Penman and Morgan and Anor
[2015] FCCA 485
•5 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PENMAN & MORGAN & ANOR | [2015] FCCA 485 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – live with and spend time arrangements – parents unable to agree on sporting and extra-curricular activities and arrangements – older children attending boarding school – arrangements with respect to the youngest child in light of that and the older children’s expressed views – whether there should be make up time following overseas holidays – child support assessment issues. |
| Legislation: Family Law Act 1975, ss.4, 60CA, 60CC, 61DA, 65DAA, 65DAB, 65DAC |
| Champness v Hanson [2009] FamCAFC 96; (2009) FLC 93-407 Goode & Goode [2006] FamCA 1346 Hall & Hall (1979) FLC 90-713 MRR v GR [2010] HCA 4 Newlands & Newlands (2007) 37 Fam LR 103 |
| Applicant: | MR PENMAN |
| First Respondent: | MS MORGAN |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| Intervenor: | MS PENMAN |
| File Number: | SYC 902 of 2011 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 26, 27 and 28 February 2014, 21 and 22 August 2014 and 9 December 2014 |
| Date of Last Submission: | 9 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the First Respondent: | Mr D Leamey and Mr Kuo, David Leamey Solicitor & Barrister |
| Solicitor for the Second Respondent: | Mr Gouliaditis and Mr Dean, Child Support Registrar |
| Solicitors for the Independent Children’s Lawyer: | Mr MacDiarmid, Mark MacDiarmid Family Law |
| The Intervenor appeared in person |
THE COURT ORDERS THAT
The following final parenting orders made on 6 June 2011 be discharged: being orders 2, 4, 5, 6, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21 and 22 and the remaining orders stand.
The parenting orders of 22 August 2014 stand.
By consent, the father have sole parental responsibility for the children X born (omitted) 1998 (“X”) and Y born (omitted) 2000 (“Y”) (“the older children”) and:
(a)the father shall keep the mother advised of the older children’s progress including but not limited to matters of the older children’s wellbeing, health, education and extra-curricular activities;
(b)the mother shall be entitled to communicate with the father any concerns that she has or any suggestions she wishes to make for the progress and wellbeing of the older children;
(c)the parents shall consult with the older children’s school and extra-curricular sporting providers in relation to the appropriateness of the frequency and overall balance (taking into account the older children’s relationships with people significant in their lives, their developmental needs and their other obligations including schoolwork) of the older children’s actual and proposed sporting activities; and
(d)the father shall give due regard to such matters as are raised by the mother, the older children’s school and extra-curricular sporting providers but, in the event that no agreement is reached between the parents, then the father shall be the person to make the final determination or decision.
By consent, X and Y shall live with and spend time with their parents in accordance with their views.
The mother shall have until 31 December 2016, sole parental responsibility for the child Z born (omitted) 2005 (“Z”) and:
(a)the mother shall keep the father advised of Z’s progress including but not limited to matters of Z’s wellbeing, health, education and extra-curricular activities;
(b)the father shall be entitled to communicate with the mother any concerns that he has or any suggestions he wishes to make for the progress and wellbeing of Z;
(c)the parents shall consult with Z’s school(s) and extra-curricular sporting providers in relation to the appropriateness of the frequency and overall balance (taking into account Z’s relationships with people significant in his life, his developmental needs and his other obligations including schoolwork) of Z’s actual and proposed sporting activities; and
(d)the mother shall give due regard to such matters as are raised by the father, Z’s school(s) and extra-curricular sporting providers but in the event that no agreement is reached between the parents, then the mother shall be the person to make the final determination or decision.
The father shall have from 1 January 2017, parental responsibility for Z (excluding Z’s extra-curricular sporting activities), subject to the following:
(a)the father shall keep the mother advised of Z’s progress including but not limited to matters of Z’s wellbeing, health and education;
(b)the mother shall be entitled to communicate with the father any concerns that she has or any suggestions she wishes to make for the progress and wellbeing of Z;
(c)the father shall give due regard to such matters as are raised by the mother, Z’s school(s) but in the event that no agreement is reached between the parents, then the father shall be the person to make the final determination or decision; and
(d)up until 31 December 2018, the mother shall have parental responsibility to determine Z’s extra-curricular sporting activities in relation to the appropriateness of the frequency and overall balance (taking into account Z’s relationships with people significant in his life, his developmental needs and his other obligations including schoolwork) of Z’s actual and proposed sporting activities and the father shall be entitled to communicate with the mother any concerns that he has or any suggestions he wishes to make for the progress and wellbeing of Z and the mother shall give due regard to such matters as are raised by the father, but in the event no agreement is reached between the parents, the mother shall be the person who makes the final determination or decision with respect to those extra-curricular sporting activities.
The father shall have from 1 January 2019, sole parental responsibility for Z (including Z’s extra-curricular sporting activities), subject to the following:
(a)the father shall keep the mother advised of Z’s progress including but not limited to matters of Z’s wellbeing, health, education and extra-curricular activities;
(b)the mother shall be entitled to communicate with the father any concerns that she has or any suggestions she wishes to make for the progress and wellbeing of Z;
(c)the parents shall consult with Z’s school(s) and extra-curricular sporting providers in relation to the appropriateness of the frequency and overall balance (taking into account Z’s relationships with people significant in his life, his developmental needs and his other obligations including schoolwork) of Z’s actual and proposed sporting activities; and
(d)the father shall give due regard to such matters as are raised by the mother, Z’s school(s) and extra-curricular sporting providers but, in the event that no agreement is reached between the parents, then the father shall be the person to make the final determination or decision.
Subject to the orders of 22 August 2014, during school term, Z shall:
(a)while not at (omitted) College (omitted) (“(omitted) College”) live with the mother each alternate week from after school on Monday until the commencement of school on the next following Monday and he shall otherwise live with the father, such order to continue in terms of the existing orders of 22 August 2014.
(b)while at (omitted) College and up until 31 December 2018, live with the mother every second weekend from school pick up time at (omitted) College, on Friday (or from the completion of any sporting activities on Saturday) until Monday morning at school (or Tuesday morning if Monday is a public holiday) and he shall, otherwise live with the father.
(c)while at (omitted) College and as and from 1 January 2019, live with and spend time with his parents in accordance with his views.
For the purposes of order 10 of the orders of 22 August 2014, in the event that the mother proposes to remove the children or any of them from the Commonwealth of Australia, then provided notification of the proposed travel is given in accordance with that order, the children’s passports shall be provided to the mother by the father within 7 days after the notice is received. The mother shall then return the passports to the father within 7 days following the completion of any trip.
The parents do all acts and things and sign all documents necessary to enrol Z in (omitted) College as a weekly boarder for his secondary schooling, such documents to be completed and forwarded by no later than the date specified by the school and the father is to ensure that (omitted) College records the mother’s details on any school enrolment or student action form as a relevant contact parent in any case of emergency contact.
That if the mother’s time with Z in the period 30 December 2014 to 15 January 2015 was suspended as a result of the father travelling overseas with Z, then the mother shall have make up time of the same period as agreed between the parties to be effected by 30 June 2015 and if there is no agreement, the said time period will form part of the mother’s time for the next two school holiday periods after 30 June 2015 and the father’s time will be suspended until that make up time has occurred.
That if a party’s time with Z is suspended for 3 days or more as a result of the other party travelling with Z, pursuant to order 10 of the orders made 22 August 2014, then that party shall have make up time for the same period as the suspended period as agreed and if there is no agreement, then that make up time shall be taken from the other party’s time in the following school holiday periods as nominated in writing by the party whose time was suspended, with such time to be fully made up within 6 months of the last day of the suspended time, to the intent that if a party’s time is suspended for less than 3 days, there is to be no make up time provided.
These orders be provided to (omitted) College school and that they be deemed sufficient authority for the said school to provide any reports as to the children’s schooling or other identified issues to the mother, as requested by her.
Prior to any application for discharge of the Independent Children’s Lawyer, the Independent Children’s Lawyer will forward a copy of these orders and any existent orders to the Principal at (omitted) College and meet with the children so as to explain the orders and the Court’s decision herein.
The proceedings be stood over to 19 March 2015 at 9.30am for mention with the Independent Children's Lawyer to notify the Second Respondent of the adjourned date.
IT IS NOTED that publication of this judgment under the pseudonym Penman & Morgan & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 902 of 2011
| MR PENMAN |
Applicant
And
| MS MORGAN |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
| MS PENMAN |
Intervenor
REASONS FOR JUDGMENT
Introduction
The parties had entered into final consent parenting orders on 6 June 2011 (“the final orders”) concerning their three children, X born on (omitted) 1998 (“X”); Y born on (omitted) 2000 (“Y”) (together described as “the older children”) and Z born on (omitted) 2005 (“Z”), currently aged 16, 14 and 9 years respectively (all together described as “the children”), as set out in paragraph 25 below.
By Application filed 3 February 2012, the father sought to vary the final orders and proposed other orders in respect of the children. The father filed an amended application on 23 March 2012 and then a further amended application on 14 January 2013. The father presented his proposed final minute of order in terms of Exhibit “A”. Given that that document raised child support departure matters and the mother and the Independent Children’s Lawyer objected to those matters proceeding at hearing, the Court excised those matters from the parenting hearing, itself, and those matters will be given a new date for further consideration.
The Registrar of the Child Support Agency (“CSA”), the second respondent, had previously appeared and submitted that it wished to be heard on the hearing of any child support matters, as the father then had a number of applications pending, either before it, the Social Security Appeals Tribunal (“SSAT”) or the Administrative Appeals Tribunal (“AAT”) or on appeal either in this Court and/or the Federal Court of Australia. On 9 December 2014, Mr Dean, appeared for the CSA as a matter of courtesy and advised that the father had commenced new child support proceedings in this Court that were on that day listed before Judge Scarlett. Those proceedings had, apparently, arisen by way of an appeal by the father from a decision of the SSAT made as recently as 13 September 2014, but which had not been formally produced in these proceedings.
The father had, initially, commenced these proceedings on the basis that he maintained that he was seeking orders which were not the subject of the final orders, but were necessary to implement those orders so as to avoid matters of some conflict and dispute between the parents. The father was, to an extent, fixated on obtaining “clear and precise final orders” regarding the children. The mother, initially, opposed his application raising a Rice & Asplund threshold and submitted that the final orders made were, sufficiently, clear and precise.
On 2 August 2012, the Court ordered an Independent Children’s Lawyer be appointed for the children and Mr MacDiarmid appeared as such.
Mr Leamey, the solicitor for the mother, maintained that the father had brought these proceedings for the sole purpose of agitating matters relating to child support. Indeed, the father conceded that he had started the proceedings based on what he described as the mother’s “lie” to the CSA, namely, that she was paying for school fees and that the final orders had caused him difficulty, in that regard, as they provided for the children to live in a week about arrangement during school term time, notwithstanding that X was then attending (omitted) College (omitted) (“(omitted) College”) as a boarder and subsequently, Y had also commenced boarding at that school. The father appeared to be of the view that given that he and his family were responsible for the boarding school fees, then that should in some way reflect upon an order that during the time the older children were boarding at that school, they were to be deemed to be “living” with him for the purposes of any child support assessment.
