary issues in dispute were whether it was necessary to change the children’s schools and/or necessary to change the living arrangements.
Background
The four children, W now aged fifteen (15), X now aged twelve (12), and Z and Y who are twins aged nine (9) years old (collectively referred to as ‘the children’), pursuant to orders of 10 March 2020, live with their Mother, Ms Balzano (‘the Mother’) and spend time with their Father, Mr Lanzing (‘the Father’) in what is a shared care arrangement.
During school term, there is effectively a 6/8 nights per fortnight arrangement, whereby the children live with the Father for a block period from after school Friday until before school the following Tuesday, and then overnight on the following Thursday, and then overnight on the Monday following what could be described as “the Mother’s weekend”.
The children’s Father, is professionally educated and trained, and in current full-time employment. He is 49 years old. The children’s Mother is currently engaged in full-time care of the children and is not in paid employment outside the home. The children’s Mother has formal professional qualifications and training but has not worked in that area of her training for many years. Hence, I do not regard her as “unemployed”, but rather not in paid employment outside of the home. She is 45 years old.
The parties commenced cohabitation way back in 1999. They separated in February of 2016, and the first wave of proceedings commenced in 2017. Over that journey, there were 15 reports between 2017 and September 2024 to the Department of Families Fairness & Housing (‘Child Protection’). The parties had lived in a suburb of Melbourne, known as Suburb G. The children have been educated in an alternative school or education. The older child attends secondary college, and the other three children currently attend and have attended a not-too-distant, but in another suburb primary school, and also in the alternative education.
Parenting Orders 2020
The parties made final consent orders relating to the children on 10 March 2020. That effectively provided for a shared care, six-eight regime. The Father is in full-time employment and, hence, has had less time available to care for the children during school holiday times. Those matters were usually worked out by agreement.
Property Orders 2020
The Mother and the children continued to reside in the former matrimonial home from separation in February 2016 up until January of this year, 2024. Final property consent orders were made on 12 October 2022, which effectively meant, as I understand it, that the former matrimonial home was to be transferred to the sole name of the Father contemporaneously with a payment to the Mother of $315,000.
Mother does not vacate: extension given
Pursuant to the orders in 2020, the Mother effectively had five months to vacate the home, and she was required by those orders to vacate the home by 27 March 2023 and pay a significant sum by way of rental to the Father during that period. The Mother did not vacate the home on 27 March 2023, and, either before or after that date, the parties agreed that the Mother should have an extension to vacate the former matrimonial home to 27 May 2023.
Further extension given: trouble with accommodation
A further extension was agreed to 27 July 2023. It is common ground that rental accommodation in the area suitable to house at least one adult and four children are exceptionally difficult to obtain. The long and the short of it was that the Mother says that she had real difficulty obtaining suitable rental accommodation where she would have liked to. That is, close to the children’s existing schools. She says she was unable to do that, and ultimately obtained rental accommodation in a suitable home in an outer suburb of Melbourne.
It is unfortunate that that is in a different suburb and some considerable distance and travel time from the suburb of the former matrimonial home, but the Mother’s case is that she simply had no choice but to accept that accommodation. Of course, by late 2023, the Mother was still in the former matrimonial home that the orders of October 2022 required her to vacate. On 21 August 2023, the Father issued enforcement proceedings seeking that the Mother vacate within 28 days. In the end, the Mother vacated the former matrimonial home in early 2024 and obtained her current accommodation in an outer suburb that I have referred to.
Decision
Live with arrangement
For the reasons that I will set out now, I have determined that it is in the children’s best interests that I accept substantial parts, but not all, of the Father’s application and the orders that he presses. In broad summary, I am satisfied that it is in the children’s best interest that they remain at their existing schools, and that the children should live with the Father, by and large, during most of the school term week for the purpose of ensuring that the children attend school. But that otherwise during the school holiday periods and on weekends, the children should live with the Mother for a greater period than the Father, rather than the usual half and half scenario.
The orders that I make are broadly accepting the scheme of the orders pressed by the Father in his outline of case. The scheme is that until 24 December 2024, the existing orders remain (and then there are specific orders for the school holidays), then from 27 January 2025 the children live with the Father, and then from 7 February 2025 the children spend alternate weekends living with their Mother and each Wednesday overnight. I have also provided, consistent with the submissions of the ICL, that during school term, there is an additional one weekend overnight period each four weeks. That would, effectively, otherwise be the second weekend of the Father’s alternate weekend arrangements whereby the children will live with the Mother from Friday after school until 5 pm the following Saturday. The effect of that is, very broadly, in a four-week rotation during school term that the children will spend two and a half weekends with the Mother and one and a half weekends with the Father.
During school term holidays, the children should spend more than half of that time with the Mother, and I have provided that, in default of agreement, that should be for 10 days in each school term holiday. Hopefully, this matter will be finally sorted out before the ’25/26 long summer holidays come to pass, but lest there be a lacunae and a hiatus that causes further conflict between the parties, I have provided that in that long summer holiday, the children should live week-about between their parents and, in default of agreement with the Mother to have the first week of those holidays.
I have otherwise provided for (and inserted into the orders), the special day arrangements with a minor adjustment about the school holidays. The Christmas Day actual times are to line up with this year’s Christmas Day arrangements, because those special day arrangements have been in place for a number of years now, and both parties either sought or acquiesced in the continuance of that. I accept the broad scheme of the Father’s orders for this long summer holiday. Further, I have made provision, as sought by the Father, with some alteration, that he has sole decision-making responsibility for the children’s education, but provided that the Mother is consulted in a timely manner, and he considers her response. In other words, he has the final way.
