Norton and Norton (No.2)
[2018] FCCA 53
•23 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
NORTON & NORTON (No.2) [2018] FCCA 53
Catchwords:
FAMILY LAW – Application for final parenting orders – children 9 and 6 – father seeking equal shared parental responsibility and equal time – mother seeking sole parental responsibility children to live with mother and spend time with father – high conflict, acrimony and hostility characteristic of the parents’ relationship – conflict continued unabated – inability of parents to communicate in relation to matters concerning the children – father previously changed older child’s school in full knowledge that mother did not consent – father changed younger child’s day care without advising the mother – children have warm established relationship with both parents – conflict likely to continue – order made for sole parental responsibility children to live with the mother and spend time with the father.
Legislation:
Family Law Act 1975, ss.60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 65D, 65DAA, 65DAC(2), 65DAC(3)
Cases cited:
Saldowne & Reith [2010] FamCA 169
Moses & Downing [2009] FamCA 1270
H & H (2003) 176 FLR 35
Johns & Jasapas [2016] FamCA 471
Applicant: MS NORTON
Respondent: MR NORTON
File Number: PAC 986 of 2015
Judgment of: Judge Tonkin
Hearing dates: 4 & 5 September 2017
Date of Last Submission: 5 September 2017
Delivered at: Canberra
Delivered on: 23 January 2018 REPRESENTATION
Counsel for the Applicant: Mr Battley
Solicitors for the Applicant: Murray J Nott Solicitor
Counsel for the Respondent: Mr Tockar
Solicitors for the Respondent: Gown & Gavel Solicitor Advocate for the Independent Children's Lawyer:
Solicitors for the Independent Children’s Lawyer:
Ms Tran
Legal Aid NSW Parramatta
ORDERS
(1)The children of the marriage, X born on (omitted) 2008, and Y born on (omitted) 2001 (“the children”) shall live with the mother.
(2)The mother shall have sole parental responsibility for the children.
(3)Notwithstanding Order 2 hereof, the following shall apply:
(a)No less than 21 days prior to making any decision affecting the children's care, welfare and development, including but not limited to issues concerning the children’s education, medical treatment and their place of residence, the mother shall do the following:
(i)Notify the father in writing of any such decision; and
(ii)Give consideration to any views expressed by the father.
(b)Upon a decision being made in accordance with this order, the mother shall notify the father in writing of her decision and the reasons therein.
(4)Notwithstanding Order 2 hereof, the mother shall:-
(a)Do all such things as are necessary to authorise the father to receive directly copies of the children's school reports and school photograph order forms;
(b)Do all such things as are necessary to authorise the father to liaise directly with any specialist medical practitioner in the event that the children, or either of them, require specialist medical treatment ;
(c)Notify the father as soon as practicable of any medical emergency which results in hospital admission and do all such things as are necessary to authorise the father to liaise directly with treating medical practitioners in relation to any hospital admission;
(d)Notify the father of all extracurricular activities that the children are enrolled in and provide the father with the information relevant so that he may attend those events and permit his attendance;
(e)Notify the father of any change of place of residence in writing within 7 days of any change save that the parties are restrained from relocating the children’s residence outside the Sydney catchment area;
(f)Notify the father in writing 14 days in advance of any proposed change of schools for the children and seek his view.
(5)Unless otherwise agreed in writing, the children shall spend time with the father:-
(a)From after school each alternate Friday to before school the following Tuesday; and
(b)For half of all the NSW gazetted school holiday periods, being the first half in even numbered years and the second half in odd numbered years.
(6)Notwithstanding these orders, the children shall:-
(a)Spend time with their mother from 10:00am to 5:00pm on Mother’s Day; and
(b)Spend time with their father from 10:00am to 5:00pm on Father’s Day; and;
(c)During years ending in an odd number spend time with the mother from 9:00am Christmas Eve to noon on Christmas Day; and
(d)During years ending in an odd number spend time with the father from noon on Christmas Day to 3.00 pm on Boxing Day.
(e)During years ending in zero and an even number spend time with the mother from noon on Christmas Day to 3:00pm on Boxing Day; and
(f)During years ending in zero and an even number spend time with the father from 9:00am Christmas Eve to noon on Christmas Day; and
(7)The father shall collect the children:-
(a)From the children’s school each alternate Friday during school term; and
(b)From the mother’s residence at the beginning of any block, gazetted holiday time he is spending with the children.
(8)The father shall return the children to school during school terms each alternate Tuesday.
(9)The mother shall collect the children from the father at his residence on completion of the father’s holiday time with the children.
(10)Changeovers, other than at the children’s school, shall occur at the mother’s residence or the father’s residence.
(11)In the event that the father spends time with the children in the first half of the school holidays his time with the children shall resume the first weekend after school resumes and in the event he has the children in the second half of that holiday period his time with the children shall resume on the second weekend after school resumes.
(12)The first half of all school holidays periods shall commence at 9:00am on the first Saturday of such holidays.
(13)The second half of all school holidays periods shall commence at 9:00am on the mid Saturday of such holidays and conclude the day before the next school term commences in the event the children are with the father during that period.
(14)The Christmas/New Year end of term school holiday period as gazetted shall end at 4:00pm on the Saturday immediately preceding the new school term in the event the children are with the father in the second half of that holiday period.
(15)If either child’s birthday falls on a school day, the parent with whom the child is neither living with nor spending time with on that occasion shall spend time with the child from after school until 6:30pm with that parent to collect the child from school and return the child to the other parent’s residence at 6:30pm.
(16)If either child’s birthday falls on a week-end the parent with whom the child is neither living with nor spending time with on that occasion, shall spend time with the child from noon to 6:00pm with that parent to collect the child from the residence of the other parent at noon and return the child to the other parent’s residence at 6:00pm.
(17)Each party may communicate with either child on alternate days between 6:00pm and 7:00pm.
(18)The mother is at liberty to collect the children’s passports from the Parramatta Registry and retain those in her safe custody.
(19)The father is restrained from cutting, or allowing any other person to cut X’s hair.
(20)The father shall notify the mother in writing seven days before changing his residential address.
(21)Notwithstanding these orders, the children shall not change schools and/or travel overseas without the written consent of both parties. In the event that either of these matters is in dispute the parties shall participate in mediation to resolve these issues.
Notation
A.The father shall ensure that all school uniforms worn by either child are returned each fortnight.
IT IS NOTED that publication of this judgment under the pseudonym Norton & Norton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTAPAC 986 of 2015
MS NORTON Applicant
And
MR NORTON Respondent
REASONS FOR JUDGMENT
Introduction
1.The parties married on the (omitted) 2006 and separated in late 2014. There are two children of the marriage, X born (omitted) 2008 (now 9) and Y born (omitted) 2011 (now 6). The central issue in this case is whether the parents should have equal shared parental responsibility for the children and the time each of the children shall spend with their parents. The father seeks a week about arrangement and the mother seeks to maintain the current arrangement where the children live with her and spend four nights a fortnight with their father. Both parents agree the children should spend half the school holidays with each of them. The relationship between the parties in an acrimonious one. There is a high level of mistrust on both sides and the parties are unable to agree on many important matters concerning the children including where they should live, where they should attend school and how significant health issues should be treated.
Documents relied on
2.The mother relied on her affidavit filed 27 June 2017. The father relied on his affidavit filed on 10 July 2017, the affidavit of the paternal grandmother, Ms O filed on 7 July 2017 and the affidavit of the father’s partner, Ms V filed on 7 July 2017. A number of documents were tendered as set out in the Exhibit table below. All legal representatives filed a case outline and summary of argument.
Competing proposals
3.The mother sought the following orders:
1. The children of the marriage, X, who was born on (omitted) 2008, and Y, who was born on (omitted) 2001 (“the children”), shall live with the Mother.
2. The Mother shall have sole parental responsibility for the children.
3. The Mother shall promptly inform the Father of all decisions made in respect of the children’s long-term care, welfare and development.
4. The children shall spend time with the Father:-
4.1 From after school each alternate Friday to before school the following Tuesday; and
4.2 During half the end of term school holidays as gazetted, being the first half in odd-numbered years and the second half in even-numbered years.
5. Notwithstanding Order 4, the children shall:-
5.1 Live with the Mother:-
5.1.1 From 10:00am to 5:00pm on Mother’s Day; and
5.1.2 From 9:00am Christmas Eve to noon on Christmas Day; and
5.2 Spend time with the Father:-
5.2.1 From 10:00am to 5:00pm on Father’s Day; and
5.2.2 From noon on Christmas Day to 3:00pm on Boxing Day.
6. The Father shall collect the children:-
6.1 From the children’s school each alternate Friday during school term; and
6.2 From the Mother’s residence at the beginning of any block, gazetted holiday time he is spending with the children.
7. The Father shall return the children to school during school terms each alternate Tuesday.
8. The Mother shall collect the children from the Father at his residence on completion of the Father’s holiday time with the children.
9. Change overs, other than at the children’s school, shall occur at the Mother’s residence or the Father’s residence.
10. In the event that the father has time with the children pursuant to Order 4.2 above in the first half of the school holidays his time with the children pursuant to Order 4.1 shall resume the first weekend after school resumes and in the event he has the children in the second half of that holiday period his time with the children shall resume on the second weekend after school resumes.
11. The first half of all end of term, school holidays as gazetted shall begin at 9:00am on the first Saturday of such holidays.
12. The second half of end of term school holidays as gazetted shall begin at 9:00am on the mid Saturday of such holidays and conclude the day before the next school term commences in the event the children are with the father during that period.
13. The Christmas/New Year end of term school holiday period as gazetted shall end at 4:00pm on the Saturday immediately preceding the new school term in the event the children are with the father in the second half of that holiday period.
