P and P

[2009] FCWA 124

[2009] FCWA 124

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	P and P [2009] FCWA 124
CORAM	:	THACKRAY CJ
HEARD	:	29 MAY 2009 AND WRITTEN SUBMISSIONS
DELIVERED	:	17 SEPTEMBER 2009
FILE NO/S	:	PTW 1273 of 2000
BETWEEN	:	P Applicant/Mother
AND
P Respondent/Father
Catchwords:

CHILDREN - Parental responsibility - Time the child is to spend with the father - Where the child is to attend high school - Extent of the child's involvement in sport

ORDERS - Contravention application - Where the mother temporarily prevented the child spending time with the father following alleged assault by the father against the child's sibling - Whether delay after allegation was recanted amounted to contravention - Whether issue involved in contravention application was de minimis - Whether mother contravened vague order for telephone contact by not providing her new telephone number to the father

Legislation:

Family Law Act 1975

[2009] FCWA 124

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented
Respondent	:	Ms Giles

Solicitors:

Applicant	:
Respondent	:  DCH Legal Group

Case(s) referred to in judgment(s):

Nil

[2009] FCWA 124

1 These supplementary reasons relate to the ongoing dispute between [Mrs P] and

[Mr P] concerning their three daughters. The issues have narrowed with the passage
of time and the focus is now on the youngest child, [Leonie], who is 12 years of age.

Procedural background

2 The original trial took place in May 2007. Due to a variety of circumstances, my

judgment was not published until October 2008. These reasons need to be read in
conjunction with that judgment.

3 I did not make formal orders in October 2008, although I did indicate the orders

I was inclined to make in relation to the most contentious matters. Given the time that had passed, I invited the parties to consider whether they wanted to adduce further evidence. The proceedings were relisted in December 2008 at which time I made directions allowing further evidence on defined issues. I refused the father’s application to adduce evidence concerning his proposal for [Leonie] to attend [a private school]. I then set the matter down for final hearing in May 2009.

4 I was then informed at a hearing in March 2009 that the father wanted to appeal

my decision to give the mother parental responsibility in relation to education issues. I made a formal order dealing with that issue. The father duly appealed, but the appeal was subsequently withdrawn. In April 2009 the father filed a further application seeking an order for [Leonie] to attend [a private school] in 2010. For reasons I considered sufficient at the time, I decided to allow him to agitate this issue notwithstanding a final order had been made.

5 The hearing resumed on 26 May 2009 and further evidence was taken. Closing

submissions were made by counsel for the father and by the mother. Counsel for the father was given permission to file supplementary submissions. These were due to have been filed by 10 June 2009, but were not received until 24 June 2009. There were acceptable reasons for the delay and I propose to consider the submissions.

Father’s time with the children since the 2007 hearing

6 At the time of trial in 2007 the father was seeing [Leonie] each alternate week

from after school on Thursday to the start of school on Monday. This was pursuant to a private arrangement, as the existing orders provided for his time to commence after school on Friday. The father was also having additional time with [Leonie] during school holidays, although for less than half of each holiday. The father was not spending time with the other two girls.

7 Immediately after the conclusion of the hearing, the parties had private

negotiations. It seems these were prompted by remarks I made concerning the impact of their conduct on the welfare of the children. I was then informed the parties had reached an “in principle” settlement, the main elements of which were as follows:

• [Leonie] would spend time five nights each fortnight with the father, from after school on Thursday to before school on Tuesday and would also spend half of all school holidays with him;

[2009] FCWA 124

• [Angela] and [Narelle] would spend at least three hours a fortnight with the father for a period of up to six months;

• the “where and how” of the visits for the older girls would be subject to their wishes, but not the visits themselves;

• any additional time the older girls wished to spend with the father would be encouraged and supported by the mother;

• the clinical psychologist, [Ms A], would be involved in the process of re- establishing contact between the older girls and the father.

8 The father claims that the understanding reached in these negotiations was that

his time with [Leonie] would increase to equal time (depending on how [Leonie] responded to the new regime). The mother says she never had any intention of the time being extended.

9 The mother almost immediately wanted to renege on her agreement to allow

[Leonie] to spend an additional night each fortnight with the father. In her letter to the father sent shortly after the settlement was reached, the mother made reference to correspondence she had just received from the father concerning exchange of school uniforms. She said later that she realised that notwithstanding the concessions she had made, the father was “not relenting on anything – he was not budging an inch”. Her letter went on to describe what she considered were going to be the logistical difficulties with the new arrangement. She also advanced other reasons why she considered it would be best for [Leonie] to continue with the four nights a fortnight regime. She said she had agreed with the father’s request for an additional night during a “tense time” at the court hearing during which she was unrepresented and without support.

10 Notwithstanding what she said in her letter, and for reasons that were not

explained, the mother allowed [Leonie] to begin spending the additional night each fortnight with the father even though no orders had been made in terms of the settlement. It seems the new regime continued until the start of the third school term in July 2007. The mother then decided to revert to the old arrangement, which involved the visits concluding on Monday morning. [Leonie] did, however, spend half of all school holidays with the father (save for the Christmas 2008 holidays discussed below).

11 [Angela] and [Narelle] began seeing the father again in July/August 2007. There

is disagreement about why it took so long before the father commenced seeing them after the trial; whether the visits should have been fortnightly or monthly; and the reactions of the older girls to their interactions with the father. However, it is common ground that the father saw the older girls on five occasions before the start of the 2007 Christmas holidays. They then spent an overnight period with him on Christmas Day 2007. Thereafter [Angela] began spending overnight periods with him on a fortnightly basis (building up to three nights each visit) as well as times during school holidays. This continued throughout 2008 and the arrangements seemed to be working well. (The arrangements were agreed between [Angela] and the father and were not mandated by court order.)

[2009] FCWA 124

12 [Narelle] also started having overnight visits from Christmas 2007; however, she

then stopped seeing her father altogether in the middle of March 2008. I accept the mother’s evidence that the father created a scene when he came to collect the children on 15 March 2008 and was told that [Narelle] did not want to come. I also accept there is probably some substance in the mother’s assessment that whilst the father describes the events of that day in way that “makes it sound so tame and civilised… in reality it was terrifying and all of us were scared and in tears”.