Schooling
I have also made specific provision that the parents are to do all acts and things to cause W to remain at B School in the year of 2025, for X (who has or will be just finishing Year 6 at C School) to go to B School in 2025, the same school as her older sister will attend and for Z and Y to remain in attendance at C School for the 2025 schooling year. I have provided that the alternate weekends when the children will live with the Mother are not from after school Friday until Sunday evening as sought, but rather, from Friday evening after school until the following Monday morning or Tuesday, if the Monday is a non-school day.
The case ultimately turned on the welfare of the children and the consequences of inadequate attendance at school, leading to inadequate education, leading to inadequate ability to cope with the world, prosper, and thrive in it for the rest of their lives. The Father’s case was predicated upon what he pressed as a tragic circumstance of necessity to change the living arrangements to ensure the children regularly attended school. That position was supported by the ICL. The concept behind the Father’s case was that all school drop-offs would be done by him; hence, the alternate weekend arrangement was to conclude on the Sunday evening.
For the parent that only has the alternate weekend time, whether time finishes on the Sunday evening, or the Monday morning makes a world of difference. Time from a Friday after school until Sunday evening is effectively a two-night weekend with time with the children over three days, but with at least a large part of the Sunday essentially being preparation for a transition and changeover. A school-to-school, Friday-to-Monday weekend is significantly different. It is a three-night weekend, for a start, and time spent with the children is over four days. In this case, for the reasons that I will state later, there is a significant risk that the children will be unable to get to school on time on each alternate Monday morning during school term.
I am satisfied that the Mother intends to do a better job at getting the children to school. Having responsibility for getting the children to school on only every second Monday is a very significant change and difference from the current arrangement. For the reasons I state later, this case overall is a matter of balancing risks and choosing the least worst outcome. Hence, the Mother will have alternate weekends plus half of the second weekend that would otherwise be the Father’s weekend from after school Friday until 5 pm on the Saturday.
Department of Education documentation
I also will order, for the reasons discussed with the parties during the hearing, that any document or information in the possession of the Mother or the Father – that is, not in their solicitors’ possession, but in their own personal possession, including any electronic record or copy in an email or other form of any document or information produced on subpoena by the Department of Education and released to the parties’ lawyers, is to be immediately destroyed and/or deleted and then, within seven days, confirm in writing to the Court, the other party’s solicitors, and the ICL that they have done so. Further, I will direct the Judicial Registrar charged with this matter to inform the Department of Education of that order.[1]
[1] POST SCRIPT: the Judicial Registrar has made contact with the Department of Education to inform them of this decision.
Children’s appointments
As agreed between the parties, for the existing assessments of the children over the period 9 January to 28 January, notwithstanding the timeframe – and it makes it messy, it will be the Mother’s privilege to take the children to those appointments. However, the order for each party to be at liberty to attend, as was provided in the previous September orders, will continue.
Department of Families, Fairness & Housing documents
The further matter that the parties had not sought was that I will order that the Independent Children’s Lawyer (‘ICL’) provide a copy of these orders and a copy of my reasons (when settled and available) to Child Protection.
The reason that I do that is because, unfortunately, the department has been significantly involved in these children’s lives. It is hoped that no further involvement is required or necessary, but the parents separated in 2016, and there have been 15 reports to Child Protection received between April 2017 and September 2024 (although I acknowledge that at least two of those reports would relate to notices of risk filed in this Court requiring the Department to respond). Nonetheless, that is a matter that struck me as requiring Child Protection to have immediate access to current Court orders and reasons.
Reasons for Decision
These are my reasons for decision. I refer to and repeat the background of this matter recited above.
Father’s case
Apart from significant involvement of Child Protection, it is also the case that in mid-2024, a final intervention order was made between the parties for the protection of the Father and three of the children. That order was made with a denial but was not opposed, ultimately. I am unaware of the date of the incident said to give rise of that intervention order, but its existence demonstrates a significant heightened tension and conflict between the parents. The Father’s case is that the Mother has long been unable to ensure the children’s regular attendance at school and that it is necessary to change their living arrangements to ensure that the children attend school.
The Father has other criticisms of the Mother’s household, which would be consistent with a general lack of organisation within it and a degree of chaos in living arrangements. His criticisms are, in some small part, corroborated by observations of the children in the short-form family report that I will refer to later. I do not make any findings in regard to that issue of chaos on this interim hearing.
Mother’s case
The Mother’s case is that her difficulty with getting the children to school relates to what can be described as the tyranny of distance and that now that she has secured appropriate accommodation in the outer suburbs, she should be permitted to change the children’s schools to attend schools reasonably close to where she now lives. Further, her case is that the two older children would be able to catch a school bus from not far from where she lives to that school, and that this would promote their independence. However, her case proposes a change of school for the four children.
Father’s circumstances
The Father works mostly from his place of employment in a suburb that could be described as being on the other side of the city from the secondary school they attend, but not too far from the existing primary school.
The current regime that the Father has in place is that he is able to travel with the children most of the time, whereby the children attending primary school are dropped off at the children’s primary school, and the eldest child then gets public transport (the train) for a short distance from that primary school to the secondary school she attends. It appears from the incontrovertible evidence of the records of the respective schools that, by and large, that works reasonably well. Having dropped the children off at the primary school, the Father then travels the relatively short distance to another suburb to commence his employment and does the reverse on the way home. He proposes that will continue for the whole of the school week, rather than only part of it as currently.
ICL orders sought
The ICL supports, with some circumspection, the change of the residence of the children to promote the children attending school on a regular basis. The ICL points out that the difficulty with school has not arisen since the Mother relocated from the former matrimonial home from one outer suburb to another in early 2024. The ICL asserts that the issue of the children’s attendance at school in the Mother’s care has been a long-standing arrangement, and the orders of 10 March 2020 corroborate that allegation of concern by order 11.
11.The parties ensure that the Children regularly attend school and participate in any and all extra-curricular activities while in their care.
Such an order is an unusual thing in this day and age as it is an unusual thing for children’s parents who are themselves educated and professionally trained.
