MAHER & WALSH (No.2)
[2019] FCCA 1940
•11 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAHER & WALSH (No.2) | [2019] FCCA 1940 |
| Catchwords: FAMILY LAW – Binding child support agreement – enforcement. |
| Legislation: Family Law Act1975 |
| Applicant: | MS MAHER |
| Respondent: | MR WALSH |
| File Number: | BRC 9510 of 2012 |
| Judgment of: | Judge Demack |
| Hearing dates: | 20, 21 & 23 May 2019 |
| Date of Last Submission: | 23 May 2019 |
| Delivered at: | Rockhampton |
| Delivered on: | 11 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Shoebridge |
| Solicitors for the Applicant: | Murdoch Lawyers |
| Solicitors for the Respondent: | Self-Represented Litigant |
ORDERS
THE COURT ORDERS ON A FINAL BASIS:
Parenting
That all previous Orders are discharged that are inconsistent with these Orders.
Parental Responsibility
That the Mother is to have sole parental responsibility for the long term care, development and welfare of the children, namely X born … 2006 and Y born … 2007 (‘the children’), including any and all issues pertaining to:
(a)Schooling & extra-curricular activities;
(b)Medical and mental health treatment,; and
(c)International travel & passport issue/renewal.
That notwithstanding Order 2, the Mother shall keep the Father informed as to any decisions she has made for the children in relation major long-term issues as defined in s4, Family Law Act 1975.
Living Arrangements
That the children shall live with the Mother.
That the children shall spend time with the Father at all times as may be agreed in writing, and in the absence of agreement:
(a)Each alternate week from after school Friday until the commencement of school Monday, with such time to commence on the Friday which aligns with the arrangement presently in place.
That if the children's school is closed on any day on which changeover is to occur, the children shall remain in the care of the parent they are living with on that day until 3:00 pm.
That each parent will give the other party the first opportunity to care for the children if they are unable to care for the children for a period greater than 8 hours unless that care is to be provided by an immediate family member.
That pursuant to order 7, each party shall provide a minimum of two weeks’ notice in writing to the other parent if they are unable to care for the children, unless in an emergency.
That the Father shall be solely responsible for the daily care, welfare and development of the children when they are in the care of or spending time with him.
That the Mother shall be solely responsible for the daily care, welfare and development of the children when they are in the care of or spending time with her.
Changeovers
That subject to Order 6 and unless otherwise agreed, the children shall be collected and delivered for the purposes of parenting arrangements as follows :
(a)The Father is to collect the children from the children's school at the commencement of any period when the children are to live with or spend time with him; and
(b)The Father is to deliver the children to the children's school at the conclusion of any period where the children are to live with or spend time with him.
That during times that the children are not attending school, or changeovers are not on a school day, changeovers are to occur at the service station located at A Street, Suburb L or another neutral location that may be agreed in advance and in writing by both parties.
Telephone Communication
That the mother and father be at liberty to communicate with the children at all reasonable times.
That the children are at liberty to communicate with the parent they are not living with or spending time with at all times as they request.
End of Terms 1, 2 & 3 School Holidays
That unless otherwise agreed in writing the children are to live with their parents for the school holiday periods which fall at the end of terms 1, 2 & 3 each year as follows:
(a)Being the first half of the Autumn, Winter and Spring school holidays in even numbered years with the Mother and in odd numbered years with the Father; and
(b)The second half of the autumn, winter and spring school holidays in odd numbered years with the Mother and in even numbered years with the Father.
End of Term 4 School Holidays
That unless otherwise agreed in writing the Summer school holidays are to be shared equally between the parents as follows:
(a)The children are to spend time with the Father from the first Saturday of that holiday period to the fourth Saturday of that holiday period subject to Orders below which deal with Christmas day; and
(b)In the event that the Father fails to facilitate the children spending time with him in accordance with the preceding Order then that block of time shall be forfeited, and the next period of time the children spend with the Father be as per the schedule prepared by the Mother pursuant to these Orders.
Practical Implementation of School Holiday Time
That for the purpose of calculating the time that the children spend with the parties during school holidays time shall commence:
(a)When a parent's time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5:00pm on the day calculated to be half of the holidays; and
(b)When a parent's time falls in the second half of the holidays from 5:00pm on the day calculated to represent half of the holidays and time shall end at 9:00am on the day the school term recommences.
That for the purposes of these Orders:
(a)School holidays are deemed to commence at close of school on the last day of the school term for the last child to finish the term;
(b)School holidays are deemed to conclude at 9:00am on the first day that the first child to start the school term returns to school;
(c)The number of nights in each school holiday period is to be used to calculate one half of the school holiday period; and
(d)If there is an uneven number of nights the Mother shall retain the additional night.
That for the purpose of practical implementation of the time that the children spend with the parties pursuant to these Orders during school holiday periods:
(a)A schedule of the shared holiday time (according to these orders) will be prepared by the mother;
(b)That schedule is to be provided to the father at least ten (10) weeks in advance of the commencement of each holiday period; and
(c)The father and mother will strictly adhere to that schedule.
That notwithstanding any other Order herein, the children are to be returned to the Mother's care for at least 2 nights prior to the first day of school each year.
Special Time
That notwithstanding any other order and unless otherwise agreed in writing the children shall spend time with each parent during special times as follows:
Christmas
(a)From 9:00 am Christmas Eve until 9:00 am Christmas Day with the Mother and from 9.00 am Christmas Day until 5:00 pm Boxing Day with the Father;
Mother's Day
(b)The children shall spend time with the Mother on Mother's Day from 9.00 am until 5:00 pm;
Father's Day
(c)The children shall spend time with the Father on Father's Day from 9.00 am until 5:00 pm;
Child's Birthdays
(d)That unless otherwise agreed between the parties, the children shall spend time on their birthday with the parent they are not living with from 3:00 pm to 7:00 pm; and
Parent's Birthdays
(e)That the children shall spend time with each parent on that parent's birthday as agreed, in writing, between the parties.
Parental Communication
That communication between the mother and father be facilitated by the use of the Divitto application, save for the Mother complying with the terms of the Binding Child Support Agreement and Order 25 herein in which case the Mother shall send the relevant information to the Father via email and that all communication between the parties be restricted to issues directly regarding the children and will be polite and respectful.
That the parties are to authorise the children's school to contact both parents by telephone in the event of an emergency (medical or otherwise) during school hours, noting that this Order does not purport to bind the school to act in any particular way.
That notwithstanding the preceding Order, in the event that one parent is notified by the school of an emergency involving either child, that parent is to notify the other parent forthwith.
That in the event the emergency occurs outside of school hours, the parties can contact each other directly via telephone or the children's maternal grandmother on her mobile phone.
Medical
That within seven (7) days of a request by the mother the father shall provide to the mother a duplicate card for the children's private health insurance to be provided to the mother (noting that the mother presently has a card).
That the Mother authorise the children's medical and mental health practitioners to discuss with the Father the children's health and medical treatment but that the Father is restrained from giving any direction as to treatment for the children to the medical practitioner.
That the Father and Mother inform the other as soon as it is reasonably practicable of any medical condition, significant health issue and/or illness suffered by the children and authorise any treating medical practitioner to give the other parent such information that he or she may reasonably request pertaining to such situation.
That each party keep the other party informed of the names and addresses of any and all medical practitioners who are involved in treating or caring for the children and the Father shall be at liberty to attend any medical, dental, mental health or optical appointments only with the express written consent of the Mother, save for in the case of an emergency.
Schooling
That the Father and Mother are to each respectively authorise the children's school:
(a)To provide the other parent copies of all school reports and any other reports on the children's progress and behaviour issues and all notices received from the school including newsletters, parent letters and general notices;
(b)To inform the other parent of all extracurricular activities that occur at the children's school including parent/teacher meetings, sporting events, special events and any other activities to which the parents are invited; and
(c)To contact the other parent in respect to school photographs and that provision of such photographs must be arranged by the Father and Mother with the school directly.
That noting that nothing in the preceding Order purports to bind the children's school to act in any particular way, nothing in the preceding Order is intended to relieve either parent of their obligation to communicate with the other in relation to matters relevant to the parenting of the children.
That the Mother and Father shall use their best endeavors to ensure that the children complete their homework and other school tasks while in the care of each of them, and sign off the children's homework books as required.
Passports
That the children's passports be held by Mother, and the costs of obtaining and/or renewing the children's passports be met by the Mother.
Specific Issues
That each party shall keep the other party informed of changes to the respective party's email address and mobile telephone number within 48 hours of such change.
That neither party shall discuss with the children or permit discussion with the children or any of them any aspect of these proceedings or any difference between the parties relating to the financial circumstances or other aspects of the other's lifestyle.
That neither party shall denigrate or cause or permit the denigration of the other to the children or in the presence or hearing of the children.
That neither party shall discuss adult issues in the presence or hearing of the children.
That each party is restrained and an injunction be granted restraining the Mother and Father from arranging, or discussing with the children, commitments for the children during the time they would otherwise be in the care of the other parent without that parent's agreement in writing.
That the Father be restrained and an injunction be granted restraining Father from expressing his opinion as to the mother's mental health with the children, or from enquiring as to any mental health treatment the children may, from time to time, receive.
That in the event that the Mother and/or Father elect to attend/continue with any counselling an exemption of s121 of the Family Law Act 1975 be granted so that the either parent may be permitted to provide a copy of:
a.each of family reports of Mr D prepared in these proceedings,
b.the report prepared by Dr E in these proceedings
to their treating mental health practitioner/s, but only those practitioner/s.
Costs
That the Father pay the Mother's costs of and incidental to these proceedings.
That all outstanding applications be dismissed.
