Leach and Leahy
[2014] FCCA 1178
•6 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LEACH & LEAHY | [2014] FCCA 1178 |
| Catchwords: FAMILY LAW – Parenting orders – whether parental responsibility for education and health decisions to be shared or to be sole responsibility of wife – whether time spent to be altered to accommodate additional Chinese cultural festivals and Australian public holidays – whether husband to have additional time spent with children on his birthday – whether husband’s time spent with children at Christmas to be adjusted – whether place of changeover to change – whether non-departure and airport watch list orders to be made. |
| Legislation: Education and Training Reform Act 2006 (Vic), s.2.1.1(a) Family Law Rules 2004 (Cth), r.15.04 |
| Chappell & Chappell (2008) 39 Fam LR 627; [2008] FamCAFC 143 DL & W [2012] FamCAFC 5 In the Marriage of B.B.T. & J.M.T. (1980) FLC 90-809 In the Marriage of Harris (1977) 29 FLR 285; [1977] FLC 90-276 |
| The Concise Oxford Dictionary of Current English (7th Edn) (Oxford: Clarendon Press, 1984) |
| Applicant: | MS LEACH |
| Respondent: | MR LEAHY |
| File Number: | MLC 1355 of 2008 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 29 and 30 August 2013 |
| Date of Last Submission: | 30 August 2013 |
| Delivered at: | Melbourne (by telephone) |
| Delivered on: | 6 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Lampe Family Lawyers |
| Counsel for the Respondent: | Ms Wald |
| Solicitors for the Respondent: | Bruce Pippett |
ORDERS
That the parties confer and by 27 June 2014 file a minute of proposed consent order to give effect to the Court’s Reasons for Judgment.
If the parties are unable to agree upon the terms of a minute of proposed consent order for the purposes of order (1), then each party is to file and serve by 11 July 2014 a minute of proposed order, and the matter is to be listed for mention on 22 July 2014 at 9.00am before Judge Lucev.
Any application for costs is to be made in writing by 8 August 2014, with any reply to such an application to be filed by 15 August 2014, and any such application to be determined by the Court on the papers.
IT IS NOTED that publication of this judgment under the pseudonym Leach & Leahy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1355 of 2008
| MS LEACH |
Applicant
And
| MR LEAHY |
Respondent
REASONS FOR JUDGMENT
Introduction
Final orders were made under the Family Law Act 1975 (Cth)[1] between the parties to this litigation in relation to parental responsibility, time spent and other matters on 6 November 2008.[2] More than four years later, and following extensive litigation in the State Magistrates Court in relation to intervention orders, the applicant wife, Ms Leach,[3] filed an application seeking to amend the Current Final Orders. The respondent husband, Mr Leahy,[4] has filed a response in which he too seeks to vary the Current Final Orders. Both application and response have since been amended.
[1] “FL Act”.
[2] “Current Final Orders”.
[3] “Wife”.
[4] “Husband”.
The parties are in dispute in relation to a number of matters, most notably, parental responsibility, particularly for education and health, for the children of their marriage, X, born (omitted) 2001, and Y, born (omitted) 2004.[5]
[5] “First Child” and “Second Child” respectively, together the “Children”.
Chronology
In summary, the relevant chronology of events in relation to the parties prior to these proceedings is as follows:
(omitted) 1960
Wife Ms Leach born.
(omitted) 1962
Husband Mr Leahy born.
(omitted) 1999
Parties marry and commence cohabitation.
(omitted) 2001
X born.
(omitted) 2004
Y born.
4 January 2008
Husband and Wife separate.
16 April 2008 –
9 November 2012Wife and Husband made several applications for intervention orders in the State Magistrates Court, and for variation and revocation of intervention orders, including consent intervention orders granted 13 September 2010.
15 August 2008
Husband signs an Undertaking not to commit family violence.
6 November 2008
Current Final Orders made in the Federal Magistrates Court: Wife and Husband to have equal shared parental responsibility for the care of the Children. The Children to live with the Husband from after school Friday until 9:00 a.m. Tuesday in each alternate week and all other times with the Wife.
8 August 2009
Husband and wife divorce.
13 September 2010
Consent intervention orders granted.
Current Final Orders
The Current Final Orders between the parties were made by consent on 6 November 2008 and are in the following terms:
1.The Husband and the Wife retain the equal shared parental responsibility for the long term care welfare and development of the children of the marriage, namely … [the First Child] born (omitted) 2001 and … [the Second Child] born (omitted) 2004 (“the children”).
2.That the husband and the wife each have the parental responsibility for the day to day care welfare and development of the children when they live with them pursuant to these orders.
3.That the children live with the Husband as follows:-
(a)In alternate weeks from after school or kindergarten on Friday (or 3.30pm if it not be a school/kindergarten day) until Tuesday at 9am (or commencement of school) commencing 14 November 2008.
(b)for one half of each of the first, second and third term school vacation periods as agreed between the parties and failing agreement being the second half in 2009 and alternate years thereafter and the first half in 2010 and alternate years thereafter. In each term school vacation the first half shall commence at the conclusion of school on the last day of the school and conclude at 10am on the mid Saturday. When the second half it shall commence at 10am on the mid Saturday and conclude at the commencement of school in the next term, (or at (omitted) Police Station at 9am in the event either child is not at school or kindergarten that day).
(c)For one half of the long summer school vacation as agreed and failing agreement the first half in 2009/2010 and alternate years thereafter and the second half in 2008/2009 and alternate years thereafter, with the period from 1 pm on 23 December to 7 pm on 27 December excluded. The period of the vacation shall otherwise be calculated from 3.30 pm on the day school ceases until 9 am on the day school recommences, save when the vacation period is to be the second half, it shall conclude at 6 pm on the last Sunday prior to school recommencing.
(d)From 3 pm on 25 December until 7 pm on 27 December in each year.
(e)In the event that Fathers Day is a day when the children are not to otherwise be living with the husband then from 10 am until 6 pm on that day.
(f)On each of the children’s birthdays if the children are not to otherwise be with the husband pursuant to these orders and failing agreement from 3.30 pm until 5.30 pm if a school day and from 9 am until 1pm if a non school day.
(g)on the Husband’s birthday as agreed and failing agreement from 3.30 pm until 7 pm if a school day and from 10 am until 6 pm if it be a non school day.
(h)The time that the children would otherwise be with husband shall be suspended:
(i) From 10 am until 6 pm on Mother’s Day.
(ii) On the children’s birthdays from 3.30 pm until 5.30 pm if a school day and from 9 am until 1pm if a non school day.
(iii) On the wife’s birthday from 3.30 pm until 7 pm if a school day and from 10 am until 6 pm if it be a non school day.
(iv) From 1pm on the 23rd December until 3pm on 25th December.
(i)At such other times as may be agreed between the parties from time to time.
4.The time the children live with the husband pursuant to Order 3(a) hereof be suspended during the first, second and third term school vacation periods and during the long summer school vacation and recommence in the next term on the first Friday if the children lived with him in the first half of the vacation period and on the second Friday if the children lived with him in the second half of the vacation period.
5.In the event that Easter school vacation period does not form part of the first term school vacation period then the children shall live with the parent they are due to be living with as provided in the cycle as set out in 3(a) hereof.
6.The children shall live with the wife at all times not otherwise provided for in Orders 3 and 4 hereof.
7.Unless otherwise agreed the changeover shall occur at school or kindergarten as appropriate and otherwise in the car park outside the (omitted) police Station.
8.Notwithstanding anything otherwise provided for in these orders the children shall live with the wife on Chinese Lunar New Year as agreed and failing agreement from 5 pm Chinese Lunar New Years Eve until 7 pm two days later provided that if it means a reduction in the time the children live with the husband as provided in order 3 hereof then the children shall live with the husband in the following week for like hours to those forfeited by the husband pursuant to this order.
9.That the parent with whom the children are not living pursuant to these Orders be permitted to telephone and speak with the children on each Wednesday and alternate Sunday after the children have been living with them between 6.30 pm and 7.30 pm and if for any reasonable reason the children are not to be at their usual residence at those times the parent with whom the children are living shall arrange for the children to telephone the other parent as close in time as practicable in the circumstances to that time.
10.During periods that the children are to be living with them pursuant to these orders and with a denial of any necessity for such order:
(a)neither party take the children into their place of work or work sites when they are working;
(b)Neither party permit the children to be exposed to or have access to any pornography or sexually explicit pictures, videos or literature.
(c)Each party permit … [the First Child] to bath or shower independently
(d)Neither party engage in sexually explicit behaviour in the presence of the children.
(e)Each party be in substantial attendance when the children are living with them outside school and kindergarten times.
(f)Neither party leave any medication unsecured in places where the children could pick it up.
12.The husband and the wife ensure the children attend their extra-curricular activities during times the children are living with them, provided that neither party shall commit or enrol the children in any extra-curricular activity when they are to be living with the other parent.
13.The husband and the wife keep the other advised of their current residential address and contact telephone numbers (both land line and mobile numbers if they both) and advise forthwith in writing of any change to those details.
14.The wife forthwith sign all documents and do all things necessary to authorize and request of any school the children attend to provide to the husband at his expense, copy reports newsletters circulars, photograph order forms and the like.
15.The husband be permitted to attend at the children’s schools at all events that parents are usually invited to attend.
16.That the wife ensure that for periods the children are to live with the husband, during holiday periods, she sends clothes appropriate for their proposed holiday activities, and the husband ensure such clothes are returned with the children to the wife in a clean state upon the conclusion of each period they are to live with him, and on periods pursuant to 3(a) hereof she provide one full set of casual clothing.
17.The husband and the wife advise the other as soon as reasonably practicable of any significant illness or injury suffered by either of the children whilst living with them and advise of any medical treatment obtained and to any extent necessary authorize any treating medical professional to provide full information to the other.
18.In relation to extra-curricular activities of the children, the parent with whom they are living at the time shall take them to such activity and the other parent shall absent themselves save with the agreement of the other, except for special events like concerts, plays and sporting contests (but they not attend at training or practice). When attending such activities (unless specifically invited by the other) the party with whom the children are not living at the time, shall not approach the other, and ensure they position themselves significantly separate from the other.