The interim hearing
The hearing proceeded by way of a hearing on the papers only. The Mother’s case included that any change of residence was a matter that should be dealt with at final hearing, where the parties’ evidence and attitudes would be able to be tested by cross-examination and a more elaborate or, at least, longer hearing. The Father’s case was that there was, right now, a serious risk to the welfare of the children by their education not being adequately dealt with. That was supported, in substance, by the ICL.
This is an interim hearing, however, notwithstanding that I cannot make factual findings in regard to matters that are factually in dispute, that does not mean I can turn my eyes away from issues of risk. The issues of risk is a nettle that must be grasped at most interim hearings, and it is necessary that I do so in this case.
There are two further aspects that take this case outside the reference in the well-known case of Goode & Goode (2006) FLC 93-286 at [82] where little information is available. To my understanding, that observation relates to early returns in a matter. In this case, the matter has been sensibly managed by competent lawyers to assist the court and their clients. The information that I have includes a “short-form” family report by a family consultant (though described as a short-form report, it is of 22 pages and 62 paragraphs) where each of the parents were interviewed separately. Each of the children were spoken to. From my perception, it is a very thorough document notwithstanding its description as “short form”.
I am not certain what further information it would have contained had it been intended to be what could be described as a “full” family report. Further to that, by the diligence of the parties’ solicitors, there is further information available as to the actual attendances at school of the children when coming from the Mother’s care and when coming from the Father’s care. That information and those records are conveniently summarised in the Father’s affidavit, and there is no real issue, or issue at all, as to the accuracy of those records or the summary of them. Hence, it is common ground that, by and large, for some years now, the children have not got to school regularly when in the Mother’s care and have missed substantial periods of school altogether and, on many other occasions, have arrived late at school.
The other aspect to the Father’s case is that if the schools are to be changed to the places nearer to where the Mother now lives, it would be practically impossible or, at least, very difficult for him to be able to maintain his employment as he currently has it and, I infer, has had for some time, because of the additional distance to travel for him in morning traffic.
Short form family report
The evidence before me includes the short-form family report and I refer and repeat relevant passages of that report.
12.A s67ZBD response (23/09/2024) indicates that there have been 15 reports to Child Protection between April 2017 and September 2024, with one period of protective intervention from May 2018 and December 2018. All other reports have been closed during the intake phase and there are no current protective concerns.
…
14.[Ms Balzano] is seeking sole decision-making responsibility and for the current parenting arrangements to continue. [Ms Balzano] proposes the children move from their current schools and attend a school close to her residence, and that consideration be given to [W] attending online schooling. [Ms Balzano] proposes [Mr Lanzing] attend a parenting program.
…
16.[W] reported that she feels isolated at school… [W] reported she has given a lot of consideration to her schooling and has decided she would like to attend another school, either an online school, [H School] or [J School], which are situated approximately 20 minutes by car from [Ms Balzano]'s home and 35 minutes by car from [Mr Lanzing]'s home. [W] said that there is public transport access to the school from both residences. She said attending [H School] will make it easier to attend training at her [sports] club, which is also situated in [Suburb K]. [W] spoke fondly about this club, having forged friendships with team members.
17.[W] said she is considering an online school due to a decline in her mental health... [W] said there were other factors impacting her school attendance. She said she would go to bed late when assisting [Ms Balzano] with moving the contents of her former home to her new home in [Suburb L]. [W] said she may be late to school when she helps her sisters prepare for school in the morning, and she has to travel a long distance to school. [W] reported the children wake between 7am and 7:30am and leave home at 8:30am. She said she catches a train, arriving at school between 10am and 11 am. [W] said there are times when there may not be food in the house, so the children wait for [Ms Balzano] to shop in the morning. She said she feels guilty about missing classes, particularly because gaining an education is important to her. [W] reported [Ms Balzano] and her school counsellor, who has been helpful, think she is an independent learner so she has the capacity to study online. [W] said when she shared her thoughts about changing schools with [Mr Lanzing] before commencing Year 8, "he got upset and yelled, so I haven't brought it up again. He says he just wants us to go to [B School] and won't take notice of my opinion" .
18.In relation to time with each parent, [W] said she would like to continue the current parenting arrangements because "it's what we've always done". [W] explained that [Mr Lanzing] gets "exhausted" and "annoyed" when the children spend weekend time with him. She gave examples of [Mr Lanzing] responding by yelling, throwing things, slamming doors and storming off to his room when [Y] displays fussy eating and when [Z] becomes defiant. [W] reported [Mr Lanzing] can become angry at [Ms Balzano]'s actions. She said that she tries to assist but [Mr Lanzing] tells her not to get involved. She said, "he just loses it, often, over little circumstances. Long stretches (of time) with him are not good. When I notice he is getting upset, I can get scared". [W] said that [Mr Lanzing] punched am fridge in anger in her presence. She said that [X] has "a trauma response" and is scared of loud noises. In relation to [Ms Balzano], [W] said, "she can get upset from time to time, but not as aggressive and upset as dad gets. She tries to calm us down. Maybe we can't have Nintendo for a period of time. She tells us to go outside and calm down".
…
21.[X] described [Ms Balzano] as nice and protective. She explained "she tries to make sure we feel safe in the world." [X] also described [Ms Balzano] as hardworking, advising, "the house is a bit of a mess, but she tries to keep it clean, but [Y] and [Z] keep making messes". She said, "mum can get overwhelmed and yell". She said she does not have worries about her time with either parent, though she wishes they would "yell less and feel less overwhelmed". [X] said when the parties would argue in her presence, "it made me feel terrible".
22.[X] said that she is in bed at 9pm on school nights when spending time with [Ms Balzano] and she wakes to an alarm at 6am, when she makes food for school. She said she is not reminded to brush her teeth, although [Mr Lanzing] will do this. She said the morning when she spends time with [Ms Balzano] can be stressful as they live far away from school. [X] said she has to be in bed by 8:30pm when spending time with [Mr Lanzing], where she described a structured morning routine. She said it is "not as stressful to go to school with dad".