Property
Binding Child Support Agreement Arrears
That pursuant to Rule 25B.13(a) of the Federal Circuit Court Rules 2001 the Court declare that the amount of $14,515.56 is owed by the Father to the Mother.
That within 14 days the Father shall:
(a)pay to the Mother $14,515.56 being the outstanding amount owing pursuant to the Binding Child Support agreement dated 13 February 2013 together with interest thereon at a rate prescribed under the Family Law Act 1975 adjusted monthly from the date of this Order; or
(b)provide confirmation that the requisite documentation has been submitted in the event that the Father is seeking to have those funds released from his superannuation.
That until such time that the Father pays the Mother the amount required by Order 2 herein, the Father is restrained by injunction from further encumbering the Property.
That should the Father fail to pay to the Mother the amount required by Order 2 above, pursuant to Rule 25B.11 of the Federal Circuit Court Rules 2001 an enforcement warrant be issued, but remain in the Registry subject to Order 5 herein.
That the filing of an affidavit of the representatives of the Mother advising that the sum referred to at Order 2 remains unpaid, and the filing of an affidavit by an appropriate enforcement officer, shall be sufficient evidence to cause the enforcement warrant to issue permitting the seizure and the sale of the Father’s real property situated at B Street, Suburb C, Queensland, otherwise known as Lot … on RP … in the Parish of … (‘The Property’).
That upon completion of the sale of the Property, the proceeds of sale be applied as follows:
(a)Firstly to pay all costs, commissions and expenses of the sale;
(b)Secondly to discharge any mortgage and any other encumbrance affecting the real property;
(c)Thirdly, to the Mother, such amount referred to at Order 45 as in then outstanding, together with interest thereon at a rate prescribed under the Family Law Act 1975 adjusted monthly from the date of this Order; and
(d)Fourthly, the balance to the Father.
That the Father pay the Mother’s costs of and incidental to the Application in a Case filed by the Mother on 17 April 2019.
IT IS NOTED that publication of this judgment under the pseudonym Maher & Walsh (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ROCKHAMPTON |
BRC 9510 of 2012
| MS MAHER |
Applicant
And
| MR WALSH |
Respondent
REASONS FOR JUDGMENT
This is a final decision with respect to matters to do with X and Y. X is 13. She was born on … 2006, and her brother Y was born on … 2007, and he is 12. The children are one year apart in age.
This is a parenting matter. There is also the issue of the enforcement of a binding child support agreement, and the parties have many matters in dispute before me. The parenting matters which are in dispute with respect to the orders are: how parental responsibility should be held, who the children should live with and how much time they should spend with the other parent; how telephone communication should be provided for in Court Orders; whether make-up time should be provided for in orders if a parent is unable to spend time with the children pursuant to the orders; who should be responsible for drawing up a schedule which sets out how the school holiday times will work each year using the Court Order as the document to follow, but putting that then into the calendar year; where handovers should happen, if they do not happen at school; who should hold the children's passports; whether the parents should have counselling compelled by Court Order; whether there should be an order for some form of enforced mediation or parent coordinator for the parties. I am sure there are other matters as well, but at the very least, those are the issues about which the parents were unable to reach an agreement.
There is also the issue of the binding child support agreement and its enforcement. I will deal with the binding child support agreement first because it is a fairly narrow issue. There is an application before me for enforcement of the child support debt. The binding child support agreement was entered into on 15 February 2013. Both parties were legally represented. The father said a number of times during the course of the trial that he was wanting to agitate that the binding child support agreement should be set aside. There is no application to set it aside.
The father seems to have erroneously believed there was because of the decision with respect to the reopening of the parenting matter, which was a decision under the auspices of Rice & Asplund and all of the cases which follow it. The father seems perhaps to have misapprehended the reach of that Rice & Asplund decision made by another judge last year in reopening the matter, but the father has at no point in time brought an application to set aside the child support agreement. The mother did not come to this trial to meet an application to vary the child support agreement, and it seems palpably clear to me that that matter cannot be before me in this decision. The father seemed to want to urge me to simply deal with it on the basis that that would limit the parties coming back to Court.
Well, that is not a matter for me. It needs to be a matter which is properly before the Court and it was not. In any event, the father does not argue either the liability under the agreement of 2013 and he does not argue with the quantum of the amount which is owed. The orders which are sought would have the father paying the arrears relatively promptly, and in the event that he failed to, then a house being placed on the market. That style of order has been made historically. The last time an enforcement order was made, the father sent the order to the necessary authorities to then have a compassionate release from his superannuation policy, which seems to be what he will probably follow on this occasion.
So I will make the order for the binding child support agreement enforcement. The only changes that I will make is the requirement that the father have 14 days to either pay or to demonstrate to the applicant that he has made the necessary application for compassionate release, and, of course, interest will flow, which is also provided for in the wife's sought orders. But rather than give him seven days, I give him 14 days to either pay or to demonstrate that he has taken those steps with respect to his application.
I will move then onto the parenting matters, they being what the trial was really mainly about.
The mother is the applicant. The father is the respondent.
She was born in 1971 and he was born in 1968. Their relationship commenced in around about 2003 or 2004 and they separated on a final basis on 19 April 2012.
They have had Court Orders before. They have had many applications before the Court. They have had matters with respect to child support which have gone on appeal to the AAT or to the SSAT.
They have had applications with respect to domestic violence protection orders. The mother has apparently made four applications, two of which resulted in undertakings being given and two of which were discontinued by her and therefore dismissed by the Court.
The father says at some point in time in his material that there have been 50 applications, and he seems to want to say that the mother has been responsible for those. I do not know how many there have been, and I do not form the view that the mother is the only one who has made applications to the Court or to other authorities, or made appeals, for example, to the Administrative Appeals Tribunal to do with child support.
But the parents are plainly in intractable conflict and they have been for a long time.
The orders which are currently in place were made on a final basis on 8 September 2015 and amended on 14 October 2015. They provide for the parents to have equal shared parental responsibility of the children, save for the issue of X’s dental needs where the mother had sole parental responsibility. The order provided for the children to live with the mother nine days a fortnight and to live with the father five days a fortnight.
Some of the orders were made by consent and some of the orders were made by the Court. The orders which were made by way of the Court's determination was the order about parental responsibility. An order with respect to telephone communication was made by the Court. An order with respect to how telephone communication was to happen and the provision of mobile phones to the children, for example, was made by the Court, and the Court also determined the school that the children were to be going to, which is F School.
That issue of the children going to F School was something which was very much within the factual matrix before me, not least of which is the father's failure to pay the children's school fees at F School, which was provided for in the binding child support agreement of 15 February 2013, which has caused the debt to arise, which I have just said that I will order the enforcement of. The father says that he cannot afford the school fees for the children. He also seems to have some significant difficulties in having a harmonious working relationship with the school.
There are then an application before me by the mother where she seeks sole parental responsibility and that the children live with her. She seeks orders that the children spend time with the father from school on Friday till 5 pm on Sunday or till the start of school on Monday. Her initiating application had, as I understood it, said Friday school to Monday school on alternate weeks. Her outline of case document said Friday school to Sunday afternoon at 5 o'clock, and in the course of submissions, her counsel said, having, of course, heard from Mr D, the family report writer, Friday school to Monday school.
The father seeks orders, as I would understand it, for equal shared parental responsibility to be continued. When he filed his response document on 9 February 2018, he sought orders, at that point in time being legally represented, that during term time the children live with the father and spend time with the mother from Friday after school until the commencement of school Wednesday. That would be a flip or reversal of the children's current arrangements. I am not completely clear what his position is on a final basis with respect to what should be in place for the children.
At some point in time, he had spoken in his documents about seeking an equal time arrangement. My sense was by the conclusion of the trial he was really seeking a continuation of the current orders; that is, that the children be with the mother for nine days and with him for five days out of the fortnight. I am not clear about that though.
The legislative pathway requires me to consider in the first instance the issue of equal shared parental responsibility. That is a presumption which is capable of being rebutted on the basis of child abuse or family violence. It is also an order which should only be made if it is consistent with the best interests of the children. If I make an order for equal shared parental responsibility, then I need to turn my mind to whether it is in the children's best interests and reasonably practicable for them to spend equal time with both of their parents. If it is, I need to consider it. It remains, though, a matter for my discretion.
If I determine not to order equal time, I would then need to turn my mind to whether it is in their best interests and reasonably practicable for them to spend substantial and significant time with the parent with whom they are not living. The orders which are currently in place would have the children with the father for five nights per fortnight, from Friday after school through to Wednesday school. That, it seems to me, meets the statutory definition of substantial and significant time. It is weekdays and weekends. It is during school time and non-school time, and it allows the children and the father to be involved in occasions of significance to them both. Again, it remains a matter for my discretion as to whether I make an order for substantial and significant time for the children with the parent with whom they are not living.
For both the issue of parental responsibility and the issue of the time the children spend with both parents, I need to turn my mind to the best interest factors. Of course, as it is a presumption which is rebuttable on the basis of child abuse and family violence, I need to also consider whether there are matters of violence or abuse or whether the children need to be protected. That also is something which forms one of the primary considerations within the best interest factors, so it seems to me the useful way for me to determine how the parents should hold parental responsibility and how the living arrangements for the children should be put in place would require me to, firstly, consider the best interest factors. So that is what I will do.
The people who I saw giving their evidence were the mother and the father.
The only other witnesses in the case were Mr D, the family report writer, and Dr E, a psychiatrist who attended to the preparation of a psychiatric assessment. Mr D not only did this family report, but he did a family report for the family historically, dated 30 September 2014. His more recent one was done in the late first half of last year, 14 June 2018. Dr E did a report, which is annexed to an affidavit filed on 15 February 2019. Dr E’s report is dated 11 September 2018. Dr E was not required for cross-examination.