13 The mother says [Narelle] told her that she felt “uptight” when she was with her

father. She said [Narelle] also told her that the father kept complaining about her being “sulky” when in fact she said she was “frozen from the confrontation and was afraid”. The father blames the mother for [Narelle]’s decision to stop visiting him; however, I note that in February 2008 [Angela] told [Ms A] that [Narelle]’s contact with the father was “not working and her father needed to back off a bit”.

14 The father then did not see [Narelle] again until she came for a two night visit in

late November 2008, followed by a weeklong visit commencing on 19 December 2008. The mother says that [Narelle] decided to resume the visits of her own volition and that she supported her in that decision.

15 There was then an incident between the father and [Angela] while the children

were staying with the father at Christmas 2008. [Angela] stormed off and made allegations that she had been assaulted by the father. The Police, Princess Margaret Hospital and the Department of Child Protection all became involved and the father was charged with assault. Although the mother initially informed the father that [Angela] and [Leonie] still wanted to continue seeing him, she was then advised by the authorities that she should suspend all contact. The father’s contact with all three girls then ceased.

16 In late February 2009 [Angela] recanted her allegations and the police withdrew

the assault charge. Contact between [Leonie] and the father then recommenced in early March 2009 and has continued regularly since. [Narelle] continued to refuse to see the father until a visit was arranged just before the trial resumed in May 2009. That visit apparently occurred because [Narelle] had expressed a desire to meet the father’s new girlfriend and her children. Shortly before that visit the mother had said in an affidavit that the father had refused to see [Narelle] unless she had a “discussion with him first”. The mother said in her affidavit she had advised the father against this approach as it would not work with [Narelle]. She told him that he should instead “just pick up where they left off”.

17 In the meantime, [Angela] had taken up residence at Esther House, which is

a facility for teenage girls who are unable to live with their families. This arrangement was made at the instigation of the mother who had contacted Esther House before the incident on Christmas Day. She informed the Director that [Angela] had anger and behavioural issues. [Angela] moved into Esther House in late January 2009, having been offered the option by her mother of living there or with one or other parent, provided she abided by the rules wherever she was living.

18 [Angela] was still at Esther House at the time of trial and planned on staying

there for the rest of 2009. On the slender evidence available it seems [Angela]

[2009] FCWA 124

anticipates returning to live with her mother and sisters. The mother is meeting all of the costs at Esther House ($145 to $160 per week). [Angela] is now seeing both her parents regularly on alternate weekends. The mother says [Angela] is flourishing and the happiest she has seen her in a long time.

19 The Director of Esther House, [Ms L], has known the father for about 20 years

and is on good terms with him. She gave evidence in a helpful and balanced fashion. She is clearly very concerned about the extent to which [Angela] has been involved in the parental conflict. She said that [Angela] now feels “a lot more at peace” as she does not have conversations with either parent about the other. [Ms L] felt that [Angela]’s relationship with both parents had improved during her time at Esther House.

Christmas Day 2008

20 The incident on Christmas Day is relevant to many of the matters I am required

to determine. In considering the events of that night and their aftermath, it is
important to bear in mind the unfortunate history of physical discipline in this family.

21 The father and the children were visiting the paternal grandmother on Christmas

night. The father’s cousin, [Ms H], and her teenage son were also there. The children were due to return to the mother the next day. The father claims there was an argument when he “attempted to impose some control” on [Angela] after she had thrown a rubber ball inside the house. In his affidavit the father said only that [Angela]:

“was agitated and rebellious and would not listen to my admonishment. She then said that she was walking home to her mother’s home and she stormed out of the house”.

22 The father and [Ms H] conceded in cross-examination that when [Angela]

stormed off (it was around 11 pm), neither of them bothered to follow her. Instead, at the father’s suggestion, they elected to sit down to make notes for use in future court proceedings. It was only the other children who tried to ascertain where [Angela] had gone. The father says that anything he did to try to get her to come back would have put himself “at risk” because [Angela] was “berserk”.

23 [Angela] had, as threatened, set off by foot to her mother’s place, which was

many kilometres away. The father did send [Angela] a text message telling her she should contact her mother if she was walking home. The father did not think to make any contact with the mother direct, leaving it to [Angela] to call her. He said he had no concerns for [Angela]’s safety because:

• her journey would have taken her through “quiet streets”;

• [Angela] had been enrolled in self defence classes; and

• it would be “unusual at 11 pm on Christmas night for people to be hooning around”.

[2009] FCWA 124

24 The mother said [Angela] telephoned her at around 11.30 pm. [Angela]

informed her she was walking home. The mother found her some kilometres from the
grandmother’s home. This is the mother’s description of what [Angela] told her:

“4.	When I asked her what had happened, she told me that she had kicked a ball in her grandmother’s lounge room. In response, her father yelled at her, told her she had done a stupid thing, advanced towards her then kicked her, grabbed her by the arm and put his hand to her throat.
5.	While he was doing this, she put her hands out to defend herself and he continued to advance towards her so she walked backwards for about ten steps.
6.	She told him, ‘Don’t touch me!’ He ignored this and continued what he was doing. He told her ‘sit down’ which she didn’t do.
7.	Then she said she wanted to come home to me. He told her to leave the house. She got her bag and left the house.
8.	[Narelle] told me she ran after her, but she kept walking.
9.	When I picked [Angela] up, she told me what had happened. I then took her to the police station. We went to the toilet and she showed me the red marks on her arm and thigh. She had finger marks on her right upper arm and a shoe mark on her upper thigh.
10.	By the time the police officer took her statement, the marks had disappeared.”

25 After taking her to the police, the mother then took [Angela] to Princess

Margaret Hospital to be examined. The next day she took all of the children back to the Police Station. [Angela] made a statement in which she said her father had kicked her in her hip and had grabbed her around the throat. [Narelle] corroborated her story.

26 The mother asserts that the father had a heated discussion with [Angela] when he

dropped off the younger girls on Boxing Day. The father admits that during this

discussion [Angela] accused him of kicking her, although he says this was delivered

“almost as a throwaway line”. The father also acknowledges he told [Angela] that she
should write him a letter of apology before she could come on the holiday he had

scheduled for the girls to [the country] in January 2009. (The father has since told

both [Angela] and [Narelle] that they could not accompany him on a trip he proposed Deleted:

to take to [Europe]eRU with [Leonie] in the middle of 2009.)