14. The handover for the purposes of order 13 above will take place at 6:00pm on the middle day, and if there are an even number of days, the first day of the second half of the holidays.
15. The calculation pursuant to order 14 includes all public holidays occurring in that school holiday period including but not limited to Christmas Day and Christmas Eve hence the calculation is not affected by the children having time with either parent on Christmas Eve and Christmas Day pursuant to these orders.
16. If either child’s birthday falls on a school day, the Father shall spend time with both children from after school to 6:30pm. To facilitate such time, the Father shall collect the children from school and deliver them to the Mother’s residence at 6:30pm.
17. If either child’s birthday falls on a week-end when he/she is with the Mother, both the children shall spend time with the Father from noon to 6:30pm. To facilitate such time the Father shall collect the children from the Mother and return them to her residence.
18. If either child’s birthday falls on a weekend when he/she is with the Father, both the children shall spend from noon to 6:00pm with the Mother, to facilitate such times, the Mother shall collect the children from the Father and return them to him.
19. The above orders, 16, 17 and 18 do not apply in the event a child’s birthday occurs on a handover day.
20. Each parent may communicate telephonically with either child on alternate days between 6:00pm and 7:00pm.
21. The Mother is at liberty to collect – and retain – the children’s passports from the Parramatta Registry.
22. The Father is restrained from cutting, or allowing any other person to cut, X’s hair.
23. Each party is to notify the other in writing seven days before changing his or her residential address.
Notation
A. The father shall ensure that all school uniforms worn by either child are returned each fortnight.
4.The father sought the following orders:
1. That both parties have equal shared parental responsibility for the care, welfare and development of the children X born (omitted) 2008 (“X”) and Y (“Y”) born (omitted) 2011 (“the children”).
2. That the children live with the mother and spend time with the father from 3pm every second Friday to 3pm the following Friday.
3. That unless otherwise agreed in writing between the parties, the children spend time with the father on the following special occasions:
3.1 The first half of each school holiday period in odd numbered years and the second half in even numbered years;
3.2 From 12pm Christmas Eve to 12pm Boxing Day in odd numbered years;
3.3 From 12pm New Year’s Eve to 12pm New Year’s Day in even numbered years;
3.4 From after school the day of the respective child’s birthday to before school the following day.
4. That the time above be suspended on the following special days and the children spend time with the respective parent as follows:
4.1 From 9am to 6pm Mother’s Day if the children are not already in the Mother’s care;
4.2 From 9am to 6pm Father’s Day if the children are not already in the Father’s care;
4.3 As agreed between the parties for each of their respective birthdays.
5. That the children’s enrolment at (omitted) Public School be transferred to (omitted) Public School.
6. That during times when the children is in their care, each parent will encourage the children to communicate with the other parent by telephone or otherwise at times agreed between the parties, and in the absence of agreement every second day between 6:00pm and 7:00pm.
7. That the parties will encourage and foster the children’s relationship with them and their grandparents, and neither party will denigrate the other or members of the other’s family to the children, and will take into account the wishes of the children in relation to them spending time with each party.
8. That each party inform the other as soon as possible of any serious injury or illness suffered, or any medication taken by the children, whilst the children are in their respective care.
9. That each party do all acts and things and sign all documents so as to authorise the children’s health and medical practitioners to release information relating to the children’s health and welfare to the other parent.
10. Each party must notify the other parent and keep them notified of a telephone number in the event of an emergency and notify the other re changes of address and phone number within seven days.
11. That both parties do all acts and sign all documents so as to provide the other parent’s details as an emergency contact on each occasion that the children are enrolled in an extracurricular activity or at any organisation that requires the provision of emergency contact details.
12. That both parties provide the other with written notice of any appointments made with any health care professional or school in relation to the children within 48 hours of such an appointment being made as to allow the other party an opportunity to attend.
13. Unless otherwise agreed and for the purposes of changeover, the father shall collect the children from school at the commencement of his time and return the children to school at the conclusion of his time.
14. Unless otherwise agreed in writing, both parents are restrained from removing the children from school or care whilst the children are in the care of the other parent.
15. Unless otherwise agreed in writing, both parents are to facilitate the children attending extra-curricular activities in lieu of third-party care. For the purposes of this order, third-party care is taken to include but is not limited to before and after school care.
16. Unless otherwise agreed in writing, each parent is to give the other parent an opportunity to care for the children in the event either parent is unable to do so.
17. Unless otherwise agreed in writing, any time lost with either parent is to be made up at the earliest available opportunity so that the total number of nights with either parent remain equal over the given period.
18. That the parties continue attending upon Mr P at (omitted) for joint family therapy and counselling sessions.
19. That the parties have joint responsibility for decisions about the religion, religious instruction and observance of the children and either party is restrained from making unilateral decisions about the religion, religious instruction and observance of the children.
20. That the children be given the opportunity to be enrolled in (omitted) and/or religious education classes.
5.The Independent Children’s Lawyer proposed the following:
1. All previous parenting orders in relation to X, born on (omitted) 2008 and Y, born on (omitted) 2011 be discharged.
Live With/Parental Responsibility
2. That the children live with the Mother.
3. The Mother shall have sole parental responsibility for the children.
4. No less than 21 days prior to making any decision affecting the children's care, welfare and development, including but not limited to issues concerning the children's Education, Medical Treatment and their place of residence, the Mother shall do the following:
(a) Notify the Father in writing of any such decision; and
(b) Give consideration to any views expressed by the Father.
5. Upon the decision being made pursuant to Order 4 above, the Mother shall provide the Father in writing of her decision and the reasons therein.
6. Notwithstanding Orders 3, 4 and 5 above, the Mother shall:-
(a) Do all such things as are necessary to enable the Father to receive directly copies of the children's school reports and school photograph order forms;
(b) Do all such things as are necessary to authorise the Father to liaise directly with any specialist medical practitioner in the event that the children, or either of them, require specialist medical treatment ;
(c) Notify the Father as soon as practicable of any medical emergency which results in hospital admission and shall do all such things as are necessary to authorise the Father to liaise directly with treating medical practitioners in relation to any hospital admission;
(d) Notify the Father of all extracurricular activities that the children are enrolled and provide the Father with the information relevant so that he may attend those events and permit his attendance;
(e) Notify the Father of any change of school and place of residence in writing in relation to the children.
Time with
7. That the children spend time with the Father as follows:
(a) From after school each alternate Friday to the commencement of school the following Tuesday;
(b) For one half of the NSW Gazetted school holiday periods, being the first half in the years ending in even number and the second half in the years ending in an odd number;
(c) From 10am to 5pm on Father's Day;
(d) From noon Christmas Day to 3 .00pm Boxing Day;
(e) With both children on each of the children's birthdays as follows :
If the birthday falls on a school day, from after school to 6 .30pm;
If the birthday falls on a weekend that they are with the Mother, from 12 noon to 6.30pm;
At other time as may be agreed between the parties in writing.
8. For the purposes of Order 7 (b) above:
(a) The first half of all end of term school holidays as gazetted shall begin at 9am on the first Saturday of such holidays;
(b)The second half of end of terms school holidays as gazetted shall begin at 9.00am on the mid Saturday of such holidays and conclude the day before the next school term commences in the event the children are with the Father during that period;
(c) The Christmas/New Year end of term school holiday period as gazetted shall end at 4pm on the Saturday immediately preceding the new school term in the event the children are with the Father in the second half of that holiday period;
(d) The calculation pursuant to these orders includes all public holidays occurring in that periods including but not limited to Christmas Day and Christmas Eve.
9. Notwithstanding Order 7 above, the children shall live with the Mother as follows:
(a) From 10am to 5pm on Mother's Day;
(b) If either of the children's birthdays falls on a weekend in which they are in the care of the Father, the Mother shall spend time with both children from 12noon to 6pm,and for that purpose the Mother shall collect the children from the residence of the Father.
(c) From 9am Christmas Eve to noon Christmas Day;
(d) For the second half of the NSW Gazetted school holidays in years ending in an even number and for the first half in years ending in an odd number.
10. Each parent may communicate by telephone with the children on each alternate day between 6pm and 7pm when the children are not in their respective care.
Changeovers
11. For the purposes of changeovers that do not otherwise occur at the children's school, the Father shall collect the children from the residence of the Mother at the commencement of his time with the children and the Mother shall collect the children from the residence of the Father at the conclusion of the Father's time with the children.
Restraints
12. Neither parent shall denigrate the other in the hearing or presence of the children or either of them.
13.Neither parent shall discuss decisions made the other parent with the children or either of them, or in the presence or hearing of them or either of them.
14. Within 7 days of the making of these orders the mother shall make arrangements to enrol the child X to attend group sessions at relationship Australia.
Background
6.The parties married in (country omitted) on (omitted) 2006. At that time the father was working in Sydney at (employer omitted). After the parties married he moved to work with the (employer omitted). The mother was working as a (occupation omitted) with (employer omitted). Just prior to X’s (“X”) birth on (omitted) 2008, the parties moved from a townhouse in (omitted) to an apartment owned by the mother’s father in (omitted).
7.The mother took maternity leave with X. 10 months into her leave she was made redundant. She commenced part time employment as an (occupation omitted) at (employer omitted) three times a week Tuesday to Thursday in (omitted) 2009, when X was about 15 months.
8.When X was born she required resuscitation and was in a special care unit. Further she suffered from jaundice. The father was unemployed at that time. The mother continued as X’s primary carer full time until returning to part time work. The father helped care for X. The mother said she was responsible for drop-offs and pick-ups of X from day care at (omitted) organising her work hours around the child.