Mr D was and he appeared by telephone. He was very helpful to me insofar as he accepted the difficulties of the case before me. And the difficulty being, in essence, that this mother and this father are so incapable of climbing out of their entrenched conflict that I should have no expectation that their way of communicating with each other will ever be different and that that dreadful way they have of communicating with each other does, at times, overflow in such a way that X and Y are exposed to it and they are certainly well aware of it and that it would be consistent with their best interests for them to be not exposed to that and for that to be shielded from them, but there is no thought that things might be different in the future between the parents.
One way of doing that would be to limit the children’s time with one of their parents. If one parent’s time was to be limited, the children’s time should be with their mother and their time with their father should be the one which is limited. The difficulty that Mr D has with that proposal is that both X and Y, who were 12 and 11 at the time of their interviews, were wanting to see the regime maintained as it is, the nine/five arrangement, that they like spending their time with their father, that they do not want to have less time with their father and that, for example, less time would make it even more of a nuisance for them because they have to take all of their stuff from one house to the other, and doing that for a period of three nights would be worse than having to do it for a period of five nights. So the children do not want the time changed.
All other things would seem to being consistent with their best interests and there being something different happening. So Mr D was, at the end of all of that, left seeing the pros and cons of keeping it the same or changing it. And at the end of the day, he really was not convinced that there was one good answer.
The parties have placed their material before the Court. A case outline document by the father was, in fact, done in readiness for the Rice & Asplund argument last year and he does not have a further document, but I would understand he relies upon, effectively, the material that he has filed in this tranche of litigation.
The mother was legally represented. The father represented himself. Both parties gave their evidence and were required for cross-examination. The mother was the applicant and she was cross-examined first. The father then cross-examined her. The mother’s body language whilst being cross-examined by the father, for the portion of time, she looked straight ahead and did not turn to look at the father while he asked her questions. And as the cross-examination went on, she turned further and further away from him such that her right shoulder then was, effectively, turned such that he was 90 degrees behind where she was looking.
The parents’ way of communicating is worse than poor and it is locked in a cycle of unhelpfulness. It seemed to me that before going further into these issues of how the parents are with each other that I would jump straight to what Mr D said about this.
Mr D, in his second family report, the one done for this tranche of litigation, explains how he perceives this way the parties interact with each other. And I observed this myself. I accept what Mr D says and I accept Mr D’s take on this interaction. As I go through examples, hopefully, it will become clear to any other reader that this cycle that Mr D speaks of is made out on the evidence. So at paragraph 8.3, Mr D says:
The parents engage in an acrimonious interaction pattern characterised by a cycle of provocation, emotional distress and unhelpful reactivity. The father has a strong desire to feel connected to the children and have flexible arrangements. The mother has a strong desire to limit her interactions with the father and control the children’s distress. From examples of the parents’ behaviours, communications and disputes, their typical interactions appear to function as follows.
· The father attempts to make changes to arrangements and the mother does not agree.
· The father then becomes irate and responds in an overly emotive fashion in his communications with the mother.
· The mother, understandably, perceives this communication as harassment. For this, this is a distressing unpleasant experience. She responds by attempting to limit her and the children’s interactions with the father.
· At some point, either one or both parents communicates some form of dissatisfaction or distress to the children, for example, by voicing negative opinions or concern about the other parent, asking the children for reassurance, expressing unhappiness about the school, etcetera. The children then become distressed.
· The mother interprets the children’s distress or potential for distress as the father being psychologically dangerous and withholds the children. The father interprets the children’s distress as the mother seeking to hurt him and attacking him. He sees this as a lack of child focus and then attacks the mother in his communications to her. He then seeks to defend himself to the children. Both parents blame the other for the children’s distress.
· The parents then continue in conflict with little awareness of how their behaviour triggers the other parent and reinforces the children’s distress. Neither parent is equipped with the skills to implement conflict resolution or self-regulation prior to making reactive decisions that inflame the situation and perpetuate the cycle.
Mr D then sets out that those views in table form for people who might find it useful as visual learners to better understand. At paragraph 8.5, Mr D says:
This interaction cycle:
· Reinforces the mother’s view of the father as a harassing parent who is unable to abide by Court Orders,
· Provokes repeated attempts by the mother to eliminate the father from the children’s lives and her life (e.g., applications for Protection Orders, complaints to police, further Family Court proceedings); and
· Reinforces the father’s view of the mother’s actions as excessive, inflexible, mentally unhealthy and a lack of respect for Court Orders.
There is more and I would be planning on getting back to it in this judgment, but I found Mr D’s paragraphs 8.7 and 8.8 particularly helpful as well. So the parents have this cycle of communication. Now, at the end of Mr D’s report, Mr D says:
· All of those things I understand and I accept and I consider they are not going to be changed in the future.
Even with that, with the children’s views and how the children are themselves wanting to have the time with both parents continue as it is, Mr D says let us leave things as they are.
On behalf of the mother, it was submitted that I had then seen what had happened. Since, there have been more examples and that I had had the opportunity to see the parents in front of me and that I should, therefore, be convinced on the evidence that it was time now for the children to have shorter periods of time with their father and their mother to have sole parental responsibility.
I need to say at the outset that I do not know that I am convinced that Mr D did not have, in fact, a very good grip on the situation when he did his report. There have been more examples, just as there are very many examples already, of this cycle of communication issues between the parents. That, I do not think, has changed. I do not think it has got worse. It has certainly not got any better. So in terms of whether I am better placed than Mr D to have really assessed all of those things, I think that Mr D actually did the correct assessment when he did his family report.
That, of course, is not the end of the matter. The best interest factors have, as the first, the primary considerations, the benefit to the children in having a meaningful relationship with both of their parents; and, secondly, the need to protect the children from the physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. And the Family Law Act says it is the second of those which is to be given the greater weight. And remembering, of course, that equal shared parental responsibility is a presumption which is rebuttal on the basis of child abuse or family violence.
It seems to me it is useful in considering this issue of the need to protect the children as the first matter.
The children are not really at risk in either parents’ care with respect to matters of abuse, neglect or family violence. There is no allegation that either of the parents are currently in relationships which are violent or abusive.
There are very few issues about the children being at risk in the father’s care because of the father’s parenting style per se. The couple of exceptions to that are the mother has made recent mention of X being left alone or out and about in the Suburb M area of Brisbane when she is in her father’s care, with the mother thinking that it is not age appropriate for X to be at a coffee shop or out and about on her own. Some complaints that Y has gone to bed too late in the father’s household. Also, a complaint that with the father living at Suburb M and the children going to F School at Suburb L, that that would necessarily mean some late afternoon bus trips which require one change of bus and walking through the Suburb M area to get back home potentially at around about the 6 o’clock at night mark.
None of those things, it seems to me, would cause me to form the view that the father is placing the children at risk of harm.
The father is not a man who would put his children in danger and I am satisfied he has made appropriate assessments about those things himself even though they are the subject of disagreement with the mother. And I note, for example, at one point in time, when the mother complains that X seems to be at a café on her own the father’s response to her through their communication app is derisive. He says that he was there and he and X have been laughing about the way the mother is worried.
So I do not consider that there is anything within either parents’ behaviours or presentations which actually is a risk to the children in the standard way that we might be looking at those sorts of risks. What the risk is to the children is the risk of psychological harm from living in this war zone that their parents are perpetuating for them. That statement by me and any subsequent statements that I make should not be taken to mean that I consider both parents to be equally complicit in the difficulties which exist between the parents.
It seems to me that there are sometimes different ways of communicating, which are less helpful or more unhealthy, and regardless of the other person’s response, there is still no useful way forward when one party is insisting on unhealthy or dysfunctional communication. At the end of the day, though, X and Y are the ones who are exposed to this and who are living with it. There are so many examples of these parents’ inability to communicate. It is hard to know where to start.
But I will start with X’s current schooling. So the parents have a Court Order from 2016 which provided for the children to go to F School. They had contemplated during their relationship that the children would go to a private school and the binding child support agreement had the father paying the costs of the private school and that was, of course, in February 2013.
The father has long has had issues with F School and he has also had issues with his liability to pay for those school fees and he has long sought to change what school the children go to so that he is not paying those school fees.
His complaints about F School are submitted on behalf of the wife to potentially be his mechanism to try and have the school no longer accept X and Y as pupils there because there is a Court Order which compels the parents to send the children there but, of course, the Court Order does not compel F School. So if F School found the whole dealing with the father sufficiently untenable, they may choose to say there is no longer a place for X and Y, which would then create or effect the change that the father actually seeks. That may be the case or the father might be doing that unknowingly.
But the father has a real property which he gives as his address for service, which is worth apparently $1.2 million out of Suburb C, but which has a mortgage around the million dollar mark. And he decided some time earlier this year that he would move to live in a unit in Suburb M in Central Brisbane. He said he did that because the children wanted to do it, because the children wanted to give inner city living a go and, of course, Suburb C is, one would expect, sort of a semirural acreage residential area, and F School in Suburb L is also in this kind of semirural residential large blocks out Suburb L way to Brisbane. So the father decided to rent out the house at Suburb M and to move to live in a unit in Suburb M in the heart of South Brisbane next to Suburb M.
And that unit just happens to be in the catchment that N High School is in, and N High School is the one state high school in Queensland which has the prestige, if that is what you would call it, of aligning itself with the greater public schools in Brisbane. So it competes against the other schools which call themselves the greater public schools, and N High School not only has children from the catchment who are entitled to be enrolled there but it also offers some form of offers of placement to children who excel in different areas of endeavour. So it is in part state school but it is also in part a school which invites pupils who excel to attend it.
