Lockwood and Chalmers
[2016] FCCA 198
•15 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LOCKWOOD & CHALMERS | [2016] FCCA 198 |
| Catchwords: FAMILY LAW – Parenting – sole parental responsibility – spend time with – entrenched family conflict – overseas travel – school. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(2), 60CC(3), 61DA |
| Applicant: | MS LOCKWOOD |
| Respondent: | MR CHALMERS |
| File Number: | MLC 8361 of 2013 |
| Judgment of: | Judge Stewart |
| Hearing dates: | 11 & 12 December 2014 1 & 2 April 2015 28 May 2015 |
| Date of Last Submission: | 28 May 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 15 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Elleray |
| Solicitors for the Applicant: | Women's Legal Service Victoria |
| The Respondent appeared in person |
ORDERS
All previous orders in relation to the child X born (omitted) 2008 be and are hereby discharged.
The Mother have sole parental responsibility for X, PROVIDED ALWAYS THAT the Mother keep the Father informed of significant long term decisions that she makes in relation to X and actively seeks the Father’s input on such issues.
X live with the Mother.
For the purpose of order 3 hereof:-
(a)before any such long term decisions are made in respect of X:-
(i)the Mother shall advise the Father by email of her proposal relating to X; and
(ii)if the Father wishes to comment on the Mother’s proposal (or if the Father has any proposal he wishes to make relating to X on this issue) he shall, within seven (7) days after the date of the Mother’s email, advise the Mother by one email (to the email address from which the Mother sent her communication) of his views;
(iii)upon receipt of any comment or proposal by the Father, the Mother shall give consideration to the Father’s views;
(iv)after the Mother has considered the Father’s comments, she shall make a decision and advise the Father by email or SMS text message of the outcome immediately after making that decision; and
(v)if the Father does not respond by email as provided in order 4(a)(ii) hereof, the Mother shall be entitled to presume that the Father does not wish to be involved and she may decide the issue.
The Mother advise the Father by email of:-
(a)a nominated mainstream medical clinic (“the nominated clinic”) at which X attends for general medical care and each of the parties shall ensure that X attends that clinic for treatment at first instance, save in the case of genuine emergency or impractibility;
(b)any changes to that nominated clinic at least fourteen (14) days prior to such change occurring.
The Mother do all such acts and things as may be necessary to ensure that the Father receives copies of any medical and academic assessments in relation to X.
Liberty is granted to the Father to consult with X’s doctors and allied health professionals in order to obtain information about X’s health. These consultations shall be at the Father’s own expense and in the absence of X.
The Father spend time with X as follows:-
(a)during school terms, each alternate week from the conclusion of school Thursday (or 3.30pm if Thursday is not a school day for X) until the commencement of school on Monday or 9.00am (or to the commencement of school on Tuesday if the Monday is a curriculum day or public holiday at X’s school), with such time to commence on 25 February 2016 and recommence on the first Thursday following the commencement of each school term;
(b)during school terms, each alternate week from the conclusion of school Thursday (or 3.30pm if Thursday is not a school day for X) until the commencement of school on Friday or (9.00am if the Friday is a curriculum day or public holiday at the school X is attending ), with such time to commence on 18 February 2016 and recommence on the second Thursday following the commencement of each school term;
(c)in the event that the Father’s Day weekend does not fall on a weekend when X would be spending time with the Father pursuant to sub-paragraph 4(a) hereof, from 6.00pm on the evening before Father’s Day until the commencement of school (or 9.00am) on the Monday after Father’s Day;
(d)for one half of the first term school holidays, at times to be agreed between the parties and failing agreement:-
(i)for the first half in odd numbered years, from the conclusion of school on the Thursday prior to the conclusion of the school term for X until 6.00pm on the middle Saturday of the school holidays; and
(ii)for the second half in odd numbered years, from 6.00pm on the middle Saturday of the school holidays until the commencement of school in term 2;
(e)for the whole of the second term holidays in even numbered years, from the conclusion of school on the Thursday prior to the conclusion of the school term until the commencement of school in term 3;
(f)for the whole of the third term holidays in odd numbered years, from the conclusion of school on the Thursday prior to the conclusion of the school term until the commencement of school in term 4;
(g)during the long summer holidays as follows:-
(i)in 2016/2017 from after school on the last day of school term until 10.00am on 10 January in the following year, and each alternate long summer holiday thereafter;
(ii)in 2017/2018 from 10.00am on 5 January until 10.00am on 26 January, and in each alternate long summer holiday thereafter;
(h)from 12noon on Christmas Eve until 3.00pm on Christmas Day in 2017, and each alternate year thereafter;
(i)on X’s birthday from:-
(i)the conclusion of school until 6.30pm if X should be at school that day;
(ii)12noon until 4.00pm if it is not a day that X should be at school;
(j)at such further or other times as may be agreed between the parties from time to time.
The Father’s time with X be suspended as follows:-
(a)from 12noon on Christmas Eve until 3.00pm on Christmas Day in 2016, and each alternate year thereafter;
(b)in the event that the Mother’s Day weekend does not fall on a weekend when X would be living with the Mother, from 6.00pm on the evening prior to Mother’s Day for the remainder of that weekend;
(c)in the event that 30 January falls on a day X would be spending time with the Father pursuant to order 8(a) or 8(b) hereof:-
(i)from the conclusion of school until 6.30pm if X should be at school that day; and
(ii)from 12noon until 4.00pm if it is not a day that X should be at school.
In order to facilitate X spending time with the Father, changeovers which do not involve a delivery to or a collection from X’s school shall occur as follows:-
(a)At (omitted) Railway Station at the commencement of X’s time with the Father;
(b)At (omitted) Railway Station if X is being returned to the Mother on a school day pursuant to order 14(b) and 14(c) hereof;
(c)At (omitted) Railway Station at the conclusion of X’s time with the Father;
(d)As may be otherwise agreed between the parties.
Each of the parties do all such acts and things to ensure that X communicate with the other party as follows:-
(a)such communication shall be by telephone or skype/facetime to be facilitated by the party who is caring for X at that time;
(b)the time for such communication shall be as agreed and failing agreement as follows:-
(i)in the case of communication between X and the Father, each Monday, Wednesday and any Saturday X is not in his care between the times of 6.00pm and 6.30pm and for a period not exceeding 15 minutes; and
(ii)in the case of communication between X and the Mother, each Monday, Thursday and any Sunday X is not in her care between the times of 6.00pm and 6.30pm and for a period not exceeding 15 minutes;
(c)each of the parties shall ensure X has privacy during her communication with the other parent;
(d)any times referred to in this order shall be the time in the region of X’s geographical location.
Each of the parties communicate by email to inform each other about issues regarding X's health and wellbeing, and any upcoming events and such communication shall be limited to one email per week except in a genuine emergency.
Each of the parties advise the other by SMS text message in the event of any significant illness or injury or other emergency relating to X.
In the event that X is sick whilst in the Father’s care on a day she is scheduled to attend school he shall forthwith advise the Mother by SMS text message and:-
(a)in the event that X is sick on the Friday preceding a weekend when he is spending time with X he shall provide the Mother with a medical certificate from the doctor nominated by the Mother pursuant to order 5(a) hereof, unless otherwise agreed between the parties;
(b)in the event that X is sick on the Friday preceding a weekend when she is to live with the Mother, X shall be returned to the Mother by 10.00am on that day, unless otherwise agreed between the parties;
(c)in the event that X is sick on a Monday X shall be returned to the Mother by 10.00am on that day, unless otherwise agreed between the parties.
The Mother do all such acts and things as may be necessary to ensure X’s attendance at (omitted) language school PROVIDED THAT such attendance is not greater than once per week.
Liberty is granted to the Father to enroll X in any extracurricular activity which occurs during his time with X, but nothing in this order requires the Mother to facilitate X’s attendance at such activity during times X is living with her pursuant to these orders (subject to order 15 hereof).
Each party is to keep the other informed via email of their current residential address and contact telephone number(s) and advise the other of any change to these details in writing as soon as practicable, and no later than within seven (7) days of such change taking place.
Each of the parties provide the other party with an email address which is to be utilised to communicate with each other, save in the case of a genuine emergency and as is otherwise provided for in these orders, and each of the parties shall be restricted to sending one email per week and such communication shall be restricted to issues pertaining to the health and wellbeing of X.
The Mother do all acts and things and sign all necessary documents to instruct the principal of (omitted) Primary School to provide the Father with a copy of all school reports, school photograph order forms, newsletters and any other notices or documents relevant to X's welfare and education.
Each of the parties is permitted to attend any functions at X's school to which parents would normally be invited (including, but not limited to, parent teacher interviews at separate times).
Each of the parties and their servants and agents be and are hereby restrained by injunction from taking X out of the Commonwealth of Australia without the prior written consent of the other party or order of the Court.
In the event that either of the parties intends to travel outside the Commonwealth of Australia with X, the party intending to travel shall give six weeks written prior notice to the non-travelling parent, including a detailed itinerary and flight details and the non-travelling party shall not unreasonably withhold their consent to that travel.
The Mother shall retain possession of X's passport except when required by the Father for the purpose of him travelling with X outside of Australia in accordance with these orders .
Upon receiving notice of the intended overseas travel from the Father in accordance with these orders, the Mother is to deliver X's passport to the Father at least seven (7) days prior to travel, and the Father shall deliver X's passport back to the Mother within fourteen (14) days of X return to Australia.