19.Without admission of the necessity for such order the husband and the wife each be and are hereby restrained from:
(a)Denigrating the other party in the presence of the children or either of them;
(b)Questioning the children or either of them in relation to the other party;
(c)Discussing these proceedings with the children or showing any Court or Child Support documents to either of the children.
or permitting any other person to do so.
Current interim orders
On 4 February 2013 the Court made interim orders, essentially procedural, but including for the provision of a Family Report.
Minute of proposed order by the wife
At the outset of the hearing Counsel for the Wife tendered a “Minute of proposed order by wife”[6] which reflected the orders now sought by the Wife. The Wife’s Proposed Order is in the following terms:
[6] “Wife’s Proposed Order”.
1.That the wife be permitted to select and enrol the children or either of them at educational institutions and shall inform the husband at least 30 days, in writing, of her selection, prior to confirming enrolment.
2.That the wife be permitted to make decisions solely with respect to the health, including dental, of the children or either of them and shall inform the husband of those decisions immediately upon making, if an emergency, and, if time permits, at least 30 days prior to treatment, in writing.
3.That order 3(a) of the orders made 6th November 2008 be discharged and replaced with:
“in alternate weeks from after school Thursday until commencement of school Tuesday”.
4.That the husband ensures Y attends Chinese School on the Saturdays he is in his care.
5.That the children spend:
(i)Dragon Boat Festival
(ii)Mid Autumn Festival
(iii)Lantern festival
with the wife if not already in her care from 9.00am on each of those days until 10.00am the following day and the wife shall give 6 months notice of those days to the husband by reference to the lunar calendar.
6.That changeover of the children take place at school when available and at MacDonalds, (omitted) at all other times.
7.That order 7 of the orders made 6th November 2008 be discharged.
Broadly, the Wife’s proposals can be summarised as follows:
a)that the Wife have sole parental responsibility for:
i)the selection and enrolment at educational institutions; and
ii)the health,
of the Children;
b)that the Children live with the Husband for five nights a fortnight;
c)that the Second Child attend Chinese School on Saturdays when living with the Husband;
d)the Children spend time with the Wife on three specified Chinese Festivals; and
e)changeover occur at school or, alternatively, at McDonalds (omitted).
Husband’s response to the Wife’s Proposed Order
The Husband’s current response[7] is in the following terms:
[7] “Husband’s Current Response”.
1.That the Wife’s Application filed on 20 November 2012 be dismissed.
2.That the final parenting orders made on 6 November 2008 remain in full force and effect save that:
2.1Order 3(a) be discharged and replaced with the following:-
2.1.1“In alternate weeks from after school on Friday (or 3.30pm if it not be a school day) until Wednesday at 9am (or commencement of school) commencing 4 February 2013”.
2.2Order 3(b) be varied so as to delete the words in brackets namely “(or at (omitted) police station…that day)” AND all handovers otherwise occur as set out in order 2.6 herein;
2.3Order 3(c) be varied so as to delete the words “7pm on 27 December” and replace with the words “3pm on 25 December”
2.4Order 3(d) be discharged and replaced with the following:-
2.3.1[2.4.1] “From 3pm on 25 December until 9am on 28 December in each year.”
2.5Order 3(g) be discharged and replaced with the following:-
2.5.1.“On the Husband’s birthday as agreed and failing agreement from 3.30pm until the following day if a school day and from 9am until the following day if it be a non-school day”.
2.6Order 7 be discharged and replaced with the following:-
2.6.1.“Unless otherwise agreed the changeover shall occur at school (if it be a school day) and otherwise outside the front of the home of the parent who is making the children available to the other parent.”
2.7Order 8 be discharged and replaced with the following:-
2.7.1“Notwithstanding anything otherwise provided for in these orders:
2.7.1.1.The children shall live with the wife on Chinese Lunar New Year as agreed and failing agreement from 5pm Chinese Lunar New Year’s eve until 7pm two days later; and
2.7.1.2.The children shall live with the Husband on both Anzac Day and Australia Day, from 5pm on the eve of such day until 7pm the next day, respectively.”
2.7.1.3The children shall spend time with the Husband for AFL Football Matches when (omitted) is playing in Melbourne, for such time as is necessary for the children and the Husband to watch such game together, with the Husband to provide seven days notice of the date and times to the wife;
2.8Order 14 be varied so as to include the following additional words:-
2.8.1AND the Wife shall forthwith provide to the Husband all information pertaining to the children’s schooling.
2.9Order 17 be varied so as to include the following additional words:-
2.9.1“AND the Wife shall forthwith provide to the Husband all medical details and records from the children’s treating practitioners, upon any such details or records coming into her knowledge, possession and/or control”.
3.Until further order the Wife, her servant and/or agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the children … [the First Child] (born (omitted) 2001) and … [the Second Child] (born (omitted) 2004) from the Commonwealth of Australia. This order ceases to have effect on 7 May 2022.
4.The Marshal and all officers of the Australian Federal Police and of the police forces of the various states and territories are requested and empowered to take all necessary steps to give effect to these orders.
5.The Court requests that the Australian Federal Police place the names of the children on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders. This order ceases to have effect on 7 May 2022.
6.Unless otherwise stipulated herein all handovers shall occur at 7pm.
7.Such further and other orders as this Honourable Court deems fit.
Broadly the Husband’s proposals can be summarised as follows:
a)that equal shared parental responsibility should continue;
b)that changeover shall occur at school (if it be a school day) and otherwise outside the front of the home of the parent who is making the Children available to the other parent;
c)the Husband be given time with the Children on certain Australian public holidays and days on which the (omitted) Football Club[8] play Australian Football League[9] matches in Melbourne;
d)that the Husband be given more time with the Children, including living with the Father for five nights a fortnight; and
e)that non-departure and the airport watch list orders issue in respect of the Children.
[8] “(omitted) FC”.
[9] “AFL”.
Evidence relied on by the parties
The Wife relied upon her affidavits sworn on 19 November 2012, 27 June 2013 and 21 August 2013.[10]
[10] Respectively, the “Wife’s November 2012 Affidavit”, “Wife’s June 2013 Affidavit” and “Wife’s August 2013 Affidavit”.
The Husband relied upon his affidavit sworn on 31 January 2013 and 28 August 2013.[11]
[11] Respectively, the “Husband’s January 2013 Affidavit” and “Husband’s August 2013 Affidavit”.
Both the Wife and the Husband were cross-examined and re-examined at the hearing.
The Family Report Writer was not called to give evidence, and the Family Report dated 13 August 2013[12] went into evidence by consent.
[12] “Family Report”.
Statutory Provisions regarding Family Reports
Section 62G(8) of the FL Act and r.23.01A(5)(b) of the Federal Circuit Court Rules 2001 (Cth)[13] provided that a family report given to the parties may be taken into evidence. Rule 15.04 of the Family Law Rules 2004 (Cth)[14] provides for the oral examination of family report writers.
[13] “FCC Rules”.
[14] “FL Rules”.
Evidentiary Weight
Family reports do not occupy a privileged position before the courts, and a family report writer’s credit is determined in same way as any other witness.[15] The courts are entitled to accept or reject the report’s recommendation. The Court may attach weight according to the degree of expertise of a family report writer as it would in any other case involving an expert witness. In Staats v Staats[16] it was held that the conclusions in a family report cannot compete with the impressions of the judge who heard the whole case. In Staats there was no cross-examination of the family report writer, and on this basis it was held that it was impossible to determine whether the writer had knowledge of all relevant facts which were considered by the court. The following factors provide guidance for determining what evidentiary weight to give to family reports:
a)the court is not bound to accept the family report. The family report writer should not usurp the role of the court and judge in determining the dispute.[17] A family law dispute is still basically determined in accordance with the traditional system of determining cases;[18]
b)family reports are almost always invaluable to the court, however their acceptance is not automatic, they are accepted because they are found to be consistent with the body of evidence before the court;[19]
c)no particular advantage or presumption attaches to the evidence of the family report writer on issues of fact merely by reason of their office. The question of their credit is to be determined in the same way as that of any other witnesses. The weight of their evidence on the basis of being an expert is determined the same way as any other witness the court considers to be an expert;[20]
d)the family report writer does not have the same opportunity as the court to measure assertions against the body of evidence, nor necessarily form their view after a witness has had their credit tested under examination and cross-examination;[21]
e)it is an advantage to the court to have family report writers held accountable and their methods criticised under cross-examination;[22] and
f)although the acceptance of the family report and the evidentiary weight given to it is a matter for the Court to be determined, it is not open for the court to disregard the family report without adequate reasons, or make a decision without carefully considering the appropriate weight to give the family report. In Wilson v Wilson[23] the Full Court of the Family Court held that the Federal Magistrates Court had erred by not accepting family report evidence and the oral evidence of the report writer, and not placing appropriate weight on the family report evidence that was accepted. It was held that the weight of expert evidence was contrary to the conclusions reached by the Federal Magistrates Court[24] and that the Federal Magistrates Court ignored significant factors in the expert evidence when choosing to disregard it.[25]
[15] In the Marriage of B.B.T. & J.M.T. (1980) FLC 90-809 (“BBT”).
[16] (1970) 16 FLR 279 at 281 per Selby J (“Staats”).
[17] Hall v Hall (1979) 29 ALR 545 at 552 per Evatt CJ, Asche SJ and Hogan J. (“Hall”) Also see: In the Marriage of Wood (1976) 2 Fam LR 11,182; 11 ALR 657; [1976] FLC 90-098 at p.75,447; In the Marriage of Harris (1977) 29 FLR 285; [1977] FLC 90-276.
[18] Hall at 553 per Evatt CJ, Asche SJ and Hogan J.
[19] Hall at 552 per Evatt CJ, Asche SJ and Hogan J.
[20] BBT at 75,099 per Wood SJ.
[21] Hall at 552 per Evatt CJ, Asche SJ and Hogan J.
[22] Hall at 553 per Evatt CJ, Asche SJ and Hogan J.
[23] [2013] FamCAFC 43. (“Wilson”)
[24] Wilson at para.58 per May and Ryan JJ.
[25] Wilson at para.122 per May and Ryan JJ.
