Olssen and Wise (No.2)
[2016] FCCA 884
•19 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OLSSEN & WISE (No.2) | [2016] FCCA 884 |
| Catchwords: FAMILY LAW – Intense but simmering parental conflict – differing “views” of the children regarding “time with” arrangements – relevance of previous litigation arising out of precipitate action by Father which excluded the Mother – consideration of differing orders for each of the three boys including the weight to be attributed to their views – responsibility of parents ultimately to decide what is best for their children rather than placing undue pressure on the children to make relevant parenting decisions. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC(2), 60CC(3)(a) – (m), 65DAA(2), (3) & (5) |
| Cases cited: Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113 Gillard & Gillard [2015] FamCAFC 169 Goldrick v Goldrick [2007] FamCA 1260 Harrison and Woollard (1995) 18 Fam LR 788 Maldera & Orbel (2014) FLC ¶93-602 Olssen & Wise [2014] FCCA 1594 R and R: Children’s Wishes (2000) 25 Fam LR 712; (2000) FLC ¶92-598 In the Marriage of R (Children’s Wishes) (2002) 29 Fam LR 230; (2002) FLC ¶93-108 In the Marriage of Smythe (1983) 48 ALR 677 U v U (2002) 211 CLR 238 Vigano v Desmond (2012) 47 Fam LR 552 |
| Applicant: | MR OLSSEN |
| Respondent: | MS WISE |
| File Number: | CAC 27 of 2012 |
| Judgment of: | Judge Neville |
| Hearing date: | 6 August 2015 |
| Date of Last Submission: | 16 December 2015 |
| Delivered at: | Canberra |
| Delivered on: | 19 April 2016 |
REPRESENTATION
| Solicitor/advocate for the Applicant: | Ms C Heusch |
| Solicitors for the Applicant: | Alliance Family Law, Canberra |
| Counsel for the Respondent: | Self-represented |
| Solicitor/advocate for the Independent Children's Lawyer: | Ms M Burgess |
| Solicitors for the Independent Children's Lawyer: | Legal Aid, ACT |
ORDERS
ON A FINAL BASIS, THE COURT ORDERS BY CONSENT THAT:
The parents shall have equal shared parental responsibility for the children, X (born (omitted) 2000), Y (born on (omitted) 2002) and Z (born on (omitted) 2003) (“the children”).
X (born (omitted) 2000) (“X”) shall live and spend time with his parents according to his wishes.
ON A FINAL BASIS, THE COURT FURTHER ORDERS THAT:
Subject to any other agreement in writing between the parties, for the next six months from the date of these orders, Y (born on (omitted) 2002) (“Y”) and Z (born on (omitted) 2003) (“Z”) shall live with their parents in an 8/6 arrangement (8 nights per fortnight with the Father and 6 nights per fortnight with the Mother).
After a period of six months from the date of these Orders, in the event that both Y and Z are of the view that they wish to spend one extra night per fortnight with their Father, both parents are to approach Ms S with a view to her seeing Y and Z, as well as the parents, to make a recommendation about the utility of changing these orders, by consent, for one extra night per fortnight with the Father.
Such a change in the orders as in Order 4 above is to be the only matter for consideration with Ms S, in addition to whatever she deems best in her role as therapeutic counsellor.
Both parents are restrained from discussing these Court proceedings with the children, or doing so in their presence, or allowing any other person to do so, or providing the children with a copy of these reasons or Orders.
Both parents are restrained from saying unkind or unpleasant things about the other parent to the children, in their presence or hearing, or allowing any other person to do so.
The Independent Children’s Lawyer is requested to explain only the Orders to the children; there is to be no discussion with them about these reasons except to say that the Court appreciated receiving their views from the Independent Children’s Lawyer and from Ms S regarding spending extra time with their Father and took serious account of them together with all the other evidence before the Court.
Notwithstanding Order 3 above, and subject to any other agreement in writing between the parties, the children shall otherwise spend time with each parent as follows:
(a)On Mother’s Day each year, with the Mother as agreed, and failing agreement, from 4.30pm to 6.30pm;
(b)On Father’s Day each year, with the Father as agreed, and failing agreement, from 4.30pm to 6.30pm;
(c)On the Mother’s birthday each year ((omitted)), with the Mother as agreed, and failing agreement, from 4.30pm to 6.30pm;
(d)On the Father’s birthday each year ((omitted)), with the Father as agreed, and failing agreement, from 4.30pm to 6.30pm;
(e)For each child’s birthday, the children shall spend time with the parent with whom they are not already spending time for two hours as agreed, and failing agreement from 4.30pm to 6.30pm.
(f)For the Christmas period, as follows:
(i)In 2015 and in alternate years thereafter, from 12 noon on 24 December to 5.00pm on 28 December, with the Mother.
(ii)In 2016 and in alternate years thereafter, from 12 noon on 24 December to 5.00pm on 28 December, with the Father.
(iii)Following which, the arrangements referred to in Order 3 shall recommence at the point at which they would have been at had there been no Christmas arrangement.
Changeovers
For the purposes of changeover for time pursuant to Orders 3 and 9, unless otherwise agreed in writing, the parent having the additional time with the children will collect the children at the commencement of their time from the other parent’s residential address and return them at the conclusion of their time to the other parent’s residential address.
For the purposes of all other changeover, unless otherwise agreed in writing, the Mother will collect the children from the Father’s residential address at the commencement of her time and the Father will collect the children from the Mother’s residential address at the commencement of his time.
Telephone Contact
a) The parents be at liberty to telephone the children each Tuesday when the children are not in their care at a time to be agreed, and failing agreement, between 5.30pm to 6.00pm;
b) The children be at liberty to call either parent according to their wishes.
Therapeutic counselling
a) Following these Orders, the parties shall facilitate the children attending upon Ms S for a therapeutic counselling session, with any further appointments for any or all of the children to be made at the discretion and guidance of Ms S;
b) Absent any specific medical emergency, the parents are mutually restrained from unilaterally taking any (or all) of the children to any counsellor, psychologist, or other health care professional without the written consent of the other party.
Payment of Ms S’s fees for therapeutic counselling shall be equally shared by the parents.
Medical
The parents shall advise each other as soon as possible by the best available means in the event of the following occurring:
(a)The child being injured or falling seriously ill;
(b)The child requiring urgent medical treatment by a doctor or ambulance crew; or
(c)The child being admitted to hospital,
and shall provide any necessary authority to the children’s treating medical practitioners to enable the other to obtain written or oral information about any treatment, consultation, diagnosis or prognosis in relation to the children.
The parents are at liberty to obtain all medical records and to consult with the children’s medical and dental practitioners to obtain any information he or she may require and service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority for that purpose.
The parents agree that they will share equally expenses or gap of expenses not covered by Medicare or Private Health Cover in relation to medical, health, dental and orthodontic costs including, but not limited to, costs of prescriptions. Copies of receipts are to be provided to the other parent as evidence of the costs incurred.
Schooling
Unless otherwise agreed by the parents in writing, Y and Z will continue to attend (omitted) College in (omitted) (“(omitted) College”) until the end of Year 12.
X will remain at his present school but the parties will do all things and sign all documents to enrol X in (omitted) College, commencing Term 1, 2016 until the end of Year 12.
It is noted that the parents will share equally the following costs fixed by the schools (and will do all things and sign all documents required by the school to give effect to this) including, but not limited to:
(a)School fees, costs of books, excursions, enrolment fees, registration fees and levies in relation to the children;
(b)Costs of a ‘Bring your own Device’ for each child, when necessary, up to a maximum of $850 (maximum of $425 for each parent)
The parents are restrained from altering the children’s school without the written consent of the other parent.
The parents are permitted to attend any school attended by the children and to attend parent/teacher interviews or other school event occasions which parents are invited to.
The parents shall authorise in writing the principal or alike at the school attended by the children to supply both parents with copies of school reports, progress reports, notices relating to pupils attending the school, school letters, invitations to carnivals, sporting or social functions, notices of and any invitations to parent teacher interviews and any other notices directed to the parents of a child attending such school and service of sealed copy of these Orders will be sufficient to discharge this Order.
Other
The parents will facilitate each child, if they express a wish to, participating in one summer and one winter sport or extracurricular activity each year. The cost of the activity will be equally shared by the parents, including but not limited to, costs of registration, term fees and sporting equipment including but not limited to, uniforms and footwear.
The parties will facilitate the children’s sporting equipment to travel between the parent’s houses with the children when required.
The parents shall keep each other informed of any change of particulars of their residential address, telephone contact number and email address within 48 hours of any such change.
In the event of any dispute as to the interpretation, implementation or enforcement of these orders (including any claim by a parent that it should be varied) the parents shall first attend Family Dispute Resolution (FDR) with an FDR practitioner and make a genuine attempt to resolve the dispute.
Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Olssen & Wise (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 27 of 2012
| MR OLSSEN |
Applicant
And
| MS WISE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is, hopefully, the final instalment in an ongoing parenting contest concerning three boys – almost 16 year old X, 13 year old Y, and 12 year old Z.
These reasons should be read, both for background and other things – including comment on the conduct of the parents - in the light of the Court’s earlier detailed reasons concerning a somewhat alarming interim contest in 2014.[1]
[1] See Olssen & Wise [2014] FCCA 1594.
By all accounts – parents, the family consultant, the Independent Children’s Lawyer (“ICL”) – these are very impressive young people. Clearly, this must be a testimony to both parents, notwithstanding years of a clearly distrustful and strained parenting relationship.
Formally, the current litigation, which is yet another chapter in the problematic cycle of contest between the parties, is about parenting arrangements for each of the three boys. However, with insight and understatement, the ICL said early in the trial (emphasis added):[2]
MS BURGESS: And I’m not at all convinced that Ms S giving evidence will necessarily cause either of the parties to move because I’m not necessarily convinced that the arrangements for the children are the key issue.
[2] T 7.
This is not to say that the parenting issue is not important, and not central to the Court’s deliberations. However, always percolating below the surface of this dimension of the contest was (a) the latent (but sometimes patent) animus between the parties, and (b) a somewhat perverse but little-examined focus on child support.
As indicated, there is somewhat limited evidence in relation to these matters, save for (a) the history and nature of the litigation and acknowledgment by the parties of their clear distrust of each other in relation to the issue of “animus”, (b) the Father’s detailed working and setting out in a recent affidavit of the changes in child support that would flow in his favour from a change in the boys spending more time with him, and (c) the Mother’s unchallenged oral evidence that the [real] issue between the parties was about money.[3]
[3] In particular see the Mother’s responses to questions from the ICL at T 52 – 53, which culminate in the following exchange:
Without being hypercritical or censorious, and certainly not glib, if these matters are accurately or correctly noted, then at least two (but maybe four) of the seven deadly sins are clearly on display: greed and wrath, and perhaps envy and pride.[4] Of course, such matters are regularly on display in many family law matters – and in other areas as well. As crucial as legal clarity and process are for the proper consideration by the Court, it may assist the parties to try to look at what the motivational and emotional factors are that have led to the current litigation: is it, for example, to get revenge (wrath) against the other parent, and or is it (perhaps very subtly) to balance the financial discord between them; or more generally, simply to get even for years of perceived injustice? But such self-analysis is for the parties themselves.
[4] According to ancient Greek philosophy and theology (e.g. Aristotle and Evagrius), the seven deadly sins were originally termed the eight “thoughts” (logismoi). When brought over to Western thought, acedia (listlessness) was dropped from the list, presumably due to lack of interest.