Each of the parties give fourteen (14) days notice to the other party if they intend to holiday away from their home with X, and shall provide the other party with an itinerary, including destination, contact details and flight numbers (if applicable).
Neither party will denigrate the other or members of the other's family in the presence or hearing of X, nor will they allow any other person to do so.
Liberty is granted to each of the parties to provide a copy of these orders to X’s school and treating medical practitioners.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
IT IS NOTED that publication of this judgment under the pseudonym Lockwood & Chalmers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8361 of 2013
| MS LOCKWOOD |
Applicant
And
| MR CHALMERS |
Respondent
REASONS FOR JUDGMENT
These are parenting proceedings concerning X born (omitted) 2008 (“X”). X is 8 years old. She has lived in a shared care arrangement between her parents for the majority of her life. Each of the parties have applied for orders that X be placed in their primary care and that they have sole parental responsibility for decisions relating to important issues in X’s life.
The parties’ proposals
The Father
The Father’s proposal is set out in a detailed Minute of Order contained in his case outline document. The document is difficult to decipher as is much of the evidence in this case. However, doing the best I can, the Father seeks the following orders:-
a)sole parental responsibility for X;
b)that X live primarily with him and spend alternate weekends and Wednesday nights with her Mother;
c)special arrangements surrounding special days and anniversaries;
d)a complex set of orders surrounding school holidays, designed to accommodate travel with X overseas;
e)an ability for each of the parties to spend about six weeks per annum overseas with X;
f)seemingly, in addition to the annual overseas travel order referred to above, an order enabling him to spend a further 12 weeks per annum overseas with X in (country omitted); and
g)orders in relation to information regarding X’s health wellbeing and any upcoming events or issues.
The Mother
The Mother’s proposal is contained in her case outline document. She seeks as follows:-
a)sole parental responsibility for X;
b)X to live with her;
c)for X to spend every second weekend with her Father from Friday night to Monday morning; and
d)half school holidays and special days orders.
Although the Mother does not seek any particular overseas travel orders, she does agree that both parties should be permitted to travel with X overseas.
Duration of Proceedings
Before I commence the background in these proceedings I should note that they traversed a period of some five days, notwithstanding it was only the parties and the Family Report Writer, Mr V, who gave evidence in the proceedings.
Each of the parties tended to focus on detail.
The Father, who appeared as a self-represented litigant, had a greater propensity to focus on detail. I have formed the view that his focus and pedantry is symptomatic of his personality style rather than being simply a product of him not being represented by a lawyer.
Background
The parties commenced a relationship in 2004.
The parties have not lived together.
The parties’ relationship was relatively amorphous and, notwithstanding the fact that they have not lived together, they continued their relationship for a period following X’s birth. There is a dispute about how long the parties’ intimate relationship continued. From the Father’s point of view it was concluded at around the time X was born, whereas from the Mother’s point of view, although she found it difficult to define the relationship, she said that it continued until around 2012
The Father is 52 years old. He has enjoyed an interesting professional life as a (occupation omitted) and until relatively recently his occupation had taken him overseas in that role. He apparently has won numerous awards and quite clearly valued his time in that occupation and regarded it as a successful period in his life.
The Father is no longer actively employed or self-employed as a (occupation omitted) and is adamant that the reason for that is at least partially due to the Mother’s insistence that he be available to care for X during the periods she is in his care. This matter is in dispute.
The Mother is a (occupation omitted) and studied her qualifications, or concluded her study for her qualifications, after X was born. She initially commenced a (business omitted) in the central business district of Melbourne and later commenced (business omitted) from her home in (omitted), which continues to date.
The Mother became pregnant with X in the first half of 2007 and X was born in (omitted) 2008. Even before X was born her parents commenced discussion about parenting arrangements following her birth. The parties implemented their agreement to co-parent. Although their co-parenting arrangement has not always been on an equal shared basis, and there is much dispute in the proceedings about this, X has lived between her parents’ homes for all of her life. From around 18 months of age X has lived on roughly an equal basis between her parents. X now lives with each of her parents on a week about basis.
Despite assumptions that may be inherent in X’s shared living arrangements, her parents are simply unable to co-operate with each other and their relationship is chronically affected with conflict, a lack of communication and disagreements which impact on X.
Notwithstanding her exposure to parental conflict, by all reports and in particular the report of Mr V who prepared the Family Report in this matter, X is a lovely girl who has coped well with the division of time between her parents. Despite the parental discord, X has continued to do well. The real issue in this case is whether that will continue, having regard to the disharmony and conflict between her parents.
X has a number of health issues. It is difficult to decipher whether this is symptomatic of particular anxieties of the parents or whether she truly has health issues beyond normal childhood complaints. It seems that from both parents’ reports that X suffers from the skin condition eczema, is afflicted by stomach problems on a fairly regular basis and has regular chest infections.
Witnesses
The evidence in this case was lengthy. Counsel for the Mother cross-examined the Father over a significant period. The cross-examination of the Mother by the Father was for roughly the same period. It needs to be said that much of the cross-examination in this case was rich in detail but of very little assistance to the Court, save that it was demonstrative of the fundamental problem for the family. That is, that each of the parties have an ability to focus on detail, which obscures issues and renders agreement impossible.
I have listened to the evidence of the parties and the Family Report Writer. I have read the voluminous material filed in this case. Given the way the evidence has proceeded it is not practicable to refer to each and every issue raised in the proceedings. Nor, in my view, is it necessary to do so. If I have not referred to a particular fact or matter it does not necessarily follow that I have not had regard to it.
In these reasons, unless it is clear from the context that this is not so, a statement of fact is a finding of fact.
The Father
The Father understood the parameters of the dispute and the issues at hand. He was well prepared, although at times quite disorganised. He had obviously devoted a great deal of energy to preparing his case. He is a man of at least average intelligence. He told me that from his point of view he suffers from a form of dyslexia. This issue did not make a discernible impact on the conduct of his case. He generally made a real effort in Court to be polite and respectful both in his evidence and in the presentation of his case. At times he was visibly frustrated and anxious under the rigours of appearing as a self-represented litigant. As I have said, his focus was detailed in a way that rendered much of the presentation of his case as irrelevant. Although his focus was on minutiae he was unable to focus on the larger significant issues in the case. The Father was generally compliant with the directions of the Court, however, often seemed unable to let matters go, even when advised that such matters would be of very little assistance to the determination of the proceedings.
At the commencement of the case the Father told me that, from his point of view, the most important issues for consideration were the health and welfare of X and maximising her opportunity to embrace her knowledge of her (omitted) cultural heritage.
The Father’s ancestry is (nationality omitted), although the Father was born in Australia. His grandparents resided in (country omitted). The Father places much emphasis on X's (nationality omitted) cultural heritage. I concur that X should be exposed to, and understand her (omitted) heritage, particularly given that it is so important to her Father. However I do not accept that the level of emphasis placed on this issue by the Father is warranted.
The Father said that the Mother does not adequately care for X and that he has concerns about her capacity to provide for X generally and he has particular concerns around the Mother’s ability to ensure X is provided with mainstream medical attention.
The Father effectively cross-examined the Mother regarding her failure to adhere to immunisation timetables applicable to X, such that X did not receive all of her infant immunisations and was not even up-to-date in those immunisations in 2012 or 2013.
When X is in the Father’s care, on a very regular basis, the Father has taken X to numerous medical practitioners. X has missed many days of school. Her absenteeism from school, whilst in the Father’s care, has become an issue of concern in this case.
X and School
The Father regards himself as an expert in education. He said that he had been a (occupation omitted) in (omitted) and has (omitted) qualifications in relation to that. He said he regarded education as a fundamental issue for X.
The Father had home-schooled X until she commenced school in 2014. Notwithstanding the Father’s professed commitment to X’s academic pursuits, his commitment to X’s attendance at (omitted) Primary School, when she is in his care, has been perfunctory. There was much attention devoted in this case to X’s absences from school. There is a dispute about whether or not the records of (omitted) Primary School are accurate and whether they reflect X’s true absenteeism level. However, on any view both parties concede that her absenteeism from (omitted) Primary School has been high and the majority of that absenteeism occurred in the Father’s care.
The evidence clearly established that the Father’s adherence to having X attend school whilst in his care was deficient and that the Father habitually, and at times unnecessarily, did not take X to school.
In August 2014 an order was made requiring X’s attendance at school. Any failure by her to be at school on a normal scheduled school day was required to be justified by a medical certificate attesting to the fact that she was unwell and unable to attend. Notwithstanding those orders, it is apparent that X has continued to miss days of school, even shortly prior to this hearing commencing.
Regardless of disputes concerning the precise accuracy of the (omitted) Primary School records, X’s level of absenteeism was of such concern to the school that they contacted the parties regarding the issue.
The order that X attend (omitted) Primary School was an order that was imposed by Judge Hughes after a contested hearing between the parties. This order has been a source of much consternation for the Father. From his point of view, the Mother’s application for X to attend (omitted) Primary School was a considerable departure from their previous agreement that X attend (omitted) Primary School.
The Father asserted and continues to assert that there had been an agreement between the parties that X would attend (omitted) Primary School on the very outskirts of the central business district of metropolitan Melbourne.