The Family Report
The Family Report:
a)by way of background sets out:
i)the parties’ details (although wrongly describing the Husband as an (occupation omitted) when he is an (occupation omitted));
ii)the Current Final Orders;
iii)details of the previous psychiatric and Family Report;
iv)the details of intervention order proceedings in the State Magistrates Courts and the allegations of family violence there made; and
v)the details of the then current application and response;[26]
[26] Family Report, paras.2-13.
b)details of the current arrangements in respect of which whom the Children live;
c)further details of the then current application, response and proposals of the parties, and in respect of which some matters are noted, including the following:
i)that the Wife reports communications resistance from the Husband;[27]
[27] Family Report, para.20.
ii)the Wife’s complaint concerning the alleged failure of the Husband to allow the Children to speak in Chinese when speaking with the Mother on the telephone when living with the Father and the failure of the Father to take the Children to Chinese School (now only the Second Child as the First Child has given up Chinese School) on Saturdays when living with the Father;[28]
[28] Family Report, para.24.
iii)the Husband saying that Chinese School “‘cut too much’ into the weekend”;[29]
[29] Family Report, para.25.
iv)the Wife’s concerns with respect to changeover and minimising or avoiding altogether contact with the Husband, and in particular the Wife’s concern that changeovers not occur outside of their respective homes;[30]
[30] Family Report, para.28. See also para.29.
v)the Husband’s desire to spend time and live with the Children as much as possible;[31]
[31] Family Report, para.30.
vi)the Husband reporting that the Wife had not given up her (omitted) Passport, that there were no extradition arrangements between Australia and (country omitted), and that the Wife, and her father and brother, were financially well-off, and that the Husband proposed that the Children not travel outside Australia;[32]
[32] Family Report, para.31.
vii)the Husband’s indication that he would prefer equal shared care of the Children in terms of live with time, and more flexibility to allow the Children to attend family events which he asserts that the Wife refuses to allow the Children to attend; and
viii)the dichotomy between the Wife and Husband with respect to the approach to the Children’s study and homework commitments;[33]
[33] Family Report, paras.35-39.
d)in relation to issues in dispute and issues identified during the Family Report assessment process, the Family Report Writer indicated that:
i)the Husband had been found not to be a protective risk to the Children, but that the conflict between the Husband and Wife was unlikely to change, and that they would continue to parent “in parallel”;[34]
[34] Family Report, para.40.
ii)the Husband had a warm and loving relationship with the Children;[35]
[35] Family Report, paras.42-44.
iii)the Husband, according to the Wife, would re-schedule dental appointments so that they were not in his time but in the Wife’s time;[36]
[36] Family Report, para.48.
iv)the Wife is not flexible enough when it comes to making arrangements for matters such as social events, including sporting events, and withholds information or refuses to be flexible with respect to arrangements concerning medical and educational appointments, according to the Husband;[37]
[37] Family Report, para.50.
v)the Husband denies the allegations of family violence, insofar as it amounts to physical violence, but admits to having been loud and aggressive, and the Wife contends that the Husband continues to be abusive toward her, but not directly toward the Children;[38]
[38] Family Report, para.52.
vi)the Children have strong relationships with both parents;[39]
[39] Family Report, paras.53-54.
vii)the Children’s wishes are significant given their ages and levels of maturity, and that the Children are generally happy with the existing arrangements, save that they would like more flexible arrangements allowing them to attend sports events, such as football, and a bit more balance between fun and play when with the Wife;[40]
[40] Family Report, paras.56-61.
viii)the Wife and Husband should attend psychological counselling to assist with the conflict between them;[41]
[41] Family Report, paras.114, 115, 121, 142 and 143.
ix)deals with the current circumstances of each of the parents, including noting that the Husband is now in a relationship with another woman whom he met about 18 months ago and who has two children of her own and works part-time as a (occupation omitted);[42]
[42] Family Report, paras.70-75.
x)notwithstanding their desire not to communicate with each other, the parents have continued to attempt to do so, “but the discussions are rarely resolved”;[43] and
[43] Family Report, para.81.
xi)dealt with the Children and their relationships, which indicated that the Children both have good relationships with their parents, but that the Wife is stricter than the Husband, and that more time is spent in fun or play activities by the Children when with the Husband, and that the Children would like more flexibility to attend sports events with the Husband;[44]
[44] Family Report, paras.83-102.
e)in relation to the issues the Family Report Writer found that:
i)both parents demonstrated equally sound appreciation of the obligations of parenting, but with different styles;[45]
[45] Family Report, para.109.
ii)both Children have benefitted from the respective parenting abilities of each parent, and the Children appeared to have been relatively protected from the effect of the conflict between the parents;[46]
iii)the Wife was a dedicated and competent parent, somewhat compromised by her anxiety about the Husband and the history of their relationship, and not always able to manage the boundaries between that anxiety and the Children’s relationship with the Husband;[47]
iv)the Husband was also a dedicated and competent parent who has maintained contact with and acted protectively toward the Children, including attempting to buffer them from the stresses of the relationship between the Husband the Wife, as indicated by the Children’s statements and the Family Report Writer’s observations;[48]
v)critically, that the Husband “presents as willing and able to provide for … [the Children’s] welfare, safety and development” but that the Husband and Wife “are unlikely to be able to parent collaboratively, given their ongoing differences” but that, in the Family Report Writer’s view, was “not … a sufficient reason for … [the Husband] not to have shared parental responsibility for such issues as the Children’s education and their health”;[49]
vi)both parents undergo counselling to facilitate the Children’s wellbeing, particularly with respect to buffering them from the effect of the parental conflict;[50]
vii)both Children are physically well-developed, intellectually talented, and supported by both the Husband the Wife, and are developing emotionally relatively well, given the conflict between the Husband and Wife;[51]
viii)both Children are securely attached to each of the Husband and Wife, and appear to have strong relationships with both paternal and maternal extended families, but the relationship with the paternal extended family could be facilitated further by ongoing contact and participation in family events requiring a degree of flexibility from the Wife, and likewise with respect to the further facilitation of the Children’s well-developed sense of cultural links with the maternal family requiring a degree of flexibility from the Husband in managing negotiations with the Wife;[52]
ix)an ongoing positive relationship with the Husband would be facilitated by the Children spending more time with him than under the Current Final Orders, and more so by spending special days with the Husband;[53]
x)changeovers not be as proposed by the Husband due to the Wife’s anxiety, but also should not be at the current alternative changeover point of a police station, but at a more neutral public place such as McDonalds or a shopping centre;[54] and
xi)a change in the existing parental responsibility arrangements “does not seem supportable”.[55]
[46] Family Report, paras.110-111.
[47] Family Report, paras.113-114.
[48] Family Report, para.115.
[49] Family Report, para.116.
[50] Family Report, paras.120-121.
[51] Family Report, paras.118-119.
[52] Family Report, paras.124-125.
[53] Family Report, paras.129-132.
[54] Family Report, paras.133-134.
[55] Family Report, para.135.
The Family Report Writer made the following recommendations:
139. [The Children] … live with their mother, [the Wife].
140. [The Children] … spend time with … [the Husband] between alternate Fridays to Wednesdays during school time and half school holidays.
141. [The Children] … also spend time with both … [the Wife and the Husband] on special days as nominated by them, and other times that can be flexibly agreed.
142. [The Wife] … attends counselling with a psychologist such as Ms D [(omitted)] to address anxiety management and communication skills.
143. [The Husband] … attends counselling with a psychologist such as Mr D [(omitted)] to address emotional regulation and communication skills.
144. Changeover venues should be school and preferably the parental homes, otherwise a public venue such as McDonalds or a shopping centre would be appropriate.
145. Any time required for educational purposes should be arranged between … [the Wife and the Husband].
146. [The Wife and the Husband] … should both be involved in addressing the [C]children’s health.
The Wife was critical of the Family Report and the Family Report Writer. The Wife submitted that:
a)it was not necessary for the Wife to cross-examine the Family Report Writer as the recommendation she made for the Children to live with the Husband for five nights a fortnight was one that the Wife agreed to;
b)the Family Report Writer did not make recommendations, but descended to generalised statements which were not forensically useful about what the position “should” be as opposed to making recommendations based on the facts;
c)the Family Report Writer trespassed on the Court’s role by concluding that there ought to be shared parental responsibility notwithstanding that the Husband and Wife were unable to parent collaboratively;
d)the Family Report Writer erred in suggesting that the Husband had been buffering the Children from the tensions between the Husband and the Wife, and pointed expressly to the fact that the Husband used the First Child to communicate his views to the Wife on the First Child’s secondary school placement;
e)that the Family Report Writer’s reference to “alleged” family violence in the past, and to the Wife being preoccupied with that was based on factually incorrect information, and that the Wife had good reason to be preoccupied with the past, as the Husband’s attitudes had not changed, and the Wife therefore had good cause to continue to be preoccupied;
f)that the Family Report Writer’s criticism of the Wife as resisting the Husband’s suggestions was wrong, as was her conclusion that the Husband was cooperative, and that based on the evidence it was the Husband who had resisted and been uncooperative in relation to the Wife’s parenting endeavours, and who had sought in his evidence to justify his actions in a convoluted and argumentative way; and
g)the Family Report was based on a very superficial understanding or examination of the parties relationships.
Unsurprisingly, the Husband adopted the views of the Family Report Writer and submitted that they were fundamentally focussed on the best interests of the Children.
Applicable legal principles
In exercising jurisdiction to make parenting orders the Court must, and has in this case:
a)followed the defined legislative pathway under the FL Act, being aware of the overarching objects and underlying principles therein;
b)been mindful of the requirement imposed by s.60CA of the FL Act that the best interests of the Children are the paramount consideration, but not the only consideration;
c)given proper weight to the primary, additional and other considerations under s.60CC of the FL Act, and
d)had regard to the statutory presumption that it is in the Children’s best interests for parents to have equal shared parental responsibility, which relates to major decision-making, not time spent with each parent by the Children.[56]
[56] FL Act, s.61DA.