I have no doubt that both parents love and care for their sons very deeply. I also have no doubt that both parents genuinely want the best for the boys. But there may be lurking in the background the almost subterranean other influences to which I have referred, and to which the ICL alluded, which might also have to be addressed at some stage by the parents lest they give rise to further and equally disruptive and destructive litigation in the future. The “seven deadly sins”, like the moral virtues (prudence, justice, fortitude, and temperance), are intended as little more than convenient tools or objective points of reference for the parties perhaps to consider for self-awareness and self-analysis, now and in the future. They are not, of course, part of the legislative scaffold in Part VII of the Act to which I must have regard.
Helpfully and properly, the parties, and the ICL, are all agreed that, given his age, X shall live, and spend time, with his parents in accordance with his wishes.
In many respects, given the general agreement between everyone regarding orders in relation to X, and that orders regarding Z’s best interests will, in large measure, follow from what is to happen with his brothers, in many ways the issues to determine relate very much about what to do with orders that are in Y’s best interests – without ignoring the equally important position of Z, who (in my view) risked being ignored to some degree throughout the proceedings because of the significant focus on Y.
More so than many matters, there is quite some delicacy needed to determine what orders are in the children’s best interests in view of (a) their own reasonably clear views, and (b) the conduct and evidence of the parties.
The “boys”, if I may refer to them as such collectively, have been relatively clear in their own views as to their preferences regarding the time they wish to spend with each of their parents. Given their ages, such views are important. To speak generally, these views indicate a preference to spend more time with their Father, with the boys still expressing love for their Mother.
For her part, the Mother is generally amenable – up to a point – about the boys having and expressing a view to spend more time with their Father. She says that she would have no major problem agreeing to such an increase provided she was certain that the expressed views of the boys were not unduly influenced by others.[5]
[5] See T 48 & 51. The words used here are not the Mother’s specific words but rather a summary of part of her evidence.
However, the views of the boys must be tempered, in my view, precisely because of what I consider to be the Father’s very problematic, if not poisonous, attitude towards the Mother. Just as he took a significant number of ill-considered and opportunistic steps that risked compromising the boys’ relationship with their Mother, and which were the subject of adverse comment in the interim judgment in 2014, so also at the trial in the current chapter of the proceedings, the Father exhibited, in my view, a still dangerously problematic if not mordant attitude towards the Mother. In the Father’s view, it is almost as if the Mother is an irrelevance to, or at least an unfortunate inconvenience in, the lives of the boys.
In the course of his evidence the Father said that the boys’ relationship with their Mother was “biological”, while his relationship was a “parenting relationship.” The exchange was as follows (emphasis added):[6]
Do you distinguish between your relationship with Ms Wise and the boys' relationship with their mother?‑‑‑Certainly.
Because earlier, just in answer to a question from Ms Burgess, you seemed to put them together. But you do distinguish between the two?‑‑‑The - the boys have a different relationship obviously with - with their mother than I do. Theirs is a biological relationship. Mine is a parenting relationship with the boys and a - the relationship between Ms Wise and myself is a very strained relationship.
[6] T 25.
It was only after he was challenged about this unnecessarily hurtful and minimalistically one-dimensional assessment that he admitted that the boys’ relationship with their Mother was more than ‘merely biological.’[7] The Father’s lack of insight into the importance and significance of the boys’ relationship with their Mother, and his inability to prioritise the children’s best interests over the fraught relationship between the parents provides the Court with little confidence that the Father will properly and appropriately facilitate a good and meaningful relationship between the Mother and the boys should Orders be made that the children spend the majority of their time with the Father.
[7] See T 26.
Were the boys to spend regular and very significant time with the Father, a genuine concern I have is that the Father’s appallingly disapproving view of the Mother could, or most likely would, over time impact negatively on the children’s relationship with their Mother. In my view, this too is a very significant issue that warrants careful attention.
As identified by the ICL, the very limited issues to be determined are:
(a)The weight to be given to the expressed views of the children to live more with the Father; and
(b)Whether there should be separate arrangements for each of the three children.
Apart from (a) the fraught parental relationship, (b) the fact that there have been shared care orders in place between the parties since 2008 (with the occasional formalised variation from time to time since), and (c) in particular the risk of the children’s relationship with the Mother because of the Father’s conduct and or attitude towards her, I agree generally with the ICL’s depiction of the issues to be determined.
In my view, there is no clear cut, and certainly no easy, answer to the proper question as to the orders that are in the best interests of the boys, in accordance with s.60CA of the Act. In part, this was reflected in various iterations of proposed Orders and questions put to the parties (and to the ICL) by the Court (post the trial) about possible, alternative Orders.
What is of note in this matter, which to a very large degree was especially evident in the highly contested interim proceedings in 2014, is the central role that the middle child, Y, has played and continues to play in the turmoil that engulfs these children and these families. Indeed, in his evidence, the Father confirmed that Y had been the catalyst for this litigation.[8]
[8] See T 26.
As I recorded in the earlier judgment, that earlier imbroglio arose ostensibly out of Y being taken to the doctor because of a cough, but which escalated dramatically into the Father taking all the boys to a psychologist (without the Mother knowing anything about what was transpiring), and the children being recommended to undertake mental health assessments. The astonishing and alarming series of events is recounted at length in that earlier judgment.
Here, seemingly more subtly, again the focus was very much on Y and him being a sensitive person. His sensitivities ultimately led the ICL to submit, among other things:[9] “The greatest concern is that Y will feel unheard if there is no concession to his views.” Respectfully, such a position of apparent favouritism places the interests of one child above the other two boys; it is not appropriate. Unfortunately, it borders on being, or being seen as, partisan.
[9] ICL’s submissions: 6th May 2015. Alas, there are no paragraph numbers.
As important as a child’s sensitivities are, a young child such as 13 year old Y, cannot rule the roost, so to speak, and in effect, (to speak somewhat colloquially) almost blackmail the Court to conform to his wishes to which everyone else must bow on the basis that he might not feel properly “heard.” Life does not work this way; and courts cannot and do not work this way either. And in any event (as noted further below), a 13 year old’s “wishes” or “views” not infrequently change. Something more certain and predictable should be the basis for Court Orders than the views of a 13 year old, especially where, as here, they impact directly on others, not least his younger brother Z.
Proper process and proper consideration of all the evidence, in accordance with statutory considerations and judicial authority, and the best interests of all the boys, are all critical to weigh up in this matter. In doing so is not to disregard the views of any child, nor is it to give the views of any of the boys greater weight than either of their siblings. Each child is equally important; the views of each child needs to be properly weighed having regard to all the evidence and proper weight assigned to the views expressed having regard to the maturity and age of each of the boys.
Very summarily, I accept that the boys desire to spend more time with their Father. The Orders made by the Court seek to recognise this, although I acknowledge that they do not entirely or completely reflect the views of the children. That said, there is no necessary uniformity or even consistency in the views of the boys – as I note later in these reasons. In no pejorative way do I observe that, in life generally, we do not always (if at all) get what we want. To deal with disappointment, and to recognise other points of view, are important “life skills.”
Moreover, although it was stated often enough – in submissions, reports and otherwise – that the boys wanted to have some assurance that the Court heard and more particularly “listened to” them, there is no doubt that their views are important but are not the only consideration for the Court. In accordance with authority, such as Harrison and Woollard, the views of the boys will be considered throughout these reasons.[10] Another important consideration is the impact, for example, on the youngest child, Z, if he is not able to spend regular time with his brothers because (among other things) special provision is made for Y. The sibling relationship, in my view, is a matter of particular concern.
[10] Harrison and Woollard (1995) 18 Fam LR 788.
Subject to what is said later in these reasons, having regard to all the evidence, including the views of the boys and the helpful reports of Ms S, and absent any other agreement in writing between the parties, in my view, the orders that are in the best interests of the boys (pursuant to s.60CA of the Act) are that (a) X shall live and spend time with his parents in accordance with his wishes, and (b) Y and Z shall live in an arrangement of six nights per fortnight with their Mother and eight nights per fortnight with their Father.
Orders Sought
The original orders sought by the parties, and the ICL, were as follows. As earlier indicated, there ultimately were various other versions or comments on alternative proposals.
The Applicant Father sought the following orders:
1) That Orders 1 and 4 of the orders made on 9 December 2008 (“the 2008 orders”) be discharged and substituted with the following order:
2) That the children, X born (omitted) 2000, Y born on (omitted) 2002 and Z born on (omitted) 2003 (collectively “the children”) shall live with the Mother and the Father as follows:
X and Z
a) X and Z will live with the Mother for one week in every three week cycle from 5.00pm Friday to 5.00pm the following Friday, NOTING that the cycle will start with X and Z living with the Mother from 5.00pm on Friday, 21 August 2015 to 5.00pm on Friday, 28 August 2015.
Y
b) That for a 6 month period following the date of these orders, Y will live with the Mother for one week in every three week cycle from 5.00pm Friday to 5.00pm the following Friday, NOTING that the cycle will start with Y living with the Mother from 5.00pm on Friday, 21 August 2015 to 5.00pm on Friday, 28 August 2015;
c) That at the conclusion of the 6 month period set out in order1(b) above, Y will live with the parties in accordance with his wishes to be established by Ms S pursuant to Order 4 below. THE PARTIES NOTE THAT that as at the date of these orders, Y has expressed a wish to live with his mother one weekend in every three week cycle from 5:00pm Friday to 2:00pm Sunday to occur at times that X and Z are living with the mother.
d) With the Father at all other times.
3) That Order 5 of the 2008 orders be discharged and the following order be substituted:
That the arrangements in Order 1 continue throughout school holiday periods, save that they shall be reversed as appropriate to accommodate an alternate sharing of Christmas Day each year.”
4) That Order 11 of the 2008 orders be discharged and that the following order be substituted:
“11. That the parents are specifically restrained from taking the children to see any health care professional, including any psychologist or other mental health care professional, without the prior written notice to, and agreement of, the other parent, or court order, with the exception of regular health issues (such as colds, flu and similar common ailments occurring during times when the children are with that parent) or in circumstances of a medical emergency.”
Therapeutic counselling
5) That following the making of these Orders, the parties shall facilitate the children attending upon Ms S for a therapeutic counselling session, with any further appointments for any or all of the children to be made at the discretion and guidance of Ms S.
6) That at the conclusion of the 6 month period referred to in order 1(c) above, the parties will facilitate Y having an appointment with Ms S (if he is not otherwise scheduled to have an appointment at that time) to discuss any proposed changes to Y’s living arrangements and that the parties will accept Ms S’s recommendation for any alterations to Y’s living arrangements.
7) That payment of Ms S’s fees for therapeutic counselling shall be equally shared by the parents.
2012 Orders
8) That the order 2 of the orders made on 4 June 2012 be discharged and the following order be substituted:
“2. That the child X born (omitted) 2000 attend (omitted) College (‘the college’) for the remainder of the 2015 school term, and that the parties thereafter do all acts and things to enrol X in (omitted) College, commencing Term 1, 2016 until the end of year 12.”
Interim orders of 24 July 2014
9) That orders 1 and 2 of the orders made on 24 July 2014 be discharged.
Interim orders of 5 December 2014
10) That order 1 of the orders made on 5 December 2014 be discharged.
The Mother’s [original] orders sought were as follows:
1) That the Mother and the Father have equal shared parental responsibility for the children, X born (omitted) 2000, Y born on (omitted) 2002 and Z born on (omitted) 2003 (collectively “the children”).