Even on 27 August 2014 (when the order was made for X to attend school on each scheduled school day, save for days when she had a medical certificate) the Father failed to attend Court on time. He arrived at 10:45am for a 9.30am hearing. He attended with X even though it was a school day for her, stating that both he and X were ill on that day.
The Father said that X is often ill in his care. He blames the Mother for this and he portrayed a scenario whereby the Mother failed to adequately attend to X’s health when in her care, such that he was required to attend to resultant health issues when X came into his care.
In contrast the Mother says that X is not habitually ill in her care and is able to regularly attend (omitted) Primary School on all but a few days (although there is one notable period when X had chickenpox when in her care). The evidence suggests that X’s absences from school when she is in the Mother’s care are within the parameters of normal childhood illnesses.
Suffice to say there is ample evidence to find that X’s absences have been unsatisfactory and most of those absences have occurred when X was in the Father’s care.
One of the more concerning aspects of X’s absences from school is how those absences impact on her. X missed her first scheduled day of preps in 2014 when in the Father’s care. She did not attend and the Father has annexed a medical certificate to his affidavit. The Father said that she had gastroenteritis and her illness is evidenced by the certificate. Against that backdrop and his evidence that he had taken X to the (omitted) Hospital, because she was so ill, he also took X to the dentist. When being cross-examined about this issue the Father was less than convincing. At first instance he describes X as a child who was very ill, symptomatic and distressed. When it was suggested to him that he had then taken her to the dentist he was at first evasive and then tried to deny he had done so, even though there is documentary evidence to support her attendance on the dentist that day. I find on balance that X did attend the dentist on that day and did so in circumstances where the Father has said that she was so ill she could not attend her first day at school.
Ultimately, I have formed the overall view that the Father has not promoted X’s attendance at (omitted) Primary School as he does not feel that (omitted) Primary School is satisfactory for her needs. He continues to feel aggrieved that X is not attending (omitted) Primary School and I note that he persists in his application that X change schools.
The Father, in what was to become his typically oblique style of giving evidence, persisted in telling me that X did have her first day at school. It became abundantly clear (after the course of some 5 or 10 minutes of evidence and clarification) that what he meant by that was that X had a first day of school but did not have the first day of school (being on the same day the other children had their first day).
The orders that were made on 6 December 2013 (on the Mother’s application for X to attend (omitted) Primary School) meant that X’s first scheduled day of school was to occur in late January or early February 2014.
X should actually have started school the year before. In what was to become one of the many examples of the family’s conflict and inability to achieve negotiated outcomes or make decisions, X did not attend at all in the year of 2013 because there was no agreement about where she should go to school.
The parties’ respective positions with respect to which school X should attend were rationalised and justified by each of the parties. On the Father’s part he said that (omitted) Primary School offered a better education and was academically superior to (omitted) Primary School. He said that (omitted) Primary School would be better equipped to offer X the sort of education that, in his view, she required.
On the Mother’s part, (omitted) Primary School was satisfactory for X’s needs and was able to offer her a satisfactory education.
The reality of the situation reflects badly on each of the parents. What cannot be ignored is that the Mother lives in (omitted) and therefore (omitted) Primary School presents as a conveniently located school to her residence. The Father lives in central Melbourne and (omitted) Primary School, positioned just outside of central Melbourne, presented as a convenient option to him.
I will not undertake an exercise in assessing the relative merits of the respective schools or (omitted) Primary School (a school which was also under consideration). The Father would attempt to have me assess various test scores, performance criteria and curricular information regarding (omitted) Primary School and (omitted) Primary School. Absent any professional evidence regarding these matters I find I am ill equipped to make such esoteric assessments. Each of these government funded schools would seem capable of providing X with a satisfactory primary school education.
Although the Father seeks an order that X change schools and attend (omitted) Primary School, his position and justification for that position, completely misses the point that X is now settled and doing relatively well at (omitted) Primary School. Currently, any issues of concern for X associated with school seem to be intricately bound up in her absenteeism.
The Father is aggrieved by X’s attendance at (omitted) Primary School and by the time the hearing proceeded in this matter, and in addition to the previous reasons, he had further matters to argue as to why (omitted) Primary School could offer superior education than (omitted) Primary School. He also suggested that (omitted) Primary School had demonstrably failed to accommodate X’s academic needs.
In contrast, the Mother has been satisfied with (omitted) Primary School and says that X is doing well, subject to her concerns regarding absenteeism, while in the Father’s care.
As is the Father’s personality style, and as described by Mr V, the Father has a great ability to make simple issues very complicated. There are numerous examples of this evidence in his dealings with the school and the school community. His dealings with the school and the school community are fraught with confusion and obfuscation. Such issues have the capacity to have X singled out as a child whose parents, or parent, create difficulties in the school environment, although I can see no evidence that this has occurred to date. (omitted) Primary School seems to have dealt with X in an appropriate, professional and caring manner.
One very simple example of this is the Father’s insistence in 2014 that X be assessed and possibly promoted to grade 1, notwithstanding her recent commencement of her preparatory year. The Father regularly contacted the school and made demands that they assess X and consider her for acceleration. In doing this the Father ultimately presented the school with a report prepared according to the Weschler Intelligence Scale for Children (“the WISC assessment”). The report in relation to X prepared by Ms D is dated 28 July 2014.
There are a number of matters which should be noted regarding the WISC assessment:-
a)the Father had this assessment conducted without reference to the Mother. Therefore, Ms D was entirely reliant on the information provided by the Father. The assessment therefore needs to be viewed in light of the following:-
i)firstly, it notes the Father’s concerns that X was returning home from school stating she is often bored. According to the evidence of Mr V, that was also reported to him by the Father very shortly after X’s commencement at school and in the context of X attending (omitted) Primary School against the Father’s wishes. Although I accept that X has said this to her Father it is difficult to attribute any meaningful weight to X’s statements as they are likely to have been influenced by the father’s own dissatisfaction with the school;
ii)the Father told Ms D that he was X’s primary carer and provider. This is clearly incorrect. The Father had a complicated explanation as to how he justified that statement to Ms D based upon an assessment of the quality and style of care that he offered X, contrasted to X’s attendance at child care when with the Mother;
iii)Ms D has operated on a premise that X actually attended (omitted) Primary School in 2013 for her preparatory year and was repeating preps in 2014. This is incorrect and the information could only have come from the Father;
b)notwithstanding the errors in information, when being cross-examined Mr V (who had read the report) told the Court that the results for X put her in the normal range for a child of her age;
c)based on the information provided and the assessment made, it is curious that Ms D recommended a progression for X to first grade and an accelerated program. Mr V was unable to explain the recommendation on the basis of the assessment and Ms D did not give evidence.
One cannot ignore that much of the information provided to Ms D was unreliable.
Armed with the report the Father persistently approached the school demanding specific attention to what he perceived to be X’s academic needs. The school also asked for the WISC assessment to be provided to them. Rather than provide the assessment the Father refused to do so on the basis of the heading on the document “CONFIDENTIAL. Not to be released without the consent of the author”. On that basis the Father apparently allowed the school to read the document but would not allow them to keep the entire document. He eventually left the recommendation pages with the school.
The Father’s position with respect to the WISC assessment is perplexing. On the one hand he was demanding that the school promote X, or at the very least consider that course, however, armed with a report that arguably supported that course he refused to provide a copy on a strict interpretation of the words on the cover as set out above. He seemingly failed to assimilate that position with the very first recommendation made by Ms D; namely:-
It is recommended that a copy of this report be provided to her school in order for her school teachers and student welfare department to better understand X’s cognitive and learning abilities.
Given the Father’s attention to minute detail it is difficult to accept that he overlooked that recommendation. The permission for release to the school had been set out in the body of the report. I therefore must conclude that for reasons, which are not entirely apparent, the Father was unwilling to provide a full copy of the report to X’s school or indeed to the Mother.
What is also apparent from the evidence was that the school, in a cooperative, very reasonable way, sought clarification from the Father and considered his views even though such views were conveyed in an assertive manner.
By August 2014, as is evidenced by an email from the Department of Education and Early Childhood Development, the Father was so dissatisfied with the school’s assessment of X’s academic capabilities that he had made a complaint. An email was copied to the (omitted) Primary School Principal from the Department of Education and Early Childhood Development which was obtained by way of subpoena from the school and provided in part as follows:-
In essence the matter involves a complaint from parent, Mr Chalmers about his daughter X who is in prep at (omitted) Primary School. He believes she is particularly talented and not being academically challenged by the school and has written to the Deputy Secretary saying such. The school believes she is an average prep student.
X spends week about with Mother and father – Mothers happy with school but father is not and in the past has wanted her to go to another primary school.
Notwithstanding the complaint, the school dealt with the issue and responded to the Father’s issues seeking a meeting. The Father responded in a challenging way by email dated 3 September 2014: -
Thank you for your email. Can you confirm that you have been briefed in relation to the requirements for X to gain a suitably challenging and appropriate education?
Many have been attempting, since the commencement of this year, to ensure that X is considerably challenged and despite undertakings by Principal Ms R on April 4 nothing has transpired? The paediatrician, educational specialists and psychologist have all assessed of [sic] year to be 12 to 18 months hire [sic] at least. Unfortunately Ms R is of the opinion that X is a C grade student. This has resulted in X becoming bored and disengaged with the curriculum and not associating with her age equivalent peers.