…
24.[X] said she does not like school and "it's annoying to be there five days a week. I just get sick of it"…
25.[X] reported feeling nervous that she does not know which secondary school she will be attending. She said [Ms Balzano] was trying to organise a tour of [M School], explaining "people have said it's amazing". [X] said she attended [B School] and when asked what she enjoys at school, she said "a good [extracurricular] program because I want to [work in that industry]". [X] stated both schools have a good performing arts program... [X] reported a preference for [M School] "because I'm with mum the majority of the time". She explained there is a bus in walking distance from her home and it takes about 20 minutes to arrive at school.
…
29.[Y] reported she does not want to change school as she has friends at [C School] and she likes her Teacher, […]who will be staying with the class until Year 5. [Y] said she is currently rehearsing for the class play, which she enjoys and she also likes subjects, such as physical education, wellbeing and STEM. [Y] said she does not enjoy art. She said she would like "mum and dad agreeing for me not to move schools".
…
32.[Z] said when she spends time with [Ms Balzano], she enjoys […] playing games with [Y], because "[W] and [X] are busy". [Z] said she enjoys playing with […] her dog who lives at [Ms Balzano]'s residence. She described [Ms Balzano] as kind and she sleeps in [Ms Balzano]'s room. [Z] said she has nightmares and will seek out either parent in this instance. [Z] said she wishes that "my mum gets rich. Mum's gonna sell [products]."
…
36.[Mr Lanzing] appeared upset, crying periodically. His thought processes were logical and coherent. He was cooperative and open, providing a child focussed narrative.
37.[Mr Lanzing] reported a turbulent relationship with [Ms Balzano], where the parties would argue about a range of things, including his work hours, money and how to raise the children. He said this intensified when [Ms Balzano] experienced postnatal depression following [X]'s birth. He reported the arguments would occur in the presence of the children. [Mr Lanzing] stated he would become frustrated, yell, bang walls, slam doors, and leave the situation to calm himself. [Mr Lanzing] reported arguments between the parties have continued post-separation, escalating after the Enforcement Order in [early] 2024 when [Ms Balzano] took months to remove her belongings from the family home. [Mr Lanzing] reported that he has no difficulty coping with other aspects of his life but he is "triggered" by [Ms Balzano]'s behaviour, such as when she arrives late to changeover. [Mr Lanzing] reported feeling threatened when [Ms Balzano] threw the inside of a [casserole] at his feet in [early] 2024. [Mr Lanzing] said the parenting app has been helpful as in the past, he would receive abusive text messages from [Ms Balzano].
38.[Mr Lanzing] informed he sought counselling for eight years with a psychologist, he took medication for anxiety and depression, and he had regular sessions with the family doctor, [Dr N], who specialises in ADHD. Although he has discontinued psychological treatment, [Mr Lanzing] continues to have appointments· with [Dr N] monthly. He has been taking [medication] to manage his ADHD symptoms, since diagnosed with the condition in 2010. He said he also completed a Men's Behaviour Change program three times. [Mr Lanzing] appeared exasperated and highly emotional when stating that despite all the methods to address his emotional dysregulation, "I still couldn't fix it (the relationship)". He added, "when I yell it's frightening. It wasn't who I wanted to be, and I couldn't solve it". He said he has since learned that he needs to leave the situation when his anger rises to 7 out of 10. In relation to the comment made by [Y] that he has voices telling him to kill himself, [Mr Lanzing] replied he made an error explaining self-talk to [Y]. He said he told her that when he meditates he has the choice to listen to positive voices or negative voices, such as those telling him to kill himself. He denied any current suicide ideation. He said there was an instance in about 2016 when he had threatened to harm himself […] and [Ms Balzano] contacted the CAT (Crisis Assessment and Treatment) team.
44.[Ms Balzano] reported a high level of conflict between the parties as they lacked skills to resolve disagreements. She said [Mr Lanzing] could be abusive, such as yelling, slamming doors and throwing household items. [Ms Balzano] reported [Mr Lanzing] placed the children's and [Ms Balzano]'s belongings on the front verandah of the family home in April 2024, disposing of some of these and breaking a [seat]. [Ms Balzano] said many of these incidents occurred in the presence of the children, who would become distressed.
45.[Ms Balzano] alleged the children are at risk of emotional harm due to [Mr Lanzing]'s mental health issues, specifically anxiety and depression, including suicide ideation. She claimed that in [late] 2023, [Mr Lanzing] told [X] that he has a voice in his head that tells him to kill himself. [Ms Balzano] suggested that [Mr Lanzing] is easily angered and yells at the children. She reported that the children have made comments suggesting they are fearful of [Mr Lanzing], such as [W] saying she did not want to upset [Mr Lanzing] because she "finds him scary".
46.[Ms Balzano] reported she had postnatal depression in 2013 and continues to take medication for anxiety and depression […]. She is also taking medication for ADHD […]. [Ms Balzano] reported she receives emotional support from the maternal grandMother. She said she would like to engage in counselling.
…
50.[Ms Balzano] acknowledged school attendance has been problematic for a number of years. She said she has tried to put routines in place but this has not come to fruition because 'Tm trapped by ADHD". She said that in the past, she would leave home after 9am to take 15 to 30 minutes off the travel time to school, so the children would arrive late. [Ms Balzano] said she would remain awake after the children went to bed to complete household chores, which made it difficult to wake in the morning. [Ms Balzano] reported school attendance has been affected this year due to her search for accommodation and moving house. She also stated that the children will often refuse to attend school. Asked about the impact of the children's poor school attendance, [Ms Balzano] reported, "it has affected [W]'s ability to be accepted" and both [X] and [W] are having academic struggles. [Ms Balzano] rep01ted [Z] is not receiving the intervention she requires to remediate her learning difficulties and she misses out key learning, such as sounds.