On 25 June 2013, the Court ordered that a Division 15 expert report be prepared and Ms G was appointed to provide such a report. Ms G, ultimately, provided two reports, the first dated 9 August 2013 and the second dated 22 March 2014, which have become respectively, Exhibits “Court 1” and “Court 2”. Ms G had also been involved by the Independent Children’s Lawyer in about December 2012 to assist the parties by way of family therapy.
Following receipt of Ms G’s reports and in the events that have occurred, Mr Leamey and Mr MacDiarmid no longer maintained that a Rice & Asplund threshold had not been met and that therefore, the Court would not be precluded from now considering fresh parenting orders for the children. The Court accepts that position as does the father.
The father had at one point filed an application seeking orders against Mr Leamey personally to engage with him. The father had complained that Mr Leamey did not speak to him or email him. The father was further critical of Mr MacDiarmid in not seeing the children as much as he thought they should have been seen. The father was critical that Mr MacDiarmid had according to the mother’s evidence, seen all of the children twice in a period of some two years since 2012. As Mr MacDiarmid explained, he had come to an arrangement with Ms G so as to avoid multiple interviews with the children to the effect that Ms G spoke to the children and then Mr MacDiarmid communicated with her.
On the final day of the hearing, the Independent Children’s Lawyer proposed a minute of order (“ICL2B”), as referred to in paragraph 24 below which was substantially accepted by the mother. The father was extremely angry and upset at its terms and at one point stormed out of the Court room, ordering his mother the intervenor, to follow him. The father returned and in final submissions stated that he had been “dismayed at a change in position” of the Independent Children’s Lawyer which he said must have arisen because of his attack on Mr MacDiarmid’s professional character. This, of course, was denied by Mr MacDiarmid.
The Independent Children’s Lawyer’s proposal was substantially based on the fact that the older children, notwithstanding the existing final orders, had “voted with their feet” to remain living with the father and were spending minimal time with the mother, given that they also remained boarders at (omitted) College (funded by the father and his family) and in those terms, had not spent any time with the mother on the alternate weekends and holidays when they were otherwise permitted time with her outside the school boarding environment since about December 2013.
The mother’s position was that the older children had been told by the father and his family that if they were to spend any time with her, then they were likely to be removed from (omitted) College. The father disputed this. It however, appears common ground that the older children have indicated to the mother that when these proceedings are over, they will seek to re-engage time with her. The mother’s position was that she was spending time with the older children at (omitted) College within the school term time. The mother gave evidence that indeed in November 2014, one of the older children had stayed overnight with her but she said without the knowledge of the father. The father disputed that he had not known of this.
The mother stated that she had taken a “back seat”, so as to not place the older children in a position of ongoing conflict and that she had not sought to pursue new contravention proceedings against the father, noting that while an earlier contravention application had been filed by her, this had been withdrawn and dismissed. Similarly, the father had filed a contravention application which had also been withdrawn and dismissed.
All the parties and the Independent Children’s Lawyer were of the view that given the ages of X and Y, there should be an order that the older children live with and spend time with their parents in accordance with their views. The Court accepts that position. Similarly, the Court has accepted that position for Z as and from 1 January 2019, namely that he should also live with and spend time with his parents in accordance with his views. The father’s position which the Court also accepts, was that it was very important for all the children to feel that they had been treated on a similar footing.
The father sought an order for sole parental responsibility for the children. The mother did not oppose that order with respect to the older children. This position was supported by the Independent Children’s Lawyer. Such an order can be made by consent of all of the parties.
The mother and the Independent Children’s Lawyer sought an order in the mother’s favour for sole parental responsibility for Z. The father opposes this and says that there should be one order, the same for all the children. The Court is of the view, for the reasons stated below, that the mother should have sole parental responsibility for Z, including as to extra-curricular activities up until 1 January 2017 and that thereafter, the father should have parental responsibility, excluding as to extra-curricular activities (with such responsibility vesting in the mother up until 31 December 2018), which would be when Z is about to enter Year 9 (being the commencement of his middle school years of higher education), when the father shall assume sole parental responsibility including all extra-curricular activities as and from 1 January 2019, subject to an obligation to confer with the mother. The timing of the exercise of the change in parental responsibility is reflective of Z’s commencement of schooling at (omitted) College and his progression into the middle school years at that school.
The rationale for the Independent Children’s Lawyer’s proposal for the mother to have sole parental responsibility for Z was to seek to ensure that she was not further removed from his life in terms of that which has occurred for the older children. The difficulty with that is, as referred to further below, the conflict between the parties has not directly arisen in relation to matters which could easily be described as going to major long term issues in relation to the children, as defined in the Family Law Act 1975 (“the Act”) see s.65DAC(1) and s.4(1). The parties had all agreed that the children should attend (omitted) College and at least that educative decision was settled. There appears to be no issue in relation to the children’s religious and cultural upbringing, nor as to the children’s names. There were issues as to health which will be referred to below but it would seem not major issues, although the father regarded them as such. To that extent, however, the parties’ conflict appears to arise from the children’s proposed overseas trips and their extra-curricular sporting activities and as such, these could be seen within the concept of a change to living arrangements which make it significantly more difficult to spend time with a parent in terms of (e) of the definition of major long term issues.
The Court is of the view that providing sole parental responsibility for the mother for Z, including as to all extra-curricular activities, will reduce the level of conflict between the parents, up until Z commencing at (omitted) College in 2017. Thereafter, parental responsibility would vest in the father, but excluding extra-curricular activities. Upon Z entering Year 9 in 2019, those extra-curricular activities should then fall within the father’s parental responsibility, subject to an obligation to confer with the mother. The Court is of the view that without the mother having the sole parental responsibility in that regard at least up until 31 December 2016, there would be a high likelihood that the father would organise all of those activities to the exclusion of the mother and there would develop a position for Z akin to that which has occurred for X and Y. The father had already identified in relation to Z his participation in swimming lessons, (hobbies omitted) and training for each of those activities. To that extent, the Court accepts the submissions of the Independent Children’s Lawyer. While the father has maintained that he has done all he can to promote the mother’s relationship with X and Y, he conceded that this has not resulted in them spending time with the mother. Indeed, at one point in the proceedings, the father indicated that when the matter was concluded and he obtained orders in his favour, he might be able to get the older children to spend time with the mother. From Z’s commencement at (omitted) College, it is important that the school understand that whilst parental responsibility might be vested in the father (excluding extra-curricular activities until 2019), the mother should still be advised as a relevant parental contact in the event of any emergency for Z. As the father says, the school has seen the words “shared parental responsibility” and has honoured it. The Court wishes to ensure that the father’s exercise of parental responsibility does not potentially negatively impact on the mother’s sense of involvement with (omitted) College and Z’s future educative experience there.
With respect to Z’s living arrangements, the Court is of the view that the current regime should continue, namely alternate weeks. That is supported by Z’s views and by Ms G’s first report. When Z commences at (omitted) College in 2017 (year 7), he will be subject to the same boarding restraints as his brothers operate under (noting that X will have left school by that date) and it is then likely that each parent will spend alternating weekends with him. The parents have already agreed to splitting school holidays in accordance with their consent orders made on 22 August 2014, which orders will stand.
Given the involvement of Ms Penman, as intervenor and her being bound by the final orders of 6 June 2011, the Court has maintained those orders, discharging some which have now been superseded by the parties consent orders of 22 August 2014 and making the further orders as set out above. Those orders contemplate Z potentially attending (omitted) College. Ms Penman was given an opportunity to consider whether she wished to be removed from the proceedings. Her removal was not opposed by the mother. However, it was apparent from the final orders that she was made a party to accommodate the payment of (omitted) College’ school fees. Ms Penman, ultimately, reserved her position until the conclusion of these parenting proceedings.
The Court will make an order, as sought by the Independent Children’s Lawyer, which implements a passport holding position and which flows from the consent orders made on 22 August 2014, as, otherwise, being in the best interests of the children and so as to avoid any issue of ongoing conflict between the parents.
The orders which the father sought that have not now been taken up by way of consent orders, were as follows:
(1)That the father have sole parental responsibility for the children, including but not limited to:
(a)The school or schools that each child is to attend;
(b)The religious instruction and upbringing of each child;
(c)The medical treatment that each child is to receive;
(d)The sporting and other activities that the children are to engage in.
(2)That during school terms, the children live with the father.
(3)Omitted as superseded by agreed orders.
(4)That the children are to have substantial and significant time with the mother as follows:
(i)During school term: every second weekend from school pick up time of (omitted) College on Saturday until 6.00pm Sunday
In the alternative for the child Z:
During school term: every second weekend from the completion for any sporting activities on Saturday until school pickup on Monday.
(ii)Omitted as superseded by agreed orders.
(iii)Omitted as superseded by agreed orders.
(iv)Omitted as superseded by agreed orders.
(v)Omitted as superseded by agreed orders.
(5)The Court notes that in relation to X and Y, that order 4 represents the same physical time that these children currently spend with the mother under the final orders of 6 June 2011.
(6)Not the subject of the parenting hearing.
(7)That the father and the mother do all acts and things and sign all documents necessary to enrol Z in extracurricular sporting activities including but not limited to:
(a)(hobbies omitted);
(b)(hobbies omitted);
(c)(hobby omitted);
(d)(hobby omitted) or (hobby omitted);
(e)(hobby omitted).
(8)That the father and the mother do all acts and things and sign all documents necessary to enrol X and Y in extra-curricular sporting activities including but not limited to:
(a)(hobby omitted);
(b)(hobby omitted).
(9)The Court notes that the children’s attendance at (omitted) College as weekly boarders will preclude involvement in other extra-curricular sporting activities except (hobbies omitted).
(10)Not the subject of the parenting hearing.
(11)Not the subject of the parenting hearing.
(12)That the father and the mother do all acts and things and sign all documents necessary to enrol the children in a health fund of the father’s choosing.
(13)Not the subject of the parenting hearing.
(14)Not the subject of the parenting hearing.
(15)Not the subject of the parenting hearing.
(16)That each of the parents use their best endeavours to ensure that the children are transported to and from all extra-curricular activities they are involved in during the time that the children are living with that parent.
(17)That the father and the mother do all acts and things and sign all documents necessary to enable the children to attend any and all domestic and international trips arranged by (omitted) College and that the father has agreed to fund.
(18)The Court notes that the child Z is currently attending (omitted) School, (omitted) (“(omitted) School”) and that Z will continue to attend (omitted) School until he commences attendance at (omitted) College in 2017 as a weekly boarder.
(19)That the father and the mother do all acts and things and sign all documents necessary to enrol the child Z in (omitted) College as a weekly boarder for his secondary schooling. That any required documentation be completed and forwarded to (omitted) College no later than the date specified by the school.
(20)Neither the father nor the mother will change Z’s school from (omitted) School without full written agreement by both parents.
(21)The child Z is to reside within a 10km radius (as the crow flies) from (omitted) School on a Sunday to Thursday night while attending (omitted) School. The Court notes this is in an effort to ensure that travelling time to school is minimised and time required for Z to undertake homework and attend additional speech therapy appointments is maximised.
(22)Not the subject of the parenting hearing.
(23)Omitted as superseded by agreed orders.
(24)Omitted as superseded by agreed orders.
(25)That whilst any of the children are attending boarding school, the time that they spend with each of their parents pursuant to the above orders, will be regulated by the requirements of the school.
(26)Not the subject of the parenting hearing.
(27)Omitted as superseded by agreed orders.
(28)Omitted as superseded by agreed orders.