Outline of issues
The issues which arise to be considered in these proceedings in the context of the applicable legal principles set out above, are as follows:
a)whether in light of the “rule” in Rice & Asplund[57] there was sufficient change of circumstances to justify hearing the applications to vary the Current Final Orders;
[57] In the Marriage of Rice & Asplund (1978) 6 Fam LR 570 (“Rice & Asplund”).
b)in relation to the Children’s education:
i)whether the Wife is to have sole parental responsibility in relation to the Children’s education, or whether equal shared parental responsibility will continue to apply in relation to the Children’s education;
ii)whether the Husband is required to take the Second Child to attend Chinese schools on Saturdays when the Second Child is spending time with the Father; and
iii)whether the Husband is to be provided forthwith with all information concerning the Children’s education;
c)in relation to the Children’s health:
i)whether the Wife is to have sole parental responsibility for making decisions in relation to the Children’s health, or whether equal shared parental responsibility is to continue to apply in relation to decisions concerning the Children’s health; and
ii)whether the Husband is to be provided forthwith with all information concerning the Children’s health;
d)in relation to live with time spent with the Wife and Husband:
i)whether the five nights that the Children are to spend with the Father are to be from after school on Thursday to before school on Tuesday, as proposed by the Wife, or from after school on Friday to before school on Wednesday as proposed by the Father;
ii)whether three Chinese cultural festivals, the Dragon Boat Festival, the Mid-Autumn Festival, and the Lantern Festival, are to be time spent with the Wife;
iii)whether the time spent with the Husband by the Children is to be adjusted during the Christmas break;
iv)whether the Children are to stay overnight instead of on the afternoon and evening only on the Husband’s birthday; and
v)whether the Children are to spend Anzac Day and Australia Day, and days on which the (omitted) FC play in the AFL in Melbourne, with the Husband as Australian cultural days;
e)with respect to the place and time of changeover:
i)as proposed by the Wife, whether the place of changeover is to be at school, or alternatively at McDonalds (omitted), and whether to discharge the existing order 7 of the Current Final Orders; or
ii)as proposed by the Husband, whether the place of changeover is to be at school, or otherwise outside the house of the parent who is making the Children available to the other parent, and whether the changeover is to be at 7.00pm, where not otherwise stipulated as to time, and whether order 3(b) of the Current Final Orders is to be changed; and
f)whether non-departure and airport watch list orders ought to be made as proposed by the Husband.
In order to assist it to determine the above issues the Court will also need to deal with the credit of the Husband and Wife.
Consideration of issues
Credit of the parties
The Wife
The Wife presented as an earnest, and perhaps anxious, person. She generally answered questions without emotion or reaction, and in a quiet, straightforward and respectful manner. She did not hide her dislike or fear of the Husband, but was prepared to credit him with being a loving parent, who is loved by the Children, and who enjoyed his time with them, albeit perhaps too much in her view. The Court has no reason to doubt the veracity of the Wife’s evidence, or her credibility generally.
The Husband
The Husband within moments of entering the witness box was admonished by the Court for his aggression, in the following terms:
… can I say to you that having a go at counsel, particularly so early in your evidence, when so far she has been nothing but polite doesn’t do you much credit at the end of the day.[58]
[58] Transcript, page 44.
At other times, the Husband was evasive and equivocal about what ought to have been relatively straightforward issues. If nothing else, the Husband’s evidence demonstrated the type of communication difficulties which were the bedrock of the Wife’s case.
As the Court also observed at hearing the Husband had “a positively sarcastic approach” to many matters, which the Court, at least, found somewhat off-putting.[59] It is evident that the Husband did not demonstrate these traits when speaking with the Family Report Writer, who described him as “calm, rational and coherent”.[60] The Family Report Writer did not have the benefit of seeing the Husband tested as to his evidence, and as to how he reacted when challenged in the less benign environment of the courtroom.
[59] Transcript, page 113.
[60] Family Report, para.70.
The Husband was not truthful in sworn affidavits as to denying having told the Children that the Wife had not had time to get their shoes, or that he was going to report the Wife to the Department of Human Services, when he had said those things, as he admitted under cross-examination. Further, the Husband’s affidavit evidence was that he did not forbid the Children to speak with the Wife in Chinese, but that was contradicted by Exhibits 4 and 5, and conceded in cross-examination, such that there was what the Court considers to be a manifest threat to the Wife to cease telephone calls with the Children if they spoke with the Wife in Chinese.[61]
[61] Transcript, pages 81-82.
In the Court’s view, the Husband’s evidence needs to be treated, because of the factors mentioned immediately above, with some reservation, and if there is direct conflict between the Husband’s evidence and the Wife’s evidence, in the absence of evidence corroborating the Husband’s evidence, the Wife’s evidence is to be preferred.
Rice & Asplund
Section 65D(2) of the FL Act provides that a court may make a parenting order that discharges, varies, suspends or reverses some or all of an earlier parenting order. A court should not entertain proceedings to vary such an order lightly.[62]
[62] Rice & Asplund.
In DL & W[63] the Full Court of the Family Court observed as follows:
[63] [2012] FamCAFC 5 (“DL”).
67. The legislation itself now expressly directs judicial officers to have regard to the potential impact of proceedings on the welfare of children. As the Full Court pointed out in Miller & Harrington (2008) FLC 93-383, the provisions of 69ZN of the Act, which prescribes “principles for conducting child-related proceedings”, apply to a hearing in which Rice and Asplund is invoked. Subsection 69ZN(3) provides (our emphasis):
The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
68. There are, of course, cases where it is necessary, in the interests of the child, for a court to revisit “final orders”, whether made by consent or following a defended hearing. As Evatt CJ said in Zabaneh and Zabaneh (1986) FLC 91-766 at 75,587 (Fogarty and Renaud JJ agreeing):
The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
69. As the Federal Magistrate noted, the Rice and Asplund authorities were reviewed in SPS and PLS, where Warnick J recognised that the purposes that can be served by the “rule” differ depending upon the stage of the proceedings at which it is sought to be applied. For example, in the event it is addressed as a preliminary matter it is clearly more effective in discouraging “endless litigation” than if it is applied at the conclusion of the hearing.
70. Warnick J observed (at 87,451) that “at whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’”. His Honour also recognised that “the application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order”. We respectfully adopt those observations, with the latter being of particular importance in the determination of this appeal.[64]
[64] DL at paras.67-70 per May, Thackray and Strickland JJ. See also Marsden v Winch [2009] FamCAFC 152 (“Marsden”).
In the Court’s view there was, and is, a prima facie and sufficient change of circumstances in this matter to justify, in the interests of the welfare of the Children in particular, the hearing of the application to vary the Current Final Orders. In particular:
a)the nature of communication between the Wife and Husband, which is set out below, has arguably caused increased difficulties, in particular with respect to the school enrolment for the First Child;
b)there are difficulties with respect to communication between the Wife and Husband per se, now compounded by the provisions of an intervention order made by the State Magistrates Court in place until 2020 as between the Wife and Husband;
c)the Children are now both of an age where they can, and have, expressed views (in this case to the Family Report Writer) as to the appropriateness of live with and time spent arrangements to be made in respect of them; and
d)the Husband has since re-partnered, and his household circumstances are different to what they were at the time of the Current Final Orders being made.
Children’s schooling and health – parental responsibility for
Parental responsibility
The issue of sole parental responsibility is agitated in these proceedings by the Wife. She argues, in particular, that she and the Husband are not able to communicate in a way that enables appropriate and timely decisions to be about the Children’s schooling.
Section 61DA of the FL Act enacts a statutory presumption of equal shared parental responsibility, save in circumstances of child abuse or family violence.[65] In order to rebut the presumption of equal shared parental responsibility the Court must make a finding that it would not be in the best interest of a child for the presumption to apply, and there may be circumstances in which the Court in the proper exercise of its discretion can then make very specific orders in relation to issues or aspects of a child’s welfare.[66] Explicit and cogent reasons are required for rebuttal of the presumption.[67]
[65] FL Act, s.61DA(2)(a) and (b).
[66] Chappell & Chappell (2008) 39 Fam LR 627 at 646 per Warnick, Boland and Thackray JJ; [2008] FamCAFC 143 at paras.75-76 per Warnick, Boland and Thackray JJ (“Chappell”).
[67] Dundas & Blake [2013] FamCAFC 133 at para.61 per Bryant CJ, May and Ainslie-Wallace JJ.
The Wife says that under s.64B(2)(c), (d) and (i) of the FL Act the Court has power to make orders dealing with the allocation of any aspect of parental responsibility, and the form of consultations that are to take place between the parties in relation to the exercise of parental responsibility.
In this case the Wife seeks orders which are specifically drafted to avoid the need for consultation or notice and which allow the Wife to make decisions concerning the Children’s education and health without consultation with, or even notice to, the Husband.[68] The Wife justifies the orders sought on the basis that communication between the Wife and the Husband is hopeless, and that it is the Husband who is to blame for that situation. And, even if the Husband makes an entirely sensible suggestion to the Wife with respect to the Children’s education or health, the Wife may ignore or do nothing about the Husband’s suggestion. The Wife justifies orders in these terms by saying that there is no evidence that she has made poor decisions concerning the Children’s education or health in the past. The Wife says that orders in these terms are in the best interests of the Children, that being the paramount consideration.[69]
[68] Transcript, page 111.
[69] FL Act, s.65DAA.
Nature of communication between the Wife and Husband
In this case it is necessary to examine the nature of communications (including applications for intervention orders) between the Wife and Husband, primarily since the Current Final Orders were entered into in November 2008, in order to appreciate the cases put to the Court. The history of communication and intervention orders between the Wife and Husband is important in the context of whether or not the parents can effectively have equal shared parental responsibility in the future.
It is unnecessary to go into detail with respect to the history of any intervention orders in the State Magistrates Court. It suffices to observe that there were various applications with respect to intervention orders over a period of years from 2008 to 2012, culminating in an intervention order as between the Husband and Wife which remains on foot until 2020.[70]
[70] Transcript, pages 66-67; Wife’s November 2012 Affidavit, paras.16-22.
The Wife sought at hearing to tender the transcript of a conversation on 19 September 2008 at changeover.[71] The conversation was, for the most part, as recorded, between the Wife and Husband. The tender was opposed by the Husband. The September 2008 Exchange document was marked for identification, pending a ruling as to its admissibility.
[71] “September 2008 Exchange”.
Relevantly, the transcript of the September 2008 Exchange provides as follows:
[Husband]: So I don’t want to keep giving them money, but obviously I want to protect the children’s interest and my interest. So I’m going to keep fighting for that as much and as long as it takes. So I don’t know if you want to sit down and actually discuss this or not. But I’m offering an olive branch to you to sit down and discuss all this. If you want to do it with solicitors, which is going to cost us money or you want to do it as adults, it’s up to you.
[Wife]: No, do it with solicitors because I don’t feel safe with you. To be honest, I don’t feel safe.