51.[Ms Balzano] proposes that the children attend a school close to her home as the distance makes it hard for the children to arrive on time. She said that she cannot afford the petrol required to fuel her car for the current trips to and from school, which each take one hour. [Ms Balzano] said she has found a public transport pass that decreases the cost of travel, though it is still difficult for the children to arrive at school on time. She explained that she has to drive 30 minutes to [Suburb K] if the children miss the [Suburb L] train, which leaves once every hour. The train ride from [Suburb K] to the children's primary school is 30 minutes and then [W] travels for a further 15 minutes to arrive at her school. [Ms Balzano] reported [W] has been permitted by her school to arrive at 10:15am, adding "how early they have to start is not fair". [Ms Balzano] indicated she is averse to getting the children up at 6am to 6:30am, which would allow for a punctual arrival at school.
52.Ms Balzano proposes the children live with her and continue with the current time spend arrangements. [Ms Balzano] would like [Y] and [Z] to be enrolled at [O School], which is 15 minutes by car from her home and has play based learning. She suggested [M School] for [X], as this school uses an approach similar to the [alternative] education which emphasises personalised, whole child learning. She elaborated that this school has opportunities for students who are interested in the performing arts and it is located [less than 30] minutes by car from [Ms Balzano]'s residence, or there is a bus service. [Ms Balzano] proposes online learning for [W], at [P Learning Centre], reasoning that she is capable of self-directed learning and social opportunities would be incorporated into her program.
…
54.[Ms Balzano] presented as a caring, attuned parent who was able to describe each child's strengths and challenges at length, and how she tries to meet their needs. She has been proactive in securing services to assess their developmental difficulties and showed a sound understanding of child development. [Ms Balzano] was able to articulate the negative impacts of poor school attendance on each child, and she expressed remorse for this. It was clear that she was exasperated about her challenges in managing the children's morning schedule so that they are able to arrive at school on time. [Ms Balzano] showed resourcefulness in acquiring support for this in the past and is now making a second attempt at establishing routines. The former attempt was unsuccessful in changing habits and she was unable to describe clearly what she could do to assist the children with their school attendance. [Ms Balzano]'s suggestion that the children attend a school closer to her home does not appear to be a solution to this problem as similar conditions in the past made little difference to the children's attendance, evidenced by the 2023 and 2024 school attendance records (Appendix of [Mr Lanzing]'s Affidavit 14/11/2024). [Ms Balzano]'s tardiness was evident in her very late arrival for the late morning meeting with the writer. [Ms Balzano] holds beliefs that do not support a shift in behaviour. That is, she baulked at the idea of the children rising earlier in the morning so that they can be at school on time and she stated that school commencement times are unfair. [Ms Balzano] also blamed her behaviour on her "ADHD brain", suggesting that a change will be limited.
55.[Mr Lanzing] also presented as a caring parent who showed a similar understanding of the children's strengths and challenges. He acknowledged his difficulties with regulating his emotions and he has been proactive in seeking assistance with this in the past. Although he stated he has made some improvement with managing his aggressive behaviour, [W] and [Y] reported feeling scared in his presence, at times. It appears that [Mr Lanzing] requires more professional assistance with managing his anger and understanding the impact of his behaviour on the children.
56.It appears [Mr Lanzing] provides the children with the structure required to support their punctual arrival at school. [X] reported a morning routine where expectations are clear when spending time with [Mr Lanzing] on a school day and expressed that it is less stressful than school mornings when she is spending time with [Ms Balzano]. [Mr Lanzing] reported that the children display little resistance to attending school while in his care. The Court may be assisted by school records to determine the children's percentage of attendance while in the care of each parent. noting that studies of chronic absenteeism of more than 10% of school days show that absence has a compounding negative impact on academic performance (Gershenson et al., 2017; Gottfried, 2009).
57.Poor school attendance is likely to have contributed to the scholastic difficulties reported by the children…
58.[W] and [X] have the cognitive capacity to make informed decisions and their views regarding schooling and time with parents should be considered. [W] presents with high anxiety and school avoidance, arising from feelings of isolation within her grade cohort. [W] suggested she would like to improve her attendance and that this may be achieved if she is able to develop peer connections with her grade cohort in a new school. In light of the reduced opportunities for socialisation that can arise from poor school attendance, it is the writer's view that this goal may be achieved at her current school if she attends more regularly. It is encouraging that [W] has been able to develop friendships in the older year level, so she is not alone during breaks in the school day. [W]'s needs are known to the school, who were willing to implement supports in the form of a later arrival and regular counselling, which she has found helpful...
59.[X] reported feeling worried that a decision about which school she would be attending in 2025 had not been made. She did not declare a preference for time with either parent and her stated desire to attend [M School], as opposed to [B School], appeared to be based on its proximity to [Ms Balzano]'s home. [X] does not enjoy school and her academic performance has dropped, so she is at risk of disengagement without the expectation of full attendance, and the structure and accountability this requires.
60.[Z] is also at risk of disengagement if her literacy difficulties are not addressed. The current school has assessed her needs and developed a plan to address the gaps in learning. There is no apparent benefit in [Z] moving to a new school, where it could take some time to establish an individual learning plan which relies on an understanding of [Z]'s needs and how she learns.
61.[Y] is a typically developing child who stated a preference for remaining at her current school, where it appears she is doing well socially and academically. That said, she may be able to adapt more readily to another school setting than her siblings, who appear to be neurodiverse.
62.Two of the four children indicated feeling more secure when in the care of [Ms Balzano] than when they spend time with [Mr Lanzing], with [W] reporting that shorter periods of time spend are preferable. This must be weighed against the children's poor school attendance while in the care of [Ms Balzano]. Increasing time spend with [Mr Lanzing] during the school term, while not ideal, appears to be a better outcome for the children when considering the deleterious impact of time away from school for their long term success, socialisation and self-esteem.