2) That the parents are specifically restrained from taking the children to see any health care professional, including any psychologist or other mental health care professional, without the prior written notice to, and agreement of, the other parent, or court order, with the exception of regular health issues (such as colds, flu and similar common ailments) or in circumstances of a medical emergency.
Living Arrangements
3) The children shall live with the Mother and the Father as follows:
From 5pm Friday to 5pm the next Friday.
4) That notwithstanding Order 3 above, the children shall spend time with each parent as follows:
a) On Mother’s Day each year, with the Mother as agreed, and failing agreement, from 4.30pm to 6.30pm.
b) On Father’s Day each year, with the Father as agreed, and failing agreement, from 4.30pm to 6.30pm.
c) On the Mother’s birthday each year ((omitted)), with the Mother as agreed, and failing agreement, from 4.30pm to 6.30pm.
d) On the Father’s birthday each year ((omitted)), with the Father as agreed, and failing agreement, from 4.30pm to 6.30pm.
e) For each child’s birthday, the children shall spend time with the parent with whom they are not already spending time for two hours as agreed, and failing agreement from 4.30pm to 6.30pm.
f) For the Christmas period, as follows:
i.In 2015 and in alternate years thereafter, from 12 noon on 24 December to 5.00pm on 28 December, with the Mother.
ii.In 2016 and in alternate years thereafter, from 12 noon on 24 December to 5.00pm on 28 December, with the Father.
iii.Following which, the arrangements referred to in Order 3 shall recommence at the point at which they would have been at had there been no Christmas arrangement.
Changeovers
5) That for the purposes of changeover for time pursuant to Order 4, unless otherwise agreed, the parent having the additional time with the children will collect the children at the commencement of their time from the other parent’s residential address and return them at the conclusion of their time to the other parent’s residential address.
6) That for the purposes of all other changeover, unless otherwise agreed, the Mother will collect the children from the Father’s residential address at the commencement of her time and the Father will collect the children from the Mother’s residential address at the commencement of his time.
Telephone Contact
7) That the parents be at liberty to telephone the children each Tuesday when the children are not in their care at a time to be agreed, and failing agreement, between 5.30pm to 6.00pm.
Therapeutic counselling
8) That following the filing of these Minute of Consent Orders with the Court, the parties shall facilitate the children attending upon Ms S for a therapeutic counselling session, with any further appointments for any or all of the children to be made at the discretion and guidance of Ms S.
9) That payment of Ms S’s fees for therapeutic counselling shall be equally shared by the parents.
Medical
10) The parents shall advise each other as soon as possible by the best available means in the event of the following occurring:
a) The child being injured or falling seriously ill;
b) The child requiring urgent medical treatment by a doctor or ambulance crew; or
c) The child being admitted to hospital,
d) and shall provide any necessary authority to the children’s treating medical practitioners to enable the other to obtain written or oral information about any treatment, consultation, diagnosis or prognosis in relation to the children.
11) The parents are at liberty to obtain all medical records and to consult with the children’s medical and dental practitioners to obtain any information he or she may require and service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority for that purpose.
12) The parents agree that they will share equally expenses or gap of expenses not covered by Medicare or Private Health Cover in relation to medical, health, dental and orthodontic costs including, but not limited to, costs of prescriptions. Copies of receipts are to be provided to the other parent as evidence of the costs incurred.
Schooling
13) That unless otherwise agreed by the parents in writing, Y and Z will continue to attend (omitted) College in (omitted) (“(omitted) College”) until the end of year 12. X will remain at his present school but the parties will do all things and sign all documents to enrol X in (omitted) College, commencing Term 1, 2016 until the end of year 12.
14) It is noted that the parents will share equally the following costs fixed by the schools (and will do all things and sign all documents required by the school to give effect to this) including, but not limited to:
a) School fees, costs of books, excursions, enrolment fees, registration fees and levies in relation to the children;
b) Costs of a ‘Bring your own Device’ for each child, when necessary, up to a maximum of $850 (maximum of $425 for each parent)
15) The parents are restrained from altering the children’s school without the written consent of the other parent.
16) The parents are permitted to attend any school attended by the children and to attend parent/teacher interviews or other school event occasions which parents are invited to.
17) The parents shall authorise in writing the principal or alike at the school attended by the children to supply both parents with copies of school reports, progress reports, notices relating to pupils attending the school, school letters, invitations to carnivals, sporting or social functions, notices of and any invitations to parent teacher interviews and any other notices directed to the parents of a child attending such school and service of sealed copy of these Orders will be sufficient to discharge this Order.
Other
18) The parents will facilitate each child, if they express a wish to, participating in one summer and one winter sport or extracurricular activity each year. The cost of the activity will be equally shared by the parents, including but not limited to, costs of registration, term fees and sporting equipment including but not limited to, uniforms and footwear.
19) The parties will facilitate the children’s sporting equipment to travel between the parent’s houses with the children when required.
20) The parents shall keep each other informed of any change of particulars of their residential address, telephone contact number and email address within 48 hours of any such change.
21) In the event of any dispute as to the interpretation, implementation or enforcement of these orders (including any claim by a parent that it should be varied) the parents shall first attend family dispute resolution (FDR) with an FDR practitioner and make a genuine attempt to resolve the dispute.
It will be immediately apparent that there is some agreement between the parties, such as in relation to counselling. This is all to the good.
The ICL’s orders sought were as follows:
1.That the parents have equal shared parental responsibility for the children X born (omitted) 2000; Y born (omitted) 2002; and Z born (omitted) 2003.
2.That during school terms, subject to Orders 4 and 5, each of the children live with their parents in accordance with their wishes, noting that as of the date of these orders the wishes of the children are as follows:
a.X: to live in a cycle of 2 weeks with the father then one week with the mother;
b.Y: to live with the father and spend each third weekend with the mother from 5pm Friday until 3pm Sunday; and
c.Z: to live in a cycle of 2 weeks with the father then one week with the mother.
3.That the children shall spend one half of each school holiday period with each parent, being with the father in the first half of the holidays and the mother in the second half of the holidays. For the purposes of this order holidays are deemed to:
a.commence at noon on the Saturday following the conclusion of the school term; and
b.conclude at noon on the Saturday prior to school recommencing; and
c.the mid point shall be noon on the Sunday closest to the mid point of the holidays.
4.That the parents shall ensure each of the children spend time with the parent with whom they do not primarily live, at minimum from 5pm Friday to 3pm Sunday each third weekend during school terms;
5.That in the event the parents disagree as to the wishes of the children they shall do all things necessary (including equal payment of any costs) to facilitate the children meeting with Ms S to provide a further objective assessment of their wishes.
6.Notwithstanding these orders:
a.The children shall spend from 4:30pm Saturday until 4:30pm Sunday with the mother on mother's day each year;
b.The children shall spend from 4:30pm Saturday until 4:30pm Sunday with the father on father's day each year;
c.The ·children shall spend from 4:30pm to 8:30pm with the mother on the mother's birthday each year;
d.The children shall spend from 4:30pm to 8:30pm with the father on the father's birthday each year;
e.On each of their birthdays the children shall spend a minimum of two hours, from 4:30 to 6:30pm, with the parent with whom they are not scheduled to be living on that day.
f.The children shall be-with the mother from noon on Christmas Eve until noon on 28 December in 2015 and each second year thereafter;
g.The children shall be with the father from noon on Christmas Eve until noon on 28 December in 2016 and each second year thereafter;
7.That the parents do all things necessary to enable each of the children to meet with the ICL to explain these orders within 28 days and thereafter the ICL is discharged.
After the trial, the Court put an alternative proposal to the parties to the effect that the boys (Y and Z) spend five nights per fortnight with the Mother and nine nights per fortnight with the Father. The parties responded as follows. The Applicant Father said:
The father’s submissions in relation to the following alternative proposal are below:
(a) That X would reside and spend time with each parent according to his wishes
The Father does not wish to be heard in relation to this alternative proposal.
He notes such an order is in X’s best interests and is open to the court to make, based on the evidence available.
(b) That Y and Z live with the Father for nine nights per fortnight and with the Mother for 5 nights per fortnight.
The Father notes that the evidence of the Family Report writer suggests that the boys would prefer not to have mid-week changeovers. A 5/9 arrangement will involve mid- week changeovers. The Father submits that on the evidence, however, the boys are resilient enough to cope with such an arrangement.
The Father further submits that whilst the proposed order does not take full account of the evidence of Y’s wishes to spend substantially less time with his mother, nonetheless it keeps two brothers together, and goes some way towards allowing Y to be heard in terms of an overall reduction of time with his mother. He submits that Y may come to accept this arrangement.
The Father submits that overall, the alternative proposal is within the range of outcomes that can meet the boys’ interests. Having a final order in place as soon as possible is important. This order would provide finality and certainty to the boys’ arrangements.
The Mother’s reply submissions, which were filed the same day as the Father’s submissions (16th December 2015), were as follows:
Thank you for your email dated 2 December 2015 regarding an alternative care arrangement for X, Y and Z, and the opportunity for me to comment up until today.
I thank His Honour for his ongoing commitment to finding a resolution, however my views regarding the boy's living arrangements have not changed.
If HH is not inclined to continue the current 50/50 care arrangement then perhaps, given that the boys alleged views have already changed dramatically since the commencement of court proceedings in June 2014, I respectfully request that HH considers continuing the current orders for a further 12 months and then reassess the boy's living arrangements once again.
Alternatively, as a reluctant however perhaps necessary compromise, I respectfully ask HH to consider an arrangement of 8 nights with the father and 6 nights with me, per fortnight.
As will be apparent here, these submissions suggest that the parties were/are only one day apart in their respective, albeit not preferred, positions. And while neither wants what was proposed by the Court, both of them, for different reasons, seem to accept it (sort of) if one accepts that the Mother’s “fall back” position is for an 8/6 arrangement.
The ICL did not respond to the Court’s inquiry/proposal in early December 2015. However, following a further inquiry by the Court in late February 2016 (while these reasons were being finalised) about whether there were to be any further submissions, the ICL responded that her original submissions (filed 1st September 2015) remained “current.” In the same email reply, the ICL reported on the “views” of X and the notably changed views of Y, who coincidentally (if not curiously) were with her again that day (23rd February 2016).
In what follows, I set out (a) the parties’ evidence, (b) the report and oral evidence of the family consultant, (c) the filed submissions, and (d) the Court’s consideration of the evidence in the light of the usual statutory considerations. I should note that at the trial the family consultant (Ms S) gave her evidence first – but I will still set out the evidence of the parties in these reasons before dealing with the evidence of Ms S.
The Parties’ Evidence
The self-represented Mother asked no questions of the Father in cross-examination. In answer to questions from the ICL, the Father noted the following matters.
He said that he “reminded” X that in 2012 he was advised that when he turned fourteen he would be able to decide for himself where he lived. This was in the light of an earlier report and an alleged comment by a family consultant at the time. However the Father said that this “reminder” arose after the boys raised with him the possibility of changing where they lived.[11] He confirmed that because of the nature of his relationship with the Mother this avenue said to be sought to be travelled by the boys should not come from him.
[11] T 25. I comment on this evidence later in these reasons precisely because in checking the 2012 “wishes report” there was no such “advice” or recommendation as alleged by the Father.
The Father said that, perhaps, the wishes of the boys in relation to spending more time with their Father might have come from a school counsellor.