[Husband]: What is a good time to discuss things like this because I don’t want to drag you through court or ruin your reputation which is what’s going to happen.
[Wife]: My reputation? I’m not worried.
[Husband]: I’m going to drag Mr S. Mr S is going to be called into court.
[Wife]: I’m not worried.
[Husband]: Your reputation, your videos you buy, pornographic videos will be brought up in court.
[Wife]: I’ve been buying pornographic videos, huh?
[Husband]: Yes, it’s got your name on the box.
[Wife]: There was one educational set of four.
[Husband]: There was one your bought in (country omitted).
[Wife]: That was joint.
[Husband]: You still bought it. What about your crotchless knickers? I’ll put them on display, all your photos on display. I’m going to put you down like you’ve been putting me down in court. You are taking the children’s future funds away. Any money for sending them to private school is gone because I’ve got no money left. If you want to keep going down that route, you can. I’m offering you an olive branch to stop this. An olive branch to try to settle this calmly, as adults. Now you know I’m not threatening you. I’m not being aggressive, and you have no reason to make statements like you made before.
[Wife]: I have a lot of reasons.
[Husband]: You were threatening me at calisthenics. I was walking away from you.
[Wife]: What did I threaten you with?
[Husband]: You were getting violent with me.
[Wife]: Oh yes?
[Husband]: I’m offering you this olive branch.
[Wife]: I don’t want one olive branch, thanks.
[Husband]: Alright, I’ll put you through public humiliation. I will talk with the Department of Human Services. (employer omitted). I already have their contact details. I’m going to take you through the wringer with this and I’m going to be the Ultimate Bastard to you.
[Wife]: You have been. Nothing has changed.
[Husband]: I’m going to make it a lot worse.
[Wife]: You haven’t changed have you?
[Husband]: If you think I’ve been bad, you just wait. You just wait.
[Wife]: Nothing could be worse than what I’ve been through.
[Husband]: You chose this lifestyle. You walked away with the children and take them away from me. I’m going to be the Ultimate Bastard. I’m going to make sure you don’t get the children based on your (occupation omitted) credentials. I’m going to make sure you’re put so low down that they won’t even consider you being a (occupation omitted). I’m going to make you the worst possible person in court. That’s what you are trying to do to me.
[Wife]: That was my biggest trouble. I trusted you.
[Husband]: I’m trying to keep it out of the public arena. You dragged it into your affidavit, the sexual lingerie.
[Wife]: That’s the truth. I’m not afraid of the truth.
[Husband]: I’m going to respond to everything you’ve done. You realise that don’t you. It’s going to be in public. I’m trying to stop that for you.
[Wife]: No, you’re not trying at all.
[Husband]: You think about it and you get back to me when I drop the kids back on Tuesday morning. You won’t be hearing from the kids for four days. … I’ll be dropping the kids at the (omitted) so if you’re not there …...
[Wife]: No, you bring them here, 9o’clock.
[Husband]: If you don’t discuss things, that’s what you’ll have to put up with.
In the Court’s view the transcript of the September 2008 Exchange is admissible because it:
a)is relevant to the nature of the communication between the Wife and Husband, even if only historically, and therefore relevant to a determination of how that communication might impact upon the best interests of the Children;
b)has apparently been admitted and used in proceedings in relation to the intervention order proceedings in the State Magistrates Courts;
c)is consistent with the principle that matters ought to be dealt with with as little legal technicality and form as possible, and a determination by the Court of which issues in the proceedings require full investigation;
d)is consistent with the evidentiary exclusions in the FL Act;[72] and
e)it is not inconsistent with some more recent communication by the Husband to the Wife in which he describes her as a “b***” [bitch] and says that she has “15 more years of this”.[73]
[72] FL Act, ss.69ZN(1), (2), (3) and (7); 69ZQ(1)(a) and 69ZT(1).
[73] Wife’s November 2012 Affidavit, Annexure O, Husband’s emails of 6 and 7 September 2011.
The September 2008 Exchange document presently marked MFI 1 will therefore be marked as Exhibit 8.
The September 2008 Exchange reveals the Husband threatening to humiliate and ruin the Wife, who is a (occupation omitted). What the September 2008 Exchange reveals is that the Husband did not appear to be able to communicate properly, or civilly, with the Wife, at that time.
The Husband says that the September 2008 Exchange:
a)his intention was to prevent both the Wife and Husband from being publicly humiliated;
b)needs to be read in the context of the fact that the Wife was, in the Husband’s view, taking the Children away from him;
c)that it was several years ago, and the threats have not been fulfilled; and
d)that just two months later the parties were able to communicate sufficiently well to conclude final orders including provisions for equal shared parental responsibility.
The Husband’s argument that his intention was to prevent the public humiliation of both parties is, in the Court’s view, disingenuous. It does not accord with a plain reading of the September 2008 Exchange which plainly seeks to put the Wife in fear of the outcomes of reporting of the matter to the Department of Human Services and (employer omitted), and their potential effects upon her access to the Children and her capacity to practise as a (occupation omitted). But, as the Husband points out, that was now six years ago, and those threats have not been followed through. The failure to follow through on the threats must however be read in the context of the intervention order which has been in place since 2010, although the intervention order of itself would not preclude the Husband from making good on those threats.
The Husband argued that conduct in September 2008, followed by entry into the Current Final Orders, does not now warrant his “sterilisation” from the lives of the Children with respect to health and education issues. That ignores, however, the fact of some of his more recent communication with the Wife referred to above.
The Wife points to the evidence concerning the enrolment of the First Child at (omitted) High School and says the First Child’s enrolment might still be undecided if it had been left to the Husband. In this regard the evidence indicates that it was about a year before this issue could be resolved, and that the Husband prevaricated in various ways which had the effect of avoiding his having to deal with the issue, the prevarication going so far as to blame his solicitor’s long term illness for his inability to make a decision as to the school at which his daughter, the First Child, should be enrolled for her secondary schooling. The enrolment issue is an example of the difficulty that the Husband has both with communication with the Wife, and with actually making a decision on a matter of vital importance in the life of the First Child. It is fair to observe that the Husband did not communicate appropriately or timeously on the enrolment issue, and was not prepared to make, or avoided making, a decision, on that issue. The Husband endeavoured to delegate responsibility for this critical issue, or the blame for the delay or for his indecisiveness, to his solicitor.
The Husband submits that he has taken a keen interest in the Children’s school activities, including extra-curricular activities, and has undertaken to take the Children to any entrance or qualifying examinations if they occur during time spent with him.[74] In response, the Wife therefore seeks the suspension of time spent orders with the Husband during any entrance or qualifying examinations that the Children are required to attend. However, the Wife does not persist with the request for this order if the Husband consents to, or undertakes to take the Children to entrance or qualifying examinations while spending time with him.
[74] Husband’s January 2013 Affidavit, para.18.
The Wife was very critical of the conclusion reached by the Family Report Writer that although the Wife and Husband could not parent collaboratively, that that was not a reason in “her personal view … to cut somebody out” of a share of parental responsibility. The Wife says that it is a reason to make adjustments to the primary position of equal shared parental responsibility, and probably the most persuasive reason.
The Husband’s evidence that the Wife was endeavouring to act contrary to or undermine the best interests of the Children in relation to their schooling[75] was characterised as absurd by the Wife. In the Court’s view, whatever criticism might be sought to be made of the Wife as to her approach to parenting: that it is too strict, too prescriptive, too inflexible or too focussed on the Children’s Chinese culture, there is no evidentiary basis for the Court to find that she has anything other than the Children’s best interests foremost in her considerations.[76] The Husband too, in the Court’s view, has the best interests of the Children as his primary focus, but has a different view as to what might be in the Children’s best interests, and a view impeded, to some degree, by his communication difficulties with the Wife and his incapacity to make a decision on matters such as the enrolment issue for the First Child.
[75] Transcript, page 49.
[76] See, for example, the answer to the question at lines 19-20 of Transcript, page 39.
The Wife submitted that the complete lack of positive communication between her and the Husband meant that there had to be an order for sole parental responsibility in the vital areas of the Children’s education and health. The Wife pointed to what were argued to be critical matters where the Husband had delayed in, or abrogated responsibility for, decision-making with respect to the Children’s education, namely the Husband’s:
a)relaying of communications to the Wife via the First Child concerning the choice of a secondary school for the First Child;
b)writing to the Children’s school concerning his issues with the Wife;
c)complaint that he was only given the names of four secondary schools to choose from in relation to the First Child’s secondary schooling, and that the Wife had not engaged in due diligence, without having done any investigation or making any suggestion himself as to appropriate secondary schools for the First Child at a time when he had equal shared parental responsibility for the First Child; and
d)continuing to complain about the Wife’s final choice of secondary school for the First Child when he did nothing to assist or, his criticisms aside, to actively and positively participate in that choice.
In response to a question concerning the width of the proposed order with respect to sole parental responsibility, and the use of the phrase “educational institutions”, the Wife submitted that the major issue was the choice of regular school and the Second Child’s attendance at Chinese School, and that the Court could limit any order made accordingly.[77]
[77] Transcript, pages 116-117. The issue of the Second Child’s attendance at Chinese School is dealt with below.
The Husband concedes that he has difficulties with communication, and says that he wants face-to-face communication with the Wife. The Wife seeks to have email or sms text communication as the primary means of communication between her and the Husband.[78]
[78] Husband’s January 2013 Affidavit, para.17.
The Husband asserts that the Wife creates communication difficulties for both parties.[79] The Husband points to the Family Report and the lack of response by the Wife to his greeting at the time of the Family Report assessment. The Wife says that she simply did not hear what was apparently said to her as she was on her way out of the room. The Husband says that the Wife does not consult on matters, and cites the Wife’s taking of the First Child for orthodontic treatment as an example of this.
[79] Husband’s January 2013 Affidavit, para.18.
The Family Report Writer discusses the communication difficulties between the Husband and Wife. The Family Report Writer observes that the Husband does not say a lot to the Children about the Wife.[80] In this respect, the Husband cannot be said to be seeking to distance the Children from the Wife during time spent with the Husband, or otherwise, by reason of anything that he says during time spent with him. In real terms, the communication difficulty is that between the Husband and the Wife. The Family Report Writer observed that one of the difficulties in this case is that the Children perceive that time spent with the Wife is serious and all about school, whereas time spent with the Husband is all fun time.