9.In (omitted) 2011 the family moved into a house in (omitted) and Y (“Y”) was born on (omitted) 2011. The father took 2 days off from work while the mother took 11 months maternity leave. The mother enrolled X into (omitted) at (omitted) 3 days a week. Full details for both parents were provided on the enrolment form. She returned to work 2 days a week initially working from home. In November 2012, Y commenced day care at (omitted) and the mother returned to work 3 days a week. This continued until November 2014.
10.X commenced school in February 2014 at (omitted) Public School both parties in agreement that (omitted) was the best choice for her.
11.In (omitted) 2014 the father took a 3 week trip to (country omitted) leaving the children in the mother’s sole care. She was strongly opposed to the father taking this trip.
12.On (omitted) 2014 the mother discovered messages between the father and another woman. She told him she wanted a divorce. In November 2014 she increased her employment to 4 days a week.
13.According to the father on 17 November 2014, the parties separated under one roof.
14.On (omitted) 2014 the mother had surgery. She did not see or speak with the children on this day claiming that the father would not allow this.
15.On 5 December 2014 the father presented the mother with a parenting agreement he had downloaded from the internet. The agreement proposed a week about arrangement. The mother agreed to sign the document on the condition that the father return the children in accordance with the agreement. This arrangement was in place during the school holidays.
16.In January 2015 the father commenced a relationship with Ms V.
17.On 15 January 2015 the parties attended mediation. On 16 January 2015 the father first raised his wish to change X’s school and Y’s day care.
18.On 19 January 2015 the father enrolled Y in (omitted) day care without the mother’s knowledge or consent.
19.On 27 January 2015 the father’s partner, Ms V had a motor vehicle accident and came to live with him and the children. She returned to her home in February 2015. The mother says that X told her “We have to take care of Ms V.”
20.In early February 2015 X resumed school at (omitted) Public School.
21.Between 2 February and 16 March 2015 Y attended (omitted) day care whilst in his father’s care. The parties attended further mediation on 10 February 2015 but no agreement was reached.
22.On 20 February 2015, the mother sent the father an email seeking assurances that he would return the children to her on Friday 27 February and that he would take no steps to enrol X in any other school. He agreed. The mother delivered the children to the father on 20 February 2015, however, thereafter he retained the children in his sole care until 16 March 2015.
23.On 24 February 2015 the mother received a phone call from X's Principal advising that the father had requested a transfer of X to a new school. The mother sent a letter to the school informing them that she did not consent to the child being transferred. The father alleges that on this day the mother withdrew from mediation and requested a section 60I certificate.
24.On 25 February 2015 the father advised the mother that he considered he was no longer bound by the agreement they reached on 20 February 2015.
25.The father unilaterally removed X from (omitted) Public School and enrolled her in (omitted) Public School. She commenced there on 1 March 2015.
26.The mother did not see or spend time with the children from about 27 February 2015 for about 3 weeks. She alleged that the father had abducted them.
27.On 6 March 2015 the mother filed her initiating application. The father was served with the application on 9 March 2015.
28.On 13 March 2015 the father allowed the mother to see the children under the supervision of the paternal grandparents at a cafe.
29.The matter was heard before Judge Donald on 16 March 2015. The parties entered into Consent Orders that provided that the children be returned to their mother by 6.30pm on 16 March 2015 and thereafter live with the mother. An order was made for the mother to solely make decisions regarding education and care of the children but to provide the father with 21 days’ notice of any intended change of school or child care arrangements. X was to resume her education at (omitted) Public School and Y to resume day care at the (omitted). The father was to spend time with the children from Saturday at 9.00am until Monday before school each alternate week and for half the school holidays. The father was required to lodge the children’s passport with the Parramatta Registry.
30.On 25 April 2015, according to the mother, the father advised her he did not want to spend weekend time with the children anymore as they were always unsettled. He requested the children spend time with him for block periods during school holidays.
31.On 11 May 2015 the father had a serious motor vehicle accident and sustained severe injuries. On 28 May 2015 the father had surgery to reconstruct his shoulder.
32.On 17 July 2015 Judge Newbrun heard the father’s interim application for equal shared parental responsibility and extra time on a fortnightly basis. The application was dismissed save that a number of orders were consented to including that the children spend time with the father during school holidays and special days and communicate with him each alternate day. In addition, an order was made that the father was not obliged to require Y to attend day care when in his father’s care save that the father was required to care for him personally and deliver him to day care on Wednesday morning. The parties were to attend family counselling.
33.On 15 April 2016 the Family Consultant released his report. He recommended against an equal shared care arrangement for the children and raised concerns regarding the parents’ inability to communicate regarding matters impacting on the children.
34.On 20 May 2016 an Independent Children’s Lawyer was appointed.
35.Y was admitted to (omitted) Hospital for a ruptured appendix on (omitted) 2017.
36.On 10 February 2017 the parties attended mediation. Further orders were made by consent by Judge Newbrun on 21 January 2017.
37.In March 2017 the mother commenced work 5 days per week.
38.On 7 July 2017 the father filed an amended response seeking a week about arrangement for the children and equal shared parental responsibility.
39.On 13 July 2017 the matter was listed for final hearing but was not reached.
40.On 4 September 2017 the matter proceeded to trial. Both parties were represented by Counsel, gave evidence and were cross examined during the proceedings.
Mother’s evidence
41.In her affidavit the mother complained there were substantial trust issues between her and the father. She said he lost $40,000 of her savings on the stock market. He lied about many things for example he dialled her phone number in 2010 accidentally. She said “hello” and he ignored her. She could hear him talking to someone and he said “I bought a plane.” When he got home the mother confronted him and said “don’t you think you should do something about your lying? It’s not a good example to set for a child” (X was about 2). He replied “you probably think I should have nothing to do with her.” The mother said “It’s a pretty major character flaw, don’t you think you should get some help?” He said “it’s not as big a priority as my weight I think it’s more important to fix that.”
42.In 2014 the father had weight loss surgery. After that he started going out almost every night and going away most weekends. He would say “I don’t have time to spend with the kids, I’m too busy catching up on work.”
43.In April 2014 she said she confronted him about his absences and a relationship he was having with “Ms R.” She said “you’re taking the piss a bit being out all the time. In the last 10 days you have been out 8 nights. Don’t you think that’s a bit much. You seem to be spending a lot of time with this girl.” He said “do you think there’s something going on between us?” She said “I don’t know – you tell me.” He said “no way she is a (omitted) she would never get involved with a married man.”
44.She said the parties had significant financial difficulties. The father was terminated from (employer omitted) and was involved in a dispute with them. He was unemployed for several months. In July or August 2014 he told her “I have been chosen to go on a tour of (country omitted) as a prize for special limited edition (vehicle omitted) owners.” At that time the mother said he owned a (vehicles omitted) and a Jeep. They used a (vehicle omitted) for the family car. She responded “if you go on the trip I’m getting a divorce.”
45.In early September 2014 he decided to go ahead with the trip. He said “the trip is a “prize” but airfares and other expenses are not covered.” He went away for a month. On his return he told her he had been made redundant by (employer omitted). She said she was upset that he was again unemployed and had spent an unknown amount of money on a trip to (country omitted). She challenged him to show her proof that the trip was a “prize.” He told her he could not find the paperwork but a few weeks later told her he was made redundant before he took the trip to (country omitted).
46.She alleged that following a business trip she took to Perth, X told her “daddy had his girlfriend stay the night last night.” On 18 October 2014 the father told the mother after the children were in bed that he was going to help a friend fix his (vehicle omitted). She found a phone that was not hers and discovered a series of messages between the father and “Ms V” (Ms V). One message said he had travelled to (country omitted) with Ms R, however the messages implied that he was interested in Ms V sexually. She said she phoned him and said “we’re getting a divorce.” He said “No.” She said “what do you care You’re already divorced. You’re just waiting for me to notice. Well I’ve noticed.” He said “what’s going on.” She said “I found your other phone. I found your messages. Just how many phones do you have? Who even are you?” She said she started looking for somewhere else to live the following day.
47.She attended her GP to have a test for an STD due to the father’s infidelity. She was provided with a Mental Health Care Plan and mild sleeping tablets. She said the parties then attended a number of marriage counselling sessions.
48.The mother said she discovered that the father had borrowed $10,000 from (omitted) Bank to fund his overseas trip. She confronted him about it. It was then he made the comment “If I didn’t go on that trip I would have been hanging from a rope in the backyard.”
49.On 27 November 2014 the mother informed the father that she would be moving to new premises on 5 December 2014. She said she received an email from the father on 28 November 2014 saying she could no longer come back to the family home. I accept the mother’s evidence. The father claims that it was on this day that the parties separated.
50.The mother applied for a rental property close to X’s school and Y’s day care. According to the father he told her not to apply for the premises at (omitted) as he didn’t want the agent to know (as it was the same agent they leased the (omitted) property from). Towards late November 2014 the relationship became more volatile with the mother alleging that whilst the parties were having dinner the father got angry and threw a plate before storming out. She advised him on 27 November 2014 that she would be moving into the apartment at (omitted) on 5 December 2014. He signed a form releasing her from the lease.
51.She said on 28 November 2014 she attended the marriage counsellor that the parties had been seeing. She stayed with a friend that evening and the father took the children and her car saying he was attending a party that evening. The following morning she received email correspondence from the father to which she replied indicating that as the school holidays were about to commence, she agreed to trial a week about arrangement but requested the parties engage in further mediation. She was booked to have surgery on (omitted) 2014. She attended the former matrimonial home to collect her belongings to find some things packed in boxes and others dumped on the floor. Further, the father told her not to go into the storage cupboard in the front room where all her artworks and photographs were stored.