As noted earlier, the Father said that the boys’ relationship with their Mother was “biological”, and then added (in answer to questions) that it must be more than biological. However, he said that he did not know what it was beyond it being biological. He said (emphasis added):[12]
… in the last - the last 11 years I haven't seen the dynamics of how they are in - in her house with them.
No, no. I understand that?‑‑‑Yes. Yes. So I can't either identify whether it is more than biological. Only - I can only go on the information that they've provided to me about the sort of relationship they have with their mother. Is - is that what you were asking?
[12] T 26.
The Father said that from January until July 2015, he noticed “signs” and behaviours of distress by Y that (he said) indicated that this child was not being heard. The Father said that he took Y to a GP who said that he should ensure that the child was eating meals regularly and that an eye should be kept on Y. He said that he gave “feedback” to the Mother via a communication book.
In relation to Z, the Father said that Z asked – apparently also early last year – whether he was now going to be picked on by his Mother.
In relation to X, the Father said that he “came on board” really only when all the boys saw the psychologist in the contest that is recorded in the interim judgment.[13] This “coming on board” related to wanting a change in living arrangements. This issue of “coming on board” was gently canvassed with the Father at a little length by the ICL. The following exchange is illustrative:[14]
[13] T 27.
[14] T 28.
MS BURGESS: When you use the phrase “come on board” do you understand that that makes it sound as though you had an agenda for the boys to want to live more with you and the boys came on board to your agenda?‑‑‑I understand.
Do you understand that ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ interpretation of that?‑‑‑Yes. And - and it was probably the wrong - wrong terminology to use.
Do you think these boys love their mother?‑‑‑Yes.
So when his Honour was asking you questions and you said their relationship with their mother was biological, do you understand that that's like the come on board phrase? It makes it sound as though it's Mr Olssen ego driving this and the boys are now old enough to get them on side. Do you follow that - what I'm saying?‑‑‑I understand what you're saying.
All right. And is that an accurate description of how you've gone about these proceedings?‑‑‑No.
All right. Well, can you, then, perhaps explain to his Honour what you think the reason behind the boys wanting to live primarily with you is, and I should never end a sentence with a preposition but I just did, so I apologise?‑‑‑Certainly. The boys approached me about wanting a change. I had never come to them and said, “I want you to live with me more.” They approached me on every occasion, and every time I've said to them, “Is this what you really want?” In moving forward from there I said to the boys, “If that's what you want I'm prepared to stand up for you and I will get you - I will fight for you to get that change, if that's what you really want.”
HIS HONOUR: Could I ask this though, taking my lead as I regularly do from Ms Burgess: you've just used terminology that “I will stand up and fight for that.” Can I just read you - this is from the - this is, again, quoted in my judgment of July last year and this is from the family report, or limited issues report, dated 8 May 2012, paragraph 3.8:
At the conclusion of the interview X was asked if there was anything that he wished the family consultant to convey to his parents. He said, “Only ask them if they could get along. They fight over everything.” He said that he did not expect their relationship would change no matter what was said to them at this point.
And you're just saying I said to the boys I would stand up and fight for you?‑‑‑Yes. Your Honour, can I make a clarification on that statement that you've just read? The fighting that - that the boys' mother and I do is not - is not stand up arguing fighting. It's disagreements.
Then there was the following further exchange in relation to what might assist the parties in having a better parenting relationship. While responding to that question, it led to some other comments, thus (emphasis added):[15]
HIS HONOUR: What's going to assist?‑‑‑I think in the first instance the boys getting the wishes that they want will help us all put something into perspective here, that the highest priority here is what the boys want.
And what happens, just say - you know, because I've got to work on the basis - well, that I readily work on the basis that everyone hopes for the best but I've got to plan for the worst?‑‑‑Yes.
Say in six months’ time after the one in three week arrangement and the boys throw up their hands saying, “This is really not working. You know, I'm missing mum,” whatever, what to do we do then to unscramble the egg?‑‑‑Okay. I've - I've - I've spoken to the boys about this and I've said to them ‑ ‑ ‑
You seem to be doing a lot of speaking with the boys?‑‑‑I - I do spend - I spend a lot of time talking with my boys and I spend a lot of time talking with my daughter and my wife. We're - we're a close family and we don't share any secret - we only share - you know, nobody has secrets and we keep everything out there, and I've said to the boys that if it was the other way around and they came to me and said, “We want to live with mum more,” I would say not a problem at all. I don't have an issue with that at all. I've never had an issue with that. If - even if X said to me, “Well, can I spend six months with you and six months with mum.” “If that's what you want to do, mate,” but as long as it's structured where it's not one day here, three days there. I said, “You boys can - you can have the arrangement you want. Your mother and I can sort it out, but just so long as it's structured,” and I've always said that to them.
[15] T 30.
The litigation between the parties over the last few years suggests that the Father’s evidence here is clearly not an accurate reflection of the reality of the parenting relationship; the parents are clearly unable to “sort it out.”
When asked about the Mother’s parenting attributes, the Father was, in my view, deprecating and quite unable to have any genuine positive regard to or for the Mother and her crucial relationship with the boys. He said (emphasis added):[16]
[16] T 31. Also see the discussion at T 33 where the ICL suggested that the Father’s responses in relation to the Mother were “quite deliberate and cold”; the Father rejected these suggestions.
What are the best features of Ms Wise's parenting?‑‑‑That she provides a roof over their head, she puts a meal on the table for the boys, she keeps clothes on their back, she makes sure they're - they - they get to school and they have what they need.
HIS HONOUR: It sounds all rather materialistic and utilitarian?‑‑‑Well, I would - I - I don't have, your Honour, the observation from inside the home on a daily basis to see how - how her relationship is with the boys other than the information that they provide to me.
But does the - you know, you heard Ms S say that these are terrific kids, which is ‑ ‑ ‑?‑‑-They are. They're very good boys.
‑ ‑ ‑ which is a credit to both of you, she says. Can you give any credit to Ms Wise for how good they are?‑‑‑Certainly. You know, I mean ‑ ‑ ‑
You know, besides, you know, a roof over their head and clothes on their back and a meal on the table?‑‑‑Certainly. You know, Ms Wise is very supportive of - of X with his football. She's - she's very good with making sure that, you know, she gives them all a hug when she sees them, she gives them all a kiss when she sees them, which is what children need. They need to know that - see that affection and they need to know that love.
But if you're not there how do you know that's what she does?‑‑‑I've seen her at - at sporting events when we're at the same place. I've been able to witness those, and on changeovers.
MS BURGESS: If I could take you back to a time when you and the boys' mother were in a relationship. What was the best thing about her parenting then?‑‑‑Ms Wise didn't work full-time so she was able to spend time at home with them during the week, especially when the boys were younger. She was able to pick them up and - and drop them off to where they needed to go during the day.
So back then, when you still liked each other perhaps, she was a good mum?‑‑‑Yes.
Would it be fair to say that perhaps she laid the foundation for the polite, lovely young men that we - some of us have been lucky enough to meet?‑‑‑I would like to think that back then it was the contribution from both of us.
In my view, the Father’s evidence invariably minimised the Mother’s role in and influence on the boys’ lives. For all of his claims to be sensitive to the wishes and needs of the boys, he was anything but about the Mother’s contribution to their lives, including recognising her as their “Mother.”
In answer to further questions, the Father said very bluntly that the Mother was “lying” in her affidavit evidence.[17] Later he retracted some aspects of this categorical claim on the basis that he did not know what the boys were saying to their Mother in her household.[18] Under further questioning, he conceded that the boys could in fact be saying exactly the kinds of things recorded by their Mother in her affidavit, such as that they like the living arrangements with both parents as they are.[19]
[17] T 34 – 35.
[18] See T 35.
[19] T 36.
In later oral evidence, the Father confirmed that the boys call his Wife “Mum” in that household, and acknowledged that this could be hurtful to the Mother. He said that it was the decision of the boys to do this.[20]
[20] T 54.
The Court suggested to the Father that it might be the case that significant responsibility was actually placed on the young shoulders of the boys in making decisions, such as what they called the Father’s Wife. He acknowledged this, up to a point.[21]
[21] T 55 – 56.
The evidence of the Mother was equally brief. It was as follows.
The Mother agreed with the proposition that the relationship with the Father was not particularly good. This was in keeping with the Father’s evidence to similar effect.
An issue that was raised in the earlier proceeding, and canvassed at trial, related to Y’s desire to undertake (hobby omitted). The Mother’s evidence was that Y’s wish to do this outside of school, and an issue in relation to bullying, arose out of a note in the communication book, and a telephone call from the school counsellor. At that time, Y was not in her care. She said that she simply wanted more information, which she sought from Y’s teacher, after which she spoke with Y. She also sought to speak with the Father; she said that initially she knew nothing about issues concerning Y regarding bullying or (hobby omitted).[22]
[22] T 40.
The Mother confirmed that she had been advised that the children wished to “live more with the Father”, but added:[23]
… have you accepted those views?---I hear what they’re saying but I question whether they are their views.
[23] T 41.
The Mother then expanded on matters where, she said, she had changed habits or conduct in her household after hearing concerns expressed by the boys. She said, for example:[24]
Anything else?---They had expressed dislike of my drinking and smoking, so that has reduced significantly. I sense knowing that they want more of a family relationship - well, you know, sense of family in the house. We have dinner at the table every night. The - this is in the new home. The TV is turned off. We talk. The boys - Z and Y will most often be in the family room where I watch TV. X chooses to go to a separate room because he likes to play Playstation or watch football, where I’m not watching that, but he’s always welcome to join us. It’s his choice not to. Just things like that…
[24] T 42.
In relation to the boys telling their Father one thing, and being sensitive to the Mother, she said (emphasis added):[25]
MS HEUSCH: So although you mentioned that these changes have occurred and that the boys have told you they’re happier in your household, do you accept that they are still telling third parties that they still want to live more with their father?---I do accept that they are telling people that, yes.
The boys have been described as thoughtful, articulate and mature. Would you agree that’s a good description of them?---Yes.
So do you feel that each of them has the capacity to express views articulately and thoughtfully?---I think that they are very sensitive to the issues that are going on and I - I believe that they keep a lot to themselves.
HIS HONOUR: Would you think that they would do that partly out of protection of themselves but also the protection of their parents?---Yes.
[25] T 42.
Still on the issue of the boys’ expression to live more with their Father, the Mother said:[26]
In Ms S’s two reports she’s reporting that the boys are quite consistent about wanting to live with their father. Do you accept that they’ve held these views for over a year, according to Ms S?---I agree that they have been saying that for over a year.
But do you agree that these views are quite strongly held by the boys, that they haven’t wavered?---Well, they have wavered.
Do you accept that in June of this year they were still telling Ms S that they wanted to live more with their father?---More with their father, yes, but it has wavered.
[26] T 43.
In relation to on-going discussions with the boys and the Father, the Mother, quite matter-of-factly commented:[27]
In February of this year you spoke to the boys about some changes you had made about the house and, according to evidence, you told them you would agree to revisit things in a few months’ time. If they told you they wanted a change of arrangement, why would you listen to them in a few months’ time if you don’t accept their views now?---That was more about making some changes so - to give everyone the opportunity to have some time to get used to - to a different arrangement.
So if those changes were in place for the next six months, say, till the end of the year, and things had settled down, what would your reaction be if the boys said, “We still want to live more with dad”?---Well, it’s obvious that I’ve accepted that because we have had negotiations and almost had an agreement on two, maybe three separate occasions, so obviously I am taking it on board.