27 The mother claims that she heard the father also say:

“I did nothing wrong, you didn’t listen to me. If you ever do that again, I will not hesitate to act the same way. Yes, I know I can be physically intimidating, but that is how I get people to do what I want.”

[2009] FCWA 124

28 The father says [Angela] later agreed with him that the mother’s statement

concerning the last part of that conversation was a “fabrication” and that the mother was too far away to hear. I note, however, that even after she had recanted her allegations, [Angela] told [Ms A] that her mother had “been walking past and overheard parts of the conversation”.

29 The father left messages on the mother’s telephone after the incident. She says one was in the following terms:

“I didn’t kick her and even if I did, I didn’t kick her hard. I really don’t think I kicked her at all. Do you really think I would do that? Come on, let me have [Leonie] for our holiday. You know I would never hurt her. I have spoken to the police and to the people from child protection. The policeman I spoke to thinks I won’t be charged and the advice from CPU is a generic statement. They don’t know the specifics of this case. What you are doing by suspending contact is spoiling everything for both [Leonie] and I.”

30 The father denies having said, “I didn’t kick her and even if I did, I didn’t kick

her hard”.

31 In any event, some time after moving to Esther House, [Angela] told [Ms L] that

she was troubled by the accusations she had made against the father. She said her father had put his leg out during the incident and hooked her with his foot to stop her running away but had not kicked her. His hand had ended up around or near to her throat but this was accidental. The Police were then contacted and [Angela] made a statement recanting her earlier story.

32 It is difficult to come to any definitive finding about what actually happened

during the incident at Christmas. The fact [Angela] made allegations does not mean they were true. The fact she recanted them does not mean they were false. [Angela] is a very conflicted girl. Anything she says needs to be considered in the context of the unfortunate life she has experienced and her divided loyalties. It is worth recording, however, what [Angela] had to say to [Ms A]. This appointment was arranged at the father’s suggestion shortly after [Angela] had recanted her story. [Ms A] gave the following account of what [Angela] told her:

“[The father] came towards her telling her off, and she thought he was going to hit her. He reached out for her shoulder and connected with her chest and she thought he was going to get her around the neck. He tried to reach out with his foot and she thought he was going to kick her. It felt like she was having a flashback.” [The comment about “a flashback” is presumably a reference to the assault on [Angela] for which the father was convicted some years ago.]

33 [Angela] also told [Ms A] that although her father had not actually kicked her,

she had complained to her mother that her leg was hurting (although she said she later realised she had been imagining this). [Angela] also told [Ms A] that if she did have any visible fingermarks after the incident they would have been self-inflicted.

[2009] FCWA 124

[Angela] said [Narelle] had lied when she had made a statement to the police
corroborating her claims.

34 [Ms A] also gave evidence of what [Leonie] had said about the incident.

[Leonie] did not want to discuss the incident in detail but did say she thought she had
seen “Dad raise his leg as if to kick, but [was] not sure what to think”.

35 I am not sure that anyone other than the father and [Angela] had a clear view of

all that transpired on Christmas night. The events occurred in a short space of time and emotions on both sides were running high. I have little doubt that the version [Angela] provided to her mother and to the police was dramatised. I nevertheless accept there were a few fingermarks visible on [Angela] when the mother picked her up. It is possible these were self-inflicted; however, it is also possible they were the result of the father grabbing [Angela] as she originally claimed. In this regard, although not mentioned in his affidavit, I note the father informed [Ms A] that he had “attempted to restrain [Angela] by taking her arm. [Angela] had reacted [and] they had grappled briefly”. In any event, the fingermarks resolved rapidly. I have very serious doubts whether [Angela] ever had a “shoe mark” or other imprint on her thigh as the mother claimed. If there was such a mark, it too resolved very rapidly.

36 What cannot be disputed is that by Christmas 2008, [Angela] could no longer be

controlled by either parent. She had once again found herself a central player in the drama that has plagued her family for years. The father’s priority, rather than endeavouring to ensure his daughter’s safety, was to make notes for use in court proceedings. The mother’s priority, rather than putting her daughter to bed after an unpleasant argument, was to commence a round of visits to ensure evidence was recorded of superficial marks.

Orders now sought by the father

37 The orders sought by the father are contained in a Minute provided at the

commencement of the resumed trial. I was informed this had been prepared by the father himself. It proposed that all of the orders be made on an “until further order” basis - i.e. anticipating further litigation.

38 The father seeks “joint parental responsibility for decisions concerning the long

term care, welfare and development of the children” and otherwise seeks that the parent with whom the children are spending time have responsibility for their “day to day care, welfare and development”. (Reference to the decision of the Full Court in Chappell & Chappell (2008) FLC 93-382 will indicate that orders should no longer be sought in these terms.)

39 The father’s Minute went on to provide that:

• [Angela] and [Narelle] should spend time with each parent in accordance with their wishes;

• [Leonie] should live on a week and week about basis with each parent and would spend equal times with each parent during school holidays;

[2009] FCWA 124

• [Leonie] would attend [a private school] from 2010, with the father meeting “the costs of [her] attendance at [the private school], in addition to child support as assessed”;

• [Leonie] be permitted to “participate in year round [training] under the coaching of [Mr B] at the [local club] or such other coach or club as may be nominated by the husband from time to time”;

• the frequency and timing of [Leonie]’s [sports training] to be agreed by the parents, but failing agreement the frequency and timing would be determined by the coach;

• [Leonie] be permitted to participate in such [competitions or other events] as may be agreed between [Leonie] and the father, with the father to arrange all transport for training and events and meet all costs of [Leonie]’s participation;

• the transportation of the children for contact periods to be shared equally;

• provision for communication by telephone, email and post, as well as a variety of orders relating to schooling; and

• provision for ongoing counselling of the children by [Ms A].

40 The father’s written submissions referred to a further Minute of Orders. Leave

was required to amend the relief sought at such a late stage. I have, however, noted
the content of the Minute.