Happy to receive information on what structure and timings you are able to put into affect to address the loss of the past 18 to 24 months of X's Educational Path [sic] being compromised.
There are also issues raised with the education department and the schools care of X and ongoing illnesses which I have attempted to address by the school since April or so of this year.
Of concern is the lack of facilities-opportunities impacting negatively on X’s development and the continual change of teaching staff. Could you please confirm who and when will be looking into the admin and other issues referred to the Regional Office in May of this year.
I look forward to hearing on the proposed structure and timetable for the above.
Please do not hesitate to contact me to discuss.
The school proposed a meeting the following Monday or Tuesday (8 or 9 September 2014). The Father did not reply until the Monday afternoon, when he proposed a meeting the following morning, which could not then be accommodated. An attempt was made for a later meeting on 15 September.
On 16 September 2014, following the rescheduled meeting that did not take place on 15 September 2014, the Father wrote an email which said as follows: -
It has been another week and haven’t heard anything in relation to organise the implementation of recommend the Educational Psychologist after conducting the WISC test as instructed by (omitted) PS?
It is unfortunate that 9.30 Tuesday 9th in the Morning was the only time available.
The Father’s blunt assertion that 9 September 2014 was the only time offered is incorrect and had the Father been sufficiently organised to call earlier than the Monday, a time may have been available earlier, or even on the Tuesday.
The email chain then reveals that a meeting was scheduled to take place on 9 October 2014. That email asked the Father to bring along the full WISC assessment. The Father’s terse and challenging response was returned after normal business hours as follows:-
As recommended since enrolment in Feb 2104. Confirming appointment at (omitted) PS Tomorrow, 9:30am the 9th, to go through the appropriate Curriculum for X.
I have set out the above in detail to try to demonstrate the difficulties in dealing with the Father. One would expect that the task of meeting with X’s teachers would be a relatively straightforward and simple event to organise. Instead, the organisation of the event became difficult requiring numerous emails to organise. Notwithstanding, the school continued to treat the Father in a polite and respectful way.
The other issue surrounding the ongoing assessment of X’s education was the Father’s continued failure to provide the entirety of the assessment report to the school.
As was reported by Mr V, the assessment revealed that X was normal and average. Although the Father has insisted that he has not said that X was special or gifted, I find that is not the case. For most of 2014 the Father pressured (omitted) Primary School to give consideration to promoting X to a higher grade based upon his presumption that she was not challenged, had been assessed to be 12 to 18 months “hire” [sic] at least, was bored and disengaged and not associating with her age appropriate peers.
It goes to the professionalism of the school that they were prepared to succumb to the Father’s stipulation in the manner they did with the pressure and demands placed by the Father on (omitted) Primary School, and the specific attention he sought for her.
I cannot ignore that at this time X was merely a girl embarking on her first years of school, making friends, forming bonds, and adjusting to her new life as a school girl. The Father’s position in terms of his demanding stance with the school, coupled with his inability or unwillingness to have X attend school appropriately, has jeopardised X’s progression into school life in a far more significant way than if X was truly a little older or a little wiser than her peers.
The Father’s actions were disproportionate and unrealistically pedantic in the circumstances. His unwillingness to accept the school for X’s sake was unhelpful and failed to promote the need for X to have a seamless introduction to her formal education.
The Father also complains unnecessarily to the school. X’s sports day which took place in or around October 2014 present as an example of this. From the Father’s point of view X presented after school as having been upset at the school sports day because she felt she been left out of various activities. Rather than dealing with that in a sensitive parental way, the Father on X’s behalf, wrote to the school by email. The Father said as follows:-
X was extremely disappointed with her sport day on 23rd October. The Games left X extremely disappointed as she stated that she didn’t have “a partner during the games”. When asked about the activities, X said that 14 games, she had a partner for two games. She felt hurt, disillusioned and excluded from the much anticipated day. I don’t have a rational on why every student did not get to participate equally in a school event.[sic]
The Father’s approach to this seems odd. Rather than simply reassuring X and perhaps adopting a more considered approach to X’s complaint, reflecting on the unlikelihood that any school would intentionally treat a child in that manner and that perhaps X was being overly sensitive, he immediately complains on X’s behalf. The school responded as follows:-
This statement is completely incorrect Mr Chalmers, as the days’ activities did not involve any partners for any of activities. All activities were a combined Prep to Grade 2 grouping with students spread across the Tabloids day [sic]. X was never on her own and certainly never excluded. In fact her comment to me on the day was “the best day ever!” Every child most certainly did get an opportunity to participate fully and equally. I am discuss [sic] this further with you if you need further clarification. Please make a time to see me.
The Father continued to maintain that X was victimised on that day. Unfortunately I find that in this, and other examples, the Father has a generally combative attitude towards (omitted) Primary School and so much so that it does have the capacity to impact on the way X is perceived in the school community. I find that notwithstanding those challenges the school has been professional in their dealings regarding X, and have interacted appropriately with X’s parents. The Father said that the school had somehow liaised with or sided with the Mother. I find that there is no evidence to support that scenario.
The parties saw Mr V on 18 February 2014, merely days after X had commenced at (omitted) Primary School. When the Father saw Mr V, he said, even at that early stage of X’s experience at (omitted) Primary School, that X was a very bright child who is complaining that she is bored at school already. It is difficult to accept that a little girl commencing her first year of school would be anything but enthusiastic about school and it is equally difficult to understand why the Father would not promote a positive view of school for X. Although I accept that X may have made those comments to the Father as reported, I find that it is more likely that the statement has its genesis in the Father’s views and not in X’s.
It became clear that the Father was cycling X on an electric bicycle to and from school. The trip is at least 10 km each way. It is unclear to me why the Father would not use alternative transport with X on occasions in which circumstances dictated the necessity to do that. For instance, even shortly prior to the hearing, it became clear that X had missed a day of school because the Father had mechanical difficulties with his bicycle. I also cannot understand why the Father could not make alternative arrangements to travel with X to school, rather than put her on the back of his bike in inclement weather.
In various other passages of evidence it would seem that the Father made complaints to the school (such as her not wearing a jacket) and was combative with the school and was generally unco-operative (refusing permission for photographs, religious education, head lice inspections etc.). Quite clearly, the parents are able to make decisions about these issues, however, the pertinent issue is that the parties do not discuss issues but merely impose their own views, leaving X’s school to deal with the issue.
For instance in late July 2014 the Father sent an email to X’s school and teachers advising that X was unwell and would be absent from school. His email was polite and informative and sent at 8.30am. This was the day after X had attended upon Ms D to undertake the WISC assessment.
The teacher replied at 2.30pm:-
Hi Mr Chalmers,
I’m sorry to hear that X is not feeling well. I do always tell the children to put their jumpers on before they go outside to play. I would also like to note that the last time X arrived at school after being brought on the bike, she was physically unable to hold a pencil as her hands were so cold and shaky. If possible, could she wear gloves during the colder months?
Please be advised that it is a curriculum/student free day tomorrow (Wednesday 29th July), so the students will not be attending. Parents s have been alerted of this in the school newsletter.
Regards,
Ms M
Rather than accepting the teacher’s observation, 2 days later, on 31 July 2014, the Father replies as follows:-
Hi Ms M
She doesn’t wear gloves and I have never experienced X with shaking hands?
And are at lost on [sic] why you haven’t mentioned this until now?
It must have been her coming to school by a scooter, Without [sic] a jacket, and you’ve made a mistake.
- Also it’s basically impossible for her to get cold hands as she wears the black hooded jacket, as she’s wearing today which extend past hands and also have pockets and gloves with scarf; in the pannier when needed. [sic]
Shivering to such a large degree would in [sic] imply a core body temperature reduction, or momentarily adjusting to the temperature of the classroom seat after taking off her coat and other garments off.
We Received [sic] notification of the curriculum day Tuesday afternoon? Unfortunately there has been ongoing communication issues with the administration etc of this school?
all the best
Mr Chalmers
The Father’s response is terse and quarrelsome. It is indicative of the Father’s inability to reasonably consider information which is at odds with his own view of the world.
The Father’s response was obviously experienced by X’s teacher as hurtful. In what seems to be the only example of consternation on the part of the teacher responded as follows:-
I’m sorry to hear that you don’t agree with my email. I hope you can understand how deeply upsetting I have found it to be implied that I would fabricate information or be completely incorrect about your daughter’s wellbeing in terms of her being cold. The health and happiness of X and rest of my students is, and always will, my top priority. I adore being X’s teacher and feel that my actions reflect that.
The date of the curriculum day was actually also in the previous newsletter, as well as Tuesday of this week. Once again, I reiterate that we would love to sit down with you and discuss the curriculum and administration of our school.
Regards,
Ms M
Thus, what commences as a polite suggestion by the school to enhance X’s welfare, degenerates into an unpleasant exchange between (omitted) Primary School and the father, all because the Father could not simply take on board a suggestion.
In contrast, the Mother does not seem to have these same issues with the school or the school community. Her interaction with the school seems responsive but unremarkable.
The Father was sometimes evasive and non-responsive when giving his evidence. For instance, when he was asked a simple question as to whether or not he accepted that it was important for a child to attend school each day, he said that he was not here to discuss academic issues. The Father has developed an inflated view of X’s talent, intelligence and academic prowess, which is at odds with the evidence of Mr V. Mr V properly suggests that whilst X is a lovely girl, she is a normal little girl with normal capacities.