(29)Omitted as superseded by agreed orders.
(30)Omitted as superseded by agreed orders.
(31)Omitted as superseded by agreed orders.
(32)Omitted as superseded by agreed orders.
(33)Omitted as superseded by agreed orders.
(34)Omitted as superseded by agreed orders.
(35)Omitted as superseded by agreed orders.
(36)Omitted as superseded by agreed orders.
(37)Omitted as superseded by agreed orders.
(38)Omitted as superseded by agreed orders.
(39)Omitted as superseded by agreed orders.
(40)Omitted as superseded by agreed orders save for any make-up time for a non-travelling parent with any formal written request required to be responded to within 48 hours and with the parents to proactively seek a workable proposal for swapping dates of care to enable a parent to travel with the children.
(41)As in (40) above.
(42)Omitted as superseded by agreed orders.
(43)In the event that whilst on holiday circumstances of misadventure occurs and the children’s time away on holiday is extended, then the parent on holiday with the children will reimburse any additional time spent with the other parent. Any reimbursement of time is to take place as soon as practical upon return.
(44)Not the subject of the parenting hearing.
(45)That the father and mother do all acts and things and sign all documents necessary to provide consent to any of the children attending trips organised by (omitted) College which they are eligible to attend.
(46)Not the subject of the parenting hearing.
(47)No make-up time is required if neither parent travels with the school.
(48)In the event that one parent does travel, then the non-attending parent can request make-up time based on each parent still receiving a fifty percent share of school holidays within a year.
(49)Omitted as superseded by agreed orders.
(50)Prior to introducing any child or children to any new partner, the parent will provide contact details of the new partner to the other parent. These details must include but are not limited to:
(a)The new partner’s full name;
(b)Telephone numbers;
(c)Home address;
(d)Work contact details.
The Court notes that if a new partner has been introduced to the children prior to these orders then the above order will apply immediately.
(51)Once the parent has introduced a new partner to the child/children, that parent will retain special parent/child time each week. Such time should not fall beneath 5 hours per week.
(52)Prior to leaving the child/children in the sole custody of a new partner or meeting the extended families or leaving the child/children in the custody of said extended families, the parent will provide contact details of the new partner’s extended families to the other parent. These details must include but are not limited to:
(a)The extended family’s full names;
(b)Telephone numbers;
(c)Home addresses;
(d)Work contact details.
The Court notes that if a new partner has been introduced to the children prior to these orders then the above order will apply immediately.
(53)If the child/children voice any concerns about the proposed arrangements the parent making the proposed arrangement will fund a child psychologist or family therapist until the child/children has successfully managed any transition or change in family arrangements.
(54)Omitted as superseded by agreed orders.
(55)Omitted as superseded by agreed orders.
(56)Omitted as superseded by agreed orders.
(57)Omitted as superseded by agreed orders.
The mother, notwithstanding her Response filed 2 March 2012, ultimately, sought the same orders (excluding the notation therein) as proposed by the Independent Children’s Lawyer, as set out in paragraph 24 below.
The Independent Children’s Lawyer sought orders as follows:
(1)All prior parenting orders are discharged other than the orders of 22 August 2014.
(2)The father shall have sole parental responsibility for the older children, X and Y, and that:
(a)the father shall keep the mother advised of the older children’s progress including but not limited to matters of the older children’s wellbeing, health, education and extra-curricular activities;
(b)the mother shall be entitled to communicate with the father any concerns that she has or any suggestions she wishes to make for the progress and wellbeing of the older children;
(c)the parents shall consult with the older children’s school(s) and extra-curricular sporting providers in relation to the appropriateness of the frequency and overall balance (taking into account the children’s relationships with people significant in their lives, their developmental needs and their other obligations including schoolwork) of the older children’s actual and proposed sporting activities; and
(d)the father shall give due regard to such matters as are raised by the mother, the older children’s school(s) and extra-curricular sporting providers but, in the event that no agreement is reached between the parents, then the father shall be the person to make the final determination or decision.
(3)X and Y shall live with and spend time with their parents in accordance with their views.
AND THE COURT NOTES that since December 2013 X and Y have been primarily living with their father and spending minimal time with their mother in accordance with their expressed views.
(4)The mother shall have sole parental responsibility for Z, and that:
(a)the mother shall keep the father advised of Z’s progress including but not limited to matters of Z’s wellbeing, health, education and extra-curricular activities;
(b)the father shall be entitled to communicate with the mother any concerns that he has or any suggestions he wishes to make for the progress and wellbeing of Z;
(c)the parents shall consult with Z’s school and extra-curricular sporting providers in relation to the appropriateness of the frequency and overall balance (taking into account Z’s relationships with people significant in his life, his developmental needs and his other obligations including schoolwork) of Z’s actual and proposed sporting activities; and
(d)the mother shall give due regard to such matters as are raised by the father, Z’s school and extra-curricular sporting providers but, in the event that no agreement is reached between the parents, then the mother shall be the person to make the final determination or decision.
(5)Subject to the Orders of 22 August 2014, during school term Z shall live with the mother each alternate week from after school on Monday until the commencement of school on the next following Monday.
(6)For the purposes of Order 10 of the orders of 22 August 2014, in the event that the mother proposes to remove the children or any of them from the Commonwealth of Australia, then provided notification of the proposed travel is given in accordance with that Order, the children’s passports shall be provided to the mother by the father within 7 days after the notice is received. The mother shall then return the Passports to the father within 7 days following the completion of any trip.
(7)The parents and the intervenor will do all things and sign all documents necessary to continue the enrolment of the older children as weekly boarders at (omitted) College’s until the completion of their schooling and to effect and continue the enrolment of Z as a weekly boarder at (omitted) College’s from his commencement of Year 7 until the completion of his schooling.
(8)The father and the intervenor will be jointly responsible for the payment of all and any school fees and expenses at (omitted) College.
The Independent Children’s Lawyer also supported an order in terms of that sought by the mother for make-up time arising out of the father travelling with the children between 30 December 2014 and 15 January 2015 in terms of that sought by the mother in her response to the father’s application in a case filed on 8 December 2014. That response sought an order referrable to all children, but given the Independent Children’s Lawyer’s position referable to the older children and the mother’s adoption of that position, the Court infers that the mother’s proposal was relevant only to Z and sought that make up time be as agreed with such agreement to be incorporated into an order.
On 6 June 2011, the Court had made the following final orders by consent:
(1)That Ms Penman is joined to these proceedings.
(2)That the father and the mother have equal shared parental responsibility for the children including, but not limited to:
(a)The school or schools that each child is to attend;
(b)The religious instruction and upbringing of each child;
(c)The medical treatment that each child is to receive;
(d)The sporting and other activities that the children are to engage in that would occur when the children are to spend time with each of them.
(3)That the parent with whom the children are living with at that time is to be responsible for the day to day decisions concerning the care, welfare and development of the children.
(4)That during school terms the children live with the father each alternate week from after school Monday until the commencement of school the following Monday and that the children otherwise live with the mother, such order to commence with the father on the first Monday of the school term, being Term 3, 2011.
(5)That during school holidays the children spend one half of each school holidays with each of their parents as agreed between the father and the mother in writing but failing agreement for the first half with the father in holidays commencing in odd numbered years and for the second half with the father in holidays commencing in even numbered years, such time to commence in the June/July 2011 school holidays.
(6)That in order to calculate half of each of the children’s school holidays the father and the mother will calculate the number of days from the first day of the holiday period to the day before school returns, divide that by two and the changeover date between the father and the mother date will be 10.00am the day after the middle day.
(7)The Court notes that the child X is currently at boarding school and that the child Y is due to be enrolled to commence attending boarding school at (omitted) College in 2013.
(8)That whilst ever any of the children are attending boarding school the time that they spend with each of their parents pursuant to the orders above will be regulated by the requirements of the school.
(9)That the children spend from 9.00am until 6.00pm Father’s Day of each and every year with the father and 9.00am until 6.00pm Mother’s Day of each year with the mother, in the event that those days are not days that the children would spend with that parent.
(10)When changeover is to occur other than at the children’s schools, the father or his nominee will collect the children from the mother or her nominee at the (omitted) Petrol Station located at the corner of (omitted) and (omitted) at the commencement of his time with the children and the mother or her nominee will collect the children from the father or his nominee at this same location at the conclusion of time with the children.
(11)That each parent have liberal telephone contact with the children when they are in the other parent’s care. Either party will permit telephone communication via their mobile phone should the nominated telephone number be unavailable.
(12)That the father and the mother do all acts and things and sign all documents necessary to enrol Y and Z in (omitted) College as weekly boarders for their secondary schooling. That such documents be completed and forwarded to (omitted) College no later than the dates specified by the School.
(13)That the father and/or the father’s mother Ms Penman will be solely responsible for the payment of all and any school fees and expenses at (omitted) College and that any such payments will not be claimed by the father as non-agency child support payments.
(14)That each of the parents use their best endeavours to ensure that the children are transported to and from all extracurricular activities they are involved in during the time that the children are living with that parent.
(15)That each of the parents ensure that the children are adequately supplied with all sporting equipment, uniforms and footwear, school uniforms, school footwear, school books and equipment that they will require during such time as they are living with the other parent. That neither parent will reasonably refuse to return such items with the children. That each parent ensure that all of the children’s clothing, uniform and other equipment is returned with the children, where reasonably possible, washed.
(16)That each party notify the other of the following:
(a)The names and addresses of the children’s treating doctors and dentists.
(b)The dates of parent/teacher functions, sports carnivals and details of the children’s extra-curricular activities. That the father and the mother shall ensure the other parent is advised of any specialist appointments or medical appointments involving the child/children so as to enable the other parents attendance and also so as to enable either parent to obtain information from the treating specialist/doctor.
(c)Immediately notify the other if any child is seriously ill or is to be admitted to hospital at such times as the children are living with that party and shall provide full details of the illness or injury and permit the other party to visit the child if hospitalised.
(d)That each party shall notify the other of any medical treatment or allied health care received by the child whilst living with either parent and shall ensure that any medication prescribed by a health care provider, return with the child and that the child takes the medication as prescribed.
(e)Any intended change of residential address for the children within 28 days of the change being effected together with full details of such address.
(f)Any intended change of mobile telephone number within 24 hours.
(17)That excepting emergencies communication between the father and the mother in relation to the children is to be by email or SMS.
(18)That at such times as either party takes the children on holidays outside the Sydney area that that party provide the other party with the address of where the children will be staying where reasonably possible.
(19)That the father and the mother do all acts and things and sign all documents necessary to authorise any school attended by the children to release to both the father and the mother copies of all school newsletters, notes, school reports and school photographs.
(20)That neither party is to denigrate the other or any other person in that party’s household in the hearing or presence of the child/children nor allow any other third party to do so.
(21)That both father and the mother are restrained from moving the children’s residence from outside of the Sydney Metropolitan Area without the prior written consent of the other parent first had and obtained.
(22)That both father and the mother forthwith do all things necessary and sign all documents to enrol in a post separation parenting programme with Interrelate or other similar organisation.
(23)That the Court notes the father and the mother have agreed to Order 22 above so that they may improve the communication between them so that they can more effectively co-parent the children.
On 22 August 2014, the Court made the following final orders by consent:
(1)Z shall live with the mother for one half of his school holiday periods as agreed between the parents, and failing agreement for the first half of Z’s school holidays in 2014 and each alternate year thereafter, and for the second half of Z’s school holidays in 2015 and each alternate year thereafter.
(2)For the purpose of the previous order, the following will apply:
(a)each school holiday period shall commence at 3.00pm on the last day of Z’s required school attendance and shall conclude at 3.00pm on the day immediately preceding the first day of the next school term for Z;
(b)changeover is to occur at 12.00 noon on the mid-point day between the first and last day of the defined school holiday period and shall, where applicable, include public holidays and pupil free days;
(c)in the event that there are two consecutive mid-point days, then changeover is to occur at 12.00 noon on the first of those two mid-point days.
(3)When the children are not living with the mother they shall live with the father.
(4)In addition to the time provided for above, Z shall spend from 9.00AM until 6.00PM Father's Day of each and every year with the father, and 9.00AM until 6.00PM Mother's Day of each and every year with the mother, in the event that those days are not days that Z would normally spend with that parent.
(5)When changeover is to occur other than at the children's schools, the father, or his nominee, will collect the children from the mother, or her nominee, at the (omitted) Petrol Station located at the comer of (omitted) and (omitted), at the commencement of the Father’s time with the children. The mother or her nominee will collect the children from the Father or his nominee at this same location at the conclusion of his time with the children.
(5A)In the event that both parties and the children are in attendance at the same sporting, school or other extracurricular event, changeover may take place at that venue in lieu of the venues referred to in the previous Order.
(6)Each parent shall have liberal telephone time with the children when they are in the other parent's care. Each parent will permit telephone communication via their mobile phone should a child’s mobile telephone be unavailable.
(7)Each of the parents shall ensure that the children are adequately supplied with all sporting equipment, uniforms and footwear, school uniforms, school footwear, school books and equipment that they will require during such time as they are living with the other parent. That neither parent will reasonably refuse to return such items with the children. That each parent ensure that all of the children's clothing, uniform and other equipment is returned with the children, and where reasonably possible, washed.
(8)All and any communication in relation to the children between the Father and Mother be conducted via email or SMS and be replied to within a 24 hour period.
(9)Each party shall notify the other of the following:
(a)the names and addresses of the children's treating doctors and dentists and shall ensure that the other parent is advised of any specialist appointments or medical appointments involving the children so as to enable the other parent to attend such appointments and also so as to enable either parent to obtain information from the treating specialist/doctor;
(b)the dates of parent/teacher functions, sports carnivals and details of the children's extra- curricular activities;
(c)immediately if any child is seriously ill or is to be admitted to hospital at such times as the children are living with that party and shall provide full details of the illness or injury and permit the other parent to visit the child if hospitalized;
(d)any medical treatment or allied health care received by the child whilst living with either parent and each parent will ensure that any medication prescribed by a health care provider is returned with the child and that the child takes the medication as prescribed whilst in their care;
(e)any intended change of residential address for the children within 28 days prior to the change being affected together with full details of such address;
(f)any intended change of mobile telephone number within 24 hours prior to the change.
(10)Each parent is permitted to remove the children from the Commonwealth of Australia and/or travel interstate by agreement and failing agreement for such periods as the children are ordinarily in their care, provided that that parent notify the other parent not less than 28 days prior to the date of departure of the following: –
(a)the intended destination;
(b)the length of the trip;
(c)the intended return date;
(d)contact details for the children whilst overseas including addresses and telephone numbers; and
(e)a copy of their itinerary
and for the purposes of this Order the children shall not travel during school time without the prior written consent of the relevant children’s school/s.
(11)Within three days of either party providing to the other a passport application and/or any other documents required in order for a passport to issue in relation to the children, then the party provided with the documents sign them and each of the parties pay one half of the passport application fee and that upon issue of the children’s passports they be held by the Father.
(12)To obtain any necessary information and/or documents about the children’s progress each parent be permitted to liaise directly with the children’s schools, sporting bodies, and medical practitioners and this Order shall act as sufficient authority to allow such liaison with any school, sporting body or medical practitioner the children may attend from time to time.
(13)Each parent is restrained by injunction from moving the children's permanent residence outside of the Sydney Metropolitan Area without the prior written consent of the other parent.
(14)In the event that either party travels with the children or any of them outside the Sydney Metropolitan area for a period exceeding 2 days than that party shall provide the other party with the address(es) at which the child(ren) will be staying.
(15)Neither party is to denigrate the other or any other person in that party's household in the hearing or presence of the children or any of them nor allow any other person to do so.
(16)Each party should do all such acts and things and sign all such necessary documents to give effect to the terms of these Orders.
(17)Should either party refuse or neglect to execute any document which may be necessary or desirable to give full force and effect to the terms hereof within seven (7) days after the same shall have been tendered to either of them or their respective solicitors for that purpose THEN AND IN SUCH CASE a Registrar of this Court upon proof by affidavit of such refusal or neglect is hereby appointed to execute on behalf of either party hereto and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly and the defaulting party shall be fully liable for the cost thereto.
On 10 December 2014, the Court made the following further orders, by consent, reserving the question of any make up time for the mother:
(1)The child, X, be permitted to travel to the (country omitted) from 30 December 2014 to the 15 January 2015 during the 2014/2015 school holidays in the company of the father.
(2)The child, Y, be permitted to travel to the (country omitted) from 30 December 2014 to the 15 January 2015 during the 2014/2015 school holidays in the company of the father.
(3)The child, Z, be permitted to travel to the (country omitted) from 30 December 2014 to the 15 January 2015 during the 2014/2015 school holidays in the company of the father.
(4)The question of make-up time (if any) for the mother in respect of the above orders be reserved.
The father’s position was that there should be no make up time ordered as he said, it was likely that the mother would take the children overseas on holiday and that he would then miss out on his time and that there would be a balance to that over time. The mother’s position was that she wished to have make up time to be agreed and ordered.
On the hearing, the father appeared on his own behalf. Mr Leamey and Mr Kuo appeared for the mother. Mr MacDiarmid appeared for the Independent Children’s Lawyer. Ms Penman, the paternal grandmother, appeared on her own behalf as intervenor. The second respondent’s attendance at the hearing was excused.
Principles to be applied and procedure to be followed
Section 65D(1) of the Family Law Act 1975 (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and 65DAB of the Act.
Section 61DA of the Act requires the Court to apply a presumption before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility) that it is in the best interests of a child for a child’s parents to have “equal shared parental responsibility” for the child.
Section 65DAB of the Act requires the Court to have regard to any parenting plans entered into between the parties. This is not relevant on the facts of this case.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2) of the Act) or in the case of an interim hearing the Court considers it inappropriate (s.61DA(3) of the Act) (not relevant here) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his parents to have such equal, shared parental responsibility (s.61DA(4) of the Act).
The making of an order for equal shared parental responsibility is, however, not of itself, determinative of the amount of time that a child is to spend with his parents, but goes to the parent’s decision making responsibilities. It does, however, trigger the operation of s.65DAA(1) and (2) of the Act.
By virtue of s.65DAA(1) and (2) of the Act, the Court must positively consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” with both of his parents.
“Substantial and significant” time is defined in s.65DAA(3) of the Act as:
a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
b)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
To determine what time orders should be made under s.65DAA(1) & (2), the Court must look to determine whether the actual spending of “equal time” or “substantial and significant time” is in the best interests of the child and, as a separate and distinct matter, whether the actual spending of such time is reasonably practicable. The Court must affirmatively answer both of these questions for it to have the power to make a time order of that nature. See the High Court of Australia’s decision in MRR v GR [2010] HCA 4. If it cannot do so, the Court must consider making such “other” time order as is, otherwise, in the best interests of the child.
The best interests of a child remain the paramount consideration: s.60CA of the Act.
The best interests of a child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
“(1) The “objects”…are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).”
Section 65DAA(5) provides that the Court must have regard to certain specific matters, to determine whether the actual spending of either “equal time” or “substantial and significant” time is reasonably practicable.
The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, but which may also be usefully examined here, namely:
“(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Evidence
The father relied on:
a)His Affidavit sworn and filed on 13 February 2014;
b)Affidavit of Mr R (the father’s father) sworn / affirmed on 15 February 2014 and filed on that day;
c)Affidavit of Ms Penman (the father’s mother) (also the intervenor) affirmed on 13 February 2014 and filed on that day;
d)Affidavit of Ms A sworn on 9 February 2014 and filed on that day;
The mother relied on:
a)Her Affidavit sworn on 11 February 2014 and filed on that day.
The following documents were placed into evidence as follows:
Exhibit No
Document
Date
Tendered by
Court 1
Report of Ms G
9/8/2013
Court
Court 2
Report of Ms G
22/3/2014
Court
Court 3
Consent Orders
22/8/14
Court
A
Father’s proposed orders
Father
B
Photograph of car number plates (omitted)
Father
C
Police Report
Father
D
Two videos on a USB stick
Father
1
Bundle of emails
Mother
2
Mother’s proposed orders
Mother
3
Mapping of orders by the mother
Mother
4
Photo of Z from an iPad
Mother
5
Bundle of emails between the mother and the father
Mother
6
Letter from Dr T
13/12/13
Mother
7
Phone recording as played to the father in the witness box
Mother
ICL1
Report from (omitted) Speech Pathology
ICL
ICL2
Independent Children’s Lawyer’s proposed orders
ICL
ICL2A
Updated Minute of Order sought by the Independent Children's Lawyer
ICL
ICL2B
Further updated Minute of Order sought by the Independent Children’s Lawyer
ICL
Proposals
The parties and the Independent Children’s Lawyer seek the various competing orders as set out above.
Issues
The essential issues in dispute the subject of determination are:
a)Parental responsibility;
b)Who Z is to live with;
c)Time to be spent with the children; and
d)Makeup time if a party travels overseas during the other party’s time.
e)Injunctive orders.
Factual Matters
There appear to be a number of relevant uncontested facts, as follows:
a)The father was born on (omitted) 1970 and is currently 44 years of age.
b)The father currently resides in his parent’s rental property adjoining his parent’s property at (omitted) and is described as a self-employed (occupation omitted) of a company known as “(business omitted) Pty Ltd”.
c)The father obtained his Higher School Certificate and completed a degree with a (qualifications omitted). He is also qualified as a (occupation omitted).
d)The mother was born on (omitted) 1974 and is currently 40 years of age. She described her occupation as being employed part-time in (occupation omitted).
e)The mother had resided in rented accommodation in (omitted). In August 2014, she stated that her residential address “at the moment” was (omitted), having moved there at the end of June 2014. The mother maintained that in August 2014, she was then unemployed and living off her savings.
f)The mother obtained her Higher School Certificate and completed an (omitted) course at (omitted).
g)The parties met in the mid-1990s and commenced cohabitation shortly thereafter and were married on (omitted) 1997.
h)The parties separated in August 2010 (although the mother asserted that she had moved into a separate room in the former matrimonial home in July 2010) and were divorced on 6 September 2011.
i)The parties had operated a business as directors and shareholders of an entity known as “ (omitted) Pty Ltd” ACN (omitted) established in (omitted) 2008. The primary function of that business was initially “(omitted)”. In (omitted) 2009, the business acquired “(omitted)” for $430,000.00 and had an overdraft of $50,000.00 secured over the parties’ former matrimonial home. As a result of the loss of a contract worth approximately $20,000.00 per month and the inability to obtain a new tenant for the sub-leased (business omitted), the business had financial problems which necessitated the sale of the former matrimonial home.
j)Since 16 December 2013, X and Y have been primarily living with the father and have spent very minimal time with the mother and indeed no overnight time in accordance with their expressed views. The mother said, however, that she had spent time with the older children on about 10 to 20 occasions since January 2014, largely at their school.
k)At the time of final hearing, X was in Year 10 at (omitted) College and Y was in Year 8. Z was in Year 4 at (omitted) primary school at (omitted) (“(omitted) School”) and it was anticipated that he will commence at (omitted) College in Year 7 in 2017. The older children had also attended at (omitted) School for their primary school education.
l)Both parents agreed that the children should be educated at (omitted) College as a prestigious (omitted) school in Sydney.
m)X has attended the (country omitted) at a (omitted) camp and a (omitted) camp.
n)The father had a partner, Ms A, who has a son, A, but as at August 2014, she appeared to be no longer part of the father’s life.
o)The mother has a boyfriend, Mr J who lives in the unit at (omitted), referred to in (e) above and both she and Z have stayed there on occasion and Z has travelled from there to school.
p)Mr J has 2 daughters, one aged 18 years and the other aged 15 years, who also spend time with him in his unit at (omitted). The mother maintained in August 2014, that she was then living in the same residence and bedroom as Mr J, as “boyfriend and girlfriend”, but said that they were not in a de facto relationship. Mr J’s unit has 2 bedrooms with Z using the second bedroom when staying overnight there.
q)On 3 February 2012, the father commenced these proceedings.
There appear to be a number of disputed facts as follows:
a)Whether the father suffers from dyslexia as he asserts.
b)Whether the father has a learning disability, whereby reading is a challenge for him, as he asserts.
c)Whether the mother suffers from mental problems as the father asserts.
d)Whether the parties have domestic violence issues, as each asserts.
Many of the above disputed facts were at the heart of the parties continuing disputation and the basis for their negative feelings towards each other. However, unless the resolution of such disputed facts is important for the determination of the competing parenting orders sought by the parties, the Court will simply note that those matters are disputed and will make no other findings.
Chronology of proceedings
The following sets out a chronology of the proceedings and representation of the parties:
a)On 16 February 2011, the father commenced property and parenting proceedings with respect to the children.
b)The father was represented by Ms Simone Ellen Green of Streeter Law.
c)On 9 May 2011, the mother filed her response and supporting documents.
d)The mother was represented by Ms E.
e)On 10 May 2011, the proceedings were adjourned to 6 June 2011 with directions for the filing and service of amended documents and written submissions with respect to the property aspects of the case.
f)On 6 June 2011, with Ms Simone Ellen Green appearing for the father and Ms Messner appearing for the mother, final property and parenting orders were made by consent. The father’s mother, Ms Penman was joined as a party to the proceedings to implement those orders. The final orders were as set out in paragraph 25 above.
g)On or about 27 June 2011, the father became self-represented and filed a Notice of Address for Service on 11 July 2011.
h)On 15 July 2011, the mother also became self-represented.
i)On 3 February 2012, the father commenced these proceedings including seeking notations with respect to the care arrangements for the children for the purposes of any child support assessment. The proceedings were given a first return date of 19 March 2012. His application was, subsequently, further amended on 23 March 2012 and on 14 January 2013 and by a further Minute of Proposed Order, being Exhibit “A”.
j)On 14 February 2012, the father filed a contravention application which was also made returnable on 19 March 2012.
k)On 19 March 2012, the Court provided for the father to file and serve an amended application setting out those orders which he sought which were not then current final orders and the parties were directed to attend a child dispute conference on 12 April 2012, with the proceedings being then adjourned to 23 May 2012 for mention.
l)On 23 May 2012, the proceedings were then adjourned to 2 August 2012 for mention with a contravention hearing being listed on 7 December 2012. By consent, of the mother, and not opposed by the father, in respect of each child enrolled at (omitted) College, the parents were ordered to provide a consent for them to travel on any overseas trip organised through the school, as agreed to by the parties. The parties, further, were ordered to arrange for mediation with UNIFAM.
m)On 2 August 2012, an Independent Children’s Lawyer was appointed for the children, directions were made for the filing and service of trial affidavits and the proceedings were then listed for a hearing on a date to be fixed, with a mention date of 12 November 2012 being given.
n)On 9 August 2012, the mother filed a contravention application made returnable on 12 November 2012.
o)On 12 November 2012, the Court directed the mother to limit her contravention application and stood the father’s contravention application over for determination on 7 December 2012.
p)On 7 December 2012, with Ms B being excused from further attendance that day on behalf of the Child Support Registrar, both parties withdrew their contravention applications which were then formally dismissed and orders were made, by consent, for the provision of a report from Ms G, together with orders being made to enable Ms G to carry out an assessment of the children. Mr MacDiarmid appeared on that occasion for the Independent Children’s Lawyer. The parenting matter was then adjourned to 27 March 2013 for mention.
q)On 27 March 2013, the Court ordered by consent that the child, X ,be permitted to travel to the (country omitted) in the 2013 September/October school holidays with (omitted) College to attend the (omitted) College “(omitted) Camp” trip. The proceedings were then listed for a final hearing (estimate 3 days) on 26 February 2014, with a family report ordered.
r)On 25 June 2013, the Court’s order for the appointment of a family report writer was vacated and, by consent, Ms G was appointed pursuant to Division 15.2 of the Rules to prepare such a report, with the costs to be borne by the father.
s)On 1 July 2013 and 5 July 2013, the father filed applications in a case returnable on 10 September 2013, seeking a stay on child support and seeking further orders for the determination of care percentages and in respect of orders for travel to the (country omitted) for Y and Z, which applications were both stood over to 12 August 2013, after an application for review had been filed and dismissed.
t)On 23 July 2013, the father filed a further application in a case returnable on 2 December 2013, with respect to Y travelling to (country omitted).
u)On 12 August 2013, the expert report of Ms G dated 9 August 2013 was released to the parties and by consent, orders were made for the children, Y and Z to travel to the (country omitted) for a period of 14 days from 20 September 2013 to 4 October 2013 in the company of the father and for the child, Y, to travel to (country omitted) in the 2014 June/July school holidays in the company of the (omitted hobby) touring. The father’s application in a case filed on 5 July 2013 was withdrawn and dismissed as was his application in a case filed on 23 July 2013. His application filed 1 July 2013 remained.
v)On 29 August 2013, the Child Support Registrar through the offices of the Australian Government Solicitor, (Mr Nick Gouliaditis appearing) filed a Notice of Address for Service.
w)On 3 December 2013, the Court made certain orders, by consent and without admission with respect to the mother conferring with Dr T in respect of certain post-operative treatment for X. The father was not to be present at Dr T’s surgery during the procedure and the mother was to be responsible for all medical related fees for the procedure. The proceedings were then adjourned to 28 January 2014.
x)On 23 January 2014, Mr Leamey filed a Notice of address for service on behalf of the mother.
y)On 28 January 2014, the Court ordered that:
i)The father’s application in a case filed 26 January 2014 seeking to remove the paternal grandmother, Ms Penman, from the proceedings was withdrawn and dismissed.
ii)The father’s application in a case filed 9 December 2013 seeking orders for sole parental responsibility for the children, for the mother to have substantial and significant time and for the release of Ms Penman was withdrawn and dismissed.
iii)The father’s application in a case filed 28 November 2013 (returnable 3 December 2013) which sought orders of a medical nature concerning the treatment for X’s large toe nail, save for orders for sole parental responsibility for medical matters, was withdrawn and dismissed .
iv)The father’s application in a case not formally filed but lodged on 25 January 2014, insofar as it related to Mr Leamey was stood over to the final hearing. That application related to orders for Mr Leamey to undertake telephone communications with the father who claimed, as a self-represented litigant, to be suffering from dyslexia and learning difficulties resulting from that condition.
v)Directions were made for the preparation of the matter and the Court noted an updated report from Ms G would be prepared. Specifically the Court noted that the hearing listed on 26 February 2014 would not deal with any application for child support departure orders, any application to retrospectively vary parenting orders and any application that may purport to retrospectively affect percentages of care for child support purposes. Those matters would be considered at a later date, if they arose.
z)On 26 February 2014, the hearing commenced with Ms G being examined by the Independent Children’s Lawyer and the parties.
aa)On 27 February 2014, Mr R (the father’s father) and Ms A (the father’s then partner) gave evidence, as did Ms Penman (the father’s mother) (but her evidence did not conclude on that day).
bb)On 28 February 2014, Ms Penman’s evidence was concluded. Based on Mr Leamey’s objections to the father’s affidavit material, the Court directed the father to identify paragraphs of his trial affidavit, with the Court standing over Mr Leamey’s objections to a mention date of 11 April 2014. The Court directed that if the father was to seek to discharge the Independent Children’s Lawyer, as he was then suggesting he would do, he was to bring an application 14 days prior to the adjourned date of 11 April 2014. The Court, further, provided that if no application for discharge was made by that date, then on the adjourned date the matter would be allocated further hearing dates. The Court also raised with Ms Penman her position with respect to any application to be removed as a party to the final orders and she confirmed that she reserved her position and would await the outcome of the parenting proceedings.
cc)On 11 April 2014, the father was directed to file one trial affidavit to deal with Mr Leamey’s objections.
dd)On 13 April 2014, the father filed his trial affidavit.
ee)On 23 April 2014, by chambers order the proceedings were then listed for resumed hearing on 21 & 22 August 2014.
ff)On 10 June 2014, the father filed an application in a case made returnable 21 August 2014, seeking orders for the children to travel overseas to (country omitted) between 30 December 2014 and 15 January 2015, supported by an affidavit affirmed 6 June 2014.
gg)On 21 August 2014, the father gave evidence.
hh)On 22 August 2014, Ms G was further examined and the mother gave evidence. Mr R was further examined.
ii)On 9 December 2014, the mother’s examination was concluded and the parties made oral submissions.
Father’s evidence
The father, notwithstanding a direction for a consolidated affidavit referred to his earlier affidavit material by way of exhibits to his “consolidated” affidavit, some of which set out the financial background of the parties and their financial circumstances at around the time of the separation which have not been set out below, but relevantly asserted the following:
a)That the mother had failed to take the children to appointments with Ms G, if such an appointment fell within her week. That Ms G had asked the father to take Y to an appointment in August 2013, when the mother had refused to take Y to that appointment with Ms G, as requested by her.
b)That at the start of 2013, X’s dentist had advised that X needed braces, but that the mother said that a government dentist could carry out the procedure, as she said she was not paying for it. Subsequently, X attended Dr P (a specialist) who recommended braces be fixed at the end of the (hobby omitted) season. The father said that the mother had then agreed to pay half, but Dr P’s surgery charged the full amount to him and the mother had not paid her half share in reimbursement of the fees paid by him.
c)That the father had taken both Y and X to the (omitted) Dentist and had been advised that Y required some “filling” work and X required a “fissure seal”. The father maintained that the mother did not take the older children back to that Centre, but instead took them to a government funded centre, which meant time out of school for them, noting that the father’s appointment had been scheduled on a Saturday. The father stated that he had attended the mother’s appointment and explained the work required, as he understood it. The father says that Y had his teeth filled but, that the “government dentist would not do the fillings”, presumably the fissure seal for X.
d)That the mother was more interested in not spending money on the children’s health than in obtaining the correct treatment for them.
e)That Z had a fungal skin infection behind his ears and on 8 January 2014, the mother had not asked for the “Retrieve” cream for the treatment of this infection, upon Z’s return from overseas and that she had not collected that cream for Z’s then most recent school holiday period.
f)That he and the mother had attended a medical general practitioner in relation to X’s acne/scarring. The father said that he had wanted a referral to a dermatologist but that the mother asked the doctor for antibiotics as she did not want to pay for a dermatologist. The father said that the doctor noted that the antibiotics had not been working but gave a prescription for them, in any event, and a referral, as he did not want to be placed in the middle of a family argument in front of X. The father, subsequently, took X to a dermatologist who prescribed certain medication, which the father said then cleared up X’s skin complaint.
g)That in about November 2013, the mother made it clear that X was not to have any procedure undertaken on his toes until she had approved of the procedure in writing. The father had provided the mother with a recommendation by Dr T (Shoulder, Foot and Ankle Surgeon), summarised by the father, stating that until the toe nail was removed the child’s infection would not heal and that the infection was becoming resistant to antibiotics and may penetrate into the bones of the toes with a possible loss of the big toes. The father said that the infection had been there for more than 24 months with partial toe nail removals within the last 12 months.
h)That X required a medical examination to attend (omitted) Camp to certify that he was fit for (hobby omitted) and that arrangements had been made “in front of” the mother to attend at her place for X to sign the relevant papers. That when the father had arrived at the mother’s residence, she did not answer the buzzer to her unit block or her telephone. The father said that he had been able to reach X and Y on their phones and that they had informed him, in words to the effect of: “Mum has locked us in and we can’t get out”. Ms G telephoned the father while he was standing out the front of the mother’s residence, when the police arrived and, thereafter, the police went into the mother’s apartment with the relevant papers and were able to have X sign the necessary document.
i)That he had provided the older children with a mobile phone each and that he spoke to them every night when they were at (omitted) College. The father said that he telephones the mother’s to speak with the children when they are with her. He says that the children answer her phone, but the mother never does. The father maintained that the mother, regularly, refuses to reply to his emails or SMS text messages.
j)That Y’s (hobby omitted) team had given him a gift of a (omitted) trip for managing the (hobby omitted) team and that this had been originally booked with the older children for (omitted) 2013 (in the father’s time), but that X had had to attend a (hobby omitted) camp, so it was rescheduled for (omitted) 2013, which was a changeover day (changeover usually occurring at 10am) and that this would have prevented them making it to the (hobby omitted) trip on time. The father had then arranged with the older children to collect them on (omitted) at 6pm. At 6.15pm, Y had jumped into his car and had said “Mum is angry at me and having a fit”. At about 6.20pm, X appeared and asked Y to go and say goodbye to the mother. Some minutes later, the older children returned and said: “mum is angry, but we want to go (hobby omitted) trip”.
k)That, as set out in various emails passing between the parties, there was an agreement to effect some date changes for the Christmas 2013/January 2014 holiday period, given that the father proposed taking the children overseas. Notwithstanding this, the father said that 2 days prior to his proposed travel, the mother sent a message stating that she was proposing to obtain an injunction stating: “My children are not to leave this country with you. This was the last straw.” The father said he responded with the words: “I will let you explain that to the children.” The father also stated in an email that if the mother was successful in obtaining an injunction he would be claiming $15,000.00 in travel costs already outlaid and that he would be travelling in any event and that the children would in those circumstances be staying with her in his absence. The father took the children on the overseas trip and provided the mother with an itinerary and contact information and that despite his request to her that she contact the children, she had not done so. The father also claimed Y had said to Ms A: “Mum is angry at me and probably doesn’t want to speak to me or be in my life”. The father said that Z had confirmed to him that the mother was angry and that she had “[thrown] her glass of champagne into the sink and smashed it.”, although he did not explain the context of this. The father and the children were due to return to Australia on 7 January 2014, however, the father said that he had had a blood clot in his leg and decided to stay in (country omitted) for an extra day. It would appear that the father did not contact the mother about this as he said that she then telephoned him on 8 January 2014 at 10.00am asking where he was for changeover. The father said that, at that time, the children were in the other car with his father, travelling from the airport and that changeover would be at Ms G’s office at 2pm. The father stated that he did not inform the mother that the older children were going to say that they wanted to go home with him, not the mother, at that appointment. The father left Ms G’s office, returning as arranged by her at 3.55pm and was placed in a separate room. The mother left with Z only and the older children left with the father.
l)The father said that the older children have been more open and “willing to chat” since 8 January 2014 and that Z was observed to be more disobedient and rude, especially on returning from the mother’s home for the first 4 days and that, thereafter, he returned to his “normal” self.
m)That he had been involved directly with all of the children’s sporting activities as a parent, coach or manager, but that he wished to only commit to one team a year. In 2014, this was Y’s (hobby omitted) team and in 2015, he would commit to X’s team. The father has also served on many of the children’s sporting club committees.
n)That the mother had refused to take Y to his (hobby omitted) matches when he was with her and that Y, therefore, had only played every second week, until the finals, when the mother did take him.
o)That in 2012, Y had wished to play (hobby omitted) and the father said that he had informed the mother of this and that he would take him to and from training and games, if required, even though he was not encouraging of (hobby omitted) as a sport. The father said that the mother did not allow Y to attend the first training even though the father knocked on her door and rang (which the mother did not answer). The father took Y the following week and, thereafter, the mother also took him to (hobby omitted).
p)That with regard to Z’s (hobby omitted) games, the father said that the mother did not take him on her weeks, and that Z had told him that he does not like (hobby omitted) but only says that so as to please the mother.
q)That the father said that Z wished to play (hobby omitted) on Monday afternoons and that he had signed him up for this. The father said that the mother did not take him on her weeks and so he picked Z up from school, took him to the games and then took him back to after school care.
r)That the mother had enrolled Y and Z in (hobby omitted) on Saturday mornings and, in addition, leading up to the regional carnival, they had attended twice a week training sessions with Mr P. Following his success at that carnival, Z was to continue with (hobby omitted) and the father further arranged for Z to attend mid-week training with Mr P. The mother did not take Z to those appointments, notwithstanding that the father said that he had offered to assist with travel arrangements. The father maintained that the mother had not taken Z to (hobby omitted) and that, he believed in “missing this training, Z [was] losing fitness and may not reach [his] full potential”.
s)That as the older children play and referee (hobby omitted), their games usually clashed in venues and times and that he had offered assistance to the mother to take Y to games (as he was then the team coach and he had to be there anyway) but that the mother had refused these offers and delivered both boys to their games (sometimes early to ensure their arrival) or, otherwise asked other parents of their teammates to assist her. The mother, he said, always refused his requests to assist her in taking one of the children to a different ground.
t)That the mother had cancelled Z’s (hobby omitted) class (which the mother agreed, she had without consultation with the father), but that he had then re-enrolled him and the mother had then refused to take Z to that (hobby omitted).
u)That he agreed with the mother’s statement that he had never attended (hobby omitted) when the children had participated in that. The father maintained that the children will have many activities in their lives which he cannot or has chosen not to be a part of. The father said that he did not feel “the need to control every minute of their lives”. The father maintained that he, nevertheless, supported Z’s activities at (hobby omitted) and watched and encouraged him while he practised at home. The father said that he agreed that the mother could take Z on “his” weeks to (hobby omitted) and that he felt that this was an event that “the boys can share with their mother without my involvement… [and] …it is healthy that parents have special things they only share with their children”, in this case it was (hobby omitted), which they could share with the mother.
v)That the mother did not act honestly with the CSA and that there had been numerous legal challenges since 2012, in relation to child support assessment issues.
w)That the mother sent emails to (omitted) College refusing to let the older children attend special events, which placed the school in a difficult situation when the parents were saying different things.
x)That he attends at (omitted) College for P&F meetings and runs the school canteen for (omitted). That he, further, spends considerable amounts of time at (omitted) College as, he believes, it shows that everyone “needs to be part of the community”. The father stated that from his speaking to the teachers, he believed that they were uncomfortable dealing with two parents who were clearly at odds on many issues.
y)That Z’s teacher had contacted the mother and himself at the end of 2013 and that he had engaged Ms L to undertake an assessment and that he had met with Ms L and Z’s teacher to discuss the assessment, which indicated an additional need for reading assistance.
z)That, historically, the father believed that the mother controlled all time the children could spend with him, to the extent of picking up the children from school and he believed that she applied emotional pressure on the children, with X saying: “I like the idea of having some time alone with both you and mum without the other kids” and in (omitted) 2011, when he spoke to Z he said: “Daddy, I don’t want to talk to you anymore, I hate you”. In (omitted) 2011, the father stated that he believed the mother was denigrating him in the presence or hearing of the children and that at that time, he had not spent time with Z for about a month.
aa)That the father had difficulties in communicating with the mother and that she had advised him that all communications were to go through her lawyers, but that he did not wish to engage “costly legal counsel” on every issue and proposed a communication book or SMS for immediate notification or reply requirements with minimal contact to occur with the mother.
bb)That the father was concerned as to the mother’s “insight into caring for the children’s health”, after prescriptions for antibiotics had not been filled for a cough after 3 days.
cc)That a mediation on 30 August 2010 had failed to reach agreement between the parties and that the mother had said to him a short time after, that she wanted $300,000.00 from him, otherwise, she would “take the children and live in (omitted)”. The father stated that he did not have that money and that he would not let her take the children to (omitted).
dd)That at the children’s births, the mother and the father had enrolled them in the (omitted) for the purpose of funding the costs of senior school tuition at (omitted) College and that the children had been placed on the pre-enrolment lists for (omitted) College. That the father (and/or his mother) had paid (omitted) fees following the parties’ separation and that his mother had advised that she would be willing to pay for all of the children’s secondary schooling as weekly boarders if required, if the father was unable to meet the fees. The father stated that he intended, however, to repay any such fees when he was able to do so.
ee)That the father was actively involved in the care of the children and had a strong bond with them. That from their infancy, he had been involved on a daily basis in their care and as they grew older he played with them and had taught them sports, reading and assisted in bedtime routines. The father stated that sports had always been a big part of his and the mother’s life and that he had sought to engage himself as much as possible in the children’s sporting clubs to assist them in developing their skills and so as to share in those experiences. He stated that he valued family over career and that he had negotiated his (country omitted) employment in 1998 so that the mother and X could travel with him to various (country omitted) towns and that they had returned to Australia during the mother’s pregnancy with Y, residing at his parent’s home from (omitted) 2000 until early 2001 and then moving into his parent’s rental property until the former matrimonial home was completed in (omitted) 2001.
ff)That “being coach or manager of the boys teams over the years [had] required [him] to spend just about every night of the week either training one of [his] sons or taking them to and from training. On the weekends, it [had] meant spending time with the children at their sporting events. [The mother] was unwilling to have Z with her when she was managing the boy’s teams so [he] was required to have Z with [him].”
gg)That, as of (omitted) 2012, Z was then unable to (hobby omitted) and that the mother had refused to take him to (hobby omitted) lessons, or allow the father to do so. That the older children had kept up (hobby omitted) lessons till they could (hobby omitted) (until Y was 9 years of age). The father referred to the mother’s email of (omitted) 2012 which stated that the older children stopped their (hobby omitted) lessons when they were 5 years of age and that she did not believe Z needed lessons anymore as he could (hobby omitted) as well as they could, when they stopped. The mother also stated that she would agree to the children doing only one sport as all the training and games were making them tired and not completing their homework and that if the parties did not agree, the children should not be registered in a sport and would only go in the non-agreeing/registering other parent’s time and as her financial situation was poor and that she had to prioritise expenses but would always put the children first.
The Court enquired of the father as to mechanisms by which the older children could be encouraged to engage with the mother, if that was what he wanted and they were unwilling to engage, as he said they did. The father’s response did not stand him in good stead in that he said “No, no, the Court can make ridiculous and stupid and moronic orders, then by all means the Court will do that, I am sure…Far out”. The father said that he had sought to engage the school in resolving the issue as to the older children refusing to spend time with the mother and said that the school’s response via Y’s boarding co-ordinator, Mr D, was that it was “none of their business”. Mr D was assisting Y to see Ms G to deal with his general state of adolescent unhappiness (as described by the father), although Mr D reports that he observed Y to be otherwise happy around his friends in school. The father appeared to view this as a passing phase saying that X too, had the same issues but had “come out the other end”. The father, however, conceded in cross-examination that Mr D had suggested after he had raised the matter with him, that Y could see the school counsellor in relation to not spending overnight time with the mother since December 2013. The father said that Y didn’t want to see the school counsellor and that Mr D did not want to push that, given that Y was getting some assistance (fortnightly in August 2014) from Ms G, outside the school. The father also said that he had raised the issue of a school counsellor for X, but X, too, had refused to go. The father said that he had also raised this issue with the headmaster, Mr T, through his assistant, Mr Y. However, the father frankly conceded that he had never asked the school to assist him to deal with the older children’s refusal to spend time with the mother, as the father said that he was fearful that the school would see his family as a burden and not welcome them there anymore. He felt this as he believed the school saw their role to educate and not parent children. He was of the view that there was a risk to the older children’s enrolment being potentially terminated. The father was also concerned that the school may label his children as “troublemakers” as, he believed, he had been labelled in his own schooling years.
The father was emotional, raising his voice, walking out of Court at times and clearly getting upset. He needed time to calm down or as he maintained “things are going to get very ugly” and he would be unable to function. He conceded that his emotionality had affected his behaviour in Court. He, at times apologised to the Court for his actions and then re-offended. He submitted that the Court should not try to assess his behaviour in Court as indicative of how he would act with the children and how he would act in the community. Given that he was self-represented, the Court gave him latitude, in that regard. In response to a ruling by the Court, the father responded: “move on, frigging heck”. Again, one would expect a litigant’s behaviour to be more exemplary when appearing before a decision maker than when not under such observation and the father’s response as set out below, did him no credit.
Court:Now Mr Penman, would you please stand sir, what did you just say to the Court?
Father:I …didn’t say anything to the Court.
Court:Yes, you did…
Father:I added the words “get a move on”
Court:No, you did not, sir
Father:Did you hear me?
While the father argued that he was emotional and that he did not have the ability to be dispassionate because he was so passionate about his children, it was this passion which was also at the hub of his ongoing disputation with the mother and the level of his frustration in understanding and accepting her position, particularly when it came to the sporting interests of the children, about which he was also very passionate. The Court has to look at the best interests of the children in being removed from any ongoing disputation between their parents. If one parent’s emotion gets in the way of that parent’s ability to focus on the best interests of the children, then that is something which the Court can take into account. The Court’s observation was clearly that the father was much more emotional in Court than was the mother and that this emotion did detract from his ability to separate his own interests from that of the children and weight is attached to that.
The father sought, without any basis, to place pressure on the Independent Children’s Lawyer by suggesting that he might apply to have his appointment discharged and seeking to reserve his position as to when he would do so. No such application was ever made.
The father sought to place pressure on Mr Leamey by suggesting that he was in breach of ethical obligations by allowing his client, the mother, as a witness, to suggest that the paternal grandfather had attempted to run her over in his motor vehicle, when the paternal grandfather’s evidence was to the contrary.
Both of the matters set out in paragraphs 142 and 143 above evidenced the father’s passionate stance, which bordered on attempting to bully in order to achieve his desired outcome.
There was an issue raised as to the residence of the father, given that he had filed certain child support documents in Canberra. The father’s evidence, which the Court accepts, was that he had not changed his residence from that in (omitted), Sydney. The father, however, indicated that the rationale for his filing in Canberra was that he had dealt with the AAT so many times with “bozos up there” that he wanted to get a “different set of bozos”. He also indicated that he had wished to file the SSAT appeal in Canberra, as he did not believe that Judge Scarlett was unbiased and wanted to get to “an unbiased circuit, which is in Canberra”. The father’s views underpin what could be regarded as a complete lack of respect for authority and indeed a lack of respect for anyone that holds a different view to his. A continuation of the children’s schooling at (omitted) College, however, should permit the children to be subject, potentially, to countervailing views, where the position of those in authority and the views of others are, appropriately, respected.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not, relevantly, apply to these children.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The parties agreed that their relationship was unworkable as there was no agreement on even the most trivial of issues. Nevertheless, the father became quite upset when Mr Leamey referred to X’s ingrown toe nail as being trivial. The father saw this as an ongoing medical issue which had got to the point where, he said, X was unable, at times, to walk. The mother maintained that X had been seeing a doctor, was receiving antibiotics and was of the view that he would best be treated by way of a minor procedure to be undertaken, to determine whether a further operation could be avoided. Certainly, medical intervention had occurred with Dr T and Dr K (see Exhibit “6”). The Court accepts that the parties had not exchanged any information concerning these issues or sat down and discussed them. The father agreed saying that this was an example of their total lack of communication. The father conceded, however, that his generalisation “might not be specific” and that the parties had, in fact, communicated when the mother had asked him to look after Z for a weekend and he had agreed to that.
The father agreed that the children were being, detrimentally, affected by these proceedings, but nevertheless, he still wished to maintain them. He said he “hated” these proceedings and was “scared” by them, but the Court accepts that it is he, who as the applicant has maintained them and depending on his position with respect to ongoing child support matters, will be the parent who is likely to continue to maintain them.
The father said that he could not afford a lawyer, yet he appeared to be able to travel overseas on holidays. It may well be that such expenditure was met by his parents or by others on his behalf. His mother’s evidence was that she had been repaid in the order of $130,000.00 by the father. The father’s parents appear to assist in the payment of (omitted) College fees. There was no evidence by the father as to any request made by him of his parents for any financial assistance with respect to obtaining legal representation for himself in these proceedings. The failure to obtain such representation meant that the father was prevented from having the level of neutrality which would have assisted these parties remove themselves from the high level of conflict observed.
(j) any family violence involving the child or a member of the child's family;
The father acknowledged that Z had been taken by his father on 14 April 2014 to the changeover location for the purpose of having Z inform the mother, through the open car window at a distance of approximately 6-7 metres, that he was not going with her. Z was not dressed for changeover, wearing a hoodie and the mother said underpants (the father said “short pants” and the paternal grandfather said “trunks”) and no shoes. His degree of undress was, as confirmed by the paternal grandfather, consistent with a view that Z was not taken there to effect a changeover. As a result of this incident whereby the paternal grandfather’s vehicle, a (omitted vehicle) collided with a parked vehicle causing damage (the paternal grandfather said of some $6,000.00), the police were called and Z ended up going with the mother pursuant to the then Court ordered arrangements. The father’s view was that it was the police who prevented Z from “coming with us”, despite what he wanted to do.
The mother’s evidence was that she had not heard what Z had said to her but had felt that unless she did something, she would not see Z for half of his school holidays and that she had then run and stood in front of the paternal grandfather’s motor vehicle to stop it leaving the service station and that he had driven towards her so that she fell forward upon the bonnet of the car, after the car had touched her knees. The mother said that she did not say that the paternal grandfather had tried to run her over and confirmed that she had suffered no injury. This happened twice as the mother said the paternal grandfather had got out of the car and pushed her left shoulder and said “Get off my car”. Again, this appeared somewhat inconsistent, with the mother’s version that she had already got off the bonnet and was standing in front of the car. The mother said that the paternal grandfather then got back into the car and proceeded to drive away and she again stood in front of the car and again fell onto the bonnet. The mother said the paternal grandfather got out of the car again and pushed her left shoulder and told her to “Get off my car”. The mother said that she was already off the bonnet of the car. The paternal grandfather’s evidence was that the mother had jumped onto the bonnet and the father described her actions as one of a “nutcase”. The father was not present at the time of that incident.
Having seen the photograph of the paternal grandfather’s car (Exhibit “B”) it is likely that the mother would have had to elevate herself to fall onto the bonnet, or if the car had hit her knees, it would have knocked her backwards and potentially under the car. Nevertheless, the Court accepts the mother’s evidence as to the paternal grandfather pushing her, as the paternal grandfather did not deny it, saying only he had no recollection of ever touching her and that he had tried to forget the incident, as he had found it terrifying. Again, the paternal grandfather described the mother as a “madwoman”, with her screaming: “Z get out of the car”. While the mother said there was a CCTV recording with the police, no subpoena had been issued as it appeared from, what Mr Leamey said, that the recording did not show the incident itself. The mother acknowledged that her actions were silly and could have seen her physically injured in front of Z and that that would not have been a good outcome and that she would not do it again, given those potentially serious consequences.
The police did not charge anyone over the above incident indicating to the mother that they believed that she and the paternal grandfather were both at fault. The Court accepts that view.
It was clear from the paternal grandfather’s evidence that it was not his intent that Z was to transition to the mother’s care and there was no option for Z to change his mind. Indeed, the paternal grandfather closed the car window and stated that after he did that, Z did not speak to the mother anymore. The paternal grandfather confirmed that Z was crying “like hell” and saying: “I am scared”. No doubt, this was extremely traumatic for Z and could indeed amount to an abuse. The father saw that as the mother’s fault. The mother saw it as abuse by the father’s family for putting Z in that position.
At no stage did the paternal grandfather raise any of his concerns, as set out in paragraph 80(b) above, notwithstanding that he said that they were “real” and that it was a horrible fear for a grandfather to have with respect to Z’s safety with the mother, or sought to park his motor vehicle so as to discuss those concerns directly with her. So far as the mother was concerned, Z was there simply for a changeover. To be confronted by the paternal grandfather’s actions in having Z tell the mother that he was not going with her and then putting up the car window so as to drive off is unbelievable. The paternal grandfather’s explanation was that he had driven Z there so that the mother could be given the courtesy of her son telling her that he did not want to go with her. The paternal grandfather said that this had not been discussed with the father and that he had told the father only that he was taking Z up “to see” the mother and indeed, went on to say: “I generally don’t discuss things with him”. Significant weight is attached to that concession. Further, observing the child to be distressed and in a car collision, the paternal grandfather said: “stay there” and “the police will be here”.
The mother said that she did not seek an Apprehended Violence Order (“AVO”) against the paternal grandfather as she did not think it appropriate to have such an order against any family member. Notwithstanding this, she conceded that previously an interim AVO had been sought by the police and issued for her protection in August 2010 (when the mother said that she had informed the police that the father had pulled a knife on her, carried it around in her presence and then stabbed it into a kitchen bench while looking at her) and that the police had required her to attend at the Local Court of New South Wales in Ryde about 8 months later. At that time, after a short hearing, the AVO was dismissed. The father also maintained that the mother had “budged” him and complained he had been struck on the nose. The mother said that this complaint had been made against her, her mother and her aunt. The Court notes that the discharge of the interim AVO had occurred sometime prior to the parties entering into the final orders as referred to in paragraph 25 above.
The father’s evidence was that prior to 2010, the police had been called on numerous occasions to incidents involving the parties, but that after that time, there were not then “numerous occasions” when they were called.
The Court repeats the matters at paragraph 58 above relating to the father recording Z, telling the mother that he did not wish to go with her on Mother’s Day (see Exhibit “D”). This is clearly inappropriate.
The police were also called when the father turned up at the mother’s residence to have X sign a medical certificate document so that he could do a scuba diving test. The mother took exception to the father turning up unannounced and the father maintained that he was there by prior agreement. The mother said that the father had raised a commotion downstairs and was yelling to be let in and as a result she felt scared, as she did not know what was going to happen. The mother telephoned the police and also acknowledged telephoning Ms G. Nevertheless, the mother conceded that she had prevented X from answering his phone as she did not want him “pressurised” by the father. This, however, led to an expansion of the conflict in the presence of the children.
The Court accepts the Independent Children’s Lawyer’s submission that with the level of conflict between the parents and their lack of an ability to communicate, their parental interactions have bordered on family violence in terms of the effect on the children and as to whether one party seeks to assert a position by way of control over the other. The Court accepts, further, that it is difficult, as the Independent Children’s Lawyer says, to “pick the way through the woods with that”.
The Court accepts that its proposed orders are those which are likely to minimise ongoing conflict and the potential for any family violence involving any of the children and weight is attached to that.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
There are no apprehended violence orders between the parties.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The father maintained that he did not speak to the children about these proceedings but he agreed that the children knew that he was struggling with the constant battles, including his many child support issues.
The mother’s evidence was that these proceedings and their termination would make it easier for her to compromise in the children’s best interests. The Court accepts that she was willing to do so and that she saw that as somewhat of a “sea change” in her future parenting.
The Court accepts the Independent Children’s Lawyer’s submission that anything which would lead to the parents sharing a decision-making role with each other is likely to lead to the institution of further proceedings and weight is attached to that.
The Court finds that the track record of the parents’ decision making would suggest a high probability of future deadlocks, which would inevitably lead to further proceedings, without orders for focused parental responsibility being in place for the children. The mother concedes sole parental responsibility for the father for the older children and the Court accepts that the mother should have parental responsibility for Z in the terms as set out in these reasons. Given it is likely that Z will be attending (omitted) College and given the change in parental responsibility at that time to the father and with a further expansion of that as and from 1 January 2019, the Court proposes that there be a further order that the orders made be provided to (omitted) College school and that they be sufficient authority for the said school to provide any reports as to the children’s schooling or other identified issues to the mother, as requested by her.
The Court, further, accepts the Independent Children’s Lawyer’s submission that anything which leaves the child support issues up in the air will probably also lead to the institution of further proceedings. The Independent Children’s Lawyer’s proposed orders sought to remove ongoing child support issues, including as to the payment of school fees. Indeed, this issue is covered by those remaining orders of the final orders (made by consent), referred to in paragraph 25 above, being those orders not discharged.
(m) any other fact or circumstance that the court thinks is relevant
The mother’s evidence was that Z was picked up by her from after school care on a Monday at around 5.15-5.30pm and it took her approximately 40 minutes to travel from there to (omitted) arriving at approximately 6.15pm and that Z, after completing his homework, being fed and bathed was ready for bed around 9.00-9.15pm. The mother delivers Z to school at approximately 8.30-8.40am. Both parties appear to accept that Z’s reading has improved. The father says as a result of speech therapy assistance and his assistance with homework. The mother says that she, too, has also assisted with Z’s reading and homework.
Mr Leamey submitted that one factor that the Court should consider is the extraordinary nature of the child support cases brought by the father, given they were so numerous and given their nature as to continuing the degree of conflict between the parents. The Court has considered that and has given that factor some weight.
Matters in s 60CC(4) & (4A)
The Court must, without limiting its consideration of the factors in s.60CC(3)(c) and (i) of the Act, consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent (and in the case where the child’s parents have separated, having regard to the events and circumstances since separation) and in particular the Court must consider the matters set out below:
(a) [The extent to which each of the child’s parents] has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and
(b) [The extent to which each of the child’s parents] has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and
The Court accepts the Independent Children’s Lawyer’s submission that, to a large extent, the mother has not engaged in the decision-making process around the children and, in particular, the older children, given her appreciation as to how such an involvement on her part would potentially increase the degree of conflict between her and the father, and further, that it is albeit impossible to allocate responsibility for the parlous state of the parents’ relationship in this matter.
To the extent noted in paragraph 109 above, it is the father rather than the mother who has prioritised the parental conflict over the effect of that conflict on the children and that, to a degree, is reflected in the father’s continued agitation of child support issues arising from what he says, was the mother misleading the CSA, which the mother has denied and indeed, says that if the CSA have incorrectly recorded something, she has sought to correct that position. The Court accepts the Independent Children’s Lawyer’s submission that the father’s prioritising of the litigation in this Court and other jurisdictions, is having a negative effect on the children, as identified by Ms G, and is regrettable.
The Court accepts Mr Leamey’s submission that apart from, largely, the issue of the parents’ inability to communicate, there would appear to be no other, substantially, disentitling conduct with no drug or alcohol issues.
(c) [The extent to which each of the child’s parents] has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
The Court accepts the Independent Children’s Lawyer’s submission that what seems to be not in dispute is that the older children have been attending (omitted) College, which could only be regarded as a very expensive private school, funded from the father’s side of the family. The Court accepts that with respect to Z, the mother has largely met his schooling fees at (omitted) School.
The mother’s evidence was that her rental arrangements with Mr J, being a large 2 bedroom apartment with a sunroom/additional room which could be partitioned off, did not currently provide enough accommodation for all of the children to live with her and for Mr J’s children to stay there as well, but maintained that she and Mr J would move to larger accommodation. Mr J did not provide any evidence in support of the mother’s position.
The assessment of child support is a matter, at this stage, for the CSA and the Court is not in a position to stand in the position of a reviewing officer given the state of the current appeals pending. The Court must look at that which is assessed and whether the parents have complied with the payment regime required. No findings can be made in that regard given the complex state of the current child support assessments, review applications, departure applications and appeals.
Having regard to the above, the Court accepts the Independent Children’s Lawyer’s submission that the time period recommended by Ms G for the mother would be a very modest amount of time for a child of Z’s age to be spending with her. The Court is of the view that Ms G’s recommendation set out in her first report should be implemented until Z completes his primary school education. From the commencement of his education at (omitted) College, the Court is of the view that Ms G’s recommendation for Z’s time should be implemented from Friday or the completion of any sporting activities on Saturday until Monday morning, or Tuesday, if Monday is a public holiday. For the balance of the time outside of this period, Z should, otherwise, live with the father. This is consistent with the current position concerning Y, who the Court notes will be in Year 11 at the commencement of Z’s high school education at (omitted) College. That has the advantage of ensuring some consistency between both Z and Y going forward. The Court also accepts the Independent Children’s Lawyer’s submission that at least one of Ms G’s reasons for altering her recommendation between the 2 reports had more to do with the decision-making difficulty that the parents had, rather than any deficit or difficulty in the time that Z had with the mother. Significant weight is attached to that. The orders proposed by the Court will provide for a period of time for the mother to ensure through the live-with arrangements and the parental responsibility provided that her relationship with Z is secure. Mr Leamey, submitted and the Court accepts, that at least until Z completes his primary school education, the status quo with respect to his living arrangements is likely to continue. Further, the Court’s orders provide for the father to assume a greater responsibility as the child matures and advances in (omitted) College with the greater involvement in sporting commitments both within the school and outside, that the Court accepts the father will actively encourage.
Other parenting matters
Parenting orders should be accompanied by as little ambiguity as practicable (see Chappell & Chappell [2008] Fam CAFC 143; Newlands & Newlands (2007) 37 Fam LR 103).
The Court has considered two matters which it would seek to hear submissions from the parties before making any further orders. A further date will be allocated for mention when these matters can be progressed. Those two matters are first, whether there should be a restraint from either party from bringing further parenting proceedings (save contravention applications) against the other without first obtaining leave of the Court and secondly, whether, given the conclusion of the parenting matters in dispute between the parties pursuant to the orders made above, that the father’s child support matters raised in these proceedings in this Court should be dismissed. The father sought to raise that the Court was adopting a siloed version of the world, which he considered was not in the best interests of the children, because if the Child Support Registrar took a view outside these proceedings of what the parenting orders meant as to the care regime for child support purposes, then the father would be litigating further. That position, however, is not now known. The father admitted that he has ongoing battles with the CSA which he said made “asinine” decisions which impacted on the funds available to the children and that there were 6 other Court matters including SSAT appeals, appeals in the Federal Court and the Full Court of the Family Court and a pending potential High Court appeal, which were going on outside these proceedings, relating specifically to child support matters. The Court raises both of those matters now so as to afford the parties “procedural fairness”. The Court is concerned that the continuing litigation between these parties is not in the best interests of the children. The Court also considers that a precondition for the seeking of any leave of the Court referred to above, if ordered, should be that each party uses their best endeavours to ensure that the other party attends with them at a family relationships centre or some other alternative dispute resolution provider in an effort to agree to any changes in the orders made. See the Full Court of the Family Court of Australia in Dacia & Bennington [2008] FamCAFC 135.
The father said that the proceedings should end for his own sake as they were “killing” him and further, he conceded that the proceedings should clearly end for the sake of the children. The Court has given that submission weight.
The Court accepts the submission of the Independent Children’s Lawyer that upon finalisation of these proceedings, a meeting will be arranged with the children, whereby the Court’s orders can be explained and orders will implement the same.
Restraints & injunctions
The Court would not impose a restraint without clear evidence as to why the restraint should be imposed. The injunctive power is a discretionary one, “not to be exercised lightly” see the Full Court of the Family Court of Australia in Sieling & Sieling (1979) FLC 90-627.
There is, relevantly, no evidence to support any of the injunctive orders sought by the father as set out in paragraph 22 above or the matters the subject of them have now been superseded within the orders for parental responsibility.
Other matters
The father argued that there should be no order referable to make up time if a party takes up the other party’s time pursuant to travel arrangements implemented. The position appears to have been in recent times that the father has travelled overseas with the children, the mother has not. Notwithstanding the father’s assertions as to his financial circumstances (not being a rich man), he has been able to implement such overseas travel arrangements. The Court is of the view that, as such, it is likely that the father, more than the mother, will be taking up such overseas travel opportunities and, therefore, it is the mother more than the father who will be losing out on time. In those circumstances, the Court is of the view that if a party “loses” 3 or more days with Z, as a result of Z travelling with the other parent, then there should be make up time for that parent with such time to be made up within 6 months of the “lost” time and implemented by way of additional time in the following school holiday periods, as nominated in writing by the parent that has, otherwise, given up his or her time with Z. Orders implementing the same will be made.
Conclusion
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, the Court is of the view that the above orders are, otherwise, in the best interests of the children and, accordingly, the Court will so order.
I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date: 5 March 2015
0
3
2