52.Following her surgery on (omitted) 2014, she returned to her father’s home and stayed there for a week. Though she requested to see the children, the father refused her request and said “I’ve spoken to a child psychologist and she didn’t think it would be a good idea for them.” When asked he said he was unable to recall the psychologist’s name. She claimed that the father had involved the children telling them “Mummy doesn’t love Daddy anymore and that is why she doesn’t live here anymore. From now on you will spend a week with Daddy and a week with Mummy.” He told the mother “if you don’t agree to the proposal I will just keep the children at the house.” I accept the mother’s evidence that the father did not facilitate her spending time with the children and involved the children in the dispute. X certainly had knowledge of the parenting dispute as she had discussed this with the Family Consultant.
53.The mother said she continued to request Facetime with the children or dinner with them but the father refused her requests. On 3 December 2014 she discovered he had locked her out of her email account that she had used for the previous 8 years. He retained the computer in the family home. He had unrestricted access to her passwords and internet banking. She had to reset all passwords and open new bank accounts. He agreed he disabled her email account that he had “administrative control over” claiming she accused him of monitoring her text messages and emails over the years.
54.On 3 December 2014 X phoned her and said “where are you.” She replied “I’m at my father’s house.” In my view the children would have found their mother’s absence highly distressing if not frightening at this time. In my view the father showed no insight in preventing the children spending time and communicating with their mother during this period.
55.The mother said the father retained her car and she had to request it be returned to her. The father told her “I sent it away to have bull bars and other aftermarket parts removed so I can sell them, you can have it then” but did not return the car. She said on 4 December 2014 she contacted (omitted) police about the car and then contacted the father. He said “the car had been parked in (omitted) and has received a parking ticket.” She then recovered the car. The mother said she found the father’s conduct intimidating, frightening and controlling and was distressed and upset being away from the children for an entire week. He said the car had been in his care for the last 6 years and that there had been an agreement that he would return it to her on the day he left it parked in (omitted). I accept the mother’s evidence in this regard. The father’s conduct in retaining her car was obstructive and intimidating in my view.
56.On 5 December 2014 the mother collected both children after school and day care and took them to her new apartment. She received a message from the father that said “come alone there are things I want to discuss with you.” The parties met and the father presented her with a parenting agreement he had downloaded from the internet. The parenting agreement had written on it “trial agreement until 31 January 2015.” It proposed a week about arrangement. She agreed to sign the document if he agreed to return the children in accordance with the plan. He said the parenting arrangement was accepted by the mother on an interim basis. On this occasion he told the mother “I am very angry that you collected the children.” This was in circumstances where he had prevented the children from seeing, spending time and communicating with their mother for about a week.
57.The children spent week about with the parties during the school holidays. The mother said she requested Facetime or phone contact with the children as per the agreement when the children were with the father, however, he refused save for permitting the occasional call when they were in the car and on speakerphone. I accept her evidence in this regard. She said she ensured the children communicated with the father twice a week during her time. She offered that the father speak with the children on Christmas Day as they were in her care however he did not respond to her offers.
58.On 15 January 2015 the parties attended mediation and the father said he wanted to change X’s school and Y’s day care. He told the mother that he would soon be working in the city and would not be able to work a full day in the city and get back in time to collect the children. She said “the children need the stability of staying in their usual school and day care” and opposed any change. She advised him she would consider changing Y’s day care centre as it closed at 6pm and it could be difficult getting back from the city in time. She told him “I’m dead against any change to X’s school. It is an excellent school, we chose it together and she is settled there.”
59.On 30 January 2015 the father told her “I have given notice on Y’s day care on Wednesdays and Thursdays.” She asked why as she needed to work those days. He said “Well I don’t need them so I have cancelled them. I haven’t been using before and after school care this week.” She asked whether X was still enrolled there. He said he didn’t know. He said he was moving soon. She asked where he was moving to and he replied he was looking at 3 places. He told her “I want to change X’s school sooner than later.” She again told him she was against any change to X’s school and said this needed to be discussed at mediation. She reminded him that the agreement said they would not change the children’s school or day care enrolments without agreement. According to the mother he said “that’s not how I interpret it.” He told her “it expires in two days anyway so until then we will just go with our own interpretation.” She said “if that part expires it all expires.” I accept that this conversation took place. Having heard the evidence I formed the view that the father interpreted matters in a manner that suited his needs regardless of the mother’s views. The parenting plan he had drafted unambiguously stated that the parents could not change the children’s schooling or day care arrangements without agreement.
60.The mother said she was advised by Y’s day care centre that he had ceased attending during alternate weeks when he was with his father. On 19 February 2015, Y while in the car said “there’s a rabbit at my other school.” X said “(omitted), Daddy said it was supposed to be a secret.” The mother was unaware that on 19 January 2015 the father unilaterally enrolled Y in (omitted) day care and that he commenced attending there on 2 February 2015. The father does not dispute the fact that he agreed to the mother’s proposal made on 20 February 2015 that he provide an assurance regarding the parenting agreement including that he “will take no steps to enrol X in any other school until this issue has been resolved by mediation, negotiation or otherwise.” He was quite duplicitous in this regard. He had organised for his father to sign a statutory declaration on 24 February 2015 that X would be residing in her grandfather’s home from 15 March 2015.
61.On 25 February the father advised the mother he was no longer bound by the agreement he made on 20 February 2015. Later that day the Principal from (omitted) Public School contacted the mother and advised her he could not prevent the father enrolling X in school in the absence of Court orders. The mother through her solicitor advised the father that she did not consent to X’s unilateral enrolment in (omitted) Public School. She sent a fax to (omitted) Public School advising them that she did not consent to X’s transfer to (omitted).
62.On 27 February 2015 the father wrote to the mother insisting that the parties have some form of written agreement in place for the children “in order to protect the children from escalating conflict.” He said “in the hope of buying some time and encouraging a return to mediation, he sent a draft arrangement to the mother via his solicitor that was intended to last a month.” The email he forwarded to the mother on 27 February 2015 contained the following:
“1. A schedule of handovers for the next month.
2. Acknowledgement that X is currently enrolled in (omitted) Public School and that neither parent will make any changes to school enrolment without written consent.
3. That neither parent will attempt to collect the children from school/day care outside of this schedule.”
63.He suggested “we can implement a simple agreement today.”
64.On Friday 27 February 2015 the mother attended the father’s address to collect the children as per the parenting agreement and he advised her “it can wait until Monday” and he was “very disappointed she did not agree” to his proposal. The mother was very distressed that she had not been able to collect the children and requested police conduct a welfare check. The parties exchanged a series of combative emails. This was the last occasion the mother spent time with the children (save for supervised time) until orders were made on 16 March 2015 for the children to be returned to her care.
65.Extraordinarily, the father emailed the mother on 1 March 2015 asking her if she would like to come with him “to drop X off at her new school.” In his correspondence to the mother through his solicitor, he raised that the mother has “a history of mental health issues that are relevant to matters in issue.” In my view, instructing his solicitor to raise the mother’s historical mental health issue was entirely improper and intimidating given that his proposal was for the parents to share the care of the children week about.
66.The mother said that during this period she didn’t know where the father was living given that he needed an address in (omitted) to facilitate X attending school there. On 4 March 2015 he advised her he had taken a lease on a property in (omitted) opposite the school. The mother commenced proceedings on 6 March 2015 and her application was served on the father on 9 March 2015.
67.On 13 March 2015 the father’s solicitor suggested the mother could spend time with the children from Friday 13 March 2015 on the basis that she provide an undertaking to return them to the father on Sunday. Alternately, she could have a visit with them “supervised” by the paternal grandparents. She agreed to the supervised visit as she said she missed the children.
68.On 16 March 2015 the matter came before Judge Donald. The parties entered into Consent Orders including that X be returned to (omitted) Public School. The mother said the father had “destroyed” X's (omitted) school uniform and bag so these needed to be replaced. X told her mother “we didn’t want to come to you because you were sending nasty things to Daddy and not sharing with Daddy.” I accept the mother’s unchallenged evidence in this regard.
69.The mother said the father had secretly enrolled Y in (omitted) pre-school in (omitted) to start there on 2 February 2015. On the enrolment form was an entry “as of 25 February 2015 Ms Norton is not authorised to collect (Y).” The paternal grandparents were listed as emergency contacts. The form was dated 19 January 2015 and signed only by the father. He had first raised the issue of changing the children’s schools on 16 January 2015 after the first mediation session. However negotiations with the mediator continued until 20 February 2015 and at no time did the father reveal his conduct or his intention according to the mother. He nominated 4 schools on 11 February 2015 none of which included (omitted) Public School.
70.Notwithstanding that X attended (omitted) Public School from 2 March 2015, the father did not move out of the (omitted) property until 26 March 2015. The mother said the father has never apologised for his conduct and she was traumatised by the whole experience and is currently undergoing counselling. I accept that the mother’s experience post separation was highly distressing for her and for the children.
71.The mother deposed that the parties are in constant conflict. Detailed arrangements for birthdays were necessary in addition to arrangements for the father’s time to resume after the school holiday period. In her affidavit at paragraph 130, the mother deposed that there were about eighty (80) significant issues between the parties from March 2015 which demonstrate the parties’ high level of conflict and inability to work collaboratively for the children. Amongst these include:
· On 25 April 2015 the father indicated “I’m not sure I’m going to stay in Sydney”;
· On 27 April 2015 the school counsellor expressed concern that the father was making inappropriate disclosures to X;
· On 10 May 2015 the father did not allow the mother to see the children on Mother’s Day;
· On 25 May 2015 the father unilaterally retained Y rather than sending him to day care;
· On 29 May 2015 the mother received documents from the Department of Education regarding the father’s enrolment of X in (omitted) School. The father had asserted that he was the primary carer and the children spent time with their mother on weekends;
· On 12 August 2015 the father phoned the children on Facetime and said “there is no more time with Daddy”;
· In September 2015 X returned from spending time with her father who had cut her hair extremely short;
· On 6 October 2015 the father sent a sexually explicit message to the mother;
· On 19 December 2015 the children were with their father for the school holidays. The father refused to administer medication for Y’s encopresis;
· On 7 January 2016 Y told his mother “why are you making things so difficult? Why did you move so far away? Why don’t you want to talk to Daddy, You feed me bad food”;
· On 17 February 2016 the mother advised the father she proposed X attend an (omitted) class (rather than (omitted)). The father objected notwithstanding he holds no religious beliefs. On 19 February 2016 the father attempted to have X removed from the (omitted) class;
· On 3 March 2016 the mother confirmed that Y had been attending a child minding facility when with his father at (omitted) without consulting her or obtaining her consent;
· On 1 May 2016 the father returned X 3 nights early claiming the mother had not sent her winter uniform but later saying he was “unable to do the school run.”