Due to the Father’s personality it is difficult for him to deal constructively and cooperatively with X’s school and the Mother. He refused to allow X to see a social worker at the (omitted) Hospital for fear she would be institutionalised. Although the Father has a particular grievance with (omitted) Primary School at present, his capacity to deal reasonably and rationally with others is compromised. It is not difficult to imagine the Father exhibiting similarly challenging behaviours at any school that X attends. Accordingly, when assessing each of the party’s respective capacities to deal with external institutions, including schools, I find that the Mother’s capacity is superior.
Capacity and Care
The Father has maintained that he has, in reality, been the primary carer for X. He said that on the basis that he personally cared for X when she was living with him whereas when X was with the Mother she regularly attended childcare.
The Father is of the view that his attendance to X’s health needs is superior to the Mother’s. He says the Mother prefers to use Chinese medicine rather than mainstream medicine. The Father went so far as to suggest that the Mother would decline to follow the advice of mainstream medical practitioners. Although I find that the Mother has failed to properly adhere to X’s immunisation schedules (in accordance with the State Government guidelines), and that has been an issue of concern, I also note that the Mother has utilised western or mainstream medical help for X regularly. It does not seem to me that the Mother utilises Chinese medicine in lieu of mainstream western medicine, although she clearly has a particular interest in Chinese medicine and regards it as a complementary adjunct for X’s care. That seems reasonable.
The Father does seem to have an unusual preoccupation and rigidity with respect to medical issues pertaining to X. X’s medical certificates are annexed to his affidavit and seem to indicate a regular and frequent attendance on medical practitioners by the Father with X at an unusually high rate.
The Father’s criticisms of the Mother are not strictly related to X’s care. The Father also argues that the Mother is responsible for him losing his capacity to conduct his business and his capacity to earn an income. This argument is justified by him on the basis that the Mother required him to be available on a full-time basis to care for X for half the time. The criticism is unjustified and is reflective of the Father’s tendency to see himself as a victim.
The Father even said that he had serious concerns that there was no bonding between the Mother and X. I accept that it is the Father’s true belief that he simply thinks that in all aspects of X’s life his abilities are superior to the Mother’s. The Father seems unable to accept that there is a bond between the Mother and X as described by Mr V, even in the face of the evidence of Mr V. Ultimately, the dim view the Father holds of the Mother, coupled with his abiding view of his superior parenting capacity, will provide a fertile source of ongoing conflict and discord between the parties.
The Father has an unusual adherence to his view that X is somehow special and unique in a way that necessitates special attention being provided to her, especially insofar as the school is concerned. In saying this I do not mean to suggest that X is not special or unique. However, she is also normal and should be able to proceed in her life and childhood development in a normal way. As Mr V put it, she just needs to be left alone to perform to her potential. The Father is incapable of allowing X to do that.
The Father worries about seemingly insignificant or simple issues. He has an innate capacity to overcomplicate issues which in turn causes confusion and fuss.
The Mother
The Mother gave evidence and was cross-examined at length by the Father. She also had a tendency to focus on detail. The Mother seemed worn down by her communications with the Father and I was in the unique position to observe her as she gave her evidence. In contrast to the Father’s assertive demands toward the Mother, the Mother’s personality presents as being relatively submissive. My overall impression of her is of a person resigned to the fact that the Father and her experience of him is of him being difficult to deal with.
I find that the Mother’s evidence in this regard has an objectively reasonable basis. The Father’s capacity to confuse and obfuscate is well evolved.
I ultimately find that the Mother presents as a more reasonable person. As had been observed by Mr V, the complaints made by the Mother about the Father were more in terms of their inability to communicate rather than complaints per se about his capacity to care for X. This is a significant point of difference between the parties. The Father’s complaints about the Mother are critical of her as a parent and her parenting style. The Father seems to elevate matters of modest or insignificant concern to be major issues, whereas the Mother tries to reach a negotiated or compromised solution. The Father then uses his artificially elevated concern regarding modest issues to promote his overt criticism of the Mother.
For example, X’s birthday party in 2015:-
a)The evidence around X’s birthday party is not controversial or remarkable:-
i)X asked her Mother whether she could have a 7th birthday party;
ii)the Mother said yes;
iii)X asked if she could invite her whole class and a friend from crèche;
iv)the Mother said she called the friend from crèche and invited her;
v)X’s class was invited;
vi)the Mother asked X whether she would like the Father to be invited;
vii)X said yes and the Father was invited;
viii)the Mother planned and prepared the party while X was overseas in (country omitted) with her Father on holiday;
ix)X had not requested any of her friends from (omitted) or (omitted) school to attend and they were not invited.
b)It is at this point that the Father’s oblique thought processes and capacity to make the simplest of issues complicated is demonstrated;
c)Rather than simply accepting that X would experience the pleasure of a seventh birthday party and perhaps even feel grateful that he was invited, the Father sought to use the occasion to mount criticisms against the Mother. He suggested that it was inappropriate that he was not fully engaged in the planning process. I do not accept that criticism as trying to liaise with the Father regarding the details of the party would have been impractical and unnecessary;
d)The Father criticised the Mother for not inviting X’s friends from (omitted) language school. He could not accept the simple response from the Mother that X have not asked those friends to be invited and therefore they were not invited (as similarly, no friends from X's (omitted) language class were invited). He could not accept this response as being reasonable. Rather he postulated, in a very complicated way that by not inviting (omitted) from (omitted) school the Mother was resistant to allowing X to experience her (omitted) culture. He inferred the worst of intention on the part of the Mother for her failure to invite (omitted);
e)The issue of this birthday party then segued into a discussion in Court about X’s preparatory class in 2014 being invited. The Father said that because a particular child from X’s 2014 class who was not in X’s class in 2015 had been invited to the party, that the Mother’s evidence was false. The Mother proffered the simple, obvious and entirely explicable explanation that, when referring to members of X’s class she was referring to the class of 2014. This was obvious because X’s birthday is in late (omitted) and the party was scheduled for early (omitted); and
f)Rather than being satisfied with that explanation and moving on, the Father again segued to a completely different but tangential scenario; namely that the Mother had taken X to a birthday party and stayed at the party in the previous year. He was critical of the Mother on the basis that, the boy hosting the previous year’s party was (nationality omitted) and that the Father somehow had a greater right to be present at that party (because of his (nationality omitted) heritage) and therefore the Mother should have ensured he was invited. He had somehow interpreted an ordinary everyday event, where a parent stays at a child’s birthday party, as a denial of his rights or entitlement to attend because he is the person who exposes X to her (nationality omitted) ancestry. The Father pressed his criticisms of the Mother in this regard.
I have chosen this birthday party vignette as being further representative of the Father’s personality style and his capacity to turn one of the simplest scenarios in a child’s life into a complicated and nuanced issue. This can be contrasted to the Mother’s personality style of endeavouring to please the Father and involve him in events in a way in which would seem to be at the very least reasonable and probably symptomatic of her submissive manner.
I cannot accept the criticisms the Father directed towards the Mother. In my view she acted appropriately. The Father’s criticisms are ill-conceived and illustrative of the Father’s incapacity to adopt a reasonable and sensible attitude.
The Family Report
Mr V (“Mr V”), psychologist, prepared the Family Report in the proceedings dated 12 March 2014, which was prepared pursuant to orders that were made on 6 December 2013.
As had been the case and has been the case in most of X’s life, she was living with her parents on an equal basis at the time Mr V interviewed the family. Mr V identified at the time of the preparation of the Report that each of the parties sought sole parental responsibility for decisions relating to X’s care and each sought that X live primarily with them. They both identified the unmanageable communication problems between them as the reason for seeking such orders. Mr V identified that although the parties had been sharing the care of X that they were doing little by way of sharing in that care regime. During the Report each of the parties identified the concerns which are largely identified and echoed in their affidavit material.
In evaluating the presentation of the parties, Mr V said as follows:-
It seems clear having met the parties and read their respective affidavit material that they do not agree; that negotiation is fraught; that there is little in the way of compromise; that both perceive the other as being controlling and limiting, a feature that is common amongst families who are in high conflict, that reflects the mirroring of allegations. The strong indications to emerge are that Ms Lockwood and Mr Chalmers are poor candidates for genuine shared parenting, and that the predictable array of conflict around all manner of decisions-making pertaining to their child has been undertaken from a competitive standpoint, from which each parent has believed that they are in the better position to make decisions and have simultaneously felt controlled, restricted and or dominated by the intransigence of the other parent
Mr V interviewed X, notwithstanding, the significant difficulties for her parents which he had described in detail. He said:-
X impressed as an extremely articulate and intelligent child. When asked about schooling she immediately told me that she found it boring and that whilst she enjoyed playing that she wanted more and to be more stimulated.
X told me that her parents don't live together, don't like each other and were angry with each other, and hence the reason she lives a week with one and a week with the other. It is noteworthy that from X's perspective, this arrangement is familiar and her norm. She told me that living in two houses was normal, that she liked it, that it was easy, and her expectation was that she would continue to live in this way; she is equally dependent and reliant upon both of her parents.
This is the most important theme to emerge, that is, that X appears to share her dependency needs between her parents, that she perceives them as the emotional safe, secure and trustworthy figures in her life, her expectation is that the current arrangement will continue and her self-assessment is that she is doing well. She certainly impressed as a happy, outgoing, confident girl, who described of herself many positive attributes and who conveyed a generally optimistic outlook in relation to the world. She described both of her parents in unequivocally positive ways; she told me that there was nothing about either that she would change; her drawings, her play and her communication were all inclusive of her parents; she spoke positively about them and her relationship with them, and her presentation in general appeared uncomplicated and not concerning.
Mr V described X in glowing terms as “extremely bright, highly articulate and imaginative and creative girl”. He said that her interactions with her parents were equally positive and any differences in parenting style and approach was not relevant.
X was seen in the company of her parents separately and in the company of both she related extremely warmly, very easily and very confidently. She played easily and effortlessly. Her transition from one parent into the care of the other was completely unremarkable, as she joined with her parents easily and effortlessly, and seemed comfortable in their joint presence.
My observation of X in the company of her parents re-enforces the impression of her as an extremely bright, highly articulate, imaginative and creative girl. She was settled in the extreme; her interactional style with her parents respectively was easy and uncomplicated, as she displayed to both of them an abundance of affection, actively seeking out their physical attention and affection, and including them in her play.
Any difference in the style approach by Ms Lockwood and Mr Chalmers was of marginal relevance. More impressive and significant was X's interaction with her parents and the confidence with which she approached them and the sense of security that she communicated in relation to them. My observations of her in the company of her parents were completely in accordance with my individual assessment of her.
She described her parents as the people whom she cares for the most, whom she trust the most, and with whom she feels the most safe; both are perceived as secure bases and safe havens with whom to emotionally dock in the event that she has concerns; she conveyed an unequivocal sense of confidence and reliance upon them both, and she impressed as a girl who is resilient, and who, notwithstanding the concerns of her parents, appears to be developing and progressing well, possibly despite her parents and their problems.
Ultimately, and in his initial assessment, Mr V suggested that the issue of shared or co-parenting should be abandoned. That recommendation was made in circumstances where X was doing very well in her life and with her parents. The real problem was, in his view, the parents’ interactions and the fundamentally competitive and combative nature of their relationship.
At that early stage and in lieu of shared or co-operative parenting, Mr V suggested the parties implement what he calls parallel parenting; fundamentally a concept where the arrangements for care are rigid and adhered to by each of the parents, with little or no reference/contact with the other parent. The concept is essentially a set of rules by which the parents manage the care of X. Those rules deny the parent with whom X is not living with at any particular time any influence in the other party’s parenting decisions or style. In order to assist the parties Mr V provided information to the setting out of the basic concepts of such parenting style.
In summarising the basis upon which Mr V recommended and concluded at the time of his first report, he said as follows:-
It is important to not lose sight of the fact that X is doing well. The problem is not X or her behaviour; it is her parents and their communication. It is not likely that a testing of evidence or a Court decision will fundamentally change either Ms Lockwood or Mr Chalmers; it will not change the nature of their relationship; it will not affect their character or their personalities and it is not likely to affect the underlying dynamics that are problematic and are likely to be equally problematic into the future. The aim of a parallel parenting plan is to manage this situation, to contain it and to provide the least complicated way forward for X, allowing her to maximize her time with both parents but sparing her triangulation amidst them and their disagreements.
On the final day of hearing, and in what was to become cogent, persuasive and useful evidence, Mr V attended Court and was cross-examined by each of the parties.
In cross-examination, Mr V again confirmed that X impressed as a delightful child. Upon reading the WISC assessment, which had been provided to him, he said that X was neither gifted nor lacking in ability or intelligence. He observed that she is normal and her capabilities are in the normal range. He observed “she is a great little kid” and that “she just needs to be left alone to perform to her potential”.
Mr V commented that “any suggestion she should be accelerated would cause her enormous difficulty” and “to accelerate her would be well beyond her cognitive capacity”.
In terms of the serious issues to X’s welfare and the significant factors for the family that impact on X’s welfare. Mr V said, in summary:-
a)although the parents shared the care of X in a physical sense, there was no real sharing of her care in a co-operative way. To this extent, nothing much had changed since the preparation of his report many months earlier. He said that X’s parents were simply incapable of co-parenting;
b)the only scheme of joint parenting for this family which could possibly work was parallel parenting;
c)to the extent that parallel parenting seemed to be the only way forward, the parties could care for X in a practical sense. One of the parents would need to have responsibility for decisions such as school and medical care for her. He predicts that X’s parents will not be unable to agree on those sorts of issues now and into the future;
d)he suggested that the serious welfare factor for X in her family unit was her exposure to parental conflict between her parents and how she might be exposed to that. He advised that discordance is very difficult for children when they are confronted with different views of reality and different expectations and emphases on the truth. Whereas most children can enjoy an experience of cohesion from their parents, for X this is not the case and she has parents who are split and will not be able to find a middle ground with each other;
e)an assessment would need to be made about important areas such as schooling and holidays, with a set of rules to guard against escalating anxiety, because every discussion, deviation or confusion becomes problematic;
f)if one parent is incapable of parallel parenting, in the sense that they cannot abide by the rules of disengagement, then issues surrounding parental decision-making become particularly challenging and the only alternative is that one parent have sole parental responsibility around such serious issues;
g)he said that parallel parenting is not an optimal result for X in terms of an outcome for her. He described it as “a C minus grade”;
h)when talking about the prospect of parallel parenting and parental conflict, Mr V spoke about the triangulation and embroilment of children and said that it was difficult for children to live with discordance and conflicting views between their parents. He said if that situation continues, in time, the child will split their worlds and behave differently with each parent. That can cause anxiety and at the extreme end can cause a child to split one parent off in favour of the other because it is impossible to live with that discordance. At the extreme end, the child may reject one parent completely and identify with one parent completely;
i)he said that X’s young age is presently a protective factor for her. However, as she becomes older she will become more aware of the dissonance between her parents. When she understands the different opinions of her parents it is more likely that things will become problematic for her;
j)he said that as X enters adolescence the likely outcome for her is that she will become more anxious and will experience her family and personal situation as being unstable, unsettled and unreliable;
k)he said that if the conflict and disagreement between the parents continued, and if X is aware of the conflict, she will struggle to find a sense of equilibrium in her own life.
The evidence of Mr V surrounding the conflict between X’s parents presents a very concerning prognosis for X.
The parental conflict between the parties is entrenched, and inherent in the way they interact with each other. The conflict is an immutable feature of their relationship. Thus, it is not only probable but, in my view, inevitable that X will continue to be exposed to the parental discord. The only difference will be when she becomes older she will become more aware or affected by the continuing conflict between her parents.
On the basis of Mr V’s evidence alone, it is clear that a choice needs to be made with respect to parental responsibility. One of the parents must be vested with the responsibility to make decisions about important issues for X’s welfare. For X these decisions will be primarily based around school and medical issues which have thus far been the two important issues in X’s life that have caused conflict and vexation between her parents.
The parties had no prospect of truly embracing a shared parallel parenting scheme, primarily because the Father has no capacity to desist from his persistent, pedantic and unrealistic views as to X’s care, not only by her Mother but by other important organisations and people in X’s life.
The Father’s attitude and anxiety ridden attention to issues surrounding X’s health has directly impacted on her attendance at school and has the potential to impact on X as she develops a burgeoning awareness of her Father’s anxieties regarding her state of health and the treatment she receives. This is not to disregard the Mother’s attitude to X’s health issues. There is some merit to the Father’s argument that the Mother’s immunisation decision for X have not complied with the Government guidelines. However, I note the Mother’s concession that she will adhere to mainstream medical treatment. I will order the Mother to use alternative treatments as being complementary to mainstream medical care. That is appropriate in order to allay the Father’s concerns and also to promote X’s welfare.
The concept of depriving a parent of parental responsibility, even in limited areas, is a serious step and should be considered carefully. In general terms, there is a preference that parents share parental responsibility as such an order sends a clear message to parents that they are to be equally involved in and responsible for the child’s care and welfare. An order allocating sole parental responsibility to one parent has a particular potency, and particularly so for X’s family due to each of the parties’, and perhaps more so the Father’s, abiding and deep desire to be involved in the decision-making process.
The family history would suggest that the parties are not only incapable of reaching an agreement surrounding important issues in X’s care but are also incapable of discussing such issues or having any real communication about them. The information that has been conveyed between the parties surrounding welfare issues, such as school and health, in this instance has been more directive than co-operative. Furthermore, moving forward, it would be wholly unrealistic to expect that the parties will be able to agree on important issues as they arise when such issues have been such fertile ground for disagreement in the past.
Ultimately, and on the basis of Mr V’s evidence and other evidence, I am drawn inevitably to a conclusion that only one of X’s parents can exercise parental responsibility. Mr V’s evidence was clear, that for parenting arrangements to work in this family, one of the parties will need to have the decision-making responsibility to the exclusion of the other. I accept his evidence and have formed a similar conclusion myself.
I have a preference for the Mother to have that responsibility. Although each of the parties have the basic capacity to undertake the role as the person in whom parental responsibility is vested, I find that in an overall sense the Mother’s capacities are superior.
The Mother seems to have a more balanced and realistic parenting style. She is attentive to X’s needs without being overly pedantic and focused on detail. She has a superior insight into X’s overall needs without overcomplicating issues. She has shown a willingness and ability to consider the Father’s position with respect to various matters.