[27] T 43 – 44.
There followed a detailed discussion with the Mother in relation to her belief as to what the views of the boys are, including that she did not [necessarily] believe that the views of the children being expressed were their own. A little later, the Mother acknowledged that the boys’ views could be genuinely held.[28] She also said that there has been nothing to suggest that the boys are fearful of expressing their views, but at the same time, generally, they do not speak about their living situation.[29]
[28] See the discussion at T 44 – 46.
[29] T 47.
In my view, crucially, the Mother confirmed that if the boys genuinely wanted to spend more time with their Father then she would be amenable for this to occur.[30] She also confirmed that matters that involve the Father (or general engagement with him – seemingly and particularly unplanned engagement) are a fraught exercise which puts the Mother on the defensive.[31]
[30] T 47.
[31] T 50 - 51. The discussion here between the Mother and the ICL related to, among other things, the Father taking the boys to see the psychologist, Dr M. Again I note that this exercise and all matters relating to it were set out in detail in the earlier 2014 judgment, which [again] must be the formal back-drop to this part of the Mother’s cross-examination generally and this part in particular.
In relation to the ICL’s general proposal for the boys, in effect, to make up their own minds, and her levels of trust in relation to the Father, the Mother said (emphasis added):[32]
[32] T 51.
MS BURGESS: It’s a really hard thing, isn’t it, to respect your children’s wishes enough to be forced to trust their father a bit, because that must be a bit what it feels like for you, doesn’t it?---Well, I’ve got to the point where I’ve accepted something’s going to change.
Okay. Well, if you accept that something is going to change does that mean that you’re accepting that the children will live more with their father than with you?---That may be the outcome, yes.
That may be the outcome. What does that mean? How is that outcome going to be determined?---Well - - -
By you, by Mr Olssen or by somebody who has never met X, Z and Y?---Well, my understanding is that that decision will be made by his Honour.
If you and Mr Olssen cannot make that decision?---Correct.
Right. So you and Mr Olssen can’t make that decision because you don’t trust anything that he says, do you - and I’m not saying you should. Maybe you shouldn’t, I don’t know?---Sorry, were you - - -
You don’t trust anything Mr Olssen says so you can’t - don’t feel that you can trust your children to make good choices?---I do trust things that Mr Olssen says.
Are there some examples of that?---Well, if we have to communicate - if he communicates things to me and says, “Z has been to the doctor”, I trust that that’s true. I trust that the diagnosis is what he has told me, things like that.
Okay. But not if it comes to your children’s feelings or views?---I don’t trust - no.
The Mother also confirmed that if a change in the living arrangements for the boys had some financial impact on her (e.g. in relation to child support) it would not make any difference to her. This was so notwithstanding the Father having referred (in his affidavit material) to the Mother likely being adversely affected if there were a change in living arrangements. The Father had diligently done calculations to set out in his trial affidavit (pars.23 & 24) how such a change would financially benefit him and disadvantage the Mother.[33] The Mother confirmed that in conversations with the Father he had said that he wanted to receive child support from her. She said that the issue of child support was what the dispute had transformed into.[34] Curiously, as acknowledged by the ICL, unfortunately none of these matters were put to the Father.
[33] T 52.
[34] T 53.
Evidence of the Family Consultant
Ms S prepared two reports: the first in December 2014 (which became Exhibit A), and a shorter report in July 2015 (which became Exhibit B).[35] This latter report was effectively one that recorded the views or “wishes” of the boys. I will deal with those reports first, with the main focus on the more recent document, before then considering the oral evidence of the Family Consultant.
[35] There was an earlier Report of Ms W in 2012 in relation to X’s wishes regarding his choice of high school. Given that this earlier report was before the Court previously, it may be taken to be formally part of the current litigation to the degree that it contains matters that were referred to in the course of evidence during the trial.
For current purposes, and given now the “age” of the first report, it is sufficient simply to note the following assessment and recommendations from it, which are, somewhat eerily, very similar to matters still in dispute but which (in my view) should have resolved after the 2014 judgment. Moreover, some of Ms S’s comments reflect many of my own concerns, both in 2014 and much more recently. Subject to what is said later in these reasons, Ms S’s comments give even greater pause, and not some cause for concern, about how needlessly embroiled the children became in the parenting dispute, and even more unfortunate how, in many respects, the dispute seemed to be almost (if not deliberately) confected by the Father to achieve a certain end or goal. It is certainly difficult to escape this conclusion in relation to, and in the light of, the matters dealt with in the 2014 judgment. Indeed, some of Ms S’s comments in her 2014 report about the Father mirror a number that I made in the 2014 judgment, which reflect poorly on him. Yet, subtly but relentlessly, the Father pressed on with the litigation and was, rather curiously in my view, rarely if ever called to account for his actions, not in the sense of being legally or morally accountable, but rather in the sense of the responsibility for his actions relevantly being taken into account in making parenting Orders pursuant to Part VII of the Act, perhaps under s.60CC(3)(m). The only things that seemed to matter, to the exclusion of all else, were the views of the boys.
In her 2014 Report, Ms S said (emphasis added):
7.1 This dispute appeared to have begun with the children becoming aware that they had a choice about their living arrangements, after some comments at their father’s place suggested dissatisfaction with their mother’s behaviour. The week-about residence arrangement had been in place for six years and was seemingly, at least from a logistical point of view, working well. It appeared that Y had originally expressed a wish to live “more with Dad”.
7.2 All three children, during their interviews, were critical of their mother’s smoking and drinking, which became the focus of their complaints about her. Their father, who did not smoke or drink at all, admitted that while he was careful to avoid saying derogatory things about Ms Wise, when the children told him “bad things” about their mother, he did not hide his reaction and would comment to the effect that “she shouldn’t be doing that”. It was difficult to rule out the conclusion that Mr Olssen’s responses in effect amplified the complaints, giving Ms Wise no benefit of the doubt, or right of reply.
7.3 The children in their interviews referred to not feeling “safe” at their mother’s, reflecting their dad’s emphasis on “safety”. While I considered that the incident, some years ago, when their mother was apparently drunk and insensible, had undoubtedly frightened them, the emphasis on their “safety” was not the way I would expect children of their ages to speak. A more measured response to that incident might by now have relegated the episode to the status of a regrettable incident in the past that was best forgotten. Ms Wise acknowledged drinking a few low-alcohol beers in the evenings, and smoking outside the house. I thought it possible that Mr Olssen’s own attitude had inculcated an undue preoccupation with their mother’s drinking and smoking in the children, to the exclusion of positive qualities. It seemed odd that X raised the issue of Z’s nut allergy in the context of feeling unsafe (because his mother could potentially be too drunk to use the epi-pen, requiring him or Y to do it). I wondered why and how this unlikely circumstance occurred to X.
7.4 As he spoke, it was clear that Mr Olssen regarded the children’s family life as complete, with his wife supplying the ‘mothering’, and her parents as grandparents. His statement that the children needed their mother in their lives appeared somewhat at odds with much of what he said and did.
7.5 The manner in which the children spoke of their new house that their mum and ‘Mr G were building seemed natural and spoke of a taken-for-granted family life with their mum. It reinforced my view that the children, until recent events, had assumed the long-standing shared parenting arrangement would continue into the future. It was clear that they had some issues with their mother. The process that Mr Olssen had set in train had seemingly resulted in the children scrutinizing and reporting to their dad on their mother’s actions. The manner in which this entire matter had been conducted was the antithesis of cooperation, negotiation and openness. Every aspect of it supported the idea that the children’s mother was untrustworthy, and unlikely to pay proper attention to the children’s concerns. The children reported feeling “unsafe” in their mother’s care.
7.6 While the children might, in any case, have had a preference for their lifestyle at their dad’s, it seemed unfortunate that they were ever placed in the position of having to choose between their parents. I was unable to judge whether, for example, Y’s results on the Family Relations Test were an accurate assessment of his relationships or a result of believing he was to choose “who he wanted to live with”. Among other indications, Z’s account of a conversation with his dad (“Dad said it’s our decision. If we wanted to go to Mum’s full-time, he’d respect our decision. But he said Mum’s not respecting that”) made it abundantly clear that choosing between their parents was what the children were doing. I believed that all three children were more comfortable in their dad’s household.
7.7 Mr Olssen had, over time, apparently heard a number of complaints from the boys about what happened at their mother’s. Because of the long-entrenched relationship pattern between himself and Ms Wise, Mr Olssen had apparently offered the children his own ineffectual technique – conflict avoidance. According to Mr Olssen, he always responded, “I can’t do anything – I could take it up with your mother, but that would just make it more difficult for you”.
7.8 I found myself in agreement with Ms Wise when she suggested that Mr Olssen might have spoken to her in February about Y coming home upset, and she might have addressed it. He could have given her notice that he would be making an application to Court if she failed to address the concerns.
7.9 I was not persuaded that Ms Wise’s care of the children was currently putting them at risk. The hostility between the parents and their misguided attempts to eliminate conflict had seemingly confirmed children’s belief that their parents would never stop fighting. Y’s comment about his dad being able to “control it”, rather than express his anger, revealed that he was aware that the hostility was still there. Controlled hostility did not seem like a worthy goal for two parents raising three such beautiful children. Each of these parents clearly loved their children and had worthwhile values, ideals and personal qualities to offer. Unfortunately the boys’ loyalties were divided, and their attitudes to their parents were polarized.
7.10 Given the observations that things in their mum’s household had improved since the Court process had begun, it would be wise for Ms Wise to continue to take account of the issues raised, while still in her current house. By all accounts, the prospect of the new house offered a lot of potential for rewarding changes
8. Summary and Conclusions
8.1 Taking into account the emotional pressure that the children had endured to get to the stage of being interviewed by me, I thought it would be unwise to ignore their expressed wishes to live more with their dad, regardless of how those wishes were formed or elicited.
8.2 In my view a decision that prevented the boys from spending significant periods of time with their mother, or denied them the opportunity to occupy the new house with her and her partner, would be unfortunate for them.
8.3 I was unsure how to reconcile these two requirements. There appeared to be a reluctance on the boys’ part to having any mid-week changeovers. That being the case, a division such as five nights per fortnight with their mother would not be popular. Another possibility might be that they have one week in every three weeks with their mother.
In her more recent [2015] short report, Ms S observed as follows, firstly in relation to Y. After outlining his likes and dislikes (primarily in relation to his Mother’s new residence and her partner [who he likes]), he said (p.2) (emphasis added):
Y thought that X and Z both wanted to have one week with their mother and two weeks with their father. “Mum just keeps telling me I have to have the same arrangement as the others”, he said. He remarked that his dad and Ms J would “go along with whatever, if it’s what we want”. If there were Orders for him to “do like the others”, he would do it, he replied to my question.
The main issue that Y had, apart from wanting “more of a family atmosphere”, seemed to be related to his (hobby omitted). “Dad supports me a lot in (hobby omitted). Mum doesn’t support me as much”. He remarked that his mum expected him to go to Z and X's AFL games but they did not come to his (hobby omitted). Y wanted his dad to take him to (hobby omitted), which took place on Sunday afternoons. For this reason, he said, he was prepared to go with his brothers to his mum’s every third weekend, at 5pm on the Friday, but wanted to return to his dad’s before 3pm on the Sunday.
In relation to Z, Ms S said (Report: p.2):
Z informed me that the new house was “pretty cool”. He anticipated that life with his mother would be “different”, because Mr G, whom he liked, would be living there, and his two boys some of the time. According to Z, as might be expected, he found Mr G’s boys “annoying sometimes”.