Orders now sought by the mother

41 As I understand her position, the mother generally supports the making of orders

as I foreshadowed at the time of my earlier judgment. She agrees the older girls should determine the time they spend with each parent. She wishes to continue the current arrangement whereby [Leonie] spends four nights a fortnight with the father. She opposes the orders sought by the father in relation to [the private school] and [Leonie]’s involvement in [her sport] (although she supports her [training] in the summer months).

Matters requiring determination

42 The matters I am therefore now required to resolve are:

• parental responsibility;

• the time [Leonie] is to spend with the father;

• where [Leonie] is to attend high school;

• the extent of [Leonie]’s involvement in [sports]; and

• the final form of orders to be made arising out of my reasons.

Parental responsibility

43 The father persists in seeking an order for shared parental responsibility. In my original reasons I said this about that topic:

[2009] FCWA 124

“…The extraordinary correspondence that has passed between the parties demonstrates why they should not be left to make joint decisions in relation to important matters concerning their children. I do not accept the submission that education is the only important issue on which the parties have been unable to agree. However, even if there was substance in that submission, the debilitating effect on the parties of having to engage in acrimonious and time consuming correspondence about such matters strongly militates against shared parental responsibility. This is especially the case in a family where it is highly likely that the children will be made aware of any disagreements between their parents. It will be best for the children to have one parent make the important decisions and leave both parents otherwise free to attempt to improve their day-to-day parenting.

In my view, it is in the children’s best interests for the wife to have sole parental responsibility… Although the husband will be spending significant periods of time with [Leonie], decisions concerning her future cannot be made in isolation from decisions relating to her sisters. The decision-making authority in relation to all three girls should therefore be held by the parent with whom the children mainly live. The wife is in touch with the children’s needs and can be relied upon to make appropriate decisions for their future.”

44 When it became apparent the father was still pursuing his application for shared

parental responsibility, I asked counsel for the father at the May 2009 hearing what evidence there was to indicate that the parents had ever been able to cooperate and agree on anything relating to their children. In response, counsel pointed to the fact that [Angela] had now been able to resume a good relationship with her father.

45 There is no evidence at all that the improved relationship between [Angela] and

her father has anything to do with the ability of her parents to cooperate. Any sense of normality that has come into [Angela]’s life has been the result of having absented herself from the homes of both parents and avoiding their conflict. It is to be noted also that it was the mother who approached Esther House and made arrangements for [Angela] to live there. It seems she did not even discuss the matter with the father, although she informed him after the decision was made.

46 The father continues to send the mother longwinded letters and she continues to

refuse to engage. The letter the father sent in an effort to persuade the mother to his way of thinking about [Leonie]’s [training] was organised meticulously under these headings:

• Background

• Outcome

• Achievement in First Term (arranged under four subheadings)

• [Leonie]’s Passion and Desire

• Coach’s Assessment

• [Leonie]’s Age Related Development

[2009] FCWA 124

• The Involvement Required in [Training]

• Considerations of Logistics and Opportunity

• Where To From Here?

47 The mother responded saying the father had ignored anything she had ever said

on the matter, so she would rather “save [her] energy”. She went on to say (emphasis
in the original):

“Suffice it to say you and I both view the same situation from a different paradigm and this is no different. You see it one way, I see it another. Please accept this as my final answer on the matter and don’t send me any more letters.”

48 A few days later the father wrote to her again on the same subject.

49 Nothing that has occurred since the earlier hearing leads me to depart from the

opinion I have previously expressed that it is untenable for these parents to share parental responsibility. The mother should have parental responsibility for the reasons stated in my earlier reasons.

Time [Leonie] should spend with the father

50 In my original judgment I said I would only be prepared to consider extending the four night regime time if [Leonie] very clearly wanted it and if I was satisfied that the father has given up his authoritarian style of parenting.

51 I am not satisfied that [Leonie] very clearly wants to spend less time with the

mother than she does at present. I accept that last year she expressed a desire to [Ms A] to spend half time with the father and that [Ms A] considered she would “probably cope well with such an arrangement”. However, when she saw [Leonie] in March 2009, shortly after resuming contact with the father, [Ms A] observed that [Leonie] was somewhat “on edge” and wanted to get things “back to normal first”. She said she wasn’t ready “just yet” for equal time with her father. [Leonie] did, however, say to [Ms A] that she thought she would probably want to live with her father half the time “next year”. As [Ms A] said, [Leonie] is feeling conflict in her loyalty to each parent and at the time was also “very confused” about what had happened at Christmas.

52 The father claims that [Leonie] has told him on many occasions that she would

like to move to an equal time arrangement. The mother says she has never expressed this wish to her although she concedes that [Leonie] has told her that she enjoys spending time with her father. I suspect both parents are correct but this does not in any way assist me to make an assessment of [Leonie]’s true feelings, given the extreme conflict between the parents.

53 Nor am I satisfied that the father has a significantly different approach to

parenting than he had at the time of the original trial. I acknowledge that he can vocalise to [Ms A] more appropriate views about parenting than he demonstrated in the past. I also accept there are encouraging signs in [Ms A]’s’ report about the

[2009] FCWA 124

father’s understanding of his daughters’ differing needs. I nevertheless consider that the father’s underlying rigid and authoritarian ways would still be in evidence in his day to day care of the children – especially when he is challenged, as he was for example when [Narelle] did not want to come on the visit with him in March 2008.

54 I accept that this may not be as big a problem for [Leonie] as it would be for

[Angela] and [Narelle] because she is a more pliable child who has no doubt that she has her father’s approval and affection. There would be likely to be few if any confrontations between them because [Leonie] would bend to his will. I am not satisfied, however, that this forms a good basis for the child spending any more time with her father that she presently does. I would, for example, have no confidence that [Leonie] would ever be able to express to her father her real feelings about issues such as the extent of her [sporting] training. She would just go along trying to please him and agree that the arrangements he proposed were good for her.

55 I am satisfied that if at any time [Leonie] felt strongly that she wanted to spend

more time with her father, she would make her views diplomatically known to her mother and she would be likely to act upon them. Notwithstanding the mother’s extreme negativity towards the father, she has demonstrated since the last hearing that when the children express a desire to spend time with the father they are given the opportunity to do so – without the need for a court order.