Although it is put by the Father as a criticism, I find that the Mother’s willingness to consider (omitted) Primary School and (omitted) Primary Schools as options for X’s primary education, are to her credit. She was willing to explore options in a flexible way and in a way that considered all relevant needs.
The Mother has made appropriate choices for X in terms of her own interests. For instance she has enrolled X in (omitted) language school as she herself has a particular interest in (omitted) culture and tradition. Although the Father is critical of the Mother’s unilateral enrolment of X in this activity, it is fair to say that it would have been close to impossible for the Mother to negotiate with the Father on this and numerous other issues. In relation to this particular example I note that whilst the Mother has supported and facilitated X’s immersion into (omitted) language class, the Father has not facilitated X’s attendance at (omitted) language classes during his week.
I am ultimately of the view that the Mother is better placed to be responsible for important decisions regarding X’s care. Not only will she make child focused decisions but her capacity to apply herself to the decision-making process will be enhanced as she will no longer be burdened by the Father’s demanding negotiating style. Although, the Father is critical of the Mother for failing to negotiate I find that it is the Father who is the obstructive and inflexible participant in the equation. My observations of the Mother were that she was truly worn down by having to deal with the Father, with some objective justification.
Notwithstanding my decision to have the Mother responsible for decisions for X, I do propose to make some orders directed to particular issues; namely X’s attendance at (omitted) language school, overseas travel and requirements that the Mother consider the Father’s view in relation to important issues and a scheme to do that.
The law
I turn to the legislative pathway which also guides me in the ultimate outcome of these proceedings. In doing so I shall try not to repeat matters earlier set out in these reasons, but rather incorporate them as I am guided through the decision making process by the legislative pathway.
The best interest of X is the paramount consideration. In determining those interests there are two primary matters or considerations and several additional matters or considerations to take into account.
The primary considerations
The primary considerations are set out in section 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”).
I must consider the benefit to X in having a meaningful relationship with both of her parents. The parties agree that X should have a meaningful relationship with each of her parents. That is her right, and it is what she has enjoyed to date. X has a very close relationship with each of her parents and would appear to be equally bonded to both of them. Her welfare dictates that a meaningful relationship should continue with each of them.
I must also consider as a primary consideration, the need to protect X from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
The Father suggests, and is highly critical of the Mother in numerous areas which are tantamount to an assertion by him that X is neglected whilst in the Mothers care. Notwithstanding the strident criticisms that the Father levels at the Mother, I find that the Mother is well capable and able to care for X and will not expose her to abuse or neglect while in her care.
Although I have not dealt with every issue raised by the Father, I do note that he raises issues such as the Mother’s involvement in an organisation called (omitted) and is highly critical of her involvement in that organisation. He suggests that her involvement is somehow inappropriate and has the capacity to impact on X. There is no evidence upon which I can base any findings of that sort. The Mother’s evidence surrounding the (omitted) Course was that she was using it in an attempt to improve her communication style, at least partially to assist her in her dealings with the Father. I do not know anything else about (omitted) and cannot draw any further conclusions either way about the organisation.
I also note that in a highly critical way the Father has sought to malign the Mother on the basis that there is some issue surrounding the maternal grandfather, involving alleged criminality on his part. I find that there is nothing in the Mother’s presentation or in any evidence that suggests that the Mother has exposed X inappropriately to issues surrounding the personality or reputation of her own Father. If anything, the evidence would tend to suggest that the maternal grandfather has enhanced X’s welfare. Again in that regard, this issue does not impact on the Mother’s capacity to care, and does not expose X to any abuse, neglect or family violence.
The larger issue in this case is whether or not X either now, or in the future, will be exposed to psychological harm as a result of her exposure to parental conflict between her parents. In assessing both issues of parental responsibility in this case, which I have dealt with in detail, but also the issue of how much time X should spend with each of her parents. Ultimately, I have formed the view that X should continue living in a shared care arrangement with her parents, but not on an equal basis.
I turn to the matters set out in section 60CC(3) of the Act. These are the additional considerations which I have regard to in the context of evaluating what might be the best interests of X.
X’s views
X does not express any particular view in relation to her living arrangements. I am prepared to accept that she has been living in the shared care of her parents and would like the arrangement to continue. X’s experience of her parents, notwithstanding the issues of whether one or other was the primary carer, would seem to me to be less relevant in terms of assessing her future living arrangements.
The nature of X’s relationship with her parents and other persons
I have considered the nature of X’s relationship with her parents previously in these reasons. She is closely bonded with each of her parents and looks to each of them as a significant carer. I have no significant concerns as to the nature of X’s relationship with either of her parents and they seem to be appropriate.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in major decisions, spend time with and communicate with X
Both parents have been conscientious with respect to making decisions in relation to X’s welfare, spending time with her and communication with her. If anything, the extent to which each of the parents have a desire to be involved in an intimate way has been the cause of significant conflict between them. Each of the parties states that the other parent’s interference and involvement is problematic for them. That much is obvious by each of their respective applications to have sole parental responsibility for X.
The extent to which X’s parents has fulfilled their obligation to maintain X
When considering each of the parties’ obligations to fulfil their obligation to maintain X’s welfare, to date each of the parties has maintained X and provided for her whilst in their respective care.
I find that the Mother has borne marginally more of the burden. For instance, she provided X’s epi pen until recently. There was a passage of evidence suggesting that the Father has expected that the Mother would provide these things for X whilst she was in his care. She had historically done so. Nevertheless, in terms of an assessment of how the parties have maintained X, I find that each of the parties have satisfactorily adhered to their obligations.
The Father’s evidence with respect to his rental arrangements was evasive and he omitted relevant evidence. Although the actual issue does not change the outcome of the proceedings I propose to record what occurred to enable an understanding of my concern in that regard. It could also be that the Father’s answers to the question put to him are more symptomatic of his oblique communication style.
The Father gave evidence that he was renting his premises in the central business district of Melbourne. There seems to be nothing unusual about that. However, when cross-examined by Counsel for the Mother about his financial situation he seemed reluctant to make a full disclosure to the Court as to how he supported himself. He has said during this case that he is not working and has been rendered largely incapable of working due to demands imposed by the Mother (although I find such criticism to be unwarranted). The Father told the Court that he was renting his premises. There was cross examination about how he paid his rent and how he paid bills. When pressed regarding his rental he was asked who he rented the property from. He said he rented from a company. Eventually, when asked who owned the company, or perhaps more precisely who were the directors and shareholders of the company from whom he rented, he finally conceded that he was the director and shareholder of the landlord company. He was reluctant to concede that he effectively owned his premises. I am somewhat concerned about the lack of candour on the Father’s part, however, I ultimately find that such issues are peripheral to the assessment of X’s ongoing care arrangements.
The likely effect of any changes in X’s circumstances
The first significant change to X’s current circumstances that I will make will be an order that the Mother have sole parental responsibility for major decisions relating to X. In my view this will assist X’s development and avoid disagreement and potential conflict. Hopefully in accordance with the comments of Mr V, X simply will be able to get on with the job of being a child.
The further issue for consideration in this case is how X’s time should be shared between her parents. Each of the party’s proposals in this case are that X should be in their primary care, with time every second weekend to the other. To that extent there seems to be a concession on the part of each of the parents that equal shared care cannot work for X, although the Father did put that as his secondary preference. Notwithstanding the parties’ positions, I have considered whether or not, with the imposition of sole parental responsibility in favour of the Mother, a week about arrangement could continue to work for X.
X’s experience to date has been one of her time being divided between her parents on an equal basis in recent times. Any change to that will require an adjustment by her. This also needs to be considered in light of Mr V’s evidence that X is functioning well and at present seems relatively unaware of the discord between her parents.
Ultimately, I am of the view the X’s time cannot be equally shared. First, the Father is likely to be aggrieved by my decision regarding sole parental responsibility and X’s continuing education at (omitted) Primary School. Experience would suggest that the Father will likely rail against these decisions rather than accepting them. Secondly, when I consider the Father’s abiding views and anxieties surrounding X’s health and the necessity to have her attend on doctors and medical practitioners, it would seem that issues surrounding X’s absence from school will continue unless changes are made.
I am concerned about the Father’s incapacity to support X’s attendance at school.
I will not be making an order that X change schools as sought by the Father for the reasons that were set out by Mr V, but also in an obvious sense that X has settled in (omitted) Primary School and there would seem to be no benefit in removing her from that school environment and community. By virtue of the orders that I will make, X will be living for most of the school week in her Mother’s residence and therefore (omitted) Primary School would present as being more convenient.
Having regard to the circumstances and given that the Father has been involved in the substantial care of X, it is not appropriate to reduce X’s time with the Father as significantly as is suggested by the Mother. I propose to order that during school terms X should spend four nights in one week and one night in the other week with her Father. That arrangement will be that X spend from Thursday to Monday in one week with her Father, necessitating a drop off to school on two mornings and collection from school on two afternoons in one week. There is benefit in having X collected by her Father on a consistent night, namely Thursday in each week. Therefore in the other week X should spend from after school Thursday to before school Friday with her Father, resulting in an additional pick up and drop off to school. Because each of the parties seem committed in this case to having X participate in extracurricular activities, a consistent Thursday offers the Father the opportunity to do something with her on the Thursday evening if he so chooses.
The Father will have telephone or other electronic communication with X when she is not in his care.