· On 4 May 2016 the father attended X’s school and said to her “I don’t know when I will see you again.”
· On 9 May 2016 the father attended X’s school and said to her “Daddy still loves Mummy, he doesn’t know why Mummy doesn’t love him anymore.”
· On 13 May 2016 Y said to his mother “If you were dead Daddy would win. Daddy has told me all about the competition he is having with you and Daddy is losing at the moment. If you were dead Daddy would win and then he could use your car.”
· On 17 May 2016 X was returned 3 nights early. Y was returned in accordance with the Court orders;
· On 29 May 2016 X was returned 3 nights early. Y was returned in accordance with the Court orders;
· On (omitted) 2016 Y was admitted to (omitted) Hospital for emergency surgery. The parties had a dispute over Y’s emergency care arrangements. Solicitors were involved over the father wishing to leave X at the hospital rather than taking her home;
· On 5 June 2016 the father demanded the suspension of all restrictions on him in relation to the children;
· On 26 June 2016 X was returned 3 nights early. Y was returned in accordance with the Court orders;
· On 24 July 2016 the father returned X on Sunday night. He was overheard telling X he would pick her up from school tomorrow (Monday) but did not advise the mother until directly questioned by her;
· On 5 August 2016 the father through his solicitor claimed the Court orders did not provide for X to spend time with her mother on her birthday as “she does not live with her”;
· On 21 August 2016 X was returned 3 nights early;
· On 2 September 2016 the mother provided the father with information for the weekend including medication instructions. The father replied advising he would not be taking the children for the weekend. X told the mother the father was going overseas and she had been told to “keep it secret from the mother”;
· On 4 September 2016, Father’s Day, the father did not contact the children;
· On 18 September 2016 the father refused to confirm whether he could collect X on Monday and Tuesday after school. The mother was required to notify both the school and after school care that she had no idea what was happening and requested they keep her informed;
· On 21 November 2016 X told her mother “I am the only reason Daddy stayed with you”;
· On 8 December 2016 Y graduated from (omitted). The father indicated he would attend but did not do so;
· On 14 December 2016 the mother advised the father regarding handover for the holidays. The father did not respond until 15 January 2016;
· On 29 January 2017 the father returned the children late for the commencement of the school term. He gave the mother an ultimatum that unless she agrees to what he wants he will take the matter into his own hands;
· In March 2017 Y commenced (hobby omitted) with the school. The father refused to collect Y from the (omitted) venue and required the mother to return to her home for him to collect both children.
· On (omitted) 2017 the mother was to spend time with Y on his birthday. When she attended the (omitted) (as pre-arranged with the father) the father and children were not there. The mother had a conversation with the children and X told her they were going camping with their father for 3 days. She had not been advised of this. She wished Y a happy birthday. She said she felt deceived by the father.
· The mother said X’s birthday arrangements in 2016 “turned into a dispute” and solicitors were involved.
72.The mother raised concerns about the father cutting X’s hair on several occasions and the negative impact this was having on X. Notwithstanding the fact that X sent her father a letter advising him “me and mum would like my hair long again” he subsequently cut her hair on 8 January 2017. In addition she raised concerns that X was required to become the “messenger” between her parents. The father acknowledged at least on one occasion in his affidavit that X has passed messages between her parents.
73.The parties disagreed about Y’s health issues. The mother advised the father that Y needed to see a paediatric gastroenterologist. The father replied “he doesn’t have these problems when he is with me. It must be because you give him cups of tea.”
74.The father had taken Y to a child minding facility at his office. The mother was neither consulted nor advised of this, Y told her in March 2016 when they were in the area.
75.The mother deposed in her affidavit at paragraph 205 to the sometimes lengthy and hostile exchanges between the parties demonstrating the manner in which the parties “communicate” (not repeated here). Further on 14 May 2017 she collected the children for Mother’s Day. X had purchased her mother a gift that the father said “was entirely her choice.” X was 8 years old at the time. The book was titled “I’m giving you the finger.”
76.The mother said the father has made no contribution to school fees, after school care, day care fees or other expenses since February 2015. Since November 2016 he has paid $200 in child support and has arrears of $12,000. He has sought a review of his child support assessment and is seeking a permanent stay according to the mother.
77.She complained at paragraph 217 of her affidavit that the father has involved the children in the dispute and set out many examples some of which include:
X said “you’re not being fair to Daddy. Why does Daddy only get two days?” and “you just keep making trouble for him” and “daddy has told he everything about it.”
78.The mother said that X was angry and upset with her and she advised the school counsellor to talk to her at this time. The Counsellor confirmed that X had been told things about the family situation that were not age appropriate. I accept the mother’s evidence that X has been immersed in the parenting dispute and is finding it difficult to extricate herself from the battle between her parents. Such is the negative impact upon her that she requires counselling.
79.X made a number of other comments to her mother saying her mother needed to “be nice to Daddy” and spoke about her father’s leg injury saying “He might die.” The father had sent to X’s iPad a picture of orthopaedic surgery.
80.X requires counselling and was attending Dr T for assistance.
Father’s evidence
81.The father said during the marriage he shared the children’s care equally with the mother. He worked from home 2 to 3 days per week from about August 2008. He stayed home full time from April 2010 to June 2010, from September 2011 to March 2012, from September 2012 to April 2013 and from September 2014 to March 2015. He said both parties performed the housework, fed, bathed and cared for the children. However I note he was frequently absent for work commitments.
82.He agreed he would take X camping and 4 wheel driving on weekends while Y generally stayed with the mother. He agreed that X was moved from day care in “(omitted)” when the mother returned to work and enrolled in (omitted). He said they were both dissatisfied with the care X received at this day care. While it was convenient to enrol Y in that day care centre, he said the parties were actively looking for alternative care facilities prior to separation. This issue was not explored before me.
83.The father said that financial issues were a cause of constant stress during the parties’ marriage. He exhausted his savings and borrowed substantial amounts of money to pay the family’s living expenses. He said the mother took 2 years of “unpaid” maternity leave and his contract work was intermittent.
84.The father agreed that the mother returned to work 3days a week in 2012 and by 2014 increased her work hours to 4 days per week. He said she rejected offers to return to work full time. He disagreed that he used $10,000 from (omitted) Bank to fund an overseas trip. He agreed that he was accused during the marriage of “hiding things” from the mother. He claimed that the mother ensured her debts were paid first by transferring funds to her own account. I am satisfied that prior to separation the parties had significant financial difficulties which caused disputes however I am unable to determine whether this was due to the father’s intermittent work or otherwise.
85.He said in 2013 he commenced working in multiple jobs to maximise the household income but the amount of debt prevented him from making any significant improvement to the parties’ financial situation. He claimed when the parties had accessible funds the mother would suggest “let’s use it for an overseas holiday or other extravagances” rather than paying down debt.
86.In November 2014 according to the father, the mother transferred the child care benefits and family tax payments to her own account. He said “when we separated in December she insisted that she be taken off the lease and utility bills immediately and threatened to disconnect services unless these changes were implemented immediately.” The email annexed to the father’s affidavit suggesting that the mother threatened him does not support that contention. In the email the mother requests the father call the energy company and put the utility in his name alone otherwise she will have no option but to have the service disconnected. As to the balance of the financial issues raised by the father, I am unable to make any finding as these matters were not put to the mother during cross examination.
87.The father said that following separation he needed to change Y’s day care and relocate X’s school enrolment but provided no reason for this other than it was his wish that the children attend school and day care in close proximity to where he elected to live. He said this was the first issue he raised at mediation however “this became a point of significant conflict” between the parties.
88.He said he spent January and February 2015 looking for suitable day care providers for Y whilst attempting to reach agreement with the mother through mediation. He emailed the mother and invited her to attend some of the day care centres with him. It appears from the material annexed to his affidavit (Annexure “F”) he forwarded to the mother on 10 February 2015 a document headed “(omitted) Campus” regarding a tour of the facility scheduled for 17 February 2015. He had however already enrolled Y in (omitted) day care and had withheld this information from her during mediation.
89.He said when the mother enrolled Y at (omitted) (where X had attended) without jointly engaging with the father, he then enrolled Y at (omitted) in (omitted) during the time Y was in his care. He agreed he did not disclose this. He said he was concerned the mother would “once again remove Y from day care on a day he was in his father’s care as she had done in December 2014.” This evidence is quite misleading. The father retained the children following the mother leaving the (omitted) property and would not permit her to spend time with the children other than on conditions set by him. He claimed he nominated the mother as an emergency contact at (omitted) day care centre. Annexure “K” to the mother’s affidavit contains a copy of the (omitted) Enrolment Form. The mother is not listed as an emergency contact only the paternal grandparents are listed there. Further the child was enrolled on 19 January 2015 to commence on 2 February 2015 without any consultation or notice to the mother. In addition, a note on the form indicates that as of 25 February the mother was not authorised to remove Y (from the centre).
90.The father alleged that the mother excluded him as an emergency contact on an enrolment form for Y for (omitted) and notified that centre that he was no longer his legal guardian. I am unable to determine this issue, as it was not agitated before me.