Where [Leonie] should go to school

56 I have previously made reference to the order I made in March 2009 for the

mother to have sole parental responsibility for issues concerning education. At that time, I had refused to allow the father to adduce further evidence to support his application for [Leonie] to attend [the private school].

57 It is in this context that the following extract from the transcript of the hearing on 19 March 2009 needs to be read.

“Ms Giles	The other issue Sir is to do with [Leonie]. As you know an issue that my client wishes to agitate before the Full Court is the question of where her secondary schooling should occur. There is a place available for [Leonie] at [the private school] and my client intends to take [Leonie] to an audition at [the school] next Friday in order that, if he’s successful in the Full Court in his appeal, that her opportunities are kept as open as possible. Now I’m advising your honour of that and also obviously the mother and the Independent Children’s Lawyer in order that everyone is aware of it
His Honour	Would that, given the order I have just made, be something that requires the mother’s consent?
Ms Giles	Well, we are seeking the mother’s consent
His Honour	Well you can, but I’ve make the order that she has responsibility for education issues and my preliminary view would be to think that he

[2009] FCWA 124

wouldn’t be able to take her off to an audition or interview or anything

at the school without the mother’s agreement.

Ms Giles	Well I would hope the mother would agree given that this is still an issue before the court and in order for the child to have all the opportunities kept open to her if possible
His Honour	That’s one thing. The other thing is the child’s expectations and confusion and so on. I’ll leave it to the mother. I’ve given her responsibility to make those decisions and I repeat, I don’t see that the child can go to that [audition] unless the mother agrees.”

58 Notwithstanding these remarks, the father took [Leonie] to the audition at

[the private school]. She was unsuccessful in obtaining the scholarship that the father hoped she would obtain and which no doubt he thought would improve his prospects of persuading the Court (or perhaps even the mother) that [Leonie] should be allowed to attend [the school]. The mother claims that the father’s behaviour caused [Leonie] further (understandable) confusion about where she would be going to school, given that the mother had told her she would be enrolled with her sisters at [the local] Senior High School.

59 The mother sought an explanation from the father for his conduct during the

resumed trial. In doing so she put to him in cross-examination a fairly accurate paraphrase of the passage of transcript I have replicated above. (At that time a transcript had not been prepared.) The father responded by saying he could assure the mother no such exchange had occurred in Court and that he had only heard me “musing” about the issue. He claimed that I had made clear that “each parent had to make the decision that was best for the child as they saw fit at the time”.

60 The only justification that the father’s counsel could provide for the father’s

conduct was to say that her own remarks in the transcript constituted the father’s request to the mother to allow [Leonie] to attend the audition. Even if that was so, the mother never agreed. On the contrary, she maintained her implacable opposition to [Leonie] attending [the private school].

61 I consider the father’s behaviour to be illustrative of two things. First, as the

mother has always claimed, the father does not take “no” for an answer. Secondly, the father’s inability to recall accurately what was said in court casts doubts on the reliability of his evidence concerning other contentious conversations. The mother’s recollection was correct. The father’s recollection was wrong and self serving.

62 In my judgment published in October 2008, I made the following observations in explaining my decision about matters concerning the education of all three children:

“Whilst there are occasions when it may be appropriate for the Court to make the decision about which school (or type of school) children should attend, I ordinarily consider it more desirable for one parent to be given responsibility for making such decisions when joint decision-making is not practicable. This is certainly a case where it was impracticable to leave the

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parties with joint responsibility as it was apparent they are incapable of
coming to agreements about their daughters’ education.”

63 I set out a list of factors that would have to be taken into account in making

decisions concerning the school the girls would attend. I also set out reasons why it
should be the mother who would make such decisions. These included:

•  the mother’s demonstrated understanding of the individual needs of each of the children and of matters associated with child development generally;

•  my satisfaction that the mother has made decisions concerning the children’s education based on what she considered were their best interests and could be relied upon to continue to do so;

•  the fact that the children are living with the mother and she is “in tune” with their wishes in relation to their education;

•  I was not persuaded that the children’s academic prospects will be significantly improved if they attend a Christian school rather than [the local] SHS, notwithstanding the statistical information provided;

•  I was not persuaded of what was described in the father’s submissions as “the benefit of a church-based school in the inculcation of the values of both parents, over a secular education”, especially given the “inculcation” the children are likely to receive from both parents away from school;

•  any decision which nominated a particular school or class of school would be likely to lead to further litigation if there was, for example, a future need to make changes to education arrangements.

64 In my ex tempore reasons given on 17 December 2008, I also made these observations in refusing the father’s application for permission to adduce further evidence concerning the school [Leonie] should attend:

“7.	The father … has also asked that he be given permission to file further evidence concerning matters pertaining to the children's education in the period the judgment was reserved and also a proposal that he now wishes to put before the court to allow the child, [Leonie], to attend [the private school] . If memory serves me correctly, this was not a proposition ever raised at the trial.
8.	As will be apparent from my reasons for decision, I have elected not to make decisions about precise schools that the children should attend, but rather have determined that one of the parents should make that decision, and in this case the decision should be made by the mother.
9.	I have declined to allow further evidence from the father in relation to educational issues because, to be frank, there is nothing further that he could realistically say that would persuade me to change my decision that the mother should make these decisions about the educational arrangements for the children. The fact that the father wishes to bring this application is further evidence of the fact that

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the court is likely to continue to be involved in disputation between
the parents on these issues as the children progress.

10. For the sake of completeness, I should also mention that given this has been such a hotly contested issue between the parties in the past, to give the parties the opportunity to agitate this issue again is going to occupy potentially a significant amount of court time, resources of the parties and resources of the Legal Aid Commission, and I do not consider it to be warranted in the circumstances.”

65 I was later persuaded to allow the father to agitate this issue afresh, in light of

what he clearly regarded as significant developments. In my view it was better to have this matter dealt with on its merits rather than resolved on what would be interpreted as a technicality. I will now proceed to do so.

66 [Leonie] continues to attend [the same school], where the older two girls also

attended. She is in Year 7 this year but has been accepted into the Selective Academic Program at [the local high school], where she is due to commence in 2010. She has already attended orientation events at [that school]. [Narelle] is attending [the local SHS] and [Angela] was attending there until she moved into Esther House. In my view the most likely scenario is that [Angela] will return to [the school] when she leaves Esther House and resumes her “normal” education.