Recommendations
Live with
The children to live with their Father so that he can facilitate their school attendance.
Time spend
The children to spend time with their Mother from the conclusion of school Friday (or 3:30pm on a non-school day) until 5pm Sunday on alternate weekends, and every Tuesday and Thursday from 3:30pm to 8:30pm. The children to spend time with their Mother for half the school holiday period, on alternating weeks, commencing at the conclusion of school on the final day of the term.
School
[X] to enrol and attend [B School] from 2025. [W] to continue her attendance at [B School] in 2025, with the option of moving schools to a school near [Mr Lanzing]'s residence or workplace in 2026. [Y] and [Z] to continue attending [C School] .
…
I accept the observations, notwithstanding this is an interim hearing, of the family consultant, and I place considerable weight on her recommendations.
Children’s schooling
I will also refer to and repeat parts of the summary of the children’s attendance records in the Father’s affidavit of 14 November 2024.
15.I am informed and verily believe that the [B School] subpoena material records the following about [W]'s absenteeism:
15.1[W]'s Semester 1, 2024 school report records her attendance at 33%;
15.2[W]'s student attendance plan for 2024 records [over 20] absences in Term 1, [over 30] absences in Term 2, [over 20] absences in Term 3, and 3.5 days in Term 4 (as at August 2024 when the plan was prepared);
15.3[In] May 2024, [W] spoke with her teacher, [Ms Q], and explained that they feel “bad” for not coming to school and that the reason they do not attend school is because they feel like not coming to school at all is preferable to coming to school late;
…
15.6Between […] August 2024 and […] February 2023, [W]'s Student Chronicle records show that [Ms Balzano] did not return 7 calls from [W]'s teachers regarding [W]'s failing attendance. There are only two occasions when [Ms Balzano] has spoken to the school, being [in] July 2024.
22.[X]'s [C School] reports record the following ‘Total Day Absences’:
22.1 During Semester 2, 2018, the total was [over 30] days;
22.2 During Semester 1, 2019, the total was [over 20] days;
22.3 During Semester 2 2019, and Semester 1 2020, the total is not listed;
22.4 During Semester 2 2020, the total was [over 50] days;
22.5 During Semester 1, 2021, the total was 30 days;
22.6During Semester 2 2022, the total was [over 50] days. [X]'s ‘Student Self-reflection states: “My goal for next year is to try to be at school as much as I can be”;
22.7During Semester 1, 2022, the total was [over 20] days. [X]'s ‘Student Self-reflection’ highlights [X]'s sense of responsibility for [Ms Balzano]'s failure to facilitate her school attendance, stating: “I think I could improve on turning up to school. I could do that by waking up mum”;
22.8 During Semester 2, 2022, the total was [over 20] days;
22.9 During Semester 1, 2023, the total was 40 days;
22.10 During Semester 2, 2023, the total was [over 30] days; and
22.11During Semester 1 2024, the total was [over 40] days. [X]'s ‘Student Self-reflection’ again records: “I want to get better at turning up to school”.
…
23.I have also cross-referenced [X]'s school attendance records for the period […] January 2018 until […] August 2024 against the dates that [X] was in mine or [Ms Balzano]'s care, and I have determined as follows:
23.1Whilst in [Ms Balzano]'s care, [X] was marked absent for [over 300] full days, and partially absent for another [nearly 300] days; and
23.2Whilst in my care, [X] was marked absent for [over 40] full days, and partially absent for another [approximately 70] days.
…
25.I am concerned that as time progresses, [X] will fall behind in her academic development, and her socialisation with her peers will also suffer. This lagging development is evident in her academic progress between Semester 1, 2022 and Semester 1, 2024. For example:
25.1At the conclusion of Semester 1, 2022, [X] was well above the expected level in Reading and Viewing, and Speaking and Listening, and she was within the expected level of achievement for all other subjects.
25.2Fast forward to the end of Semester 1, 2024, and X’s results in Reading and Viewing, and Speaking and Listening have regressed to the lower end of the expected level of achievement. Worryingly, [X]'s results in [maths], have regressed to a year level below the expected level of achievement.
…
30.[Y]’s [C School] reports record the following ‘Total Day Absences’:
30.1 During Semester 1, 2022, the total was [over 20] days;
30.2. During Semester 2, 2022, the total was [over 30] days;
30.3 During Semester 1, 2023, the total was [over 40] days;
30.4 During Semester 2, 2023, the total was [over 40] days; and
30.5 During Semester 1 2024, the total was [over 40] days.
31.I have also cross-referenced [Y]’s school attendance records for the period […] January 2022 until […] September 2024 against the dates that [Y] was in mine or [Ms Balzano]'s care, and I have determined as follows:
31.1Whilst in [Ms Balzano]'s care, [Y] was marked absent for [over 160] full days, and partially absent for another [more than 130] days; and
31.2Whilst in my care, [Y] was marked absent for [approximately 30] full days, and partially absent for another [approximately 20] days.
…
34.[Z]'s [C School] reports record the following ‘Total Day Absences’:
34.1 During Semester 1, 2022, the total was 20 days;
34.2 During Semester 2, 2022, the total was [over 30] days;
34.3 During Semester 1, 2023, the total was [over 40] days;
34.4 During Semester 2, 2023, the total was [over 30] days; and
34.5 During Semester 1 2024, the total was [over 40] days.
35.I have also cross-referenced [Z]'s school attendance records for the period […] January 2022 until […] September 2024 against the dates that [Z] was in mine or [Ms Balzano]'s care, and I have determined as follows:
35.1 Whilst in [Ms Balzano]'s care, [Z] was marked absent for [over 160] full days, and partially absent for another [over 130] days; and
35.2Whilst in my care, [Z] was marked absent for [over 20] full days, and partially absent for another 20 days.