So the father has somehow managed to introduce into X the notion that N High School would be a good school to go to, and N High School, of course, would be a good school for any child to go to if they either lived in that catchment or merited a place there according to whatever practices N High School have, but there is a Court Order in place from 2015 which puts to rest the notion; the children go to F School. So it has been unhelpful for X (at the least) for her father to encourage the notion that a school other than F School might be something which is available to her.
The father seems to have this idea that if X wants this, then X should be simply supported in it happening, without any apparent acknowledgement of how this is all part of the larger matrix of discommunication between the parents. The father has gone so far as to encourage X to write to her mother a letter about what X wants to have happen. The mother simply wants the order for the children to go to F School to be maintained.
The mother gave evidence about why she considers that F School is the school that should be continued, for things such as they have decided together that the children would go to a private school, that she had done a lot of research, that a Psychologist said keeping the children together, especially during a tumultuous divorce, their music program at F School is amazing and X is talented musically, that the facilities are fantastic, that there is a nurturing school community, and after a lot of research the mother says that she was happy with F School.
The father points out that since the order was made for F School in 2015, the mother herself had approached the father about potentially the children going to a state school, which was not F School, and that the father himself then tried to agree to that, it would seem quite a long time after the mother had first raised it as an issue. By then the mother was no longer seeking that and simply sought that the orders be maintained. So the parents managed to raise with each other issues about the schooling which then just continued to be sores which get picked and picked and picked.
The father has had dreadful communication with F School for years, and the communication seems to have started as an issue right from the outset. What seemed to happen is after the Court Order was made that the children go to F School, the mother filled in and presented to the father the enrolment forms. The father declined to sign the enrolment forms and the mother, Ms O, provided the enrolment forms with her signature to the school along with the Court Order, and, one would expect, also the binding child support agreement.
The father says that that enrolment then was done by the mother by stealth, or some such word, which is, of course, really quite ludicrous evidence for him to give. The Court Order required the children to go there, so there was no slight or stealth by the mother in complying with the Court Order, and the father's failure to sign the enrolment form was really unnecessary and unhelpful.
What then happened was, F School determined, through their own practices and procedures, that that meant that they had a contract with the mother. And as a result of that, their communication would be with the mother. The father then, somehow, objected to that, and tried, retrospectively, to then sign an enrolment form with the school. The school, of course, said, “Well, it wasn’t in a position to do a further enrolment with the father, because it already had a valid enrolment with the mother’s signature only”. And the father understood that unless the mother gave her particular consent, that he wouldn’t then be added to the enrolment form.
So this further enraged the father. And the mother, of course, was simply steadfast in, “Well, I gave you the opportunity to fill it in at the time that it needed to be done so that the children could then be enrolled. You failed to do that. And this is now the consequence”. And the father then has had issue after issue after issue with the school in a way which is plainly really quite unbearable for everybody except the father. I have before me exhibit 2, 3, and 4. Exhibit 1 is the mother’s exhibit book. And it is paginated and goes up to a page 175. Exhibit 2, which is an email from the principle of the school to the father, of Wednesday, 17 May 2017, is actually in the exhibit 1, at page 146. The others may be as well.
But at least from May 2017, the schools issues with the father have been really quite unbearable for the school, the principle says:
Dear Mr Walsh,
It has come to my attention that there have been a number of occasions in recent weeks where you have attended the college premises on days on which you do not have primary custody of your children. As per current Court Orders, both in relation to the custody of your children and the protection orders that have been issued, I direct you to only attend the college premises to pick up and drop off your children, or to attend any other college event, such as, sport training, matches, concerts, or parent evenings, on those days on which you have primary custody of your children.
If you wish to meet with staff to discuss matters pertaining to your children, you should arrange an appointment at least two days in advance through the junior school office and make these appointments on the days for which you have primary custody of your children. This includes sports coaches as well as teaching staff. As per the current Court Orders, any meeting you wish to attend with staff must be purely for the purpose of discussing your children’s educational progress and should not include any discussion in relation to their other parent, Ms Maher, or for the purpose of asking questions about the other parent, or for including college staff in any negative comments about Ms Maher.
If this is to occur, then our staff will discontinue the meeting, and will ask you to leave the college premises. I understand that some significant school events may fall on days for which you do not have primary custody. If you wish to attend any event that falls into this category, then you need to seek permission in writing from myself at least one week in advance of the event, and I will seek approval from our enrolling parent, Ms Maher, for this to occur.
Ongoing breaches of this directive may result in the college returning to an arrangement where you may only attend the college car park for the purpose of dropping off and collecting your children. I hope that we can continue to work cooperatively together in the best interests of your children.
Plainly, the father didn’t work out a way of stopping involving the school in issues, for example, on the first day of school in 2018, the father attended and caused an event in the presence of X, and I have as exhibit 3, a letter from the solicitor for the school to the father. So G Law Firm are the solicitors for the school. And it becomes clear from, firstly the email of 25 January 2018 and then the letter of 12 April 2018 that the school have had to instruct their lawyers to respond to the father and to set out some parameters to the father. The first one, then: Thursday, 25 January 2018. This is, as I said, from the solicitor:
Dear Mr Walsh,
You misrepresent the conversation. I note that you have spoken with me by telephone today wishing to ask three questions:
(1) Whether:
(a) the college will approach X directly indicating that the changeover earlier in the week was traumatic and that she can attend counselling if she wishes, and
(b) the college will make counselling available to X.
(2) Whether the college will facilitate you speaking to Y and X by telephone during times that they are at school given that Ms Maher is not permitting you to spend time with and communicate with Y and X; and
(3) Whether the college will refund the term 1 fees paid by Ms Maher to Ms Maher.
We confirm that my response was as follows:
(1A) I consider that there were good reasons not to approach X in the manner which you were suggesting, and on that basis I very much doubted that the college would do so, but that I would obtain instructions.
(1B) The School have already indicated that X, like all students, may avail herself of counselling at the college if she wishes.
(2) The college are doing everything possible to ensure that they provide an educational facility and an environment that is entirely free from the conflict and pressures that your parental dispute seems to be bringing to the children. Our client’s responsibility is to educate your children and they will continue to do so. To facilitate the children communicating with you during school time is likely to detract from educating your children, and I consider it likely that the college would remain of the view, as they were when you were overseas, that it is not appropriate to do so. I indicated that I would obtain instructions about that matter also.
(3) I indicated that the issue of fees is one that has been continuously discussed and that I consider it was unlikely that the college would agree to refund the moneys, but that I would take instructions on that matter also. I note that you foreshadowed that you would consider commencing proceedings against the college at some future date for the pain and suffering that the college have caused you as a result of charging school fees under the current circumstances. No mention was made of alienation during the conversation.
I have now had an opportunity to obtain instructions.
My instructions are as follows:
(1A) The college will, as is their usual process, be undertaking an introduction to the college counsellor by each year level, including a meet-and-greet, and information about how to access the college counsellor upon the counsellor’s return from leave. X will be part of this. No further approach will be made to X.
(1B) X may avail herself of counselling if required. However, generally speaking, this is only available for short-term acute issues. If longer-term counselling is required, the college will recommend the parents obtain the necessary assistance for the child.
(2) For the reasons foreshadowed, our client will not facilitate the children speaking with you during school hours.
(3) Our college will not be refunding college school fees. The Court ultimately ordered that the children be enrolled at F School. If you seek an alternative school with a different fee structure, then that is a parenting decision for you and Ms Maher or a Court to determine. The college will consider the application for fee relief when the information is provided by Ms Maher, and beyond that will continue to charge tuition fees, as is their normal process.
We are, however, instructed to advise you for your reference that scholarship applications are now open for the 2019 school year. All information is available on the college website and an application for X and/or Y can be made if you or Ms Maher wish. Our client did want to ensure that you were aware that the applications were open.
We note that you have repeatedly alleged that the college is in some way supporting Ms Maher, assisting her case and assisting her to alienate you from the children. We iterate that the college is solely interested in educating the children in a conflict-free environment. Our client has no interest in supporting either parent in this dispute and has clearly indicated that this is the case to both parents, including refusing to provide either parent with an account of the attempted changeover earlier this week.
We note that your communications with the college and more recently with our office are often time-consuming, repetitive and unproductive. Whilst our clients accept that this is a distressing situation, it is one that relates to a parenting dispute and is, therefore, a matter for a Court exercising family law jurisdiction to determine.
We put you on notice that in the event you continue to make contact with our client and this office in relation to matters which have already been determined and communicated with you, our client may need to consider putting in place further communication protocols. We do trust that you will not continue to raise and press matters repeatedly after having received an answer from our client. As indicated, we would be happy to communicate directly with your family lawyer if that would assist.
The father then plainly sent a letter to the solicitors on 28 March 2018. They respond in their letter of 12 April 2018. It is the same solicitor or special counsel who responds to this. They say at the outset, so this is to the solicitor for the father, not the father himself:
We note that your client has been communicating with our office, primarily in relation to this matter, for much of the past two years and, thus, is well aware that we are acting in relation to the matter. In fact, he has been directed that he is not to communicate with the college directly on anything other than routine day-to-day arrangements for the children and that any other communications are to be directed to our office. In light of that fact, that we have been acting in this matter for some time, and that you have been forwarded your correspondence to our office, we are perplexed that you would ask our client whether they have received independent legal advice in respect of the matter. For clarity, we reassure you that we do provide our client with legal advice in respect to the matter.
The next paragraph reads:
Given the volume of communications exchanged between Mr Walsh and our client over the past two years, we do not intend to revisit those matters in any detail.