67 The father advanced a variety of reasons why he considered it would be in

[Leonie]’s best interests to attend [the private school]. These were summarised by
counsel of the father in her written submissions as representing:

“a golden opportunity for [Leonie] to receive a high standard of education, in an environment in which learning and education is highly valued and children’s skills and aptitudes nurtured and encouraged.”

68 The father supported his application for [Leonie] to attend [private school] by

referring to [Narelle]’s poor performance at [the local SHS]. He claims [Narelle] completed her education at [primary school] with “a satisfactory attitude and a good report card”, but that her report at the end of her first semester at [the local SHS] was “abysmal”. He complained that virtually every teacher at [the school] described [Narelle] as being “distracted and distracting combined with a lack of maturity and minimal application to her work”. He was particularly concerned she had withdrawn from the academically talented program.

69 It is convenient, and perhaps comforting, for the father to blame [Narelle]’s

performance on a school she has attended for only a short period. In my view the reasons for the poor performance and behaviour of both [Narelle] and [Angela] are much more likely to be found in looking at their unfortunate upbringing and the conflict to which they have been exposed for so many years. The father’s argument also overlooks troubling signs about [Narelle]’s conduct which emerged whilst she was attending [the primary school] (and which, in my view, were also reflected in her presentation when she met with [Ms A] whilst still at [the school]).

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70 The reports [Narelle] has received from [the local SHS] are consistent with the

reports concerning her conduct when she was in primary school. The evidence produced at the earlier trial led me to conclude at the time that [Narelle] had been “a seriously disruptive influence at [the primary school]”. It would be surprising if the type of conduct she exhibited in primary school did not manifest itself in more troubling ways in secondary school. In this regard it is of interest that [Narelle]’s second semester report at [the local SHS] in 2008 arguably showed at least some signs of improvement over the first semester.

71 I consider that many of the reservations expressed by the mother concerning

[Leonie] attending [private school] had substance. Amongst these was her belief that [Leonie] is a child who would benefit from attending a co-educational school. The mother also has concerns about [Leonie] having to fit into what she called a “posh” school. The mother is worried about the pressures this will bring to bear on [Leonie], and in due course on the mother herself. The mother also wonders whether the father will be able to make good on his promise to pay all of the costs given his past child support performance.

72 I would also have some concerns about the impact on the older girls, but

[Narelle] in particular, of seeing their father paying very large amounts of money to have [Leonie] attend [private school]. In this regard, it is noteworthy that [Narelle] spoke with [Ms A] about her belief that “[Leonie] is her father’s first favourite and [Angela] his second”. [Narelle] is also reported as saying that she “had tried when younger to get her father to like her, but then she had started to push him away and she now thought that she had never liked him”. [Ms A] described these feelings as being “rigidly held”. [Leonie]’s attendance at an exclusive school is unlikely to diminish that perception in circumstances where her father makes no secret of his belief that [local SHS] offers a far inferior level of education and opportunity.

73 The mother also expressed concerns about policies she believes [private school]

applies to TEE students. I accept the submission of counsel for the father concerning the absence of a solid evidentiary foundation for this proposition. I might observe, however, that a great many of the reasons advanced by the father for preferring [private school] could be subject to the same criticism. In any event, I do not place any weight on this concern of the mother’s, especially as it is unlikely the policies would ever have any effect on a student such as [Leonie].

74 I have previously indicated my reasons for preferring not to nominate the school

any of the children should attend when there is a parent available who can make the decision. Nothing that has been said subsequently has persuaded me to adopt any other view. Notwithstanding what I found at times to be her somewhat matter of fact approach, I am satisfied the mother has [Leonie]’s bests interests at heart. In my view she is in touch with [Leonie]’s needs. She can be trusted to make appropriate decisions for the child’s education. Leaving her responsible will also have the advantage of ensuring there should be no further court proceedings about issues concerning education. This is of considerable importance as I am satisfied that the ongoing litigation has been the single most damaging influence in the lives of all of these children.

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75 In coming to my decision I have not overlooked the evidence that [Leonie] has

expressed a wish to [Ms A] that she attend [private school] (or one or other of two Christian schools). However, [Leonie] told [Ms A] that she thought she would probably have to go to [the local SHS] and seemed to accept this. [Ms A] said that [Leonie] “impressed as being able to make the best of any situation”. [Leonie]’s expression of preferences also needs to be considered in light of the fact that I am sure the father has taken every opportunity to “run down” [local SHS] in the eyes of the children and to promote the virtues of private schooling.

[Leonie]’s [training]

76 [Leonie] is a very talented [sportswoman]. She has broken numerous records

and won many inter-school [events]. The father believes she is in the top 30 [girls] in
her age group in the State.

77 The father enrolled [Leonie] in a [club] in late 2007. He obtained the mother’s

agreement for her to attend training on four to five days a week in first and fourth terms 2008. He was unable to secure her agreement to [Leonie] continuing with this level of training during the winter months, notwithstanding having sent the mother the comprehensive letter mentioned above. The father continued to take [Leonie] to [training] in winter when she was with him; however, he considers that [Leonie] did not achieve her full potential because she was not training at the level he desired.

78 The father’s proposal would involve [Leonie] training either in the afternoon or

early morning on at least four days each week, summer and winter. The father says he would propose this level of involvement only for 2009 and 2010 and that thereafter [Leonie] should be permitted to make up her own mind about the intensity of her program. The mother says this is too much for [Leonie], although she is prepared to support the program during the summer months. She is strongly opposed to the regime continuing during the second and third terms, especially because the afternoon sessions would involve [Leonie] getting home around 7 pm.

79 The father claims that [Leonie] wants to train at the level he proposes whereas

the mother says [Leonie] is content with the regime she proposes. She says [Leonie] has at times told her that the training is too much and that the father’s expectations are also too much. In my view, even the father’s evidence lends credence to the mother’s claims. He said that the problem for [Leonie] in coping with the [training] regime was that “she is jarred back into the training and she finds that difficult and she has my total sympathies”. He acknowledged that [Leonie] had told him she was tired when [training] so frequently. He admitted in his letter to the mother of 8 March 2009 that [Leonie] had (on her first weekend with him after the break following the Christmas incident) been “initially reluctant to participate in [squad] training”, albeit he claimed that after she completed the session “she declared that she had regained her ‘passion’”. He also acknowledged that he thought [Leonie] wanted to perform well for his sake, just as he had done for his own father.