[80] Family Report, paras.58 and 91.
It is fair to observe that the Husband and Wife each have a different type or style of relationship with the Children. As the Family Report Writer observed the relationship with the Wife was seen by the Children as being a serious school-based relationship, whereas their relationship with the Husband is seen as being one which is all fun. The Husband says that the Wife lacks appropriate insight into the fact that each of them has a different type of relationship with the Children, and the Wife’s lack of appreciation of this does not assist in the communications between them.
The Family Report Writer concludes that both the Husband and Wife are competent and caring parents who have talented and gifted children, notwithstanding the communication difficulties between the Husband and Wife.
The Family Report Writer indicates that the Husband and Wife are unlikely to parent collaboratively, but this of itself is insufficient reason not to have equal shared parental responsibility. The Family Report Writer recommends equal shared parenting responsibility notwithstanding allegations of family violence. The Family Report Writer concluded that the communication difficulties were not enough to vitiate the Husband’s rights to equal shared parental responsibility. For reasons which follow the Court considers that, at least in part, the Husband’s poor communication skills necessitate some vitiating of his right to equal shared parental responsibility in relation to the Children’s schooling.
At hearing, as the Court observed during the course of submissions, and as the Court has observed earlier in these Reasons for Judgment, the Husband did not impress as a communicator. He was equivocal and sometimes evasive when giving evidence, and in the Court’s view, would be a very difficult person with whom to communicate to.
There were several examples of the Husband’s lack of communication ability, or the difficulty that might be had in communicating with him. When questioned concerning what would happen in the event of a breakdown between he and the Wife concerning matters associated with the Children he suggested that their lawyers could fill the gap.[81] Setting to one side judicial intervention, the notion that anyone other than one or other of the parents (or a blood relative or appropriately appointed guardian) should make decisions concerning matters such as the Children’s education or health, and in particular that the persons making those decisions on a day-to-day basis might be the parties’ lawyers, is anathema to the objects of the FL Act. In addition, it is not very practical, might be very expensive, and given the professional pressures on most family law practitioners, might result in some very uninformed decisions being made with respect to the Children’s issues. The Court voiced those concerns during the course of the hearing.[82] What the Husband’s suggestion does, however, is reveal his lack of confidence in his own ability to communicate with the Wife with respect to the best future pathways for the Children.
[81] Husband’s January 2013 Affidavit, para.19; Transcript, pages 67-70.
[82] Transcript, page 70.
Other examples of the Husband’s poor communication skills included:
a)his comments with respect to child support during the hearing, where he suggested that all that he had to do was pay child support, and no more.[83] His Counsel, properly endeavouring to put the best possible face on this evidence, suggested that what he actually meant had been poorly communicated, but as the Court observed, that miscommunication, whether advertent or inadvertent, is part of the problem in relation to the Husband’s communication skills; and
b)his refusal to use a communications book, and when the Wife used email, his endeavours for face-to-face meetings (notwithstanding intervention orders).
[83] Transcript, pages 72-74.
Interfering with the presumption of equal shared parental responsibility in respect of matters as fundamental as education and health constitutes a significant interference with the normal rights, roles and responsibilities of parents, and is not a course to be embarked upon lightly,[84] and must be justified by the findings made on the evidence before the Court.[85]
[84] Lansa & Clovelly [2010] FamCA 80 at para.149 per Murphy J.
[85] Chappell Fam LR at 646 per Warnick, Boland and Thackray JJ; FamCAFC at para.75 per Warnick, Boland and Thackray JJ.
The Wife seeks sole parental responsibility for the selection and enrolment of the Children at “educational institutions”, and to inform the Husband in writing of her selection at least 30 days prior to confirming enrolment. The Husband formally opposed that order, but as the evidence emerged the Husband suggested that his lawyers might make any such decision, or, if the Husband and Wife could not agree, that the decision with respect to the Children’s educational institutions might be made by a third party by way of mediation. In some respects, therefore, the Father has indicated a preparedness to abdicate his parental responsibility for the selection and enrolment of the Children in educational institutions. For reasons set out above it is manifestly inappropriate for a parent to abdicate that decision-making responsibility to a lawyer in the circumstances of this case.[86] Likewise, the suggestion that there be effectively third party mediation of any dispute with respect to selection and enrolment is unattractive in the circumstances of this case, because as the Husband demonstrated in court, it is not only in relation to the Wife that he lacks communication skills, but he lacks those skills more generally, and the Court is therefore not confident that third party mediation would be availing in those circumstances. To ensure that the best interests of the Children, and particularly the Second Child as the time approaches for the choice of a secondary school to be made, are met, the Court is of the view that the selection and enrolment in a school process for the Children ought to devolve upon one person, and in the circumstances of this case, that person ought to be the Wife. Having regard to the evidence, and the nature of the presumption of equal shared parental responsibility, the Court is of the view that the Wife ought to have sole parental responsibility for the selection and enrolment of the Children in a registered school for the purposes of s.2.1.1(a) of the Education and Training Reform Act 2006 (Vic).[87] The Wife is to give the Husband 30 days’ notice of any intention to enrol either of the Children in a registered school. It is not intended by the Court that sole parental responsibility extend beyond the Wife selecting a single registered school for the purposes of each of the Children’s attendance at a school so as to comply with the obligations under the Education Act, and ensuring any enrolment. Such an order will not withdraw from the Husband the usual parental responsibility on a day-to-day basis when the Children are living with the Husband (with respect to education).
[86] It may be different if there were a necessity, for example, for a lawyer to be appointed as a litigation guardian for a party, but that is not this case.
[87] “Education Act”.
The Court is concerned that the Wife’s view of the importance of formal education, both in a registered school and in other educational environments, such as Chinese School, is such that the Court considers it appropriate to also order that neither parent enrol the Children in extra-curricular activities (whether at a registered school or otherwise) which impose on the periods of live with time that the Children spend with the other parent, except with the written consent of the other parent, and where that written consent is obtained then the provisions of orders 12 and 18 of the Current Final Orders apply. Such an order is not however intended to prevent the Children from attending any examinations or tests at a registered school, or any qualifying examinations or tests for entry into a registered school, and there is to be an order obliging both the Husband and Wife to ensure that the Children attend all examinations and tests at their registered school, and any qualifying examination or test for enrolment in a registered school.
In making orders with respect to sole parental responsibility in the above terms the Court does not consider that the Children’s relationship with either parent, and in particular the Husband, will be adversely affected. The Children presently have a meaningful relationship with both parents, including the Husband, notwithstanding the Husband’s communication difficulties, and his seeming inability to make a decision with respect to school enrolment in respect of the First Child. The Court therefore does not consider that an order of the above type would impinge upon the benefit to the Children of having a meaningful relationship with the Husband.[88] Nor does the Court consider that such orders would affect parental facilitation and encouragement of a close and continuing relationship between the Children and the other parent. Both Children have that relationship with each of the Husband and Wife at present, in circumstances where the Wife has effectively been fulfilling the sole parental responsibility role with respect to the selection and enrolment of the Children in school.[89] The Court has also had regard, in particular, to likely effects of changes in the Children’s circumstances, particularly the Second Child, as he approaches the age for enrolment in secondary school. It would not be in the best interests of the Second Child for a similar scenario to unfold as unfolded with respect to the First Child in terms of her enrolment in secondary school.[90] The Court has also made the sole parental responsibility for selection and enrolment in a registered school for the purpose of limiting any possible future litigation with respect to this issue given that there is either a high probability of deadlock[91] or, at the very least, a prolonged and inappropriate period of indecisiveness on the part of the Husband before any decision might be made.[92] The Court is of the view that the Wife is unlikely to make an inappropriate choice such as to give rise to a risk of further proceedings concerning the Children’s school enrolment.[93]
[88] FL Act, s.60CC(2)(a).
[89] FL Act, s.60CC(3)(c).
[90] FL Act, s.60CC(3)(d).
[91] Chappell Fam LR at 646 per Warnick, Boland and Thackray JJ; FamCAFC at para.75 per Warnick, Boland and Thackray JJ.
[92] FL Act, s.60CC(3)(l).
[93] FL Act, s.60CC(3)(l).
There should be orders to vary the Current Final Orders to give effect to the Court’s conclusion on parental responsibility with respect to school selection and enrolment.
It is apparent that both parents have dealt with the health issues that have arisen with the Children on a day-to-day basis when the Children are living with them. The affidavit material reveals certain disputes about who has informed who about what, and the timing of that information. There have not, however, been any truly substantive disputes concerning the nature of medical treatment to be undertaken by the Children. Each parent, and perhaps the Wife more often, as had to deal with the Children’s health issues as they have arisen. In terms of the nature of the treatment received by the Children the Wife’s primary cause for concern it would appear is not the nature of treatment received but whether or not the Husband will pay, particularly in relation to orthodontic treatment.[94] There are, on the affidavit material, the usual disputes that seem to occur when Children spend substantial time living with one parent and then the other as to whether or not the Children were returned with various ailments, or whether various ailments ought to have been treated, or treated differently, but all of the material with respect to those matters reveals nothing other than each of the Husband and the Wife being concerned, to a lesser or greater degree dependent on the nature of the issue, with the best interests and welfare of the Children in relation to their health. Put simply, the evidence does not rise to such a level as to warrant the Court altering the present distribution of equal shared parental responsibility between the Husband and Wife with respect to the Children’s health issues. Furthermore, the fact that the Children live with the Husband for five days a fortnight means that giving the Wife sole parental responsibility for the Children’s health issues is likely to be impracticable, especially given the communication difficulties between the Husband and the Wife, and that would likely lead to significant conflict, which would not be in the best interests of the Children, or, importantly, the resolution of any of their health issues.
[94] Wife’s June 2013 Affidavit, para.3(m) and Wife’s August 2013 Affidavit, para.15.
In the circumstances, there will be no order that the Wife have sole parental responsibility with respect to health issues.
Children’s schooling – Second Child’s Chinese school
The Wife submits that with the extra time spent afforded to the Husband by the fifth night a fortnight agreed to by the Wife, that the Court ought to make an order for the Husband to take the Second Child to Chinese School (where it appears he learns Chinese language and culture) on Saturday mornings when the Second Child is spending time with the Husband. The Wife says that the Second Child’s best interests are served by him attending Chinese School on Saturday mornings, particularly in view of his perceived competence in the Chinese language. The Wife says that it is detrimental for the Second Child not to attend Chinese School, and that it is in his best interests, both educationally and culturally, to, for example, learn the Chinese language at a sophisticated level.