They then set out a number of things and what they have directed both parents. On the second page, they say:
To be clear, it is the college’s usual policy that they do not remove children from class or from their usual activities for the purposes of speaking to a parent unless it is a genuine emergency.
We note as recently as last week your client sought that his children be removed from their various classrooms during and then immediately after class time for the purposes of him communicating with them during times that they are in the care of the mother pursuant to Court Orders. There did not seem to be an emergent reason for that request and our client, therefore, refused the request as it is not in accordance with their usual policies. The fact that there was not domestic violence orders in place any more is no reason to derivate from the college policies and procedures and our client does not intend to do so.
As you can appreciate, removing a student from a classroom has a tendency to interrupt the flow of the classroom and causes a disruption, not only to the student’s learning, but to the whole class’s learning. Despite your client’s request in the past for our client to remove one or both of the children from the classroom during usual class time for the purposes of speaking with him, our client will not be facilitating such an action outside the case of a genuine emergency as it is disruptive to students in the classroom and to staff, time-consuming for the staff deployed from their usual roles to remove the children from class and not in the overall best interests of the students at the college.
They then refer to various Court Orders, and on page 3 they say:
Additionally, your client’s conduct over the past few years has included:
(1)Periods of aggressive and abusive conduct towards various staff, arguably raising a safety risk for staff;
(2)Periods of disruptive conduct, generally raising concerns in relation to the disruption caused to other students at the college as well as X and Y; and
(3) Extensive communications resulting in the college managing various risks and, unfortunately, staff time being reallocated to respond to your client’s various communications and demands, staff time that ought to be spent furthering the education of all students at the college.
Their penultimate paragraph says:
Finally, our client has no intention to seek to become a party to a parenting proceeding before the Federal Circuit Court of Australia. Our client is an educational facility, not a parent. There is no basis to suggest that our client has an interest in the proceedings that would warrant such an application and any application for the college to be joined will be vigorously resisted. In the event that our client is required to attend at the Court in respect of such an application, we are instructed to seek costs on an indemnity basis and will rely upon this correspondence in relation to any application for costs.
The January incident on the first day of school with respect to X, the father seemed to accept, a little grudgingly, in cross-examination that that incident may have been difficult or distressing for X. He, though, did not really seem to be seeing that as the most important issue. The father is more than a nuisance to F School. He incurs them cost by them having to engage their solicitors. He takes up their time. He takes up a disproportionate amount of time for the fact that he has two children at the school and there are other children at the school whose parents, no doubt, never take up any of the teachers’ valuable time because they recognise that school is a school and that the teachers are there to teach.
The father wanted to insist in cross-examination that he had only ever had an issue with the admin at the school. That is plainly untrue. He sent a dreadful email to Mr H, the teacher of Y. The way that he spoke to Y’s teacher in this email is in many ways a good example of the father’s way of communicating to those who he feels he may say these things, which includes the mother.
It is an email found at page 93 of exhibit 1 dated 15 November 2016 to Mr H.
Mr H,
Ms Maher sent your email about Y’s latest issues at school to me late last night.
It is very unhelpful to learn all of this late and second-hand.
It is also unhelpful that I cannot have your perspective to hand when talking to Y.
It also does not help the poor young man when his mother calls him of an evening and yells at him with the latest complaint about from school.
You will know that I expect Y to be a good boy at school and good to those around him, especially you.
You will also know that he is dealing with a lot outside of school.
He hung the phone up on his mother yesterday when she was relating your version of events to him.
On the specific issue yesterday, Y denies emphatically saying, “What the hell?”
He also is firmly of the view that you are now unfairly singling him out for punishment and criticism whether right or wrong.
You have lost his confidence.
It is clear that the approach being taken by you and the school is not producing remediation.
I understand Y did not talk back to you.
I speak to Y all the time about being gentle to those around him and respectful to you.
I kindly ask that you redouble your patience and understanding of and with Y.
I kindly ask that you keep me directly and fully informed.
I ask on this occasion that he is not punished with lunch time detention, which will be counter-productive.
Please, remind him of your expectations of him.
The father’s evidence before me seemed to include that he considered the teacher to be a nice teacher but inexperienced. What the father did on 15 November 2016 could not have been more offensive to Mr H, one would suppose. He is telling the teacher that the teacher has got it wrong, that the father accepts what the child says to him without accepting that the teacher may, in fact, be completely right and the child, for whatever reason and perhaps many understandable reasons, is not telling his father the truth.
He tells the teacher what the consequence should be as though he is somehow empowered to tell the teacher how to do his job because surely the consequence which was enacted by Mr H is one which he is empowered to do and the father has no right to tell the teacher how to do his job. And he tells the teacher things about Y’s life outside of school and involves the teacher in the dispute between the parents, and he tells the teacher what he needs to do in terms of communicating with the father.
In every way, the father oversteps the mark and tells the teacher what he thinks of him as though he somehow is entitled to do that, and I do not understand that he is. And the father’s repeated evidence that the only people he had an issue with at the school were the administration staff was only pulled short in its tracks when this document was shown to him. But even after he had that shown to him, he repeated that the only issue he had with the school is with the admin.
Well, he would seem to be the kind of parent that a school would find very difficult and that there is nothing to indicate that the school find the mother difficult or that the mother is dragging the dispute quite as palpably before them as the father is. They have had to put restraints around her behaviour, too, but one would expect for the most part that is to ensure that the restraints are mutual for both parents, no doubt because they are aware that the father has accused them of somehow being aligned with the mother.
So that is one example of the father’s behaviours and how the dispute between the parents has just oozed out in all aspects of the children’s lives.
I will turn now to some pretty basic areas of communication and a recent example. X has the possibility of going on a school trip to Country P this year, and the mother sought from the father his agreement to X going on this school trip with both of them contributing half of the costs.
The mother wrote to the father about that and the father’s response seemed to pretty quickly reference the fact that he wanted to take the children overseas during the mid-year school holidays this year. So he responded to the mother’s information about this with a, “Can the children come with me overseas this year?” request. So the mother then tried to get some clarity about whether he was agreeing to X going on the school trip and the half-share from each of them, and the father’s response was oblique.
He kind of said yes but that he would be expecting X to come up with his half-share or at least half of his half-share and I note that X does not have a job outside of school, so he seemed to be suggesting to the mother that X would need to do housework in his household for her half-share from him. He did not ever actually specify that he would support X going and that he would commit to his half-share but rather seemed to be suggesting that X would need to commit to his half-share.
The father then got irritated by the mother asking for clarification and refused to give it. Then when payments were due and owing, the father failed to pay in a timely way and creating more stress as the school were trying to work out whether X was going on this school trip or not. Throughout this time, the father continually badgered the mother about the children coming with him during the mid-year school holidays.
Now, the school holiday orders from the order which has been in place since 2015 provide for overseas travel for the children during times that they are with the parent who wants to take them away and with a requirement for what needed to be demonstrated to the parent staying in Australia so that that parent would not unreasonably withhold their consent. So, firstly, the father had not organised for this mid-year holiday to be just when the children are with him. He wanted to take them away for times which extended into the mother’s time. And, secondly, he failed to provide the mother with the information that the Court Orders required. Yet he persisted in asking the mother, requiring her to consent. There is nothing which requires the mother to consent to the children having time during the school holidays when they were meant to be with her to be with him instead. And he had not complied with the order, which told him what he had to do for the mother to not withhold her consent unreasonably.
He wants to take the children to Britain. Britain is a Hague Convention country. The mother has an issue with the children going to a non-Hague Convention country. But the father had not complied, in any event, with what the order required of him and her, persisted in asking the mother that the children come with him on this holiday. It was one of the applications in the Court before me and in his material most recently for trial, he makes it plain that that is what is of the most urgent for him.
I made it plain during the course of the proceeding that in the circumstances where he himself had not complied with the order I struggle to see how I would be compelling the children to go on that holiday with him outside of his ordered holiday time. He then eventually abandoned that application before me, having heard what I had said. But that issue of X’s school trip plainly become an unnecessary source of agitation between the parties.
The father conflated that trip with the trip that he proposed to take the children on and conflated it in a way which meant that he then failed to actually answer the mother’s questions about his commitment to X going on her school trip. Within all of this as well, there is the factual background of the father’s financial position and his failure to pay school fees. So he had chosen to buy plane tickets, apparently, for the children to travel with him and his partner with whom he does not cohabit for a holiday to England in the middle of the year. The plane tickets apparently cost about $3000 each for the children so he had expended $6000 on plane tickets for flights for the children at times when the children were not meant to be with him pursuant to Court Orders and where he seemed to have no intention of actually complying with the requirement of provision of real information to the mother as the Court Order requires.
This, of course, means that the mother learns that the father has sufficient funds available to him as discretionary spend to go on a holiday overseas for the children with the children in the middle of the year whilst failing to pay his liability under the binding child support agreement. The father, in his evidence, included that his company would be paying for his fees or his costs of the holiday that his partner was paying for her own flight and that the stay in Country Q on the way back would be at the company’s expense.
The company is the father. There is no other, it would seem, income earner within the company, and the father has not divulged any of the company records to the mother. And the company records are not before the Court. He filed a financial statement last year and then he has had prepared and provided to the mother’s lawyers an updated financial statement which I then allowed him to tender over objection, but I allowed the tender.
And what it tells me in his most recent financial statement is that his weekly income from his wages or salary before tax is $2884, which makes an annual income of something in the order of $150,000. His financial statement that he had filed prior to that time had something in the order of $78,000 per annum, so his financial position now would seem to be one which is much more comfortable than it was in the middle of last year or early last year when he filed and seems to have improved and, of course, I do not have his company’s financials in front of me to see what else that may provide him by way of benefit.