The evidence of the school attendance is not in dispute, and I accept it.
Mother’s allegations
I now refer to and repeat relevant passages of the Mother’s affidavit of 1 December 2024.
29.The school is [less than 30] minutes from home and a bus service to and from the school is offered also. [X] can walk to the bus stop from my home each morning and afternoon, which will also encourage independence.
…
46.The children frequently tell me that their Father talks about me at times during their visits. [W] in particular complains that her Father talks about being annoyed with me, feels anxious, about anything happening that might upset him as he may get upset and annoyed and go on about it at her.
47.On 30 June 2024, [W] and l were spending time with each other. [W] said she needed to tell me something, and that she was unsure how to speak to me because of how I may react. I reassured her that it was okay and she did not have to tell me if she did not want to. In [mid] 2024, [W] told me [Mr Lanzing] had expressed to [W] that he does not like me, and that he wanted to get angry at me, break items, and hurt me. He told [W] he felt as though I caused him issues and that I had no consideration as to how that would impact him. [W] told [Mr Lanzing] she did not want to hear about it anymore. She told me she felt distressed and confused after that conversation. I reported this incident to [Suburb L] Police Station [in mid] 2024, and [R Centre] [in mid] 2024, and my GP, [Dr N] [in] August 2024 as I felt this put me at risk and I was scared.
…
52.[W] has told me she “hates how he talks about me to her, complains about what he feels I've done or how I'm messing him about”.
53. I am concerned that [Mr Lanzing] is harming [W] by involving her in parenting of her sisters at times, organising them, being responsible for doing care related tasks for them and making decisions on their behalf (At other times she experiences him pushing her back from being involved, she told she's overstepping and that he doesn't want her advice. She is told to be quiet and stay out of the conversation.
…
55.The children have continuously expressed to me that they find [Mr Lanzing] to be scary at times, and that they are scared to say certain things because they “don’t want Dad to get upset”. I am very concerned with the way [Mr Lanzing] behaves towards and in the presence of the children.
The allegations the Mother makes in those paragraphs are, to a degree, corroborated by the Father’s concessions during his interview. The Father puts a benign interpretation on his statements about self-harm, but nonetheless, expresses regret for saying anything along those lines at all. If that behaviour is accurate – as reported, I am unable to determine that it is – that would be not only self-sabotaging the Father’s relationship with the children and these orders and the living arrangements, but also impact very significantly on the welfare of the children.
APPLICABLE LAW
I now turn to section 60CC of the Family Law Act 1975 (Cth) (‘the Act’). Before doing so, it is clear that there is no choice but, on their interim hearing, to make orders that are a substantial change in the children’s lives, that is, either to change their existing schools and in circumstances where that will make life easier for their Mother, but significantly harder for their Father, and may impact on his ability to spend time with them and/or his employment or change the residence of the children to ensure their school attendance which will have a significant impact on the Mother. Section 60CA of the Act and section 60CC are as follows.
60CAChild's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1) Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child's family.
…
Balancing rights to children
Ultimately, I must balance the risk of the children not being properly educated with all the consequences that that will have not only for their immediate lives, including social connection to peers, but for the rest of their lives. That is a real risk that I must deal with. The other real risk in this case that I must deal with is what could be described as the limitations on the Father’s ability to cope and/or his emotional equilibrium or, in plain, old-fashioned terms, how often he loses his temper. The risk that the Father presents concerns me greatly. However, on the Mother’s case, he is to continue in a shared care, six-eight arrangements. Whilst not an equal shared care, a very much shared care arrangement, albeit it, from the Mother’s point of view, his block time is less.
Nonetheless, to have the children in his care for six nights in each school term fortnight, including a block of four nights from Friday night until before school Tuesday morning are considerable block times. Hence, whatever orders I make, there is a risk of the children being exposed to the Father’s lack of emotional regulation. I do take into account (and there was substance in the Mother’s solicitor’s submission) that a change of residence would add to that stress upon the Father and add to that risk, and I take that into account.
I must have regard to what arrangements would promote the safety of the children and protect them from being subjected to family violence, abuse, neglect, or other harm.
I am satisfied that these orders, including the change of residence (whereby the children will live with the Father mostly during school term, but during school term holidays and weekends mostly with the Mother) are the best available balance of balancing risk of exposure to family violence, which includes risk of being exposed to the Father’s emotional outbursts, and also protecting them from neglect. That is, neglect in not getting to school regularly and on time.
I take into account the views expressed by the children as acknowledged in submissions of the ICL and the Father’s counsel. The Father’s proposal runs counter to the expressed wishes of at least three of the children and, in particular, the oldest child, at 15. The oldest child is a mature enough child. Nonetheless, that child has been exposed to and had to make the most of a life where she has not been able to regularly enjoy attendance at school. That the child is distressed by those circumstance is evidence from the child’s statements to the school.
The child’s love and loyalty to the Mother is such that that child would prefer to put her own education at risk, rather than choose not to live with her Mother. Nonetheless, I do not disregard those wishes. I must take into account the developmental, psychological, emotional, and cultural needs of the children. The developmental and psychological needs of these children require unequivocally regular attendance and support to attend school when required and on time. This aspect of the development and psychological needs of the children, and how that relates to education, is the key circumstance that underlines my decision.
I must take into account the capacity for each person who is proposed to have parental responsibility to provide for the children’s development, psychological, emotional, and cultural needs. In this case, cultural needs are not a significant consideration, but the ability to provide for developmental and psychological needs fundamentally (at this stage of the children’s lives) is very much taken up by the capacity of the parent to get the children to school on time for, if not all of the time, almost all of the time. I am satisfied that the Father has a significantly better ability to cater for the children’s development and psychological needs of getting them to school on time.