80 A decision about the extent to which a child attends [training] during the time

she is with each parent would probably not be regarded as being a “major long term issue” within the meaning of the legislation. Hence, in the absence of any order to the

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contrary, each parent would be able to have the child attend [training] as often as they like. I am quite satisfied, however, that to allow this to occur here would lead to ongoing disputation which would cause [Leonie] to again be caught up in her parents’ conflict and she would then once again have to find means of trying to please both of them. An activity which should be the source of happiness, fitness and satisfaction will thus continue to be just another battleground.

81 It is quite apparent that the father is critical of the mother’s position when

speaking with [Leonie] about her [training]. He said he had discussed with [Leonie] about how “exceptionally unfair and difficult” it was for her not to have been allowed to continue with her training regime in the winter months. It is little wonder in such circumstances that [Leonie] is saying one thing to one parent about her wishes concerning [training] and something different to the other.

82 In my view it would be in [Leonie]’s best interests for the decisions about the

extent of her involvement in [training] to be made by one parent. I consider almost all of the reservations that were expressed by the mother concerning the extent of [Leonie]’s involvement in [training] had substance. I have also previously indicated my satisfaction that the mother is in touch with [Leonie]’s needs. I therefore intend to make an order that the mother will have responsibility for making decisions concerning the extent to which [Leonie] will undertake [training] and be involved in competitive [events].

83 In coming to my decision I have not placed any weight on [Leonie]’s alleged

fear of her [sports] coach, who is a highly experienced international coach. I am satisfied, however, that [Leonie] has, in fact, told her mother that she is frightened of her coach even though she has given no indication of this to her father or the coach. I do not accept the submission that the mother’s delay in raising this matter reflects adversely on her credibility. On the contrary, I found her explanation for not raising the issue to be credible.

Contravention

84 The father filed a contravention application in February 2009 when he was being

denied time with [Leonie] following the Christmas incident. The application was amended on 17 March 2009. The statement of the amended complaint was in the following terms:

“The respondent has failed to permit time to be spent by the applicant with the child [Leonie] born [in] May 1997, in accordance with the orders of the Court made 20 February 2006 on either of the alternating weekends during the months of January, February and March 2009 from:

(a)	2 January 2009 until 5 January 2009 (am);
(b)	16 January 2009 until 19 January 2009 (am);
(c)	30 January 2009 until 2 February 2009 (am);
(d)	13 February 2009 until 16 February 2009 (am); and

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(e) 27 February 2009 until 2 March 2009 (am),

or allowed telephone contact at all after 26 December 2008 and has failed
to provide her new telephone number, from early March 2009.”

85 At trial, the father properly abandoned the complaints set out in paragraphs (a) to

(d). These related to the period before [Angela] retracted the allegations which had led to the police charging the father after the incident on Christmas Day. Although the mother had been inclined to allow the father to continue to have time with [Leonie] in this period, I accept she was advised by the authorities that she should not.

86 The father nevertheless pursued the one remaining complaint concerning the

mother’s refusal to allow him time with [Leonie] during the weekend immediately following [Angela] withdrawing her complaint. He also pursued his complaints that the mother had contravened the 2006 consent order by allegedly failing to allow telephone contact after 26 December 2008 and by not providing a new telephone number from early March 2009.

87 As soon as the mother was informed on Wednesday 25 February 2009 that

[Angela] had recanted her allegations and the police were dropping the charges, she wrote to the father advising she would allow the regular weekend contact with [Leonie] to resume. The only dispute is whether the contact should have resumed on Friday, 27 February 2009 (as the father insisted was his entitlement under the order) or on the following Thursday, 5 March 2009 (as the mother allowed).

88 I do not propose to set out the chronology of events on 25, 26 and 27 February

2009. It is sufficient to say that [Leonie] was staying overnight with a friend on the day the mother heard from [Angela] that she had recanted her allegations. The mother wanted to talk with [Leonie] about this development and did not have had an opportunity to do so until the evening of Thursday, 26 February 2009 (which is the day on which the contact would normally have commenced pursuant to the longstanding informal arrangement, rather than the Friday as was mandated by the 2006 order). Whilst I can readily accept the father was keen to see [Leonie] after not having seen her since Christmas, I can also accept that the mother wanted to prepare [Leonie] for the first visit, especially in the context of how the visits had ceased.

89 I do not intend to further delay publication of this judgment by devoting time to

analyse the many relevant facts and give consideration to the many propositions ably advanced by counsel for the father in her submissions concerning this complaint. The law does not concern itself with trifles. I decline to deal with a complaint concerning a six day delay in the resumption of a contact regime for [Leonie] that has always worked well and is highly likely to continue to work well in the future. In doing so I observe that considerable public resources have already been devoted to this family’s ongoing disputes.

90 There is no substance in the remaining complaints concerning telephone

communication. The order said to have been breached is that made on 20 January 2006 which required the mother “to encourage and facilitate telephone contact from the children to the respondent” (my emphasis added). Ignoring for the moment the irregularities in the form of the amended application, the father has

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presented no evidence to establish that the mother failed “to encourage and facilitate telephone contact” within the meaning of this vague order. The bald claim in his affidavit that “I have attempted to have telephone contact and that has been denied” is not sufficiently particularised to establish any conduct on the part of the mother, let alone conduct that could constitute a breach of the order.

91 The order is silent as to the frequency of telephone contact. The order is also

silent as to how the telephone contact is to occur. It certainly does not require the mother to allow the father to know her telephone number. The curious form of the order would suggest that it is the children who are expected to contact the father, not the other way around. Strictly, therefore, the mother was entitled to change her number and keep it private if she wished. In any event, I accept that when the mother changed her telephone number (after she became annoyed with the messages the father was leaving on her telephone), she acquired a mobile telephone for the girls. The purpose of this was to allow telephone communication with the father, bearing in mind that [Leonie] has in the past initiated her own telephone calls to her father.