91.X had commenced Year 1 at (omitted). The father claimed that he attempted to reach agreement on “choices of locations which largely revolved around school zones as the potential for new enrolments would be determined by the catchment area” where he was able to obtain suitable accommodation. He said the mother refused to engage in any discussion on this topic at mediation and withdrew from mediation. For her part, she said the father nominated four schools none of which included (omitted) Public School.
92.He said he needed to obtain “a smaller place in order to reduce costs.” His selection of the (omitted) area for accommodation appears to be at odds with his desire to reduce his costs. He said his parents had arranged to travel overseas for several months and offered him the use of their home in April 2015 to relieve his financial pressure. However that does not explain why the father obtained separate premises in (omitted) in late March 2015. There was no evidence that the father moved into the home of his parents from “April 2015 for several months” on the contrary he rented accommodation in (omitted) with Ms V from March 2015.
93.He said the mother’s removal of the children from school and day care whilst in his care remained a source of significant stress for the children. However he claimed that the change of day care for Y was not a stressful experience for him. He said he was concerned that Y was exposed to bullying at (omitted) and his soiled clothing had gone unnoticed by staff. He said Y was required to attend Casualty on two occasions while attending (omitted) and neither the centre nor the mother notified him until sometime later. The mother was not cross examined regarding the father’s claims in this regard.
94.He deposed that on 17 February 2016 Y cut his arm on a defective piece of furniture which left permanent scarring. He said the mother downplayed the incident. He subsequently organised his GP to examine Y who referred him to a plastic surgeon. This matter was not raised with the mother in cross examination, as such I am unable to determine this issue, or whether Y required any further treatment. I note however that if accepted, it would confirm that the parties disagree significantly in relation to the children’s health issues.
95.The father said he was not notified by the day care centre until Y had been admitted to (omitted) Hospital with respect to a burst appendix. The mother deposed that on (omitted) 2016 the children had spent time with their father for his birthday. He had collected them from school and taken them to dinner. He delivered the children home and said Y was so tired he fell asleep in his dinner. The mother observed Y and determined he was unwell. He vomited overnight and she kept him home from school the following day. She took him to the doctor who referred him immediately to (omitted) Hospital. She texted the father advising him of this. He was then transferred to (omitted). Prior to the mother consenting to the operation, she requested the Registrar contact the father to advise him of the situation and he did so. I accept the mother’s evidence that she did ensure that the father was notified regarding Y’s sudden illness.
96.Following X’s operation, the mother phoned the father and provided him with an update including that Y would need to remain in hospital for about 5 days. The father told her he was in (country omitted) and could not return until Monday morning. There was a dispute between the parents at the hospital regarding whether the father should care for X during Y’s hospitalisation. The mother said she relied on her family for support such that her mother and her mother’s partner cared for X from Saturday until Monday morning.
97.Regarding his consent to the orders made on 16 March 2015, he said financial reasons were the principal factor “in being forced to consent.” He deposed to borrowing funds from his parents to “pay the court filing fees to lodge a response.”
98.He said regarding the 16 March 2015 orders, “these arrangements have been a constant source of conflict from the outset.” The time is “a constant stress to the children.” Both are miserable on the Wednesday mornings when he drops them off at school, they frequently cry and refuse to leave his side. He deposed that the children tell him “four nights is not half of fourteen.” He said the mother treats the arrangement “as a form of injunctive relief that is constantly used by her to justify abusive and controlling behaviour. She has criticised my role as a parent and has stalked me.”
99.He said the travel time involved in dropping off and picking up the children from their current school makes it impossible for him to commit to normal working hours in the CBD or other locations where he had been able to find work, making it impossible to service his debts. He indicated however he does not utilise before and after school care facilities preferring to spend time with the children. In addition, he deposed in his affidavit that he ran a small business providing (business omitted) to the (omitted) industries which he started in (omitted) 2015. I am unable to determine why the father could not make alternative arrangements for the children to accommodate his work hours for example, utilising before and after school care and/or relying on his parents or Ms V for assistance.
100.The father criticised the mother’s “repeated attempts to force him to take Y to day care in (omitted) during the school holidays” when he did not otherwise need to travel saying this “served no purpose other than to attempt to disrupt my ability to earn an income.” For my part, I did not understand why the mother would “attempt to disrupt the father’s ability to earn income” given she is in receipt of child support.
101.The father deposed that the mother on 2 June 2017 withdrew nearly 50% of the balance of the funds in the parties’ Self-Managed Superannuation Fund by bank cheque. He said he referred the matter to the Australian Tax Office and for criminal investigation. I was unable to determine how this issue impacted on the parenting arrangements.
102.The father deposed that the children are generally in good health though he said both are showing signs of emotional stress from “continued exposure to the conflict generated by the current parenting arrangements.” He said he has been told X is likely to reject one or both parents and Y has exhibited a range of psychosomatic conditions such as sleeping disorders and chronic encopresis as a result.
103.Since separation he said the mother has actively sought to devalue his involvement with the children “during and after our marriage.” I was unable to find any evidence to support that contention.
104.He said the mother has demonstrated repeatedly that she will engage in aggressive and disproportionate escalation of any issue in order to achieve change or re-interpret the orders for her benefit. He said he has little choice in these situations but to give into her demands to protect the children from damaging exposure to conflict. He said the mother had refused every reasonable request since the consent orders were made. Even the most trivial requests such as suggesting they communicate better about homework or that the children should be dressed appropriately had been treated by the mother as the father bullying her, manipulating her and is used by her “to stimulate conflict.” I am unable to form any view regarding these general allegations without concrete examples. It would appear, however, that in changing arrangements for the children without informing or consulting her, such as not sending Y to day care during his time and returning X early to her mother, the father engaged in the type of conduct for which he criticises the mother.
105.The father claimed the current orders disrupt the children’s close relationship with him and exclude him from daily and long term decisions. He said he did not believe it was possible for the children to maintain a sustainable, substantial and meaningful relationship with him under these conditions. I note however it is not disputed that the children have a warm, affectionate and close relationship with their father.
106.He deposed to the children’s routine indicating that the situation has improved since the children began attending the same school. He said that the round trip takes a minimum of 2 hours and overall his involvement in the school activities “consumes on average 40 hours a month.”
107.He said there have been difficulties maintaining telephone contact time specified in the orders such that he takes the opportunity to spend time with the children rather than communicate with them (I infer from his evidence that he does not take the opportunity to communicate with the children notwithstanding the orders).
108.He contends that the mother uses control over the school and care arrangements to limit the time the children spend with him preferring that the children spend time in the care of a third party. He gave as an example her attempt to force him to put Y into day care during the time he spent with his father. He alleged that in doing this “the mother is attempting to maximise her child care rebates and government benefits.” He alleged that the mother insists on extracurricular activities that coincide with the time the children spend with their father.
109.He complained that she does not communicate effectively or discuss decisions regarding the children’s education with him. He gave as an example discussions he said the parties had about religion and as a consequence X was enrolled as a “(religion omitted)” and commenced (omitted) classes. He said in February 2016 the parties attended an information night and were advised that an (omitted) class was available in place of (omitted). He contends the mother unilaterally removed X from (omitted) and placed her in an (omitted) class. He said the parties instructed their solicitors with respect to this issue. The mother contends she attempted to consult the father regarding this proposed change. It would appear that the parties continue to disagree about most matters.
110.It was not disputed that prior to separation, the father volunteered as a parent at X’s school in (omitted). He continues to do so. He assists in class literacy groups, excursions, sporting activities such as swimming and is involved in the children’s school life as much as possible. He did not indicate to the Court that his commitment in this regard was onerous. He claimed that staff at after school care and other parents have been asked to monitor his involvement in school activities and to report back to the mother. The mother denied this to be the case. She indicated that as the father refused to communicate with her as to if and when he would be picking up the children (either from school or after school care) she required the service to advise her regarding the children’s whereabouts. Notwithstanding the concerns raised by the father about the mother involving staff from after school care and parents, the father volunteers as I understand at (omitted) Public School without any apparent difficulty.
111.He said in 2016 for several months the practical difficulties associated with the orders forced him to cut back his time with X to only 1 night a fortnight. He said the mother attempted to formalise this arrangement. He said she was “entirely inflexible regarding alternative arrangements that did not involve a reduction in time.” No satisfactory explanation was provided by the father for returning X to her mother’s home early. The mother was not cross examined about any refusal on her part to suggest an alternative arrangement for X. I inferred from the evidence that his return of X to her mother’s care early was a unilateral decision on his part.
112.He said he sought to vary the consent orders to equal shared parental responsibility when the matter was before Judge Newbrun on 17 July 2015 and to increase his time to 5 nights a fortnight. He challenged Judge Newbrun’s reasoning with respect to the interim decision however he did not appeal that decision.
Cross examination of the mother
113.During cross examination the mother said she regarded the relationship between the father and the children as important and accepted that the children had a very warm relationship with him. She said there was a great deal of love on both sides.
114.She disagreed that the father had ever been “a stay at home dad.” It was put to her that between April and June of 2010 the father stayed at home full time. She said “Yes”. Again from between September 2011 to March 2012 the father stayed at home full-time, she said “he may have been unemployed between September 2012 and April 2013.” It was put to her that the father stayed at home full-time again she said “He may have been unemployed.” She said “I didn’t keep the dates.”
115.It was suggested to her with respect to September 2014 and March 2015 when the father stayed home, she was quite happy to leave the children in his sole care. She also took trips away for work. She agreed that there were times she offered the father the opportunity of being the primary carer. Initially she said there was only one occasion but when reminded that in her affidavit she indicated there were several occasions she offered the father this, she accepted that. She agreed she had asked him “do you want to take a primary carer role.”