The Husband essentially argues that the order sought by the Wife would intrude on his time spent with the Children.[95] The Husband objects to the Second Child going to Chinese School during time spent with the Husband on Saturdays. The Husband says that the Wife has the Children for 9 days out of each 14 days, and that his time with the Children ought not to be disturbed by arrangements that the Wife makes for the Children, in this case the Second Child, to attend Chinese School.[96] The Husband said he felt excluded by the Second Child’s attendance at Chinese School. The Husband gave evidence that it was not possible for him to both be at or take the First Child to netball and also take the Second Child to Chinese School.[97] The Husband also said that if the Second Child is to attend Chinese School then the First Child should do so also. That submission was made against the background of the First Child previously having withdrawn from Chinese School because she was unable to attend on every occasion, because the Husband would not take her, and in those circumstances she found it too difficult to continue.
[95] Husband’s August 2013 Affidavit, para.21.
[96] Husband’s August 2013 Affidavit, para.1; Transcript, page 78.
[97] Transcript, pages 78-79.
The Husband ultimately conceded that he did not object to the Second Child going to Chinese School, and would be prepared to reconsider his position with respect to the Second Child going to Chinese School,[98] but would only be prepared to consent to such an order if that was what the Second Child wanted.[99] That concession must however be viewed against the background of the Second Child not having gone to Chinese School every second Saturday since the Husband ceased to take the Children to Chinese School soon after the Current Final Orders were made in November 2008. Thus, the Second Child has not been attending Chinese School, other than fortnightly, for more than five years.[100] There is a suggestion in the Wife’s affidavit material that the Husband is in breach of the Current Final Orders by reason of his failure to take the Second Child to Chinese School. This presumably is a reference to order 12 of the Current Final Orders which obliges the Husband and the Wife to ensure that the Children attend their extra-curricular activities during times of the Children living with them, provided that neither party shall permit or enrol the Children in any extra-curricular activity when they are to be living with the other parent. The evidence is insufficient to draw any conclusion with respect to whether or not the Husband might be in breach of this order. Bearing in mind that the Current Final Orders were made in November 2008, and it is asserted that the Children have not attended Chinese School since shortly after that time when living with the Husband, it might be that what is asserted to be a breach of order 12 is in fact compliance with order 12 insofar as the Children have not been engaged in an extra-curricular activity, that is Chinese School, when they are living with the other parent, from on or about 2009. That is, if the Children were re-enrolled in Chinese School from the commencement of 2009, the Husband would not have been obliged to take the Children to that extra-curricular activity by reason of order 12. In any event, and as the Court has already observed, there is insufficient evidence to make any final determination concerning the issue, and it is ultimately unnecessary for the proper disposition of this issue.
[98] Transcript, pages 78 and 80.
[99] Transcript, page 80.
[100] Mother’s June 2013 Affidavit, para.3(u); Husband’s August 2013 Affidavit, para.21; Transcript, page 78.
The Court notes that the Family Report Writer made no recommendation specific to the issue of the Second Child’s attendance at Chinese School. Indeed, the question of the Second Child’s attendance at Chinese School is simply not addressed in the Family Report, save for setting out the competing contentions of the Wife in relation to the Husband failing to take the Second Child to Chinese School on Saturdays and the Husband’s contention that the Children are under too much pressure anyway and that Chinese School interferes with his time with them on the weekend.[101]
[101] Family Report, paras.24 and 25.
This is not an easy issue to determine, particularly as to what is in the best interest of the Second Child. There can be little doubt, as was argued on behalf of the Wife, that for a child with Chinese family and cultural links, and more generally in today’s world, the ability to speak Chinese would be an advantage. That said, it is evident that the Second Child does in any event speak Chinese with the Mother, and notwithstanding his attendance at Chinese School is only fortnightly, that he is doing well, achieving a test score of 98.5% in the week prior to the Family Report assessment. The advantages of the Second Child receiving additional tuition at Chinese School must of course be balanced against the fact that it is also in his best interests to engaged with the Husband, his father, when living with him, and to do the sorts of things that fathers and sons do together on Saturday mornings, even if that is limited to, or includes, taking the First Child to, and watching her play, netball. Attending Chinese School on Saturday morning for three hours represents a significant diminution in the amount of time the Husband gets to spend with the Second Child. The Court observes that there was no evidence which indicated that the Second Child had been adversely affected by the failure to attend Chinese School fortnightly rather than weekly. The Court bears in mind that the Wife indicated that the Second Child was managing with “extra help”,[102] and the additional burden that this imposes on the Wife. The Court also notes that the evidence indicates that the maternal grandfather and a maternal uncle now live in Australia, having emigrated to Australia. On the basis of a consideration of all the relevant evidence the Court is prepared to infer, however, that if the Wife did not have to offer this extra help with respect to Chinese School, she would be offering extra help with respect to some other, or some additional, aspect of the Second Child’s education. That is not a criticism of the Wife, but a reflection of the serious and earnest nature of her interaction with and upbringing of the Children.
[102] Family Report, para.24.
By reason of the time the Second Child has to spend at Chinese School, and the fact that it is on a Saturday, benefit to the Second Child of spending such time with the Husband, his father, is in the Court’s view affected and it affects the capacity for them to have a meaningful relationship. Having regard to all of the evidence, and having regard to the best interests of the Second Child, the Court is of the view that the Husband ought not be required to take the Second Child to Chinese School on any day, including Saturday, on which the Second Child is living with the Husband.
Children’s schooling and health – whether Husband to be provided with information forthwith
The Husband seeks orders that the Wife “forthwith provide to the Husband” all information pertaining to the Children’s schooling and all medical details and reports from the Children’s treating practitioners. There were various school and health related incidents referred to in the Husband’s affidavit material in an endeavour to justify the orders sought. In particular, however, the Husband referred to an incident involving the First Child and an attendance at hospital and upon specialists.[103] The Wife submitted that there was no evidence to justify the orders sought. That is especially said to be so in circumstances where the Current Final Orders provide:
a)for the Wife to sign all documents and do all things necessary to authorize and request any school attended by the Children to provide to the Husband, at his expense, relevant information such as school reports, newsletters and the like;[104] and
b)for the Husband and Wife to advise each other as soon as reasonably practicable of any significant illness or injury suffered by either of the Children, and of any medical treatment obtained, and for authorization to be provided to any treating medical professional to provide full information to the parents.[105]
Further the Wife submitted that it was open to the Husband to obtain any information in relation to the Children’s schooling or medical treatment under the Current Final Orders, and it ought not to be the Wife who has to provide this information.
[103] See for example Husband’s January 2013 Affidavit, para.21.
[104] See order 14 of the Current Final Orders.
[105] See order 14 of the Current Final Orders.
In the Court’s view there is nothing in the affidavit material which justifies a change from the Current Final Orders with respect to the provision of information to the Husband by the Wife. Moreover, on the basis of the material relied upon by the Husband, the Court has reached the view that the Wife has either acted in accordance with the orders, or acted as soon as reasonably practicable, in particular in relation to the incident involving the First Child’s admission to hospital and specialist treatment.[106] That the Wife has done so is apparent not only on her own material, but also that of the Husband. The Court is also concerned that the terms of the orders sought by the Husband are far too onerous. The requirement in those orders to provide information “forthwith”, that is, “immediately, without delay”[107] is too onerous a requirement, and is also unrealistic. There may be situations, and the incident involving the First Child’s hospitalisation and specialist treatment is an example, where a developing series of events means that it is only reasonably practicable for information to be provided at certain intervals or at the end of a series of events. There is also nothing on the face of it which links the best interests of the Children to any requirement for information to be provided “forthwith” to the Husband.
[106] Wife’s June 2013 Affidavit, para.3(c); Husband’s January 2013 Affidavit, para.21.
[107] The Concise Oxford Dictionary of Current English (7th Edn) (Oxford: Clarendon Press, 1984).
For the above reasons, the Court does not consider that there ought to be any variation to the existing Current Final Orders with respect to the provision of information in relation to school and medical issues.
Time to be spent with Wife and Husband – which five days?
The current final orders provide for the Children to spend four nights a fortnight with the Husband, and in his amended response the Husband sought to spend five days with the Children per fortnight. The Family Report Writer recommended that the Husband have the extra day a fortnight, and the extra day was conceded at hearing by the Wife. There was a dispute as to which five days were to be time spent with the Husband, the Husband opting for Friday to Wednesday and the Wife seeking a Thursday to Tuesday arrangement. The Husband conceded in his evidence that there would not be a problem with the Wife’s proposal of Thursday to Tuesday. There should therefore be an order that Order 3(a) of the Current Final Orders be discharged and the Children live with the Husband in alternate weeks from after school on Thursday (or 3.30pm if it not be a school day) until commencement of school on Tuesday (or 9.00am if it not be a school day).
The Husband raised the issue of equal shared time both with the Family Report Writer and in evidence before the Court. There was, however, never an application for equal shared time actually before the Court for determination. Nor was the matter addressed by the Family Report Writer. Apart from being raised as an extension of a response to a question in relation to the Husband’s proposal, conceded by the Wife, for the Children to live with the Husband for five days, the matter was not pursued by the Husband, and there was no application at hearing or subsequently for equal shared time. In those circumstances, the Court is of the view that because of the lack of an application for equal shared time, and, more particularly, the absence of any consideration of such a proposal in the Family Report (it not formally being part of the application to be considered by the Family Report Writer), it is not reasonably practicable for the Court to consider whether the Children should spend equal time with each of the parents.[108]
[108] FL Act, s.65DAA.
Time spent with Wife and Husband – Chinese and Australian cultural days
The Court has before it what are essentially competing applications for the Children to spend what were described as cultural days with each of the Wife and Husband. The Wife seeks that the Children spend three Chinese festival days, being Dragon Boat, Mid Autumn and Lantern Festival days with the Wife. The Husband responded with an application for the Children to spend Australia Day, Anzac Day and certain days on which the (omitted) FC play matches in Melbourne with the Husband.
The Wife’s evidence lists eight Chinese festivals, all said to be part of Chinese culture, during the year. It appears that the list is not exclusive. The Wife says that it is reasonable that the Children spend a good number of those Chinese festivals, and Chinese New Year particularly, with her, and as an Australian citizen she wishes to spend every alternate Australia Day and Anzac Day with the Children. The Court notes that the Current Final Orders (order 8) already provide for the Children to spend two days at Chinese Lunar New Year with the Wife, with the Children to make up that time with the Husband in the following week. There was no exploration in the evidence as to why the Dragon Boat, Mid Autumn and Lantern Festivals were chosen, or when they fell in terms of either the Wife’s or Husband’s live with time with the Children in forthcoming years.
The Husband gave evidence that the order sought by the Wife for the Children to spend time with the Wife on three Chinese festival days, being one day for each of the Dragon Boat, Mid Autumn and Lantern Festivals, was not problematic.
The Wife’s submissions characterised the Husband’s application for the Children to spend time with him on Australia Day and Anzac Day as “tit-for-tat” and a “rather unfortunate leverage-style thing”.[109] The Wife pointed to evidence that the Husband had never engaged in any special activities in the past on these days, and that he had in fact complained that on one occasion he was not allowed to go to a wedding which was on Australia Day because that day was a day on which the Children were spending time with him. Ultimately, the Husband conceded that it was appropriate to share the Australia Day and Anzac Day holidays with the Wife.
[109] Transcript, page 109.
The Children expressed a desire to the Family Report Writer that there be more flexibility in their arrangements, and they expressed a desire to go to AFL matches. The Husband picked this up in his amended response, and seeks to have the Children spend time with him whenever the (omitted) FC play matches in Melbourne. Precisely what effect this would have in terms of the Children’s time spent with the Husband, and therefore not with the Wife, was not explored in evidence, and neither party sought to identify (for example, by reference to the 2013 AFL fixtures) how many matches in each AFL season (including finals when a team may play for two, three or even four weeks in a row) might be caught by such an order. In the absence of such evidence it is not possible or appropriate to make an order with respect to the Children spending time with the Husband at AFL matches. That does not of course prevent the Husband from taking the Children to AFL matches in Melbourne involving (omitted) FC when the Children are living with him and the (omitted) FC are playing a match in Melbourne. The Wife cannot prevent this if the Children are living with the Husband at the relevant time.
The evidence of the Husband and Wife canvassed a range of possibilities with respect to mutually exclusive cultural days, the sharing of cultural days (and in this regard Anzac Day and Australia Day were particularly discussed) and letting the various days to be spent with the parent with whom the Children were living on the particular day be spent with whichever parent the Children were living with at the time.
The Court was not assisted by any evidence to indicate when either the three Chinese festival days sought by the Wife or Australia Day, Anzac Day or (omitted) FC matches played in Melbourne, would fall in terms of the Children’s live with time with the Wife and Husband. Moreover, other than in terms of somewhat banal generalities, the cultural significance of the various days for the Children was not explored. Setting aside Chinese New Year, in respect of which the Current Final Orders already make provision, there was nothing before the Court to indicate that it would be particularly in the best interests of the Children to have mutually exclusive provision for so-called Chinese and Australian cultural days. Bearing in mind that the Children are Australian citizens with maternal (omitted)-Chinese heritage it is difficult to justify the granting of time spent with the Wife and Husband on the basis of mutually exclusive Chinese and Australian cultural days. In any event, particularly with respect to Australia Day and Anzac Day, both the Wife and Husband sought that these days be shared. Further, in the Court’s view, given the Wife’s evidence about the number of Chinese festival days of significance, and notwithstanding the lack of evidence concerning when those days might fall, it is not difficult to conceive that at least some of them in each year will fall on days on which the Children will be living with the Wife. In all of the above circumstances, and bearing in mind a lack of evidence as to it being in the best interests of the Children for the so-called Chinese and Australian cultural days to be mutually exclusive as between the Wife and the Husband, the Court is of the view that it would be in the best interests of the Children for the days to be celebrated (or not as the case may be) by the Children with the parent with whom they are living on the time that the days actually fall.
In the circumstances, the Court will make no order with respect to the competing applications with respect to cultural days.
Time spent with Wife and Husband – time spent with Husband over the Christmas break and on Husband’s birthday
The Husband seeks to spend more time with the Children:
a)over the Christmas break; and
b)on his birthday.
The Wife opposes the Husband spending more time with the Children over the Christmas break, and submitted that there was no evidence to support this change, and more particularly that there was no evidence that the Children’s best interests required any change to the Christmas break arrangements.
There is in fact no evidence with respect to these issues by the Husband, either in his affidavits or at hearing. Further, the matter was not addressed with particularity in the Family Report. The existing Christmas and birthday arrangements were entered into by consent in terms set out in the Current Final Orders, and there is no evidence that there has been any difficulty between the parties, or that the existing arrangements have adversely affected the Children’s interests in any way.
In the above circumstances, the Court does not propose to make any orders with respect to the Husband’s application for additional time to be spent with the Children on the Christmas break or on his birthday.
Changeover
Both parties seek that the alternative (to school) place of changeover be moved away from the existing (omitted) Police Station to another place. There is evidence that the Children are embarrassed by the alternative changeovers being at the (omitted) police station.[110] The parties differ as to where that place ought to be: the Husband saying that it ought to be outside of the front of the home of the parent who is making the Children available to the other parent. The Wife says that changeover ought to take place at McDonalds (omitted).
[110] Husband’s January Affidavit, para.33.
The Family Report recommends the changeovers occur at “school and preferably the parental homes, otherwise a public venue such as McDonalds or a shopping centre would be appropriate”[111] and “it is noted that it is unlikely that … [the Wife] would be able to manage such an arrangement, given her ongoing anxiety”.[112] The Court notes that the Family Report Writer has made a primary recommendation which the substance of the Family Report indicates is impracticable.
[111] Family Report, para.144.
[112] Family Report, para.133.
The Wife says that there was no evidence by the Husband relevant to this issue, and no challenge to the Wife’s proposed changeover order. The Wife further says that the Husband has persisted in seeking to have the alternative place of changeover changed to the home of the parent making the Children available to the other parent, but argues that in light of the intervention order and communication history of the parents that changeover outside the front of their respective homes is inappropriate.
Given the evidence with respect to the Wife’s anxiety, and the existence of the intervention order, and notwithstanding the capacity of this Court to make an order which negates the intervention order, the Court considers that the alternative place of changeover which would cause least disruption, or risk of harm to the Wife, Husband and the Children, and which is therefore in the best interests of the Children and the maintenance of the relationship between Children and the parents, is for the changeover to be at McDonalds, (omitted). There should therefore be an order to vary the Current Final Orders to that effect.
The Husband seeks that unless otherwise specified changeover times should be 7.00pm. The Wife says that there is no evidence which justifies changeovers being at 7.00pm, unless otherwise stipulated. Given that changeover times have been stipulated, as the commencement or cessation of school, or 9.00am or 3.30pm otherwise, an order for a further 7.00pm changeover time is unnecessary, and, in any event, not supported by any evidence.
Non-departure and airport watch orders
The Husband seeks non-departure and airport watch orders in relation to the Children, seemingly on the basis that:
a)the Wife holds dual Australian and (country omitted) citizenship and has not relinquished her (omitted) Passport;
b)the Wife, and her family, are property owners in both Australia and (country omitted), and the Wife’s family would be able to afford to accommodate the Wife and the Children in (country omitted);
c)the Wife is (country omitted) by birth, and
d)Australia has no extradition treaty with (country omitted).
The Wife submits that there is no evidence deposed to by the Husband which constitutes evidence that she is a flight risk, and the fact that the Wife is of her national or ethnic origin is irrelevant, and that such an order would be oppressive. The Wife also gave evidence that she has become an Australian citizen in November 2012, has been a permanent resident in Australia for more than 22 years, and regards it as her home. Further, that she owns property here, and the Children regard it as their home and attend school here. The Court also notes that the evidence indicates that the Wife’s father and brother have moved to Australia and live in Melbourne. Finally, the evidence indicates that the Children’s Passports and birth certificates are held by the Husband.
In the Court’s view there is no evidentiary justification for making airport watch list and non-departure orders as sought by the Husband. There was no evidence that the Wife is a flight risk, and the Court notes that she is in fact an Australian citizen, has permanently resided here for more than 22 years and has close family members who are now seemingly resident in Australia. Further, the Children regard Australia as their home, and given the Wife’s attachment to the Children the Court has no doubt that she would not seek to uproot them from their home. Finally, and perhaps most tellingly, the Children could not leave Australia with the Wife in any event because the Husband holds their Passports.
In all of the above circumstances, the Court is not prepared to make the airport watch list and non-departure orders sought by the Husband.
Conclusions and orders
The Court has concluded that:
a)the Mother is to have sole parental responsibility for the selection and enrolment of the Children in a registered school for the purposes of the Education Act, with notice of enrolment to be given to the Husband, but neither parent is to enrol the Children in extra-curricular activities (whether at a registered school or otherwise) which impose on the periods of live with time that the Children spend with the other parent, except with the written consent of the other parent, and where that written consent is obtained then the provisions of orders 12 and 18 of the Current Final Orders apply, provided that such an order is not however intended to prevent the Children from attending any examinations or tests that at a registered school, or any qualifying examination or test for entry into a registered school, and there is to be an order obliging both the Husband and Wife to ensure that the Children attend all examinations and tests at that registered school, and any qualifying examination or test for enrolment in a registered school, and the Current Final Orders are to be varied accordingly;
b)there should be an order that order 3(a) of the Current Final Orders be discharged and the Children live with the Husband in alternate weeks from after school on Thursday (or 3.30pm if it not be a school day) until commencement of school on Tuesday (or 9.00am if it not be a school day); and
c)there should be an order varying the Current Final Orders by changing the current alternative place of changeover from the (omitted) police station to McDonalds, (omitted),
but otherwise dismissing all extant applications by the Husband and Wife.
There will be orders that the parties file a minute of proposed consent orders, but if they are not able to agree on a minute of proposed consent orders, then each party is to file a minute of proposed orders, and the matter is to be listed for mention before the Court. If there is to be any application for costs it is to be after the mention date, and the parties are to file applications and written submissions and replies, and costs are to be determined on the papers.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 6 June 2014
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