I note also, for example, that he is paying his own superannuation in the rate of $279 per week. $279 per week for 52 weeks of the year would exceed what the school fees are for the children at F School so he pays for himself the amount in superannuation by way of voluntary contributions, which would amount to the school fees for the children for the year, which, of course, the binding child support agreement requires.
So the mother, in trying to get a simple answer from the father about whether he will support X going on the school trip, finds herself having discussions about a whole lot of other things which are not about X going on the school trip and the parents’ commitment to fund that trip.
All of these things that I am talking about at the moment are all about the conflict between the parents and the fact that the children get exposed to this and what assessment I can make about the children’s need to be protected from the psychological harm of this conflict.
Another example, around the end of the year in 2016, there was an enforcement order made for the father’s payment of the binding child support arrears, again, relating to the school fees. An order was made by the Court in November and then there were emails between the parents in November and December. The November email from the father was on 19 November 2016. This is at page 27 of exhibit 1.
Ms Maher
It is now 99% likely that I will be subjected to a forced redundancy from work on Monday, to come into effect mid-December. I know you don’t care about the effect of all of this on the kids, but I do. All of this has now officially and totally ruined me. And you know I can’t afford private school fees. And you know there is no equity in the house. And I have no money to give to you. And the stress of your bitterness towards me has rendered me hopeless.
So you win, whatever you think that is.
I am going to arrange a session with Ms R
and I interpolate Ms R was a short-time counsellor for Y
with the kids, which I invite you to join. I’ll explain that the Court has agreed for the house to be sold to pay for school fees, which is, of course, crazy as that will release no money. And I still have all the credit card debt. And I’ll explain that I’ve lost my job. And I’ll explain that you can provide for the kids in the future. I’ll also talk to them about the future without their dad.
I ask you please to turn your mind to all of the kids’ things I have at my place and whether you want them. I’ll talk to the kids about that too. I’ll let you know the time for the appointment. I want to have this difficult conversation with the kids with the help of a professional.
Thinking back, it was crazy of me to defend your application to remove my parenting rights and care arrangements for the kids. I should have known that your madness will never end.
When they are older – and, no doubt you know the kids are already so damaged – the kids will never forgive you for the destruction you have caused.
I have real estate agents coming this week. I think the house will be sold in January or so. It is entirely probable that the sale figure won’t even cover the mortgage and sale costs. Please make arrangements accordingly for the ongoing care of our children from January, notwithstanding the permanent hurt you’ve caused them.
Let’s please make the termination of my ability to function as their provider and dad as easy as possible.
Thank you
Mr Walsh.
The mother responds 10 hours later:
Mr Walsh,
Stop writing to me about your dissatisfaction with our Court ruling, please, just follow them.
Stop involving the kids and crying in front of them.
Stop blaming me for your situation, it is of your making.
If you continue writing to me or involving the kids in this manipulative and emotionally damaging way, you will force me to seek a protection order against you, naming the children.
If this time you are serious about removing yourself from the kids lives, please, sign and return the parenting plan to me and I will make necessary arrangements.
He responds fairly soon thereafter:
Ms Maher,
Please, stop being so angry.
I have not discussed this with the kids but I will this weekend.
I am speaking to Ms R tomorrow.
I am very dissatisfied with the decision because it is completely nuts.
Selling the house won't release any money for you or school fees.
And you must be mad if you think this situation is of my making.
But there is nothing more I can do to help you or the kids save for killing myself, and I am not going to do that.
I was serious last time - if you did not agree to allow our regular camping holiday I’d already be out of your lives to avoid the conflict you produce at every chance.
The main questions for you:
Will you join the appointment with Ms R?
Do you want the kids things from my place?
Will you keep the kids at F School now that I have lost my job?
Mr Walsh.
The father was cross-examined about that. At times, he was prepared to accept that his way of speaking with the mother in emails was designed to be emotionally manipulative. At times, he was prepared to accept that it was highly emotional language and he intended to be highly emotional language. He also otherwise gave evidence before me that he works very hard for the communication with the mother to be constructive, and he believes that the mother has a controlling attitude.
With respect to this particular email, he accepted that his words were intended to manipulate the mother to not enforce the child support enforcement order. He agreed that referencing that killing himself was more emotional manipulation. He accepts that his emails are also venomous but denied that they were self-serving. He also said that his emails were words which would not be said except by a person in a dark space.
The notion that the father tries to make communication useful or constructive is difficult to see being played out in reality. The father is very emotionally manipulative and that example of 19 November 2016 is a good example of that. What then happened was that the mother became concerned about the father’s emotional stability and Mr D says in his evidence that he thinks that that was a reasonable response by the mother. And I quite agree it would be reasonable for the mother to be quite concerned about what the father intended to do there.
The notion that he intended to have a Psychologist session where he would explain to the children in the presence of the Psychologist about his financial situation and that their mother would need to provide for them in the future and that he would talk to them about their future without him is all very concerning expressions by the father. So then the father wrote to the mother on 6 January 2017 and this is page 32 of exhibit 1.
Ms Maher
I have received no replies to my previous correspondence.
I confirm my employment with the Employer S has been terminated effective at today’s date. I confirm that I depart overseas looking for work on …. I intend to be in regular contact with the children while I’m away – obviously for that to occur you’ll need to actually follow the Court Orders you sought. I confirm that I will be away for the children’s birthdays but hope to return at the end of … just before my regular care period commences on ….
I confirm that I have informed CSA about the cessation of my employment. I confirm that I will pay to you the remaining Court-ordered funds from my termination payment on … 2017 by … 2017. I can confirm that, as a result of your actions, unemployment, legal fees, payments to you, and the most recent Court Order, I have been forced to rent out my house to cover mortgage payments.
I confirm that I have repeatedly asked you to make arrangements for me to see the children before I depart on … – and absence of more than six weeks - and you have repeatedly refused. An unfathomable disgrace.
I confirm that while the children have been in your care since 27 December 2016, you have not once allowed me to speak to the children - a flagrant, deliberate and monumentally hurtful contravention of Court Orders. You did the same thing throughout January last year and we know why.
It is now almost five years of your mindless and egregious actions which have led us here, and you show no signs of stopping. I wonder whether you follow where this trajectory leads. It is quite clear that your ultimate goal is to disenfranchise me from the children. Like in all of your actions against me, their welfare never enters your mind. Every time you hurt me - virtually a daily occurrence - you effectively hurt them.
So, being clear, both Mr D and I are of the same mind that it was a proportionate response by the mother to withhold the children from the father after his email which seemed to be indicating some significant difficulties for the father. The email of 13 December 2016 says:
Ms Maher
You ignore the issues and requests made in my previous correspondence. So I won’t here make suggestions of seek our views.
I write in relation the Orders made by the Court on 16 November. No doubt you consider this is a terrific victory. It matters not to you the devastation you cause for me, the father of your children, directly, and thus inevitably to the children, almost as directly.
The Court Orders do not consider affordability, opportunity cost, emotional and financial implications, or any other real issue related to the World we live in. I have sought to explain to you the damage your five years of unrelenting pursuit of me has caused, and asked you to regulate your anger, enmity and unending sense of entitlement. Nothing has caused you to self-regulate. And I’m convinced nothing will.
My health has been massively affected. It won’t surprise you to know I have considered taking my own life. Of course, that would only hurt the kids more. But I know you won’t stop until you have crushed me. And yet I am the one who has provided for you in our marriage and for our children since they were born. But nothing ever satisfies you, especially your delusions about overseas bank accounts, hidden wealth etc. Imagine if I was a derelict father? The temptation to go down that path is of course very real. Because there is only pain that follows from trying to work hard, save and pay all the bills. And in all of this you choose to work part-time and never offer a cent toward the cost of your children. I find all of this animosity very hard to comprehend and cope with including, for example, several months ago when I had to plead with you to accommodate the timing of the annual camping holiday with the kids. I simply cannot fathom why you don’t with alacrity be supportive and accommodating of such things. Do you know what percentage of fathers in this situation would persevere in the face of your bitterness and resolve to hurt?
Anyway, I know you’re not listening. So, to the matters at hand.
·I do not have all the fund to pay the amounts ordered by the Court to pay to you. Consequently, I took the proactive step of inviting two real estate agents to quote to sell the house which was the subsidiary direction in the Orders. In both cases the real estate agents found that it was unlikely that the sale price of the house would cover the mortgage, plus sale costs. Thus not only would you not get any money, but the financial future of me, and the kids, would be destroyed. Again I know you don’t care about such things. You will have noticed that the Court Orders refer to the value of my house, not the equity, which is a rather material omission.
·I have tonight paid to you the amount of $3923.76 from my most recent pay. It is for this reason that I cannot pay on time this month’s CSA money.
·I have only $3000 still to be repaid to friends and after four years of whittling that down from $40,000 I am reluctant to pray on their generosity again, notwithstanding their horror at what I am going through and their ongoing support for me and X and Y.
·For the last three or four months, as I realised (yet again) how determined you were to see me destroyed, I have come to the view that the conflict between us will not abate under these arrangements. You have no incentive to see it end. But the costs for the kids is insidious and real and persistent. And so I started to form a view that I should simply leave their orbit, not least because you simply do not support a healthy co-parenting arrangement in any way whatsoever. And while by absence from their lives will cruel their futures forever, a fact which seems lost on you, their ongoing exposure to the conflict between us also hurts them, perhaps more. And, with a view to self-preservation, I simply cannot stand this going into a sixth year and beyond; my health will not cope.
·And so while I’ve been sustaining a reasonable level of functioning in my daily life, it has not been adequate to maintain the capabilities required to perform in my employment position. And so in … the decision was made by my superiors to make my position redundant and to end my employment with the Employer S. My termination is effective …. You may be able to understand the long-run implications of this adverse outcome in a small town like Brisbane. This is yet another implication of your pursuit of me. But, as we know, you do not care about the consequences of your actions against me. Yet here we are.
·I will receive a modest termination payment on …. From this amount I will be able to pay you the second amount of $8110 I was ordered to pay you in the 16 November 2016 Court Orders.
·I intend to temporarily remove myself from the kid’s lives in a new attempt to insulate them from the unrelenting conflict caused by you enmity toward me and unmatchable expectations of me. I fly out of the country on …. I will look for work in the Country J. I have taken medical advice which is supportive of this course of action. The last four years of your actions against me, and especially this year when I realised you were quite happy to make me homeless, have caused me severe bouts of poor health. You will know that I no longer can afford to maintain life insurance.
·I have requested you several times to join me in a session with Y’s counsellor to run through all of this with the children in our joint company. You have refused. So I have broadly explained to X and Y that: I am going away; I love them dearly; I hope the conflict between us will be lessened this way; I will always virtually be with them; I will be I constant contact; I will always support them; their mother is the most important person in their lives; I will make sporadic returns to see them; that I will return; and, I don’t know exactly what the future holds but there is no-one they can count on more for love and sustenance than me.
·I’m pretty sure you don’t understand the effects of your actions, but that quite evidently does not stop you from taking them. And my counsellor has told me to swallow that bitter pill.
·Do not send me more of your venomous and self-serving “parenting plans.” X and Y are indivisibly ours. I reserve all my rights as their father and parent, even if this is meaningless to you. This means the current parenting arrangements are simply placed on hold. I am giving you here a full and open account of the changes in my life, which are as a result of your actions and being done with the kids’ interests and my health in mind. As my circumstances changed, when I have travel plans to come home, I will let you know in advance.
·I will continue to pay off X’s braces and will continue to pay for their private medical insurance as long as I can afford it.
·You have told me you don’t want their things; so I will store these. I hope that you will take my place in taking them for hobbies and sports lessons, and for camping and boating. Y needs a lot less screen time and so I was disappointed you have opted to buy him an x-Box. He needs to be outside playing sports and working on improving his school grades.
·I am going to rent my house out which should cover mortgage costs and I hope one day to preserve this asset for X and Y. Please do not try to take it from them. I ask that you take no further financial actions against me, and that you take no further actions to diminish y role in their lives. It was the $200,000 I spent in defending you madcap application (how stupid and mindless) to remove my parenting rights and access the kids which has put me here. The last five years have been unimaginably bad; I have no doubt these years, through your actions against me, have caused me and the children irreparable harm. My friends tell me I’m virtually unrecognisable to them. I ask, I beg, please stop. I have no doubt that if you do not I will end up dead. I literally feel my body, my heart, stagger and freeze when I have to deal with whatever is the latest episode of your actions against me.
·I ask again that the kids have time with me after they go back to you on 27 December and I leave the country on …. The weekend of … would be the best.
Faithfully,
Mr Walsh
In terms of likely effect of any changes on the children’s circumstances, the biggest change which might be proposed would be the change that the father sought in his response in early last year, which would have the children living with him and spending time with the mother. Mr D does not support that and there is no evidence that that would be consistent with their best interests.
The father, I have determined, is the main protagonist in the conflict between the parents. His style of communicating with the mother is imperious and persistent and insistent. He is demeaning to her and he seems to have a view that only his way of thinking about things is the right way. It would be untenable for the children to be living with him and spending shorter periods of time with their mother. That has not been what has happened at any points in their lives. Before final separation, the father was the primary income earner and the mother was only employed in a very minor way, as I would understand it.
In terms of a change which would have the children living week about with both parents, there is no evidence to support that the parents can communicate with each other to resolve difficulties. Some very, very minor disputes are able to be resolved by them sometimes, but they are of a very minor nature and it is frequent. When there is ever anything of any substance, there is simply no agreement and it goes backwards and forwards and backwards and forwards, driven by the father, and with the mother not changing her mind from what her earlier view was, and the father plainly not accepting that and the father continuing to seek to assert his position in a way which becomes increasingly difficult and emotional. There is nothing to suggest that the children would be assisted in any way by their parents having equal time with them.
In terms of the arrangement as it currently is continuing, then there would be no change to the circumstances and the children would continue to be exposed to the conflict which exists and they would have five nights with their father, which they plainly love having, and they would have nine nights with their mother. And the very notion that Y says that that time goes quickly means that that time is a complete delight to him and that he is fully engaged in his mother’s household.
There would be no change either to them, with it remaining the same, and there is no prospect, it seems to me, of anything being different in the future in terms of the parents’ communications. Since last June, rather, they have had Mr D’s family report, which told them what counselling they could usefully have to try and change their own behaviours and their own attitudes and their own ways of thinking. Neither of them have taken that up in any useful way.
Close to trial, the father said that he had engaged with a Psychologist, but it was so close to trial that he had not actually started there at all, and he has had Mr D’s report since June last year and this trial was held in May in Brisbane. So he has had it for 11 months and done very little. So the children will continue to be exposed to this conflict, it seems, on an ongoing way.
If I was to reduce the children’s time between the parents so that their time with their father would be from school on Friday to school on Monday, it would, no doubt, make the father upset and angry and potentially irate. It would cause him to think that the mother had somehow won through her campaign of trying to eliminate him from the children’s lives. He has spoken of that for many years in his emails that the mother is just relentless in her campaign to have that happen. At no point in time does he stop and reflect upon his own behaviours and his way of interacting with the mother, which is itself relentless, that his way of behaving and interacting with her has been how she has formed her view about how difficult it is to communicate with the father. So the father would no doubt feel as though the mother has then somehow managed to achieve her aim. I have no view about whether that is what the mother would actually think. There is no evidence before me that that is what she would actually think.
The change would be disappointing to the children because the children apparently like the current arrangement as it is, but they do not like being exposed to the way their parents speak about each other, and as I have earlier said, that is predominantly their father and less so their mother. So a reduction in time would allow them to be less exposed to that.
The notion that it is annoying or a nuisance for the children to have to carry all of those things from one house to another for three nights as opposed to five nights, I acknowledge that. It also seems to me, though, that the father has imposed a greater difficulty for the children on that in moving to live temporarily to Suburb M. But it should, of course, be the parents’ obligation to be assisting the children with the moving of the things, not everything being the children’s responsibility.
But no doubt the conflict between the parents means that the parents want to have nothing to do with the need for handover. So there would be some effect on the children in lessening their time with their father.
And if I need to weigh up their wishes versus their wishes to keep seeing their father for a more comfortable length of time of five nights a fortnight and their wish for their parents to stop them being exposed to the conflict between the parents, it seems to me that that exposure to the conflict between the parents is the one which is potentially damaging.
Lesser time with their father will still allow them to have a meaningful relationship with their father, but a shorter time would lessen the exposure to their father’s way of talking about their mother. He may also talk negatively about the mother in a more intense way because the children are with him for a shorter time, but there is little I can do, really, about that save for ordering no time at all.
In terms of matters of practical difficulty and expense, everybody lives in the Greater Brisbane area. The children go to school at Suburb L, as I have said, on the … side of Brisbane. And the father says that his living arrangements in Suburb M was only a short-term lease.
In terms of the parents’ capacities to provide for the needs of the children, to their attitude to the children and the responsibilities of parenting, I consider both parents are, as I have earlier said, capable and interested parents. What their difficulty is is their inability to extract themselves from this dreadful ongoing conflict.
In terms of characteristics of the children, the children are now on the cusp of adolescence. They will need their parents’ relationships in a different way as they move into adolescence, and they will be less interested in doing activities with their parents and will see their parents more as the safe place that they come home to and where they are protected from the outside world. And when they do that, to be exposed to their parents’ conflict will make their comfort at home less comfortable, one would imagine.
These children are not Aboriginal or Torres Strait Islander children.
In terms of matters of family violence, there are no current family violence orders. There have been two undertakings previously, following the mother’s applications. And upon the father’s undertakings, the mother has withdrawn her applications for family violence orders.
Now, within all of this are some things which I have not included in the factual matrix. I have been mindful all the way through of the occupations that the parents have.
The mother is a professional with Employer U.
The father is a professional, which is a profession known for its reliance upon rationality as the basis for assumptions.
So there is, within all of the things that I have spoken about, a notion that the mother and the father, were it not for their intractable dispute between themselves, that they would otherwise be, one would have thought, members of the community who contribute their skills and abilities in their work and in their lives. So these are not people who are otherwise struggling to make life work. What they have got is a dispute very much within themselves that the father then allows to overflow into other areas, for example, his dealings with the school.
I have also been aware that Dr E did one of his psychiatric assessments in his usual thorough way. He found neither of the parents to have any psychiatric disorder. With respect to personality matters, he formed the view that the documentation suggested the father, in fact, has had significant difficulties longitudinally in appropriately managing his emotions as well as having appropriate boundaries with the children, protecting them from negative views and emotions with respect to the mother. This may suggest personality boundaries in the cluster B range. The father’s inability to recognise his own contribution to the conflict between the parties is also worth commenting on and further suggests personality vulnerabilities in the cluster B range with an apparent external locus of control and essentially blaming the mother for any alleged inappropriate behaviours or displays of emotion.
And with respect to the mother’s personality, Dr E notes that there is considerable dispute between the parties and he says that he admits the mother’s account does suggest a degree of inflexibility in dealings with the father, perhaps prioritising the need to not acquiesce to the perceived father’s controlling behaviour rather than what is necessarily in the best interests of the children. So that has all been in my mind, as well, when I have been giving this decision that Dr E had formed the view that neither parent had any mental health difficulties.
Turning, then, to the areas of dispute for the Court Order, the first one then is the issue of parental responsibility. I am satisfied that the presumption is not rebutted on the basis of child abuse or family violence. With respect to the best interests of the children, it seems to me on the issue of parental responsibility that the children’s needs would best be served by the decisions being made in such a way which does not create conflict between the parents.
There has been no way of me being satisfied that the parents are able to agree on anything of any substance at any point in time. And into the future there is still another six years before the youngest child turns 18 and there will be perhaps decisions that need to be made. Some decisions which have already been made by the Court seems to me to be ones which should simply remain in place, for example, the attendance of the children at F School. But, more importantly, it seems to me that it is important that there be the capacity for decisions that need to be made for the children to be made, and these parents cannot work out outcomes together.
The father suggested when he heard it from Mr D that perhaps they could use a parent consultant or whatever word it was that Mr D used, which was effectively that there would be a mediator who these parents turned to time and time again as required to assist them to work through issues. My difficulty with that is that the father’s way of working through issues is simply to assert his position time and time again and to assert why he is correct and to say that the mother’s decision is not correct. So I do not see any particular purpose in that opportunity being made available to the father.
And there is always, it seems to me, the capacity for these parents to have different views about things. And simply for the father to always assert that he is right is no better or worse than the mother asserting that she is right, but it is the father’s way of not letting it go and himself not choosing to agree with what the mother has said and how he allows that to just be kept alive by him is particularly difficult.
The children have two parents who are interested in them, and it is a significant step to take parental responsibility off one parent.
But I am satisfied, having seen the parties in the Courtroom, having heard the cross-examination, having spoken to Mr D myself as well as hearing the other answers from Mr D, having reviewed again Mr D’s reports, Dr E’s reports, reviewed all of the evidence again, reviewed the way of communicating as exhibited in exhibit 1, reviewing the material from the school about how the father has interacted with them, I am satisfied that these parents do not engage in a way which makes equal shared parental responsibility work, and one parent will need to have the capacity to make decisions for the children.
That person will need to be the mother because the children will be living with the mother and it would be simply unworkable and untenable for the children to be living with a parent but for the other parent to hold equal shared parental responsibility.
So the mother will have parental responsibility. On behalf of the mother, it was said that I should oblige her to seek the father’s input before making decisions. I will make that order because the mother seeks it.
It seems to me that the father may take that as an opportunity to assert his position in a way which is emotionally manipulative to the mother, which may be emotionally reactive in a way which Mr D has spoken about, which will be unhelpful and which may further harm their relationship, but the mother sought an order that she be obliged to seek the father’s input, so I will make that order, but the mother will have sole parental responsibility.
In terms of the living arrangements for the children, the children saw Mr D. I am satisfied about Mr D’s conversations with them and his notes of what they said to him and that most importantly they want the conflict to stop, to stop being involved in it and for their father, who is mostly responsible for that, to stop what he is doing. The father has not done that since June last year when that report has been available to him, and there is no reason for me to think that he is going to stop.
The mother does it too, but she does it less, and the children are less exposed to it at the mother’s, particularly bearing in mind that the children are otherwise with her more. So during the short time they are with their father, he exposes them to it even more than their mother does over the long time that they are with her.
I acknowledge that the children did not want the time to change. I acknowledge, though, it seems to me, that this cyclical way of communicating between the parents and this difficult way that the father particularly has means that the children should be exposed to that less.
Mr D had said at paragraph 8.7 and 8.8:
The father’s rupture-repair behaviour pattern, and his undermining of the mother’s stability are probably, for the most part, unconscious processes driven by the father’s attachment-style. However, in concert and over time this behaviour poses risks to the children’s psychological functioning. For example, as the children become older and probably more oppositional, their mother will attempt to enforce boundaries. If primed with the notion that their mother is mentally unstable, the children might begin to accept this as an explanation for the conflict that typically occurs between adolescents and parents. The seeded notion that their mother’s mental health is the source of conflict would cause damage to their perceptions of and interactions with their mother, and in turn, erode their secure attachment to her. Ultimately, if the children lose a secure attachment to their mother and have rupture-repair interactions with their father only, this will cause long-term emotional and psychological harm.
The father views his desire for flexibility as child-focused, yet his willingness to employ the children for the purposes of carrying emotive messages to the mother (e.g. the phone call prior to the most recent summer school holiday break) is counter-intuitive to child-focused parenting. He seems to have great difficulty refraining from involving the children in parenting disputes. This forces them into the position of taking sides with one parent
It seems to me, adding that information from Mr D to all of the other things that I have spoken about, that the children’s time with the father should be reduced and that the time should be from school on Friday to school on Monday in alternate weeks.
Turning to the other matters which are before me, in terms of the telephone communication, the mother sought an order which would have communication happening at specified times during the week on three occasions per week.
And the father sought an order that would simply allow for the children to communicate with him at all reasonable times. The mother seems to oppose that on the basis that she does not think that what the father deems to be reasonable times will, in fact, be reasonable times but will, in fact, be excessive. These children now, at their ages, are coming to a point where they do not need a parent to facilitate their telephone communication, that they will be able to do that directly with the other parent. And the father’s opposition to the children’s communication with him only being limited to one hour on Tuesday, Thursday and Sunday evening was that he would then be the only person in the world who was restricted about when he could speak with his children, that anybody else would, of course, be able to speak to his children at any point in the children’s lives when they were available.
There seems to me to be a need for some parameters too around this telephone communication insofar as it impacts upon the parents and the mother was wanting to ensure, as she would understand it, that the children’s telephone communication with their father would not impact upon her or what the children were doing in her household. Of course, if the children have their own phones and they are receiving and sending text messages, they can be doing that even whilst in the presence of the mother and not necessarily with the mother knowing who the children are having texting communications with.
It seems to me that it is not particularly helpful to try and limit the children’s communication with the father because, at this age, they will, I would have thought, be themselves initiating communication at whatever times they feel they want to. And imposing some kind of framework around when the children would necessarily speak to their father then feels to me to be quite unnatural if at other times they are texting him or emailing him or such like.
So to that end, the orders will simply say that the mother and father have liberty to communicate with the children at all reasonable times.
In terms of trying to restrain the father and the children from otherwise communicating with each other on social media, whether it is SMSes or Snapchat or WhatsApp or anything else that they might be using, it seems to me that it would be impossible for the mother to impose that upon the children. For example, if they initiate contact with the father, it would be impolite for him to not respond on the basis that he might breach an order. So it all becomes quite pointless, really, and I decline to make those orders.
I will not make an order which compels make-up time in the event that a parent is not available to take up the time with the children. None of these Court Orders are in any way an attempt by me to try and count the nights or the minutes that a child spends with the parent, and the notion that there should be make-up time is something which I will not compel by a Court Order. These parents have had no capacity to be flexible with each other. There is no reason for me to think that they will be flexible in the future. Including an order which requires some form of make-up time would require a level of flexibility that these parents are simply unable to manage.
The Christmas school holiday period and how that could be affected with maintaining the father's camping booking, which is so precious to him, at the Christmas school holidays was talked about in Court, and there was an agreement between the mother through her legal representatives and the father as to how that could be worded, and so those orders will be made for how they affect the school holiday period.
The parents plainly need a schedule for linking the Court Order to the realities of every given school year. The old order has said that the mother would draw the schedule up. The father said more than once that he should be able to get the schedule up, but having said that, he had no complaint that the schedule that the mother had drawn up was actually anything but absolutely in line with what the Court Order required. So the mother having done the job properly, having given her sole parental responsibility, the children living with her, the mother will continue to have the role of drawing up the schedule.
The next issue is where handovers will happen which do not happen at school. The orders have for a long time the handovers not at school at a service station on A Street, which is out towards F School. The father does not like the fact that it is a service station, but, in fact, he had no other suggestion, and there needs to be a place. Sure, service stations are not children play areas, but they are public and they tend to be convenient, and they are not anti-children. They are just a regular part of the community. So I will continue to have handovers which do not happen at school at that service station.
There was an issue of who would hold the passports for the children. I have ordered that the mother have sole parental responsibility and that the children live with her. I will have the children's passports held by the mother, particularly bearing in mind the particular difficulties the father has made about overseas travel and his inability to even comply with the orders for how overseas travel should happen.
In terms of whether I would make an order which compels the parents to have the counselling that Mr D says or compels the parents to participate in enforced mediation or have a parent coordinator, I decline to tell these parents what they need to do to change their way of communicating with each other. If either of them seeks to take up the counselling that Mr D suggests to them, this order will provide leave for them to provide to any counsellor Mr D's two family reports and Dr E's psychiatric assessment. So if either parent seeks to take up that counselling, they have my leave. They do not otherwise have that leave to provide those reports to anybody else, but if they choose to take up the counselling suggested by Mr D, then they have leave to provide Mr D's two family reports and Dr E's psychiatric assessment.
With respect to the binding child support agreement enforcement order, I made the orders at the beginning of these reasons with those small amendments. Save for those matters, I make orders in terms of the orders sought by the mother, which were marked by me as exhibit 5.
These orders will take effect as of now, so whenever the children are next to be spending time with the father for weekends, it will be from henceforth from Friday school through to Monday school.
I wish the parents the best with respect to their future parenting of their children, and I hope that they find a way in the future of learning to communicate more effectively and more healthily for the sake of their children.
Those then are my reasons and they are my orders.
I certify that the preceding one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of Judge Demack
Date: 15 July 2019
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Costs
-
Injunction
-
Remedies
-
Jurisdiction
-
Procedural Fairness
0
0
2