I must consider the benefit to the children of having a relationship with each of the child’s parents. In this case, it is common ground that the children should have a very significant relationship with each of their parents. The Father’s case is he was driven to bring this application by the appreciation and realisation of just how serious the children’s sporadic attendance at school is for them. He says, in substance, that he supports the children’s relationship with their Mother. To the extent that there is substance in what the Mother says the children have reported to her about what the Father says, that issue is in question. Nonetheless, I am satisfied that the children will benefit from a relationship with both of their parents.
I take into account that up until separation, the Mother was the primary caregiver, while the Father pursued the financial rewards of his profession for the benefit of the family. The children have lived predominantly with the Mother over the years since separation. I am satisfied that they are emotionally closer to their Mother than their Father on the evidence that I have. However, I am satisfied that they are sufficiently emotionally close and connected to each of their parents that the orders that I will make are in their best interests.
It must be borne in mind that the Mother’s case is that the significantly shared care arrangement of a six-eight nights arrangements, whereby the children would spend time with their Father for six days in any fortnight, needs to be taken cognisance of.
I must take into account any history of family violence. Each parent alleges that the other has undertaken or forced them to endure family violence. Those allegations are largely, but not entirely, in dispute. It is acknowledged that the Father has, at least on occasions, yelled at the Mother and the children. He says he is dealing with his psychological state which permits him or compels him to behave in that manner on occasions. However, I am not in a position on this interim hearing, nor was I asked to, make findings in regard to family violence. That might inform a final hearing.
I must consider any family violence order that applies, and there is a family violence order for the protection of the Father and three of the children from the Mother. I place only a little weight on that circumstance in this case, where I am not aware of what it was that created the alleged necessity of the family violence order and that, as I understand it, the evidence requiring or compelling an order was not tested, but that the Mother consented to that order with a denial of the necessity for it.
It is in those circumstances and because of the importance to the children of their education, both now and for the rest of their lives, that I am unfortunately driven to choose the not ideal change of arrangement that I will order.
Alteration of orders sought
I will now come to reasons why I have altered, to a small degree, the orders proposed by the Father and the Mother. The Father proposed that the Mother have each Tuesday and Thursday after school meal time, but I am not satisfied that that is practical. Further, in the circumstances of a change of residence with school attendance being at the heart of the reason for it, I am not satisfied that that is in the children’s best interests and would promote their attendance at school. The ICL proposes that that mid-week time be each Wednesday from after school until 7.30 pm. I accept that submission and position as in the children’s best interests.
The Mother raised, not as an alternative, but in the circumstances of if her case was not successful and the Father’s was, that she should, in the circumstances of the children’s lives and the Father’s obligation in full-time employment have more than half the usual school term holidays. I accept that submission and position. For that reason, I have ordered that rather than merely half, which for a usual school term holiday which has a weekend at the start, a weekend in the middle, a weekend at the end, means, effectively, 16 days each party would have eight of those days. I propose that the Mother have 10, and in a block, and in the event that there is a dispute as to when that should be, if the parties cannot agree, that should be the first 10 days of each school term holiday.
It is my hope that this matter will have been resolved on a final basis one way or another by consent or by determination of the Court before the ’25/26 long summer holidays is upon this family. However, I am not satisfied that it is appropriate to leave a potential for a lacuna or gap in the orders going forward, and, for that reason, I am not satisfied that that holiday, and thereafter, unless it is agreed with between the parties, should be on an alternate week basis. I am satisfied that this holiday should be as the Father seeks. That is, a longer block, which is to the benefit of personally both the Mother, when the children are with her for that longer block, but also the Father, when they are with him for that longer block, to help the children and him settle into the new arrangement.
In terms of differences as I have ordered and the orders each party proposed, I am satisfied that the charges I have made are within the ambit of the dispute of the parents and that they have had procedural fairness. I do not see it as appropriate to make the sole parental decision-making order in the terms proposed by the Father that included the words, “to the exclusion of the Mother”.
I am not satisfied that it is in the children’s best interests to so abruptly attempt to demote her as a person of authority in the children’s lives and a person of responsibility for the children in their lives. Nonetheless, I am satisfied that the Father should have the final word in regard to decisions about the children’s education but save in emergency, after consulting the Mother and considering any timely response that she would have. The Father will have the final word, rather than matters being left in a lacuna.
As discussed with the parties, I am not satisfied that it is in the children’s interests that the time that the children spend with the Mother be described as “spend time” and that the time the children spend with the Father be described as “live with”. I am concerned at a perception of lowering or reducing the Mother’s responsibility and role in the children’s lives. For that reason, I am satisfied that the orders should refer to the children as living with the Father, subject to specified times when the children will live with the Mother.
I also am satisfied that it is in the children’s interests that the special occasion orders be reproduced in the same form. I have tweaked the special occasion of Christmas Day, so that the times line up with these Christmas Day orders, rather than there being something out of kilter. In a manner that demonstrates the Mother’s considerable responsibility, she has arranged expert assessments of three of the children in January of this year. She seeks that she be able to follow through with that, and I am satisfied that she should, and the orders will accommodate that.
There already is an order that the parents are to be restrained by injunction from abusing, insulting, belittling, rebuking, intimidating, harassing, or otherwise denigrating the other parent to or in the presence of the children, or any of them and permitting any other person to do so. On the Mother’s evidence, the children report to her the Father denigrating the Mother to them. That behaviour is simply not acceptable and will sabotage the Father’s own relationship with the children as well as cause distress to the children. I am satisfied they must be protected from such behaviour.
I am also satisfied that there is some risk that that is a two-way street. That is not a finding. That is an assessment of risk of the future. But I want the parties to contemplate those words (that they are not to denigrate the other parent to or in the presence of the children) is a really important matter that underpins the welfare of their children and the substance of these orders.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 January 2025
0
0
1