Z commented that his mother had been “a bit stressed with the building and packing and stuff” recently and agreed that she had been cranky sometimes. In answer to my question Z admitted that he “sort of” wished Y wanted to be together all the time. If he had his wish, it would be that all of them had two weeks with their dad and one week with their mum. “Nineteen days away from Mum is a long time”, he remarked, referring I assumed to Y’s expressed preference to spend only every third weekend at his mother’s.
In relation to X, Ms S reported (pp.2-3):
X, when asked, said that he thought the new house would make a difference for all of them, especially since his mother’s partner would be living with them. X liked Mr G and reported that he got along well with him. He also commented that his mother had reduced her drinking.
His preference would be to spend two weeks with his father and one week with his mother in each three-week period. He did not have any issue with Y having a different arrangement if that were to transpire. As might be expected, X, being in year 10 this year had “lots of homework” and liked to spend “most of the time with friends”.
I learned from X that the message he was getting in both households was that if he had an issue with the arrangements and wanted a change, they would be open to it….
In her summary, Ms S said (p.3) (emphasis added):
Y’s reasons for wanting a different arrangement to the others seemed, on the surface, to reflect fairly superficial preferences for the workings of one household over the other. However I could not dismiss the possibility that there was some strongly felt emotional hurt relating to his mother’s initial response to his (hobby omitted). Perhaps it was a feeling that his mum’s attitude reflected a lack of acceptance of him as a person. I formed the view that Y was not able to articulate precisely what his discomfort was about, and that the reasons he gave possibly did not adequately describe his experience.
It was clear that Y would comply with the arrangement that Z and X preferred if he had to. What was not clear was whether imposing it on him would hurt him emotionally. I could see value, if his mum agreed to his wishes, in letting him know that she was prepared to do so because his happiness was her priority.
I could also see value in Mr Olssen supporting the idea that Y could benefit from having the same arrangements as his brothers, on the grounds that learning to tolerate a degree of discomfort could be worthwhile preparation for later in life.
Again by way of observation, and subject to later evidence and comment, in my view, this later assessment by Ms S made the orders sought by some involved in the proceeding somewhat problematic. This was because both of the reports by the family consultant suggest, not unreasonably in my view, that there was (a) an element of confected dispute, and (b) by embroiling the boys in the dispute in the way that it has played out (so to speak) has placed a significant and unfair burden on them to make choices that they are either too young to make, too enmeshed in the dispute, and/or which in any event should have been made by parents.
Ms S’s oral evidence was as follows. Naturally, its main focus was on her more recent report. Firstly, in relation to each of the boys, noting that by every account, they are “delightful” and “compliant young men”, Ms S said:[36]
[36] T 9.
MS BURGESS: X is 15 years old. If he had particularly strong views either way, would you expect him to vote with his feet?‑‑‑I – I – that’s a difficult question. Do you mean that he would just simply refuse to do what was ordered and – and go and live with the person he wanted to live with? Is that what you mean?
Yes. Yes, that’s what I mean?‑‑‑Well, knowing what he said to me, I think he would feel entitled to do that and that he had been, more or less, given permission to do that. So I think he would.
Even though, at the same time, he seems like a compliant chap?‑‑‑He does. Yes. And, you know, having said that I think that he would, well, I don’t know. I mean, he’s a sensitive boy, and I think he would probably try to negotiate it. I’m not sure. I know – I know he – for instance, as a teenager would, he’s very engaged with his friends and he spends a lot of time with friends and, you know – so he – I would – to be honest, I – I don’t really know the answer to that question as to whether he would vote with his feet. I mean, when you say that, it sounds like you mean would he go against what somebody ordered him to do, and I’m not sure that he would. Do you know I mean?
Yes?‑‑‑I’m not sure that he would.
All right. That was certainly my take on him ‑ ‑ ‑?‑‑‑Mmm.
‑ ‑ ‑ that he was sufficiently compliant to do whatever this court orders?‑‑‑Yes.
Y; Y is 13 years old. Now, he said to you that his problem with his mum’s house was that it was not really a family environment? ‑‑‑That’s right.
Did you explore with him what he meant by that?‑‑‑Well, I did, to the extent that he was able to talk about it. I didn’t get a huge amount of information and I think, indeed, X said a similar thing about the family environment….
There was then a discussion about what Y liked doing at the Father’s house, and what he did not like about his Mother’s house, admittedly in relation to her old house or former residence, as noted in Ms S’s first report.
Ms S was next asked about the possibility of the boys expressing a different view to each parent according to what the boys thought each parent might want to hear. This exchange with the Bench was as follows (emphasis added):[37]
… given how compliant – these are my words, of course – and gracious they are, courteous they are, could there be any element of the boys saying to each parent what each parent wants to hear?‑‑‑Yes. I think there could. Yes. I do think that. You know, they are – they are, as you say, gracious and well-mannered and all of that. Mind you, at the same time, I think the boys themselves, or perhaps it was just Y – and certainly, Ms Wise – talked about times when they would be in conflict and there would be, you know, angry responses.
[37] T 11.
In relation to the boys’ views regarding parenting arrangements, in answer to a question from the ICL, Ms S commented:[38]
I think this is in your – the summary and conclusions, page 22 of your first report, you wrote:
It would be unwise to ignore their expressed wishes to live more with their dad, regardless of how those wishes were formed or elicited.
[38] T 12.
?‑‑‑That’s right. Yes. Yes.
Now, when you saw them in June this year, did you detect any change to their expressed wishes?‑‑‑They seemed – they seemed more formulated now, if you know what I mean.
The Family Consultant confirmed that the boys were consistently saying that they wanted to spend more time in their Father’s household.[39] There was no differentiation between the views of each of the boys in this exchange.
[39] T 12 – 13.
Then again the questioning turned to focus on Y. In my view, it was a little too focussed on him, to the exclusion of X and Z, for reasons already mentioned, and more noted later in these reasons. In any event, the discussion regarding Y looked at
(a)his views (notably expressed in a letter written to “the Judge” but which was only seen by the ICL) about time with his Father and Mother,
(b)his interests in cooking, architecture and things which the ICL suggested to Ms S made him a somewhat “unusual boy” (respectfully, I would have used the term “interesting” rather than “unusual”: such “interests” of Y are, in my view, not “unusual”). Ms S noted in particular that the Mother was “rapt” with Y’s progress and interest in these matters,[40] and
(c)his interest in (hobby omitted), and how he feels more supported in this area by his Father than by his Mother (with which comment Ms S agreed).[41]
[40] See T 15.
[41] The transcript records (T 15) in this respect (i.e. (hobby omitted)) that the ICL moved from questions regarding Y’s “support” or lack of it in the Mother’s household, to Y simply being “unsupported” in the Mother’s household generally. Given the context of (hobby omitted), and the earlier very positive comments by Ms S of the Mother being “rapt” about Y’s cooking and the like, in my view, it would not be appropriate to read the question and answer as suggesting that Y was not generally supported in the Mother’s household.
30) The difficulty in this regard is Y as his views are so much more extreme. Perhaps this is the result of his more moderate views having not come to any fruition. As Ms S indicated, it may have been much better ‘if the mother had acceded to those views as the boys would have seen it as putting the priority on them.’[56]
31) The best course of action for Y (who is 13 years old) would be to make orders providing for him to spend a minimum of one weekend in three with his mother (plus half school holidays) along with an exhortation on the father to encourage Y to spend more time along with Z and X. A clear explanation of the orders to Y by the ICL may assist in this process.
32) The issue of stability has been raised by the mother in her submissions. With respect, stability is achieved by the children knowing what the arrangements are going to be in the longer term. If the orders provide for two weeks with the father, then two weeks with the mother, it is no less or more stable than the existing week about arrangement. The possibility posited by the court of having cycles of arrangements, is less likely to achieve such stability and may lead to further proceedings if the parents have difficulty in its interpretation.
33) The boys are of an age where many other children would simply do as they please. The fact that they have been well loved, educated and raised in both houses has given them the tools to make mature decisions but simultaneously means they do not have the defiance or disrespect for their parents that would be needed to implement their strongly held views.
34) The position taken by the ICL in this matter is designed to ensure the Court is fully aware of the views held by the boys. The ICL view is that the Court should acknowledge and respect their views and implement them as closely as possible thereby providing the balance between respect and independence.
[56] The difficulty with this submission is that (a) it conflates Y’s views with those of his brothers, and (b) the submission is predicated upon Y’s views as they were at a particular point in time, but which have now changed, but the rest of the submission and the quote from Ms S, is directed to the views of all the boys.
I have noted earlier in these reasons the ICL’s correspondence with the Court in February 2016 regarding the changed views of Y and his formerly “extreme position” now having changed to accepting a 9/5 arrangement in the Father’s favour.
Consideration & Disposition
It is not uncommon for a judge to accept (and indeed, to adopt) detailed submissions from the ICL, such as those that are set out in these reasons. However, in this instance, it is not apposite to do so, at least not in their entirety. In my view, they give too much weight to the views of young people, and one of them in particular (13 year old Y), who has recently changed his view – according to the ICL.
Further, in my view, as indicated throughout these reasons, the Father has not been properly called to account for his actions in recent years, including his actions which have clearly compromised certain events and excluded the Mother from those important events that have involved the children, such as taking the boys to see a psychologist who then recommended that there be mental health assessments for them. He should have been called to account for his actions, in the sense earlier identified as a consideration under s.60CC(3)(m), and how they have made much more difficult the Court’s determination of what Orders are in the best interests of the boys. Conversely, in my view, the Mother has been unfairly criticised or challenged at times for her response to, or in, certain situations. In this respect, as with the focus on Y, there has been, in my view, a certain and unfortunate skewing of submissions in the Father’s favour and a criticism of the Mother, neither of which is supported by the evidence.
As a general proposition, young people do not have a sufficiently wide or solid “base” (i.e. life experience) upon which decisions can or should reliably be made. Invariably they will have a view about the direction they would like to head, but such a view could (and regularly does – and in this case, has done so) change according to circumstances. Whim, discontent, subtle (and not so subtle) manipulation, emotional stress, fantasy, electronic (and other) distraction, and much more besides, figure enough in the lives of adults. Many of these things feature rather prominently in the lives of young people whose lives are caught up in long-running litigation. Such factors can readily influence the views of young people. All of this is to say that human decision-making can be fraught, and is prone to be subject to influence and change.
By reference to the prescriptions set out in s.60CC of the Act, what I have been known to call the “legislative scaffold”, as an alternative description to the bedevilled “pathway”, the following matters should be taken as formal findings. In following s.60CC, I should be taken to refer to the various “considerations” sequentially, without necessarily naming each of them.
In relation to the primary considerations in s.60CC(2), there is no issue that all children have a meaningful relationship with both parents; nor is it in issue about there being any relevant “risk” or “harm” factors that warrant protective orders by the Court.
In relation to the “additional considerations” in s.60CC(3), the “views” of the boys have been canvassed at length and are set out earlier in these reasons. But most recently, as of late February this year, accepting the agreement for X to do effectively as he wishes given his age, the younger two boys, Y and Z (articulated only by Y), were of the view that they could live with a 9/5 arrangement, at the same time noting again the concern about mid-week changeovers. It is clear on this view that (unsurprisingly) the boys want to have their cake and to eat it too – in a manner of speaking. This is so because a 9/5 arrangement will necessarily involve some sort of mid-week changeover.