116.She agreed that during the marriage she had confidence in the father caring properly for the children. She agreed that in 2008 she was happily married.
117.The mother was cross examined extensively about some personal diary entries she had written many years previously. These entries were tendered on behalf of the respondent father and became exhibit R4.
118.The first diary note referred to an entry dated the 1st of September 2011 where the mother noted “she felt she had thrown her life away.” She agreed that she had a drug problem in her 20’s. She was now 42 years old. She agreed that about 4 or 5 years ago she said she was in need of therapy. She said “I thought it was a good idea.” She agreed that therapy was helpful. There was no suggestion that this therapy related to drug abuse issues.
119.She accepted she had tried cocaine twice in the past and had undertaken some pot smoking in her 20s. She denied she suffered from significant mood swings.
120.She was questioned about paragraph 120 of her affidavit of 6 March 2015 and Annexure “T”. She had visited a doctor in December 2014 and made no mention that she had a past substance abuse issue. She said it wasn’t an issue at that time, she was visiting the doctor because she was anxious and upset because she was of the view that the father had communicated an STD to her and she was having testing for that reason. She said she was also undergoing marriage counselling. There was a comment in her June 2017 affidavit at paragraph 104, that she had never been diagnosed with mental health issues. Under challenge she stood by that statement.
121.It was put to the mother that she had not mentioned the STD issue in her 2015 affidavit, but that she had mentioned it in her 2017 affidavit and she did that to compromise the father. She disagreed with that.
122.There were further diary entries put to the mother where she had recorded that she was a “fucking servant”, “not coping with the child X” and the child X saying to her “I’m scared of you.” She said it is likely she made that note after she raised her voice at X. In her view it was likely X had been scared when she raised her voice. She agreed that her extended family was not talking to her at that time.
123.There was a further diary entry on the 14th of January 2008 where the mother expressed a happy relationship with her mother. When asked why her mother was not on affidavit, she said she didn’t want to put pressure her as “she is a fragile person.” She agreed that she really doesn’t have a good relationship with her mother.
124.The mother’s mental health history was raised in cross examination no doubt on the father’s instructions. It was drawn to the mother’s attention that she had recorded in her diary that she was “a drug fucked addict.” It was difficult for the Court to understand the forensic advantage in cross examining the mother on personal diary entries as far back as 1998. X was born in 2008 and Y 2011. Moreover the father had consented to orders in March 2015 that the mother be solely responsible for decisions relating to the children’s education and medical treatment and that the children live primarily with her on an interim basis. Further the father was seeking orders for the children to live week about with their mother inferring there were no real issues about her parenting capacity. I formed the view that the cross examination of the mother with respect to her past diary entries was designed to degrade and humiliate her. This reflected extremely poorly on the father and demonstrated in my view his contemptuous attitude towards the children’s mother.
(d) the likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from:
(i) either his or her parents; or
(ii) any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living;
294.The evidence suggests the children are well settled in their current arrangement. They have lived primarily with the mother since March 2015 following a disruptive period after separation where the children lived week about between November 2014 and early February 2015 and then for 3 weeks in the father’s sole care.
295.X commenced attending (omitted) Public School in 2014. The school was selected by agreement between the parties and X continues to perform reasonably well. Y is now also attending (omitted) Public School. The father at the time of interviews with the Family Consultant in 2016 was volunteering one day a week at (omitted) Public School with the mother’s encouragement. He continued to do so at the time of the trial. Both parents are heavily involved with the children’s schooling and supportive and encouraging of them. The mother is of the view that any week about arrangement would be a significant change in the children’s circumstances and not in their best interests.
296.During cross examination the father accepted that moving the children to (omitted) Public School is likely to be disruptive for them. He accepted that were the children to move to (omitted) Public School it would be very convenient for him and would require the mother to do all of the travelling. Notwithstanding his proposal the father’s own circumstances appear to be uncertain. He indicated that he had significant financial difficulties and was contemplating a move to (omitted) or (omitted) or a move closer to the children’s school in (omitted).
297.If the Court were to adhere to the father’s proposal for a change of schools there is no guarantee that the father would remain in (omitted).
298.Regarding equal time, the Family Consultant indicated that in his view “the apparent involvement of the children in the dispute and the parties’ failure to communicate indicates that equal care is not an appropriate outcome.” I agree.
(e) the practical difficulty and expense of a child spending time and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
299.There was much discussion during the proceedings about the difficulty for each of the parents ensuring the children attend school in (omitted) and spend time with each of their parents given the practical difficulties involved in the children travelling from the father’s current home in (omitted) through morning and afternoon traffic to (omitted), the length of time this takes and the delays encountered on busy Sydney roads. The mother has managed to organise travel from her home in (omitted) to (omitted) and further travel by train to (omitted)’s for work. Though there are apparent difficulties, she has made the arrangements for the children workable by taking advantage of before and after school care.
300.The reality of the situation is that each parent has a right to choose where he or she will live and will work. The consequences of this choice result in the parents (in particular the father) experiencing traffic congestion, delay and expense in transporting the children to school. His solution to his problem was for the mother to undertake all the travel and for the children to change schools. He would have little difficulty and no travel commitments for the children should they attend (omitted) Public School. The current arrangement requires the father to deliver and collect the children to and from school each alternate Monday and Tuesday. A week about arrangement as proposed by him is likely to exacerbate the father’s practical difficulties in juggling the “school run” (as he calls it) and work commitments. This proposal will require the father to deliver and collect the children to and from (omitted) Public School 5days each fortnight.
301.In my view neither a week about arrangement nor a change of schools is supported by the evidence. Neither proposal is in the children’s best interests. The Family Consultant indicated that the children needed parenting arrangements that were “reliable, predictable and dependable.” At the time of the interviews in mid-2016, he indicated that the children’s schooling had been stable as had their spend time arrangements. There had been no further disruption to the children’s arrangements at the date of the trial. I am satisfied that the most appropriate orders for the children are for the children to live with the mother and spend time with the father from Friday after school until before school each Tuesday each alternate week.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child including emotional and intellectual needs;
302.The mother suggested the father was a capable parent. During the relationship she had suggested he assume primary care of the children. The father raised an issue regarding the mother’s parenting capacity based on historical entries in her diary. This criticism of the mother was at odds with his consent to orders in March 2016. Neither did his criticism of the mother sit comfortably with his proposal that the parents share the children week about.
303.The evidence raises significant concerns regarding the father’s lack of insight into the impact his conduct has on the children. X is worried about the time she spends with her father and suggests more time is a solution to his problem. She appears to have taken on board adult issues and is immersed in the parenting dispute. The mother in my view has demonstrated a greater reflective capacity and ability to support the children emotionally than that demonstrated by the father. The father has displayed some emotional insecurity in involving the children in the dispute.
304.There is no question that both parents have the capacity to provide well for the children’s intellectual needs. Whether the father is prepared to provide for the children’s practical needs is a concern. He provided no adequate explanation for returning X early to her mother’s care in 2016 during the period he said it was “logistically not possible.” This appeared related to some work commitments he had at the time but the basis for X’s return remains unclear. It is likely that his conduct had an impact on X though there is insufficient evidence before me to make such a determination. He failed to provide the mother with adequate notice of his decision to return X early. I am concerned that the father will unilaterally change arrangements for the children if his needs conflict with his obligations regarding the children. As such I intend to make orders as sought by the mother that the children spend time with their father each alternate week from after school Friday until before school Tuesday and for half the school holiday periods and on special days. Notwithstanding that the mother has said the father is a capable parent, the orders I intend to make in my view are in the children’s best interests providing a reliable and predictable parenting arrangement while minimizing the children’s exposure to parental conflict.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant;
305.Although soon to be 8 years old X demonstrated during interviews with the Family Consultant a reluctance to leave her mother. Y was almost 5 and both children are still quite young. I accept the opinion of the Family Consultant that the children need reliable, predictable and dependable parenting arrangements.
(h) Not applicable: The Aboriginal or Torres Strait Islander issue does not arise in these proceedings.
(i) the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents;
306.The father’s conduct in removing X from her school in (omitted) and withholding the children for three weeks reflected poorly on him and his responsibilities as a parent. He appeared to justify his conduct indicating “in desperation I acted to change arrangements without agreement.” I reject there was any desperate situation justifying his conduct. X had returned to (omitted) Public School. He continued to live in (omitted) until 26 March 2015. Y was enrolled in (omitted). The week about arrangement was scheduled to end at the conclusion of the school holidays. It appears that the father was “desperate” to force the mother into a position where she would accede to the unilateral arrangements he imposed on the children. It is clear he prioritised his own needs over the children’s needs. It would be most unfortunate if this occurred again. The orders I propose should prevent any further relapse of parental responsibility.
(j) any family violence involving the child or a member of the child’s family;
307.There are no issues of family violence in this matter however the parties have no mechanism for amicably resolving conflict between them.
(k) Not applicable: there are no family violence orders as such this provision is not applicable.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
308.Given the level of acrimony between the parties and their inability to communicate, consult and confer on matters impacting on the children in my view the best outcome for the children in avoiding further litigation is to make orders as sought by mother such orders being supported by the Independent Children’s Lawyer.
(m) any other fact or circumstance that the Court thinks is relevant.
309.I am confident that the mother takes her responsibilities as a parent seriously. I accept that she regards the father’s relationship with the children as important and will ensure that he is provided with all information necessary to continue his involvement with the children to the maximum extent possible while ensuring that the children are protected from unnecessary conflict. I am satisfied that the orders I make are in the children’s best interests.
Parental responsibility
310.Pursuant to section 61DA(1) of Act the Court provides that “when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.” Under subsection 61DA(2) of the Act the presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in (a) abuse of the child or another child who was a member of the parent’s family; or (b) family violence. The issue of family violence does not arise in this matter.
311.Under subsection 61DA(4) of the Act the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
312.The father’s Counsel urged the Court to make an order for equal shared parental responsibility. He strongly opposed the order sought by the mother for sole parental responsibility. He said:
“the only possible basis for a finding that the mother should have sole parental responsibility is that the parties have had difficulties in reaching accord in respect of matters such as schooling and health care. However it is submitted that:
· There was no reason the mother should be preferred over the father in having the ultimate say in regard to the children’s welfare. Both parents are intelligent, well educated people devoted and dedicated and they should both have equal responsibility in making important decisions…
· If the mother is granted sole parental responsibility the father will feel disenfranchised and this will not assist in resolving conflict;
· Sole parental responsibility in favour of the mother is not indicated where there is evidence she has failed to keep the father informed of health concerns and failed to consider the father’s views in withdrawing the children from religious instruction.”
313.He suggested that both parties should be accountable for making major decisions in respect of the children and they have all the necessary attributes for doing so. He submitted that the areas for potential disagreement should be limited by provisions in the final orders regarding the children’s living and schooling arrangements. He said checks and balances need to be applied in making long term decisions regarding the children’s welfare and there were concerns leaving these decisions to the mother. He said:
· The mother has experienced emotional and psychological difficulties;
· He made reference to the diaries entries she made in her twenties;
· She felt she had thrown her life away and was a “drugged fucked loser”;
· She “wasted years being a drug addict”; and
· Schizophrenia covers me (dated 10.1.2003);
· Four to five years ago she admitted she needed therapy;
· She was not honest about her mental health history;
· She admitted to having difficulty managing X on one occasion;
· She has had difficulties with her own family ‘my family does not talk to me’;
314.He said regarding these matters there are doubts about the mother’s capacity to be solely responsible for making decisions regarding the children’s long term welfare without the father’s input. With equal shared parental responsibility the risk of poor decisions being made regarding the children will be reduced (even if this requires negotiation and mediation). There was scant evidence before me to indicate the mother’s “mental health issues” impacted on her capacity to make decisions for the children. Moreover the father had not requested the mother be psychologically or psychiatrically assessed. I formed the view that challenging the mother’s mental health was entirely inconsistent with the father’s interim consent orders and inconsistent with his proposal for week about care.
315.The Independent Children’s Lawyer supported an order for sole parental responsibility with the mother to inform the father regarding all decisions and take into account the views expressed by him on any issue. The parents had demonstrated a complete inability to consult, confer, communicate and reach joint decisions regarding matters concerning the children. I was particularly concerned that the father’s statement that his desire for a joint parenting order “was so he was able to influence decisions.” The mother complained of his controlling and bullying behaviour. The history demonstrated that he would make unilateral decisions regarding the children if he considered that to be appropriate. Further the history revealed he did not provide the mother with information pertinent to the children (such as that Y was attending a different day care centre or an additional crèche) and that the parents had no mechanism for resolving conflict between them. Pursuant to subsection 65DAC(2) such an order is taken to require a decision to be made jointly by the persons (who share parental responsibility for a child involving making a decision about a major long term issue in relation to the child). Further subsection 65DAC(3) requires 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.
316.In my view in the circumstances of this case, the presumption for equal shared parental responsibility has been rebutted by overwhelming evidence that such an order is not in the children’s best interests and in this case would be inimical to the children’s welfare.
317.I conclude that it is in the children’s best interests to make an order that the mother have sole parental responsibility for the children. As such the provisions under section 65DAA to not apply. I make orders accordingly.
I certify that the preceding three hundred and seventeen (317) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 23 January 2018
Attachment A
TABLE OF EXHIBITS
| Exhibit no. | Description | Relevant information |
| R1 | Google Map – Map of (omitted) | Show the distance between the father’s proposed school and the paternal grandparent’s home (about 550 metres) and the father’s proposed school and the mother’s workplace (2.38kms) |
| A1 | X's NAPLAN results and school reports for 2014 – 2017 Y’s school report 2017 | Shows X is outstanding in Spelling (above Band 6) Grammar & Punctuation (Band 6) and Reading (above Band 6), above average in Writing (band 5), average in Numeracy (Band 4). School reports show constant good effort in all areas. 1 day absent and 3 partial days absent in Semester 1 2017. Y - report shows good to very good effort in all areas. 0 days absent and 2 partial days absent in Semester 1 2017. |
| A2 | Statement of reasons and decision of Registrar of Child Support dated 6 December 2016. Objection dated 1 Apr 2017. | Notice of Decision made under Part 6A of the Child Support (Assessment) Act 1989 Date of Decision: 6 December 2016 Decision “I have found special circumstances exist in this case and that it would be just and equitable and otherwise proper to make a change. The change to be made to the assessment is: · For the period 27 September 2016 to 31 October 2017 the father’s adjusted taxable income is set at $221,521 and the mother’s income is set at $87, 000. · For the period 27 September 2016 to 31 December 2016 the annual rate of child support payable by the father is increased by $4911.” Details of Objection Decision The father objected and applied to reduce the amount payable. Objection was lodged on 11 Jan 2017, and objection was disallowed on 1 Apr 2017. |
| ICL1 | Entry dated 1.4.14 from the (omitted) Public school counsellor – Ms S | Session with X, “Met with X. She was happy to chat with me. Spoke immediately about being with mum for 2 weeks and only seeing dad for 2 days, said that wasn’t fair.” Spoke about the judge making this decision and “siding with mum” and that “mum doesn’t love dad anymore”. When questioned, X stated that her dad told her this and then afterwards she said she thought of it herself. I asked if she told her mum this and she said “no I keep it to myself.” Stated she enjoys playing computer games and going to Luna Park with dad. Also stated dad works a lot so she doesn’t spend much time with him. Didn’t respond with I asked what she likes about mums. X didn’t appear upset or distressed when speaking, often changed topics to pictures around the room and things she likes. She stated she has been away from school “a very long time” but is happy to be back here. I told X that I would like to chat with her again next term.” |
| R2 | Company tax return and Notice of Assessment for year ending June 2015 | Notice of Assessment – Year ending June 2015 Taxable income is: $39,559 Company Tax Return – 1 July 2015 – 30 June 2016 Total Income = $644,749.00 |
| C1 | Family Report dated 15 April 2016 completed by Mr J | |
| R3 | ASIC search, Register of members for (business omitted), Share Certificate and Loan agreement | Company details · Shows the company was registered on 8-7-2015 with the father appointed Director and Secretary 8-7-2015. The father’s partner Ms V was appointed Director 15-1-2017. · The father holds 5000 shares and Ms V holds 1500 shares. Division 7A Loan agreement shows the company lent the father $63,513 on 22/2/17. |
| A3 | (omitted) crèche attendance record for Y 7 Dec 2015 to 29 Nov 2016 | Records showing Y attended (omitted) crèche numerous times each month between Dec 2015 and Nov 2016 |
| ICL2 | Progress notes dated 4 May 2017 from Dr T, at (omitted) Practice | “…Session with X. X presented as very agitated. Constantly moving and talking. Told me that something ‘bad’ had happened ... Presently isolated at school, not sure where she ‘fits in’ at school…” |
| ICL3 | ICL proposed minute of order | See above |
| R4 | Mother’s journal entries | Diary entries dated September 2011 · “Feel like I have thrown my life away. What a fuck up”. · “Feeling like a fool really. WTF was I thinking? The universe gave me the clearest possible sign and I ignored it in favour of the crap that I wasted my twenties on; drugs, angst, excuses for relationships, trying to manipulate people through bizarre passive aggressive behaviour while the same people were largely oblivious to my existence”. · “I need therapy. I need support but there is no one there. No one to even listen let alone understand. Losing my shit in X. ‘I’m scared of you’ L Sick of being a fucking servant. You don’t even take your shoes off before telling me what to do”. 14/01/08 Entry · “11 weeks, 5 days. While it’s good that Mum is moving on I must admit to a level of irritation with her reaction to the baby thing. She has barely registered it after a brief whoop of joy she has reverted to everything being all about her. It doesn’t seem to occur to her that in this situation some mothers might consider helping me rather than everything being about her protection. But that’s her. Everything has always been about her, her children have always been expected to fend for themselves for her”. ~ September 2011 Entry · “The only people in my life are (omitted) and (omitted) . Still married with the same birthday” |
| R5 | Email dated 11.5.15 from father to mother (21/1/15) and mother to father (22/1/15) . | On Wed, Jan 21, 2015 at (omitted), Mr G <(omitted)> wrote: |
| R6 | Health assessment of the mother dated 6 Nov 2014 | The mother presented to Dr J of (omitted) Doctors on 6 Nov 2014 with: Severe anxiety, emotional distress related to fears of infidelity of husband. Notes no previous diagnosed mental health problem but anxious personality. No regular medication at that time. The results of the Mental State Examination are: Alert and orientated. Normal affect. Some psychomotor agitation. Memory, attention, concentration normal. Good insight. Nil hallucinations or delusions. Not suicidal, has support from friends and seeing counsellor regularly. Diagnosis: Acute anxiety related to emotional distress. Patient needs: Supportive counselling, CBT. Goals: to cope with stressful situation. Treatments: Counselling, may need to use sleeping tablet occasionally. PRESENTING ISSUE(S) - Severe anxiety, emotional distress related to fears of infidelity of husband. |
| R7 | (omitted) Public School Annual Report 2014 | X enrolled in (omitted) Public School by the father. He proposed she be re-enrolled there. |
| R8 | (omitted) Public School Annual Report 2016 | As above |
| R9 | Rental properties for the (omitted) and surrounding areas | Showing rental properties in the area surrounding the father’s proposed school |
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