92 For these reasons I intend to dismiss the father’s contravention application.

I will, however, return to the issue of telephone communication between the father and the girls when I am setting out the orders I propose to make, since I consider it is important for the children to be able to communicate with the father between visits.

Orders
93	I have set out below the orders I intend to make arising out of these reasons and those given previously.
94	My intention in making these orders is to lay down a regime that is not only in
the best interests of the children, but will also help reduce the prospect of further litigation and disputation. In my view, this is absolutely critical as these protracted proceedings have had a debilitating impact upon the entire family, but especially the mother and children. This cannot be allowed to continue.
95	I would urge both the mother and the father to read again [Ms A]’s report in
which she described her conversation with [Angela] on 30 April 2009. [Angela] talked about how her life had been in “turmoil” before she started living in Esther House and how she had been having nightmares and sleep-walking. [Ms A] went on to say (my emphasis added):

“[Angela] said she wants a good relationship with both her parents but does not want to be caught up in the Court struggle any longer. She feels she has grown up with it and is tired of dominating her life. At present she is appreciating the opportunities for personal growth, and said she is finding people to be more generous and caring than in the real world.”

96 I consider there would be advantage for the children if they were given the

opportunity from time to time to meet with [Ms A] to discuss issues that may arise. She is a highly experienced therapist and would be an invaluable resource to the girls. [Ms A]’s work with the family has suffered to date in not having a clear brief. I do not

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see it as my function to provide the terms of reference for her ongoing involvement. I simply express my confidence in her ability and would encourage both parents to allow the girls the opportunity to see her if they feel it might assist them.

97 I especially express the wish that further work be attempted to improve

[Narelle]’s relationship with her father. [Leonie] has a good relationship with her father and [Angela] is rebuilding her relationship. [Narelle] should also have the opportunity, but at the time of her choosing, to build a better relationship with her father. It cannot be in any way helpful for her personal development to feel that she is the lowest of his priorities. There may even be a role for the father’s new girlfriend to play in assisting this process, given that she and her children seem to have in someway been instrumental in [Narelle] resuming contact with her father. I would strongly urge the mother to endeavour to encourage the rebuilding of a relationship between [Narelle] and her father. It is not sufficient for her to sit back and wipe her hands of the issue, as she has tended to do in the past.

98 The parties have not had an opportunity to consider or comment on some of the

orders set out below, particularly those designed to restrict further proceedings and unpleasant communications between them. I will therefore publish these reasons in chambers and permit the parties to seek a relisting of the proceedings for brief submissions to be made in relation to the proposed orders if required. In the event that neither party has requested the relisting of the matter by 29 September 2009, I will make orders in accordance with these reasons in chambers on 1 October 2009.

Form of Orders

1. All existing parenting orders relating to the children [Angela] born [in] June 1993, [Narelle] born [in] August 1995 and [Leonie] born [in] May 1997 be discharged.

2. The mother have sole parental responsibility for the children.

3. The mother have sole responsibility for making decisions in relation to the extent to which the child [Leonie] undertakes [training] training and takes part in competitive [training] events.

4. The children [Angela] and [Narelle] shall spend time with each of their parents in accordance with their wishes.

5. The child [Leonie] shall live with the mother.

6. The child [Leonie] shall spend time with the father as follows:

(a)	During school term times from after school on Thursday to the commencement of school on Monday (or Tuesday in the event that Monday is a public holiday or pupil free day).
(b)	For one half of all school holidays (to include Christmas Day and Boxing Day each alternate year, commencing in

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2010). For the purpose of this order the expression “school holidays” shall mean the period from the conclusion of school on the last day of the school term until the commencement of school on the first day of the next school term.

7. The father shall collect [Leonie] from school and return her to school at the commencement and conclusion of his periods of time with her. The father shall undertake the transportation arrangements for collection and return of [Leonie] during school holiday periods.

8. The parent with whom [Leonie] is not residing on the day of her birthday shall have telephone communication with her on the day of her birthday.

9. The mother and the father shall permit all of the children to telephone the other parent when the children wish to do so and shall make available a landline or mobile telephone for this purpose.

10. Either parent shall be at liberty (with the consent of the child involved) to arrange for any of the children to meet with [Ms A], Clinical Psychologist. The parent who arranges the visit to [Ms A] shall be responsible for the cost of the visit.

11. Both parents shall sign any documents and take any steps necessary to facilitate any claim that may be possible for reimbursement of [Ms A]’s fees from Medicare or their health insurance company.

12 Each parent shall facilitate the other’s involvement with schools attended by the children and in particular:-

(a)	shall ensure each child’s registration records at their school include the other parent’s full details including addresses and telephone numbers;
(b)	the parent receiving school reports shall provide a copy to the other parent or otherwise make arrangements for the other parent to receive a duplicate copy of the report;
(c)	both parents shall authorise the school to send duplicate copies of newsletters and any correspondence involving the children to the other parent;
(d)	each parent who becomes aware of a school event or function relating to the children shall advise the other parent of such event or function as soon as practicable (unless the event or function is publicised in the school newsletter or in correspondence received by both parents).

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13. The mother and the father shall each inform the other as soon as practicable of any significant health issue concerning the children relating to any injury or health problems occurring during their time with the children and shall provide the other with the name and contact details of any treating health professional.

14. The mother and the father shall not physically discipline any of the children.

15. The mother and the father shall not denigrate the other parent or members of the other parent’s family to or in the presence of the children.

16. The father shall not in the hearing of any of the children make negative comments about decisions made by the mother concerning their education or involvement in [training].

17. The father shall not make negative comments concerning [the local SHS] Senior High School to or in the presence of the children.

18. The mother and the father shall not, save in circumstances of necessity, correspond in writing with the other parent concerning the children more often than once every calendar month.

19. In the event that either parent files an application seeking orders in relation to the children the party filing the application shall not serve the application or give notice of the application to the other parent unless in accordance with a direction of a Judge, Magistrate or Registrar, such direction to be sought in writing at the time of filing of such application with the intention that the first hearing of any such application will ordinarily be on an ex parte basis.

20. The application and response and the father’s contravention application be otherwise dismissed.

I certify that the preceding [98] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate