Nesbitt and Nesbitt

FEDERAL CIRCUIT COURT OF AUSTRALIA

NESBITT & NESBITT

[2016] FCCA 245

Catchwords:
FAMILY LAW – Parenting – no matters of principle.

Applicant:

MS NESBITT

Respondent:

MR NESBITT

File Number:

MLC 3620 of 2013

Judgment of:

Judge Riethmuller

Hearing date:

20 July 2015

Date of Last Submission:

15 December 2015

Delivered at:

Melbourne

Delivered on:

12 February 2016

REPRESENTATION

Counsel for the Applicant:

Mr Kenna

Solicitors for the Applicant:

Kenna Law Barristers & Solicitors

The Respondent:

In person

Counsel for the Independent

Children’s Lawyer

Ms Trapski

Solicitors for the Independent

Children’s Lawyer

Trapski Family Law

ORDERS

All previous parenting orders be discharged save and except for the Airport Watchlist order made 26 May 2014 (Noting that the Order expires on 26 May 2016).
The mother have sole parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2008 (“the children”) with the requirement that she consult with the father on any major or long-term issues, giving him adequate notice so that he may respond.
The children live with the mother.
The children spend time and communicate with the father as follows:
(a)From after school Friday to before school Monday during the school term for two consecutive fortnights (being week 1 and 2, and of each 3 week cycle. Commencing the first weekend after the children return to school each term.)
(b)For half of the long school holiday period in December / January as agreed and failing agreement, on a week about basis;
(c)During the school term holidays:
(i)For ten days for two periods of school holidays, commencing after school or 3.30pm on the Friday of the last week of term until 12.00pm on the middle Sunday, with the father to elect which school holidays this shall occur no later than 1 February each year;
(ii)For half of the remaining school term holidays by agreement, and failing agreement from after school or 3.30pm on Friday of the last week of school term until 12.00pm on the middle Saturday UNLESS the mother provides notice (of 28 days) to the father of an intention to travel with the children for a two week period, then such time shall be suspended.
(d)From 5.00pm Christmas Eve until 3.00pm Christmas Day in 2016 and each alternate year thereafter;
(e)From 3.00pm Christmas Day until 5.00pm Boxing Day in 2017 and each alternate year thereafter;
(f)From 9.00am to 5.00pm on Father’s Day (and the children shall spend time with the mother from 9.00am to 5.00pm on Mother’s Day) notwithstanding who the children are spending their regular weekend time with;
(g)On the children’s birthdays from after school to 7.00pm if a school day, and from 10.00am to 3.00pm if a non-school day if the children are otherwise in his care, and if the children are in the mother’s care, the children shall spend time with the mother;
(h)By telephone at reasonable times, and on reasonable request of the children, with the mother to facilitate the children receiving such calls; and
(i)As otherwise agreed between the parties in writing.
Changeover shall occur at school where practicable or otherwise at the maternal grandmother’s residence with the father restrained from entering the property, and the parties shall not come into contact with one another.
The mother and father be restrained by injunction from:
(a)Discussing the Court proceedings with the children (or either of them) or allowing anyone else to do so;
(b)Exposing the children (or either of them) to the parental conflict;
(c)Physically disciplining the children; and
(d)Passing message to the other via the children unless by way of a communication book.
The child X born (omitted) 2003 remain enrolled and attend (omitted) High School until further order.
The child Y born (omitted) 2008 remain enrolled and attend (omitted) Primary School until the completion of his primary school education and thereafter attend (omitted) High School until further order.
The Father be at liberty to obtain information from each of the children's schools that is usually disseminated to parents (at his own expense) including but not limited to school reports, newsletters, photographic order forms and the like, and this order act as an express authority for the Father to do so.
The Father be at liberty to obtain a login and password for any online system run by each of the children's schools for parents to obtain information that is usually disseminated to parents, and this order act as an express authority for the Father to do so.
The Father be at liberty to attend school events that parents are usually invited to attend including, but not limited to, school concerts, sports days, parent teacher interviews and the like, and this order act as an express authority for the Father to do so.
The Father be listed as an emergency contact at each of the children's schools, and the Father to ensure that he provides the school with his contact information (address, mobile telephone number and email) and update the school as to any changes within 48 hours of same.
Each parent to ensure they have a complete uniform set for each of the children, including sports uniform at their own expense.
Each parent comply with the reasonable direction of the children's school with respect to the payment of fees, excursions, stationery and the like, and equally share the cost of any such requirement by the school.
Each parent to ensure that the children (or either of them) are not exposed to conflict (or allow anyone else to do so) should both parents (or their families) attend the same school event at the same time.
The Father shall contact each child's school at least once per school term (if he has not otherwise attended a parent-teacher interview) to be updated as to the progress of each of the children.
Each parent to ensure that the children complete their homework as required and assist the children as necessary to ensure that the homework is completed.
The order appointing the Independent Children’s Lawyer is discharged.
Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Nesbitt & Nesbitt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3620 of 2013

MS NESBITT

Applicant

And

MR NESBITT

Respondent

REASONS FOR JUDGMENT

This is an application for parenting orders. The applicant and respondent married on (omitted) 1999, following which two children were born, X in 2003 and Y in 2008. The parties separated under the one roof in 2008, finally living separately and a part in 2011. A parenting agreement for the children to live with the mother was entered into in late 2011.
The mother is 41 years of age, born in 1974, and works as a (occupation omitted). The father is 47 years of age, born in 1968, and operates a (business omitted).
A binding financial agreement resolving the financial issues was entered into in December 2011.
In these proceedings the mother seeks sole parental responsibility for the children, together with an order that the children live with her and spend one weekend per fortnight from after school on Friday to the commencement of school on Monday by way of contact with the father.
The father seeks an order that the parties have equal shared parental responsibility for the children, and in his Response sought leave to particularise his proposed care arrangements pending the outcome of the family report. Whilst it was unclear precisely what orders the father wanted, in substance it seemed he seeks that the children live with him or spend time with him on a week about basis.
As the trial unfolded, it became apparent that the father sought that the children live with him and spend limited time with the mother. The father sought that the children spend time with the mother for one day per week from 8.00am to 10.00pm if not a school day or from 7.30am to 7.30pm if a school day, and on Sundays from 8.00am to 7.30pm. He proposed that during school holidays the children spend three days in the mother’s house, and if time between the children and the mother were to be extended that it take place in his house, at least for the first year.
The final parenting orders ultimately sought by the father are described in a document he produced which was marked ‘Exhibit 11’ during the hearing. A useful aid to understanding the practical issues of the case is the A3 sheet marked ‘Exhibit 12’, which is a print-out of a map of the region with the locations of the schools, businesses and workplaces and homes of each of the parties clearly marked.
The father was adamant that the children should change schools to either return to (omitted) College (despite the difficulty of determining who would be able to pay their school fees) or, alternatively, to the (omitted) Primary School and the (omitted) Secondary College, both of which are very close to where the father operates his business.
Both parents presented as difficult people in the witness box. The mother was very forthright and intense in the way that she gave evidence. She would stare intently at the father, even when a question was addressed from the bench. Having observed her in the court room, it was difficult to conclude that there were any signs of fear or apprehension with respect to the father. There would certainly be little or no capacity for her to consult or negotiate with respect to parenting issues with the father.
The father presented as a relatively relaxed witness; however, this demeanour hid his dogmatism with respect to his issues. It is clear he put much energy into engaging with the police and the Department of Human Services around these issues, and appeared to gain some enjoyment from appearing in court to give evidence and discuss parenting issues. Whilst he presents as a far more amiable and engaging person than the mother, at least in the court room, it is apparent from the tenor of his evidence as a whole that his underlying position is as dogmatic as that of the mother.
There appears to have been two significant events involving family violence. The first occurred in 2011 where the mother alleges that the father grabbed her by the throat and left a bruise on her arm, and that she attempted to defend herself with a knife. The police arrived and the father left the premises, following which the police obtained an intervention order. On the father’s version the mother was abusive of him and ‘pulled a knife’ on him, following which he attempted to defend himself by grabbing her arm to disarm her.
It is difficult to make specific findings with respect to this incident given that there was less than effective cross-examination of the mother by the father who represented himself (the mother explained that he had attempted to choke her, and she went to the kitchen to obtain a knife and told him to go away, after which she called the police), and no substantive cross-examination of the father about this issue.
The second incident to which the parties attach significance occurred early in 2014, when the eldest child told a school counsellor that she was struck by the mother. Child protection authorities contacted the mother as a result of reports of physical abuse by her and her new partner. The mother’s response was most aggressive, with the mother attending at the school in the company of two men that were said to be threatening and abusive, with one videotaping the scene and the other alleging that the staff at the school were ‘in a lot of legal trouble’.
Prior to this there was also an incident where the father, on his return from a trip overseas, attended at the mother’s house unannounced, only to discover that the mother’s current partner was present. A confrontation occurred, and, ultimately, the father left.
What became apparent in the family report interviews is that this, and another incident that the parties focused upon from more recent times, punctuate what appears to have been a long, ongoing conflict and absence of communication between the parents.
In the context of a case where the eldest child has reported witnessing mutual physical and verbal violence between her parents, including threats to kill, it appears to me to be likely in this case that both parents participated in domestic violence.
At the commencement of 2014 the father also sought to have the Child Support Agency enforce what he says were outstanding child support arrears which further aggravated the arrangements between the parties.
After hearing the parties give evidence about these issues and their relationship, it is difficult not to come to the conclusion that upon the father becoming aware that the mother had, in fact, re-partnered, he commenced a campaign which also involved the children. The mother, being a greater disciplinarian in parenting than the father, provided fertile fields for the father to undermine her. Since that time there have been a number of intervention order applications, and the applications to this court have resulted in much more limited time between the children and the father than the generally shared arrangement which appears to have been in place prior to this event.
In August 2014 orders were made for the children to spend five nights per fortnight with the father and for him to obtain a rental property in which to reside with the children, rather than the children living with him in the warehouse from which he operates his business.
In late 2014 the mother sought to change the children’s schooling arrangements by shifting both children from their school. She gave notice to the father of this by way of emails as early as September 2014. The first email set out in detail the research that the mother had done, including a detailed list of the associated fees.
The father opposed any changes in schooling. The mother proceeded to make the arrangements, following which, at least during October 2014, the father had notification from the schools with respect to changes in enrolments. At this point the father put forward his proposal that the children attend at the (omitted) schools in an email of 28 October 2014, with his reasons why he believed those schools were more appropriate. Faced with this deadlock, the mother continued to make the arrangements that she thought were best.
Of course, from a legal perspective it would have been better had one or the other of the parties applied to the court for orders, given that the parties have equal shared parental responsibility. It is sadly all too common that such a course is not taken by parents.
Parental responsibility is dealt with in s.65DAC of the Family Law Act which provides:
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parentalresponsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The section provides no mechanism for resolving a deadlock, as appeared in this case, ignoring the obvious reality that parties who are in such conflict as to require court orders relating to their parenting arrangements are commonly unable to reach agreement about major long-term issues.
As a matter of law, the mother ought not to have changed the children’s school without agreement of the father, and therefore has technically breached s.65DAC. However, on a pragmatic level, the father was given more than adequate notice of the mother’s intentions, providing, therefore, a more than adequate opportunity to bring an application before the court to restrain the mother from making such a change. Ultimately, this is not a basis upon which one would automatically change the children’s schools, as to approach the case on such a simplistic basis would be to ignore the interest of the child being of paramount consideration.
Indeed, the schooling issue in this case is more complex as the previous school was a private school, which by private school standards had modest fees, however those fees were not insignificant.
The college fees for the existing high school are set out in Exhibit 13, showing that the fees are $3,100.00 per year until Year 10 and $3,600.00 per year for Years 11 and 12, together with a building levy of $200.00 per family and a warning that the fees are adjusted by the college executive annually. In addition, there is the cost of the bus, which is $760.00 per annum if it is taken each way, or $380.00 per annum one way.
At the new school, for the younger child, the fees remain similar ((omitted) primary school fees), however there is an after school care program which provides both before and after school care at an out of pocket cost of between $6.35 to $8.90 in the mornings and between $8.46 to $12.70 in the evenings.
Interestingly, with respect to the school costs, the mother seemingly overstated them when giving her actual evidence compared to the fees as ultimately disclosed in the documents. However, given the mother’s income amount and the father’s limited income, it appears to me that it is not unreasonable that she would consider it financially unsustainable to keep the children in the school that they were at as a result of the high school fees.
This presented an intractable difficulty, as the father had not offered to pay the school fees and therefore these children had to move to a different school.
In determining the school, it is also significant to note that neither the mother nor the father have attended at the (omitted) schools to ascertain its suitability for the children. The father has not attended to assess the suitability of the schools the mother had chosen. The mother had made inquiries and says that the younger child is doing much better at the new school than the previous school due to differences in teaching arrangements. There are no school records or other independent evidence to confirm this nor is there any evidence from the father on this point, as he has not engaged with the school at that level nor has he subpoenaed the records.
The older child has been drawn into this issue, as her time with the father has been more limited since her enrolment in the new school. During interview, she said that, despite feeling settled at the new school, she believed that her relationship with her father was more important than continuing at this particular school and was advocating a change of school to enable her to spend more time with her father. When the family report writer raised with her the possibility of the father relocating to an area closer to the school, she responded positively to the proposed scenario, pointing out that there was before and after school care at the younger child’s school that would support such an arrangement.

In order to have some reliable submissions about schooling I appointed an Independent Children’s Lawyer, and after hearing from them made orders for schools prior to judgment so that the child could be enrolled and commence at the start of the school year.
The notes from the interviews with the school counsellor appear at Exhibit 15 to 18. In the notes it is set out that the mother admitted to smacking the child at times, although denied using a shoe. She also admitted that, at least in the past, she had imposed punishments such as not permitting the child to pat her cat for an entire week. The mother also advised the school psychologist that she was now withdrawing her consent to the child seeing the psychologist even though there had earlier been consent and the child has started to build a relationship with the psychologist.
The final incident of significance that the parents speak of is the father’s claim that the mother’s partner had hit the elder child. The incident appears to have arisen out of events that took place in a car when the mother, her partner and the two children attended at a supermarket and the mother went in and the children remained in the back of the car. The mother’s partner gave evidence about the incident which involved the children fighting, and him attempting to intervene.
The incident as described by the child is set out in a police statement prepared after the father took her to the police. The description is brief and it is convenient to set it out in full. It says
Yesterday, Sunday 25^th January 2015, I was at the Coles car park in (omitted). It was about 11 or 12 o’clock, sometime before lunch.
I was in the back seats of the car with my brother Y. I was sitting behind the driver’s seat. My mum’s boyfriend Mr P was sitting in the driver’s seat. Y was sitting behind the front passenger’s seat. Mum was shopping in Coles.
Y and I were playing in the car. We were trying to see who was stronger by grabbing each other’s arms and squeezing them. Y grabbed my arm too hard and I screamed and that’s why Mr P got angry. Mr P told Y to “shut up and be quiet”. That’s when Y copied Mr P. Y was trying to be funny. This made Mr P angrier. Mr P turned around and grabbed Y by both of his knees. Y screamed and Mr P said “I can do it harder than that, I can make you cry for a week in hospital”. Y was screaming out like he wanted him to stop, it sounded like it hurt Y. Mr P grabbed and squeezed Y’s knees for about 10 or 15 seconds.
Mr P then got out of the car and slammed the door. He put the windows up even though he knew we were hot. About 2 minutes later, my mum came back and Mr P was yelling about what happened. They got in the car and went home.
I came to the police station with my dad today to tell the police about what happened.
Even on this description, the incident does not appear to me to be out of the ordinary and is consistent with the kinds events that occur when parents are frustrated with bored and fractious children.
The evidence of the mother’s partner was generally in accord with the sequence of events detailed in the police statement. He was cross-examined at length about the incident and said that he had put his arm between the children to try and stop them hitting or kicking each other, and had pushed the boy’s legs back where they ought to have been in the back seat to stop him kicking the girl. He denied squeezing the boy’s leg or threatening to put the child in hospital, maintaining that they are generally good children with whom he has a good relationship.
I am not persuaded that this incident was one which was appropriate to take to the police, and prefer the evidence of the mother’s partner in this regard.
Other complaints with respect to the partner, I do not accept. However, having seen him in the witness box and observed him in cross-examination, I have little doubt that he would not take a backwards step in any altercation involving the father.
The family report writer’s ultimate summary of the views of the elder child set out at paragraph 51 of the report as follows:
51. X exhibited the cognitive ability to critically consider various options which would enable her to spend significant time with his father. She expressed frustration that her parents were unable to communicate and thus were unable to generate practical solutions to enable her and Y to spend significant time with him. Overall, X appeared content that a solution could be constructed in the future with the assistance of the Court. If however, her parents and/or the Court were unable to facilitate practical parenting arrangements for her and her brother, the writer had a sense that given X’s strong views and sense of autonomy, that she may take matters into her own hands in the future and organise her own (and Y’s) parenting arrangements, contrary to any arrangements made by her parents.
With respect to the younger child, he said:
53. Due to difficulties in the communication between his parents, Y believed that they were unable to facilitate him spending regular time with his father, despite them being able to organise a few nights with him over Easter 2015.
54. Y spoke positively about his new school, and even more positively regarding his experiences of his new before school care program.
55. In discussing his family relationships, Y identified X as his closest family member, and stated that he did not wish to be separated from her. Y did not raise any safety concerns in the care of either parent.
56. In discussing his future parenting arrangements, Y requested to spend more time with his father, however he was unsure how this could occur and did not think that his parents could facilitate this for him “because they do not like each other”.
The family report writer ultimately concluded –
71. Despite Ms Nesbitt's belief that her and the children are happy, content and settled in the absence of Mr Nesbitt in their lives, in the event the children's relationship with their father is not maintained, it is likely that Ms Nesbitt ‘may have won a current battle, is likely to lose the war’. In the event the parents are unable to facilitate the children's developmental needs and expressed wishes to spend significant time with their father, it is highly likely that X would elect to live primarily with her father in the future and encourage Y to leave with her.
72. The children have both consistently expressed a wish to maintain their significant relationship with their father and on each occasion they have been interviewed they sought additional time with him. X has maintained that she had historically shared a closer relationship with her father whilst her relationship with her mother has periodically been strained. Whilst X reported that her relationship with their mother has recently improved, she continued to seek significant time with her father. It is noted that X was disappointed that her wish to live primarily with her father, as expressed during the Child Inclusive Conference in June 2014, was not fulfilled.
73. Over the last six months, X had considered many varied options to facilitate her and Y spending significant time with their father. She had already made the decision that it was more important for her to spend significant time with her father, rather than maintaining her education at (omitted) High School. X is currently compliant whilst she awaits the outcome of the Court Orders. In the event however, that her parents and/or the Court are unsuccessful in facilitating appropriate parenting arrangements for her, it is highly likely that X may once again align herself with her father, and take her parenting arrangements ‘into her own hands’.
74. Given the close relationship between X and Y, coupled with Y’s expressed wish not to be separated from his sister, in the event appropriate parenting arrangements are not facilitated for the children and X chooses to live primarily with her father, it is likely that Y would choose to follow her.
The family report writer recommended orders to effect the following:
77. The parameters of parental responsibility for long- term decision making for X and Y is to be determined by the Court
78. The children live primarily with their mother and spend significant and substantial time with their father during school terms
79. During school terms, consideration be given to the following options;
A. That the children spend time with their father every two out of three weekends, whereby Mr. Nesbitt collects them from school on Friday afternoon and Ms Nesbitt collects the children from Mr Nesbitt’s business on Monday mornings.
B. That in the event Mr Nesbitt is able to relocate to the (omitted) area, X continues to be enrolled at (omitted) High School, and Y be enrolled in before and after school care at (omitted) Primary School to enable the children to spend time with their father as per the current orders.
C. That from term one 2016, X be enrolled at (omitted) Secondary College, and Y be enrolled in before and after school care at (omitted) Primary School to enable the children to spend time with their father as per the current orders.
80. The children spend time with their father for half of all school holidays.
81. Mr Nesbitt participates in personal counselling to assist him in his communication with Ms Nesbitt, enabling a more rational rather than emotive response in order to make sound decisions. This may be accessed at Lifeworks in the CBD. Ph. 1300543396.
82. Ms Nesbitt continues to engage with a family support service, Child First for as long as recommended by this service, to assist in building her parenting capacity and improving her relationships with the children
83. The parents engage in mediation as required from time to time
I accept the family report writer’s evidence.

School Claims

It is apparent that the high school the eldest child now attends is very close to the previously attended primary school. However, the fact that there is no school bus available to facilitate pick up and drop off arrangements presents difficulty, according to the father, having regard to the father’s work arrangements.
The current arrangements require the father to travel a considerable distance during peak traffic hours, and for him to ensure that he has a staff member working to keep the (business omitted) open while the father tends to pickups and drop offs. The father does have a staff member, who the father says assists mainly with the (omitted business) and does not have the skillset to operate the (business omitted). At school pickup time it seems to me that the (business omitted) is unlikely to be busy. In any event trying to operate a (omitted) is not a significant task.
The proposed move of the eldest child to the associated secondary school of the private school that they were attending the previous year would have presented the same transport difficulties as the shift to the current high school. The shift of the youngest child to the current primary school moved the schooling location of the youngest child to around half the distance between the mother’s current residence and the previous primary school, but double the distance from where the father has his business.
The (omitted) schools, the father’s business and the mother’s workplace are all within a few blocks of each other.
The mother’s only explanation for her obvious lack of any serious consideration of the (omitted) schools is that she is hoping to shift her place of work in the future. It is difficult not to come to the conclusion that the mother’s choice of schools was in large part driven by a process that excluded the (omitted) schools, as this would have facilitated further interactions with the father and ease of contact. It is understandable for the mother to seek to have the father distanced from her own life given his obvious intrusiveness, particularly now that she has a new partner, however that runs contrary to the expressed desires and wishes of the children and continues to fuel the difficulties.
The parties are both engaged in a scheme of manipulation; the mother in making arrangements for school that make it particularly difficult for the father to continue to have the time with the children as ordered, and the father in having minimal time since the change in schooling arrangements to try to force his preference. These actions are impacting negatively upon the children.
The Independent Children's Lawyer recommended that the older child continue be enrolled at the school that the mother had enrolled her at on the basis that that was the strong preference of the child. She indicated that she did not want to attend the (omitted) school, which was the father’s preference. It appears to me that the locations of the schools in this case are both realistic options. Given the difficulties that the children face with respect to the parental conflict ultimately the personal preferences of the child should be given weight in these circumstances. I therefore made schooling orders to reflect X’s preferences prior to the commencement of the school year and the delivery of these reasons.
With respect to Y, it is important to note that he has been struggling with school and is behind the milestones one would expect for a child of his age. It does not appear that this is as a direct result of failure of parenting or supporting the school environment (for example, his attendance is good and he has a peer group at school and appears relatively settled). Given that Y has difficulties with his schoolwork, it appears appropriate that he continue at the school at which he is now settled and which has already instituted interventions with respect to literacy and numeracy. In these circumstances, it seems that his best interests are promoted by remaining at the school that he is currently at.
An issue on a practical level with respect to travel was raised by the father, which I have dealt with above. Ultimately, it seems to me that the schools that the children are presently at are a better option for meeting their best interests, even having regard to the difficulties that are being placed upon the father.

Parenting orders proposed by the Independent Children’s Lawyer

The orders proposed by the Independent Children's Lawyer with respect to parenting were drafted and handed up when the Independent Children’s Lawyer made submissions. Those orders are in the following terms:
a)The child X born (omitted) 2003 remain enrolled and attend (omitted) High School until further order.
b)The child Y born (omitted) 2008 remain enrolled and attend (omitted) Primary School until the completion of his primary school education and thereafter attend (omitted) High School until further order.
c)The Father be at liberty to obtain information from each of the children's schools that is usually disseminated to parents (at his own expense) including but not limited to school reports, newsletters, photographic order forms and the like, and this order act as an express authority for the Father to do so.
d)The Father be at liberty to obtain a login and password for any online system run by each of the children's schools for parents to obtain information that is usually disseminated to parents, and this order act as an express authority for the Father to do so.
e)The Father be at liberty to attend school events that parents are usually invited to attend including, but not limited to, school concerts, sports days, parent teacher interviews and the like, and this order act as an express authority for the Father to do so.
f)The Father be listed as an emergency contact at each of the children's schools, and the Father to ensure that he provides the school with his contact information (address, mobile telephone number and email) and update the school as to any changes within 48 hours of same.
g)Each parent to ensure they have a complete uniform set for each of the children, including sports uniform at their own expense.
h)Each parent comply with the reasonable direction of the children's school with respect to the payment of fees, excursions, stationery and the like, and equally share the cost of any such requirement by the school.
i)Each parent to ensure that the children (or either of them) are not exposed to conflict (or allow anyone else to do so) should both parents (or their families) attend the same school event at the same time.
j)The Father shall contact each child's school at least once per school term (if he has not otherwise attended a parent-teacher interview) to be updated as to the progress of each of the children.
k)Each parent to ensure that the children complete their homework as required, and assist the children as necessary to ensure that the homework is completed.

The legislative consideration

I turn, therefore, to consider the appropriate orders to be made under Part 7 of the Act. First I turn to consider the matters in s. 60CC.
In this case, the older child X expresses a preference to live with her father. As the Independent Children’s Lawyer stated, the concerns of X were that her mother would not be flexible in arrangements if she sought extra time with her father. As I indicated in argument, this is a view that that is not an unrealistic concern by the child, given the attitude of the mother in this case. Y also wished to spend more time with his father, although did not appear to have expressed a desire to change residence. But like X, he also expressed concerns that the mother would not be able to facilitate that.
It appears to be that the children rely upon each other for support and are emotionally close. Given the extreme level of antagonism between their parents, it does not appear to me that they would wish to be split in the care arrangements. Having seen each of their parents in the witness box, it also appears to be that the father, whilst he would be more laissez faire in his parenting arrangements, nonetheless presents similar levels of obstinance to that of the mother and towards the mother’s involvement with the children. In short, I am not at all persuaded that the difficulties the children confront at present around arranging their desired amount of time with the father would not be precisely the same if they were to be living with the father, save that they would then have difficulties arranging their time with the mother.
The children have a positive relationship with the father which they desire to continue. On balance, it appears to me that they also have a positive relationship with the mother, although she takes on a greater part of the boundary setting in parenting which, in the context of the laissez faire parenting attitudes of the father, to some extent impact upon her relationship with the children.
The history of the schooling difficulties indicates the lack of preparedness of the father to participate in a meaningful way in the making of decisions about the children. He did not attend to see the schools that the children were attending and does not appear to have had any real insight into X’s preference to attend the school that she is currently attending. He was heavily focused upon having the children at schools closest to where he lives, which appeared to primarily be to meet his needs. Whilst the mother changed the children’s schools without the agreement of the father, it is also clear that she gave him more than adequate notice of her intention to do so and he took no steps to bring the matter to the Court.
Both parents have allowed the dispute between them to overtake their focus upon their children’s best needs, although, on balance, this has been far more significant on the part of the father than the mother. The mother, despite the expressed wish of the child X for some time for more time with the father, has not been prepared to or practically able to facilitate that preference for the child.

Both parents actively participate in their time with the children, although the attitude of the father to not take up all of the time that may be available because it created inconveniences to him from time to time again reflects an underlying inability to place the children’s needs before those of his own. Whether he will take up time with X, given that it involves some inconvenience to him around school pick‑up and drop-offs remains to be seen. One can only hope that this will not be manipulated by the father as a basis to put pressure upon X to move to a school that she does not prefer and that she is not presently attending.
In this case, there is no significant change to the children’s circumstances nor a significant increase or reduction in time with either parent. If I were to accept the father’s submissions and change the living arrangements so that the children were to primarily live with the father, it would be a significant difference, not only in living arrangements but parenting style.
I have referred to the practical difficulties with respect to the father running his own business above, however beyond that and some suburban travel there are no significant practical difficulties with respect to time.
I am satisfied that both parents can provide for the day-to-day mundane needs of the children relating to basic housing, food and the like (noting that in the past there were some difficulties with the father living in the business premises, but these are now resolved).
I have real doubts as to each parent’s ability to provide for the emotional needs of the children as a result of the level of conflict between the parents. The mother’s response to this conflict has effectively been to attempt to shut the father out. The father’s response has been to constantly manipulate and attempt to engage the authorities in issues concerning the children that did not warrant intervention, for example, taking the child X to the police with respect to the incident in the car whilst waiting for the mother at the supermarket. I am satisfied that the mother’s partner at the time of the trial presented no risk to the children and that nothing untoward occurred in the car, despite the allegations of the father. The campaign by the father against the mother’s new partner has been unreasonable and will have resulted in nothing other than an entrenchment of the mother’s dislike of the father.
I have had regard to the age, maturity and gender and lifestyle of the parties and children in this case. The particular characteristics are referred to above.
The children are not said to be of Aboriginal or Torres Strait Islander descent.
The comments that I have already made reflect the attitude to the children and the responsibilities of parenthood by each of the children’s parents. I see little prospect of an easing of the tensions and dislike between the parents in the future, which has resulted in the children experiencing difficulty in having the parents make arrangements for them to spend time with their father.
I have regard to the family violence that has occurred in this case as set out above. I am not persuaded that there is likely to be this violence towards the children, and that in the future it seems unlikely that there will be violence between the parents.
Whilst I would hope that the orders in this matter will bring the matter to an end, it seems that the history of behaviours of the parties is likely to result in ongoing litigation, unless both are prepared to confront the practical reality that an end to litigation will be of greater benefit to the children than any particular alteration to the orders around the children’s arrangements.
I turn then to the primary considerations in s.60CC.
In this case the relationship between the father and the children is one that has real meaning for the children as they have clearly expressed to the family consultant. Despite the negative aspects of his parenting and personality discussed above, having seen him in person in court it is easy to see that he will present a personality that the children would bond with and that there is much that they would receive from a relationship with him. It is also of greater benefit to them to have a relationship with both the mother and father to experience their different personality styles of parenting styles. Despite the preferences of X to live with the father, it is nonetheless clear that the children have a meaningful relationship with the mother. The real risk to the meaningful relationships is the extent to which the inability of the parents to facilitate having time with both parents may undermine that relationship over time. This is a particular risk with the mother given her attitude to the father.
Despite the events that have occurred in the past, I am not persuaded that the children are at risk of physical harm on any of the arrangements put forward, nor neglect. I am persuaded that there is an ongoing risk of psychological harm as a result of the level of acrimony between the parties. However, I am also satisfied that there would be a greater risk of psychological harm to the children if their relationship with one parent were terminated in an effort to reduce the acrimony between the parties.
In these circumstances the best that can be achieved is clear orders with respect to parenting arrangements in the hope that the parents will reduce their level of conflict over time.
I turn then to the question of parental responsibility. It is clear that in this case the parties’ relationship is such that the prospect of them jointly agreeing with respect to anything concerning the children is completely unrealistic. In these circumstances, it is not appropriate for there to be an equal shared parental responsibility order as it would not function in the best interests of the children. I am persuaded that the children’s best interests would be served by the mother having an order for parental responsibility with a requirement that she consult with the father on any major or long-term issues, giving him adequate notice so that he may respond and, if necessary, bring an application before the Court. This is the process that she effectively adopted with respect to the schooling.
As I am not persuaded that equal shared parental responsibility is appropriate in this case, s.65DAA is not engaged and I need not turn to consider those matters.
Turning to consider the best interests of the children as a whole, I am persuaded that their best interests are served by continuing to reside with the mother, but having structured a significant time with the father. It appears to me that the proposal by the Independent Children’s Lawyer best provides for an appropriate balance between the children’s needs and desires, and the importance of a structured arrangement to attempt to minimise the conflict with the parties. I am not persuaded that there are other factors beyond the best interests of the children that would lead to any different outcome in this case.
I will therefore make orders in terms of the draft provided by the Independent Children’s Lawyer.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 12 February 2016

[2016] FCCA 245

12 February 2016

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Family Law

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Injunction

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