Notwithstanding issues of parental responsibility, I propose to make it clear in any orders that I make that the Father is at liberty, without reference to the Mother, to enrol X in any reasonable extra-curricular activities that fall exclusively within his time. That is reasonable and I am confident that the Father will make appropriate choices in that regard.
In reducing the time that X spends with her Father during school terms, X’s welfare will be enhanced. The Mother seems better able to have X attend appropriately at school and also to engage with the school community in a freer and more natural style. This will allow X to settle into the school community.
I am also of the view that the Mother has a much better capacity to liaise with the school in an appropriate and non-combative way.
The practical difficulty and expense associated with X spending time and communication with the other parent
In terms of the orders that I propose to make, although there has been some practical impediments concerning the Father’s capacity to transport X to school on the week-about arrangement, I am not of the view that there are any real or significant practical difficulties in relation to these orders.
Capacity of the parents to meet X’s needs
The Mother has a better capacity to meet X’s needs during the school term.
In terms of the physical capacity of the parties to care for X, and notwithstanding the criticisms of the Mother asserted by the Father, I have no concerns as to the Mother’s capacity to meet X’s needs under the orders that I propose to make.
I have no concerns as to the capacity of either of the parents to meet X’s practical needs in terms of feeding, clothing and housing X. I have concerns as to the Father’s capacity to meet X’s emotional and psychological needs moving forward.
That child’s maturity, sex, background and other characteristics
I have considered those issues and the very real focus by the Father on X’s exposure to her (omitted) cultural heritage. I have also considered the Mother’s particular interest in (omitted) culture and her desire to expose X to those issues and to the cultural issues surrounding that particular culture, although the Mother has no ancestry in that regard.
The Father's (nationality omitted) lineage derives from his grandfather. The Father was born in Australia and is not fluent in the (omitted) language. I can understand that an appreciation of one’s cultural heritage is largely personal and subjective and should not be assessed by arbitrary measures. It is therefore sufficient that the Father identifies with his (omitted) cultural heritage and I conclude that in turn X will derive benefit from exposure to her heritage.
Similarly, although not derived from lineage, the Mother has an interest in (omitted) culture and X will derive a benefit from exposure to that particular interest of her Mother’s.
I am therefore of the view that each of the parents should be entitled to travel with X to countries that they are interested in. X has already travelled overseas with each of her parents. X is fortunate that her parents are able to provide these experiences for her. I do not regard either of the parents as being a risk of not returning with X to Australia. In this area the parties seem to have had a capacity to work together to enhance X’s welfare.
I have no concerns about the Mother embracing the Father’s interest in (omitted) culture. She has facilitated X’s attendance at (omitted) school during her week. The Father has not attended at (omitted) school.
Specifically dealing with the Father’s application to travel with X to (country omitted) for twelve weeks per annum, I do not propose to accede to that application. Such a trip would entail significant time away from X’s life in Australia and her Mother. Although the Father submitted that such immersion in (omitted) culture would enhance X’s exposure to her heritage, the disruption to her day to day life would be significant and not warranted.
The attitude to X by the parents and their attitude to the responsibility of parenthood demonstrated by them
This issue has been dealt with in these reasons. Suffice to say in summary that I have concerns about the Father’s attitude in a number of respects, and also have some concerns about the Mother’s attitude.
Family violence
There are no family violence issues in this case.
Preferable to make a final order
Yes.
Parental responsibility
Section 61DA provides that when making a parenting order, I must apply a presumption that it is in the best interests of X for her parents to have equal shared parental responsibility for her.
This presumption does not provide a starting point about the amount of time or communication that X is to have with her parents.
The presumption that it is in the best interests of children that parents have equal shared parental responsibility. This does not apply in circumstances that are not applicable to X, namely where there has been abuse or family violence.
Although the presumption for equal shared parental responsibility applies in the case of X, such presumption may be rebutted by evidence that satisfies the Court that it would not be in X’s best interest for her parents to have equal shared parental responsibility for her. In X’s case, and for the reasons set out previously, I am well satisfied that it is in her best interests to allocate parental responsibility for X to the Mother as discussed.
Other matters
There are a number of orders sought by the parties or either of them that seem to be either agreed or are sensible to enhance X’s welfare.
There are various other orders sought by the parties which I do not propose to accede to.
If I have not referred to a specific reason for an order or for omission of an order it is not because I have not considered the matter. The orders to be made are detailed on the recommendation of Mr V.
School holidays
In terms of school holidays the Mother’s application is for her and the Father to share all school holiday periods. The Father has sought orders which would have X with the Mother in all of the June/July school holiday periods and with the Father for all of the September school holiday periods. The Father has also sought an order allowing each of the parties to keep X out of school for an additional week adjacent to school holidays to facilitate a longer travel periods. For the reasons I have set out previously it would be in X’s interest to travel with her parents if appropriate, however, she should not be kept out of school for an additional week for travel unless both parties agree that is appropriate. The orders will therefore provide for each of the parties to have all of either the second or third term holidays with X alternating from year to year.
In the long summer holidays the parties should share the care of X alternating between the first half and the second half in each year. Each of the parties sought orders as to how to calculate that time however the orders will be more specific than that. Depending on when public holidays fall, one half of the long summer holidays is generally between 40 and 42 days. I therefore propose to specify dates for changeovers which will provide for approximately (but not necessarily precisely) half of the school holiday periods (with the Christmas festive period intervening in the first half). X should return to her Mother by Australia Day to ensure she will be prepared for the next school year.
Each of the parties sought to share Christmas Eve and Christmas Day which is appropriate.
Birthdays
Having regard to the orders I have made for X to spend time with the Father during school holidays in almost every year, X may be in the care of the Mother around (omitted). That day may or may not fall within the first week of school term.
It is possible that each of the Mother and the Father’s birthdays will fall during school holiday times for X. Accordingly the orders will make no specific provision for those birthdays save for electronic communication on those days unless the parties agree otherwise.
Medical care
The Father has sought that X attend a specific doctor. In my view that is appropriate except in the case of an emergency. That doctor should be nominated by the Mother as she has sole parental responsibility.
Matters that are largely agreed
X should spend Father’s Day and Mother’s Day with the appropriate parent for celebrations on that day.
Both parties have agreed that X should communicate with the other parent by either telephone or Skype/facetime. The orders will be slightly more specific than those proposed by the parties but are relatively non-controversial. Given the level of conflict between the parties it is important that the orders be as specific as possible.
The Father had sought specific orders for electronic hardware which is unnecessary in the circumstances. It is implicit in the orders that X will be provided with functioning equipment to facilitate communication.
The Father had sought an order that X be permitted to call the other parent at any time. Given the level of conflict between the parties I do not propose to make that order but rather allow each of the parents to use their own judgment as to whether such communication is appropriate for X if she specifically requests such communication. This approach accords with the notion of parallel parenting as suggested by Mr V and provides identifiable boundaries for X’s care.
The parties agree that there should be a scheme of communication between them with the Mother proposing a communication book to travel with X and the Father proposing email and SMS text message. The orders will provide for email communication (except in an emergency) as it is more convenient and a permanent record for each of the parties. The Mother had sought to forbid email communication asserting it was abused by the Father. An email address can be nominated by the parties for communication purposes and I shall place limits on its use to avoid harassment. The email should only be used for proper purposes relating to X’s welfare.
As set out previously the parties generally agree that overseas travel is appropriate. The Father seeks an as of right ability to travel whereas the Mother suggests there should be an agreement between the parties. Although it has the potential for further litigation between the parties it is appropriate that they each should agree regarding travel as it is impossible to predict what factors may impact on the appropriateness of travel at any given time. Thus far each of the parties have shown a reasonable and considered approach when assessing holiday travel destinations for X and there is no reason to think that will not continue. Accordingly the Mother’s suggestion for travel orders is preferred.
For the reasons I have previously set out I do not regard the Father’s proposal for extended time overseas with X as appropriate. All travel should take place within school holiday periods unless specifically agreed between the parties. I shall order that the Mother hold X’s passport based on my view that she is less combative and better organised than the Father.
Each of the parties sought a non-denigration order which I will make based on that agreement.
Attendance at school and sick days
In order to ensure that X attends school, unless she is genuinely ill, I shall make and order requiring the Father to ensure her attendance or provide a medical certificate from X’s nominated doctor attesting to her genuine illness on any Friday. In the event such illness is on a Monday or a Friday preceding a weekend when X is living with the Mother, X should be returned to the Mother by 10.00am on that day, unless otherwise agreed. I do not regard a similar order for the Mother as being necessary.
Changeovers
The majority of changeovers will take place at X’s school. The parties agree that other changeovers should take place in a public place and the Mother sought changeovers at a police station if no agreement can be reached as to venue. I am not moved to have X transferred between her parents at a police station in circumstances where it is not absolutely necessary (which it is not). I shall define the public place to be (omitted) Railway Station at the commencement of the Father’s time or if X is being returned early on a school day because she is ill. Changeovers at the conclusion of time should be at (omitted) Railway Station.
Conclusion
I do not believe that there are any other matters that I need to consider as significant in this case. The parties’ particular attention to detail does not warrant an equally fastidious attention to detail by this Court.
For the foregoing reasons I make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and eighty-eight (188) paragraphs are a true copy of the reasons for judgment of Judge Stewart
Date: 15 February 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness
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