I have already noted that the boys have a good and close relationship with both parents.
In relation to sub-paragraph (c), the parents have generally spent regular time with the children, and reasonably communicated with them. The Father’s household is a clearly more garrulous and discursive one compared to that of the Mother. The concern however is that, as the Father attests, he encourages the boys to speak about everything in his household and, on his evidence, he speaks with them about everything. On its face, to speak generally, this household of constant discussion is no bad thing (save perhaps for some relevant respite from “discussion”). The concern however is that he creates an environment which, effectively, sets up a competition between his household and that of the Mother.
In this regard, I refer – again – to the Father’s actions in taking the boys to a psychologist without any reference to the Mother. It is difficult to consider any action more calculated to deceive and to exclude the Mother, and to fashion a result that exerted significant pressure on the boys. All of that arose out of, ostensibly, a sore throat and cough by Y. It was manipulative in the extreme. The Father’s evidence at the trial did little to give me any greater confidence that he would not do or say whatever was necessary to ensure that the boys appropriately “came on board” – to use his words – to his agenda. His reference to the boys’ relationship with their Mother as “biological” was, in my view, quite despicable.[57] The situation created by such a callous but nonetheless revealing comment was only partially “retrieved”, in a manner of speaking, upon some further benign questioning.
[57] These matters regarding the Father’s conduct may also or otherwise be considered under s.60CC(3)(m).
As the principal member in his household for the purposes of the current proceeding, just as the Mother is in her household, the ICL’s submission that the boys’ views have been influenced “by the different nature of the two homes rather than by the parents themselves” is a distinction without a difference. The households are led and given direction by the parties. The nature of the two households is formed precisely (if not primarily) by the parties and their actions. More significantly, in my view, the submission is not supported by the evidence and takes no account of the Father’s actions throughout the litigation to which I have referred.
In relation to sub-paragraphs (ca), and (d) – (g), apart from the actions to which I have referred, I do not understand there to be any relevant complaint about the parental obligations to provide adequately for the children. An argument could be made, and has been made, about the Mother’s capacity to change certain things in her household (e.g. in relation to her drinking, and the regulation of her emotional responses at times – which she said she had addressed; I have no reason not to accept her evidence in this regard). Argument was also made about the differing types of support (or alleged) lack of it for Y and his (hobby omitted). In my view, this issue was rather blown out of proportion. Difference in parenting styles and different emphases in support, do not (of themselves) constitute opposition.
The Mother was not opposed to Y’s (hobby omitted); it was more a question of communication and support for (hobby omitted) at school, or (hobby omitted) outside of school. The Father’s submissions rightly noted the Mother’s clear delight in Y’s cooking skills, which were not mentioned in relation to the Father’s residence. Certainly, Y’s particular sensitivities were recounted at some length. They are properly the subject of comment and consideration. But so too were his responsibilities towards, and relationship with, his siblings, and the need to develop life skills in coping with not always getting what one desires.
A critical consideration, in my view, is the sibling relationships between the boys.[58] Were the Court minded to make separate orders in relation to Y, I would be concerned that it would likely impact quite negatively on Z due to his age and that (as Ms S noted) he would miss Y. Further, as Ms S also observed, it would likely be beneficial for Y to learn as a life skill how to cope with not always getting what one wants.
[58] See s.60CC(3)(d).
There are no matters relevant to practicality or expenses that arise in relation to this matter.[59]
[59] S.60CC(3)(e).
The only other considerations of relevance in the current matter arise under sub-paragraphs (i), (l) and (m). In the light of the ICL’s submissions, and some comments by Ms S, which sought to down-play if not to dismiss as irrelevant the conduct of one parent and the history and circumstances that likely helped form the views of the children, for context and principle I note the following comment by the Full Court in a decision of long-standing.
In the joint judgment of Evatt CJ and Asche J in Smythe, their Honours said (internal citations omitted; emphasis added):[60]
… matrimonial fault or conduct is relevant in relation to custody or access only if it has some bearing on the fitness of the person as a parent, and as a consequence on the welfare of the children. … This principle applies not only to issues of fault … but also to other aspects of a party’s behaviour which may have a bearing on the justice of the situation.
In this context behaviour can include the attitude of one parent towards the other and the willingness of a parent to make unfounded or irrelevant allegations against the other … to the extent that a child’s welfare may be adversely affected by the influence and attitude of such a parent …
… The overriding principle is whether the evidence and the conduct are relevant to the welfare of the child.
[60] In the Marriage of Smythe (1983) 48 ALR 677 at pp.684 & 685.
More recently, and more generally in relation to parental “capacity” (as opposed to “conduct”), the Full Court (Finn, Warnick and May JJ) said, at [41] (emphasis added):[61]
In our view, it is clear that, while the impact of any parent’s relevant actions should, if the evidence permits, be identified, the references to “fulfilled, or failed to fulfil responsibilities as a parent” and “…facilitated, or failed to facilitate” demonstrate that the actions of each parent in the relevant respects are to be evaluated for something beyond consequence alone; namely what those actions say of the person’s capacity to parent.
[61] Goldrick v Goldrick [2007] FamCA 1260.
In my view, both “conduct” and “capacity”, as set out by the Full Court in the cases noted here, are relevant to the current matter. Put another way, “conduct” is relevant to the degree and in the manner noted by the Full Court.
Although tedious to note again, in my view, I am very far from confident that the Father’s actions in the past (previously recorded in detail in the 2014 judgment), and his evidence at trial, will not risk undermining the boys’ significant and meaningful relationship with the Mother. The 2014 judgment records in detail relevant matters which need not be repeated here. In his oral evidence at trial, the Father -
(a)spoke about X taking a little time to “come on board;” [62] this suggests to me something of an “agenda” of sorts – explicit or implicit;
(b)said that the “wishes report” of 2012 confirmed to X, and he reminded him of it, that when he turns 14 he will be able to make a decision where he lives.[63] Unfortunately, this evidence was not challenged and is, in fact, completely erroneous. The “wishes report” (dated 8th May 2012) related only to a contest between the parents about what high school X would attend. There is no reference anywhere in that report about X choosing where to live when he turns 14. Indeed, other than the Court checking and confirming what was in the 2012 Report, only the self-represented Mother checked it and noted in her submissions (filed 31st August 2015; pp.3-4) that the Father’s claim in the course of his oral evidence was completely false. As she put it: the Father was using “authoritarian figures [sic: a figure of authority] to justify and explain his behaviour.” I agree with and accept this submission. And to state the obvious: the other lawyers involved in the matter should have checked this earlier report not only for historical purposes regarding X’s wishes but also to stop the Father giving what was clearly false evidence, or at least correcting it after the event. Even after he gave his evidence, none of the lawyers checked that earlier report. This should have occurred;
(c)said that he has told the boys that he will “stand up for you … I will fight for you to get that change …”[64]; this suggests to me at least a certain belligerence or defiance which has only added to the conflict;
(d)accused the Mother of “lying”, but again with some gentle questions from the ICL to help recover the situation, the Father moved a tad to say that he did not know whether what the Mother said in her affidavit is true or false;[65]
(e)in my view, had/has the greatest difficulty saying anything positive about the Mother, for example;[66]
Would it be fair to say that perhaps she laid the foundation for the polite, lovely young men that we - some of us have been lucky enough to meet?‑‑‑I would like to think that back then it was the contribution from both of us.
[62] T 27 – 28.
[63] T 24 – 25.
[64] T 28.
[65] T 34 & 35.
[66] T 31 – 32.
Were you working full-time?‑‑‑I was.
So perhaps it was - might have to have been a little bit more mum than dad? It's hard to raise children when you're still at work?‑‑‑That's true, but if you spend most of your time over the weekend with them you get to make up a little bit of that time. Yes.
Ultimately, with yet another opportunity to recover his position, the Father only slightly conceded, and with some reluctance in my view, the significance of the Mother’s parenting:[67]
HIS HONOUR: But if the other boys, as I understand it, that they're sensitive, courteous - my words - gracious, couldn't they be all those things to their mother as well?‑‑‑Yes.
[67] T 36.
The issue, ultimately of course, is to make orders that are in the children’s best interests, and not to punish or to reward either parent.
The attitude of the Father towards the Mother evidenced by his past actions and by his evidence at trial, in my view, falls significantly short of a proper and just exercise of his responsibilities of parenthood. Indeed, in my view, from the Father’s perspective, the old adage of “the ends justify the means” is an apt description of actions he has taken in the past and significant parts of his evidence at trial. Indeed, the adage could also be applied to some of the submissions by the lawyers regarding not being worried about how the views of the boys have been formed, and that the Court need only focus on the views of the children. I do not accept such submissions.
While the Mother has clearly not been perfect in her parenting, she has not taken any action of the extreme kind by, or exhibited (in my view) the banally cruel attitude of the Father.
The art and craft of good parenting is most often characterised by “sacrifice.” The High Court has said as much, albeit in the context of relocation. In the joint judgment of Gummow and Callinan JJ in U v U, at [92], their Honours said (emphasis added):[68]
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
[68] U v U (2002) 211 CLR 238.
In my view, the Mother’s evidence was much more appreciative of the parental requirements of sacrifice than was the Father. She said, and I accept, that she would accede to the boys’ wishes even if it meant that they would not spend as much time with her as is presently the case. She said that she would accept this if she was confident that the boys’ views were their own, uninfluenced by others.
Such a view demonstrates the Mother putting the children’s best interests ahead of her own, and ahead of any other agenda or contest. In my view, the same behaviour and attitude has not been demonstrated by the Father throughout these proceedings, and as such, the Court cannot be confident that the Father will encourage the boys at least to maintain the good relationship with their Mother when in the Father’s household.
In relation to sub-paragraph (m), there is the following additional matter that relates to the Father’s “interest” in and evidence relating to child support. No formal finding can be made but there was evidence and or comment from various sources in relation to this aspect of the matter.
Earlier in these reasons I noted that:
(a)Early in the trial the ICL observed that she was not convinced that “the arrangements for the children are the key issue”. Yet in her post-trial submissions [par.21], the ICL was more sanguine about the relevance of “child support issues”, concluding that there was “no evidence that it featured in his actions”. Respectfully, I am not so sure that this is the case; in my view, her earlier observations at trial are much more to the point;
(b)In fact, the Father’s trial affidavit (filed 17th July 2015; pars.22 – 24) records information obtained by him from the Child Support Agency regarding estimates of changes in who pays what amount in the event of certain changes to parenting orders, and concludes that if the boys live with him for two weeks out of every three, the Mother “can expect to pay [the Father] child support of $117 per month”. One might reasonably ask: why go to so much trouble to get estimates from the CSA if it was not a motivating factor to some degree? A CSA estimate with respect to child support, and motivations for the best interests of the children, are not mutually exclusive of course. In my view, the Father’s industry to make inquiries of the CSA is a relevant consideration. He clearly saw/sees child support to be an issue of significance;
(c)The ICL cross-examined the Mother (but not the Father) about child support. The Mother’s evidence in relation to child support was not challenged.[69]
[69] More generally, in her trial affidavit, filed 16th July 2015, at pars.74 & 75, the Mother referred to a number of occasions in 2015 where the parties almost resolved the parenting issues in dispute. She avers that the Father withdrew his consent on both occasions. In the course of the trial, the ICL subtly indicated that on one recent occasion, so it would seem, the parties reached agreement but the ICL did not agree with that resolution.
While no finding can be made about such things, in the light of the matters I have recorded about child support, in my view, it is a consideration to which I should at least have some regard. Indeed, given the ICL’s opening remarks about where or what the “key issue” truly is, it would be remiss not to have some regard to this little-explored aspect of the contest. The Court cannot make any relevant finding how much of a factor it is in the Father’s armoury of motivations.
It is important to return to one aspect of the matter, namely Y’s “sensitivities.” What is curious in this regard is that for all the attention heaped on Y and his views, whatever they may be at any particular time, there was surprisingly little attention paid to the impact on such a sensitive soul of placing the weight of responsibility for what would otherwise be parental decision-making on his young shoulders. In my view, it is a burden that he should not have to carry. Express his views, by all means; have regard to them, by all means; but do not place the burden of onerous decision-making on his somewhat delicate shoulders at too early an age. This aspect of “burden” on a young and somewhat delicate person, and shifting it to him rather than the parents shouldering it should have been addressed, particularly by the experienced lawyers involved. This is especially so given how earnest and active the Father has been over the years, notably with the aid of Dr M, recorded in the 2014 judgment, to involve Y and have him take the lead, so to speak, in prosecuting the litigation. In my view, ultimately too much focus was placed on Y. The interests of all boys should be considered – individually and collectively. No one should be singled out for possible preferential treatment. The risks of doing so are obvious.
There were few submissions in relation to the operation or general import of s.65DAA. It may simply be observed in this regard that while there has been an equal time arrangement in operation now for quite some years, under the orders proposed, and in many respects acknowledged by the parties, (a) there will be some change to the existing orders, and (b) from the Court’s perspective, what is proposed (noted below) readily captures what is set out in s.65DAA(2), (3) and (5) in relation to “substantial and significant time”.
Conclusion
The orders which I propose are, in my view, clearly in the boys’ best interests, and will (as far as it is possible to do so) lead to a diminished likelihood of further litigation.[70] They properly take account of the boys’ wish to spend more time with their Father, but recognise also their concern about mid-week changeovers. There may ultimately be a transition to a 9/5 arrangement, which I would allow but only some time in the future. But such a course would inevitably lead to some sort of mid-week changeover, which the boys consistently say they do not want. However, if the boys choose to stay with what I will call the primary position (of an 8/6 arrangement), then no issue regarding changeover will arise. The boys must be clear that their choices will have consequences: a change in regime for more time with the Father (albeit for one extra night per fortnight) will necessarily mean a mid-week changeover.
[70] See s.60CC(3)(l).
Three final things need to be noted.
First, like many people, the views of young people can and often do change. Here, on the most recent material provided by the ICL, Y’s views have changed quite significantly from those articulated by the Father, and equally from those expressed in earlier reports. Given the change I propose, albeit somewhat slight, it may be that the views of the boys generally (and Y in particular) will change again in the future.
In the ancient world, the changeability of life was pithily expressed as lubrica mutabilitas – literally “slippery mutability”, which seeks to capture the notion (and the reality) that change in life happens and is difficult to grasp as well as difficult to control. Such is the situation, I suggest, regarding the changeability of the views of young people in particular. And precisely because they do not have sufficient life experience and learning at a young age, they need stability and certainty, not endless change and uncertainty especially caused by bitter and prolonged litigation.
Secondly, in the 2014 judgment I quoted from the 2012 report of Ms W, where she recorded (at par.3.8) X’s plea (if not lament). It was not heeded in 2012; nor was it heeded in 2014, or since. One might hope – albeit desperately – that it might be heeded in 2016 and beyond. As recorded in that short report, Ms W said:
At the conclusion of the interview X was asked if there was anything that he wished me to convey to his parents. “Only ask them if they could get along. They fight over everything.” He said that he did not expect their relationship to change no matter what was said to them at this point.
Tragedy upon tragedy has been visited upon these fine young boys by the parents who love them deeply but, thus far, have been incapable of resolving parenting issues without resort to costly and often hurtful and petty litigation. The personal and other cost to all must be enormous. Yet even pleas from X, which are clearly not directed to only one parent, have – so far – fallen on deaf ears. Plaintively one must ask: “When will the parents listen?”
Thirdly, in an entirely different matter, which involves a young person of an age very similar to Y here, an equally experienced ICL to the ICL in the current matter, put the submission that, whatever the child’s views are, “it is the parents who should be driving the bus.” This is the fundamental submission that should have been made here. Young people do not drive buses. They will obviously have a view about where to go (which may change on disposition, weather, emotion and all manner of other circumstances and distractions), but they do not drive the bus. They are not trained to do so; they do not have the experience to do so.
It is as well also to record, both as a matter of principle, and for the purposes of confirming further the Court’s proper attention to the views of the boys, the following comments by the Full Court in Harrison and Woollard.[71]
[71] See also the more recent decisions of the Full Court in Maldera & Orbel (2014) FLC ¶93-602 at [91] – [93]; Gillard & Gillard [2015] FamCAFC 169 at [81].
For example, in the joint judgment of Fogarty and Kay JJ, their Honours said:[72]
… the Court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.
[72] 18 Fam LR at p.800.
In the same case, in a separate judgment, Baker J said (emphasis added):[73]
In my opinion, a child's wishes must not only be considered, but must be shown to have been considered, in the reasons for judgment of the trial Judge. Furthermore, if the trial Judge decides to reject the wishes of a child, then clear and cogent reasons for such a rejection must be given particularly if, as in this case, the separate representative submits that the Court should give effect to such wishes.
The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial Judge in each individual case. Such an exercise will require a consideration of both the child's level of maturity and understanding.
I am not advocating that a trial Judge should automatically act upon the wishes of children, since the Court's duty is to act in the best interests of the child. Rather, the goal is to take the wishes of children seriously by giving them careful, detailed consideration. To merely regard the wishes of children in a token manner, or to be dismissive of them, does not accord with the findings of psychologists as to the competence of children to express soundly based wishes and ignores the statutory requirement of s 64(1)(b) of the Act.
[73] 18 Fam LR at p.825.
Rather more recently, and relying upon the comments of the Full Court in Harrison and Woollard (among other cases), the Full Court (Bryant CJ, Strickland and Murphy JJ) in Vigano v Desmond said, at [95]:[74]
A trial judge is not bound to make a decision in accordance with the views of the child or children.
[74] Vigano v Desmond (2012) 47 Fam LR 552. See also comments in R and R: Children’s Wishes (2000) 25 Fam LR 712; (2000) FLC ¶92-598; and In the Marriage of R (Children’s Wishes) (2002) 29 Fam LR 230; (2002) FLC ¶93-108. The 2000 and 2002 cases are important, not least because of the Full Court’s comments about (a) the totality of all the evidence being properly considered rather than undue emphasis upon the views of the expert in the matter, and (b) that part of that evidence is the attitude of the parents in relation to being supportive of the role of the other parent. The cases of course must be viewed relevantly in the light of decisions that post-date the 2006 amendments to the Act. The fundamental principles must nonetheless apply – as noted in Vigano v Desmond.
All three children’s views here have been taken into account in the detailed consideration of all the evidence before the Court. I note in particular that Y initially wanted to spend one weekend every three weeks with his Mother, and that Z wanted to be with Y. In my view, on any consideration of the evidence, such an arrangement was not in the best interests of those boys because it would result in substantially less time with the Mother. This is in circumstances where (a) there are no risk factors in the Mother’s household, and (b) such a proposal could significantly jeopardise the relationship between these still young boys and their Mother. Whilst the boys are responsible and relatively mature for their ages, the Act (and relevant case law) stipulates that such views are not to be the only consideration for the Court in determining the best interests of the children. Other significant factors are the Father’s utter negativity towards the Mother, and his precipitate action in 2014.
In this regard I simply note the Full Court’s comments in In the Marriage of R (Children’s Wishes) where there was no criticism levelled at the trial judge who found that the conduct of one parent had undermined and otherwise impacted adversely on the child’s views in relation to spending time with the other parent.[75]
[75] Among other places, see the Full Court’s comments in In the Marriage of R (Children’s Wishes) at 29 Fam LR at [111] – [130].
Moreover, the arrangement originally proposed by Y was such a significantly different one to the week-about Orders that have been in place for a significant period of time as to warrant much caution on the Court’s part. And as things have turned out, Y’s views, as communicated by the ICL, have in fact changed – for whatever reason.
In short, I have considered exhaustively (if not exhaustingly) the views of the boys as communicated to the Court via the two Reports of the Family Consultant, her oral evidence, the ICL in Court and in correspondence with the Court, and in the light of the comments and evidence more generally of both of the parents. Having regard to all of these matters, and the other considerations to which I have referred, the Orders which I now make, in my view, are in the best interests of all of the boys – individually and collectively.
Finally, the parents and the boys need to get free from the court system. Like Mark Twain’s Huck Finn, they need to “light out for the new territories” (if I may only slightly mis-quote the famous lines from the conclusion to the classic novel Adventures of Huckleberry Finn). The parents and the boys need assistance away from the distraction and din of litigation; engaging in litigation is not to be commended as a therapeutic exercise. It tends to cause more wounds rather than healing, or palliating old ones. The dust from the latest fracas needs to settle. Then, and only then, should all go to see Ms S for therapeutic counselling.
I should also note, and urge the parties to consider, the following admonition or instruction by the Full Court, which is particularly apt in the current matter. In Cullen, Strauss J (as part of a Full Bench otherwise comprising Watson SJ and Bell J) said (at Fam LR p.48):[76]
There are few greater evils in family law than recurring litigation about custody and access. It is detrimental to the child, particularly so if he is old enough to appreciate that his parents are in legal conflict. It saps the mental, emotional and financial resources of the parties. It taxes the resources of the court and of the community.
[76] Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113.
The orders I consider to be in the boys’ best interests are as follows:
a) The parents shall have equal shared parental responsibility for the children X, Y and Z. Because both parents seek such an order, it can be made by consent;
b) X shall live and spend time with his parents according to his wishes;
c) Subject to any other agreement in writing between the parties, for the next six months from the date of these orders, Y and Z shall live with their parents in an 8/6 arrangement (8 nights per fortnight with the Father and 6 nights per fortnight with the Mother);
d) After a period of six months from the date of these Orders, in the event that both Y and Z are of the view that they wish to spend one extra night per fortnight with their Father, both parents are to approach Ms S with a view to her seeing Y and Z, as well as the parents, to make a recommendation about the utility of changing the orders, by consent, for one extra night per fortnight with the Father. Such a change in the orders is to be the only matter for consideration with Ms S, in addition to whatever she deems best in her role as therapeutic counsellor;
e) The parties are not to discuss these reasons with (or to provide a copy of them to) any of the boys;
f) The parties are restrained from any denigration of the other parent in front, or in the hearing, of the boys, and are to use their best endeavours to ensure that no other person does so either;
g) The ICL is requested to explain only the Orders to the boys; there is to be no discussion with them about these reasons except to say that I appreciated receiving their views from the ICL and from Ms S regarding spending extra time with their Father and took serious account of them together with all the other evidence before the Court;
h) Otherwise, the consequential orders regarding Mother’s and Father’s Days, Christmas, and the like, as sought by the Mother, should be made. Many of them are close to those proposed by the ICL. In my view, they are in the boys’ best interests.
I certify that the preceding one hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 19 April 2016
“So you say his desire to have the children live more with him is motivated by money?---Well, that’s what it has become about.” As earlier noted, this evidence was not challenged.
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