Pine and Chesney

[2017] FCCA 3002

FEDERAL CIRCUIT COURT OF AUSTRALIA

PINE & CHESNEY [2017] FCCA 3002

Catchwords:
FAMILY LAW – Parenting – two children of the relationship – with whom the children shall live – spend time with arrangements – schooling.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

Applicant: MS PINE

Respondent: MR CHESNEY

File Number: MLC 8876 of 2011

Judgment of: Judge Hartnett

Hearing dates: 5 and 6 June 2017

Delivered at: Melbourne

Delivered on: 6 December 2017

REPRESENTATION

Counsel for the Applicant: Mr Dixon SC

Solicitors for the Applicant:	Wilmoth Field Warne
The Respondent:	In Person

ORDERS

1. All previous parenting orders are discharged.

2. The mother and father have equal shared parental responsibility for the children of the marriage X born (omitted) 2004 (‘X’), and Y born (omitted) 2007 (‘Y’) (collectively, ‘the children’).

3. The children live with the mother.

4. During school terms the children spend time and communicate with the father as follows:-

   (a)from the conclusion of school on Friday until 5.00pm on Sunday each alternate week commencing on the first weekend of each new school term;

   (b)by telephone at a time between 8.00pm and 8.30pm each Tuesday and Thursday; and

   (c)such further and other time spent with to be by agreement of the parties and in writing, specifically by email.

5. In the event that the father wishes to have dinner with the children every second Thursday evening during school terms on the Thursday preceding the weekend that the children shall remain living with their mother, then the father is at liberty to do so upon providing the mother written notification of 48 hours by email or text and such time shall then commence after school, where the father shall collect the children from school, until 7.00pm, when the father shall return the children to the mother’s home. On those occasions, such period of time spent with shall be in place of any telephone communication between the father and children.

6. The father’s time as set out in orders 4 and 5 herein is suspended during school holiday periods and the father spend time with the children:-

   (a)for the second half of the school holidays in the year 2017 and each alternate year thereafter to conclude at least 24 hours before the resumption of the school term; and

   (b)for the first half of all school holidays in the year 2018 and each alternate year thereafter to commence on the last day of school.

7. The father’s time with the children as referred to in orders 4 and 5 herein will not re-commence until the second weekend of the school term when the father has the children for the second half of the school holidays, and shall re-commence on the first weekend of the school term when the father has the children for the first half of the school holidays.

THE COURT ORDERS, BY CONSENT, THAT:

1. The children shall spend time with the father:-

   (i)in 2017 and each alternate year thereafter from 5.00pm Christmas Day until 5.00pm Boxing Day; and

   (ii)in 2018 and each alternate year thereafter from 5.00pm Christmas Eve until 5.00pm Christmas Day.

THE COURT ORDERS THAT:

1. In respect of Easter, when not coinciding with school holidays the children shall spend time with the father:-

   (i)from 10.00am on Good Friday until 10.00am on Easter Sunday and each alternate year thereafter commencing in 2018;  and

   (ii)from 10.00am Easter Sunday until 5.00pm on Easter Monday and each alternate year thereafter commencing in 2019.

2. On Father’s Day the children shall spend time with the father from 5.00pm Father’s Day Eve until 5.00pm on Father’s Day.

3. Notwithstanding any other orders to the contrary, the children shall remain living with the mother from 5.00pm Mother’s Day Eve for the remainder of the weekend.

THE COURT ORDERS, BY CONSENT, THAT:

1. For each of the children’s birthdays:-

   (i)the father shall have the children from 5.00pm on the eve of the respective children’s birthdays in 2018 and each alternate year thereafter until 3.00pm on that birthday if the birthday falls on a non-school day;  and

   (ii)the mother shall have the children from 5.00pm on the eve of the respective children’s birthdays in 2019 and each alternate year thereafter until 3.00pm on that birthday if the birthday falls on a non-school day;

   (iii)on a school day, the father shall collect the children from school at the conclusion of school and the children shall spend time with them until 6.00pm.

THE COURT ORDERS THAT:

1. On the mother’s birthday:-

   (i)if the children are not with the mother on the mother’s birthday, the mother shall collect the children from school on that birthday eve and they shall spend overnight with the mother, who shall deliver the children to school in the event that it is a school day.  In the event it is not a school day, the children shall remain with the mother until 5.00pm on the mother’s birthday;

   (ii)the father’s time is suspended on the mother’s birthday.

2. Each parent shall immediately inform the other parent of any visits to any medical practitioner for any serious illness or injury sustained by the children or either of them whilst in the parent’s care, and provide the other parent with full particulars of any treatment required or received by the child or children, together with the name and address of the treatment provider, the date of the attendance and if admitted to a hospital, the location at which the child or children is or are patients. As far as practicable, the father use the services of medical or dental practitioners that the children usually attend.

3. Each parent shall inform the other promptly of any medication prescribed for any serious illness of the children or either of them and provide the medication and appropriate instructions for its administration to the other parent at the time of contact changeover.

4. Each parent keep the other informed of any significant health issues concerning the children when in the respective care of each parent.

THE COURT ORDERS, BY CONSENT, THAT:

1. Each parent be authorised to obtain copies of all school reports, newsletters, photographs and/or invitations issued by the schools at which the children are attending and otherwise are at liberty to attend any school or extracurricular events or functions, including parent teacher interviews, with each parent being responsible for the costs of any school photographs so ordered by them.

2. Changeovers occur on school days at the children’s schools and, on non-school days, the father shall collect the children from the mother’s residence in (omitted) at commencement, and the mother shall collect the children from the father’s residence in (omitted) at conclusion.

3. The collection or return of the children may be made by the mother, father, or their nominees.

4. Each of the mother and father are restrained by themselves, their servants and/or agents, from denigrating the other in the presence and/or hearing of the children.

THE COURT ORDERS THAT:

1. Mobile phones are to be provided to the children by the mother only.

2. The child X remain and complete his secondary education at (omitted) School.

3. The child Y commence at (omitted) Primary School in (omitted) at the commencement of the 2018 school year for the duration of his primary schooling, and thereafter Y is to complete his secondary education at (omitted) School. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8876 of 2011

MS PINE

Applicant

And

MR CHESNEY

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern competing parenting order applications.  The orders which the Court makes are those generally as sought by the mother save for some additional orders of a more generic nature sought by the father and consented to by the mother.

2. The mother relied upon her initiating application filed 21 July 2016, and affidavits of evidence sworn by her on 21 July 2016 and 2 March 2017. The mother was cross-examined as to her evidence.

3. The father relied upon affidavits of evidence sworn by him on 15 August 2016, 2 March 2017 and 29 May 2017. The father was cross-examined as to his evidence.

4. Also before the Court and introduced into evidence was the family report dated 19 February 2017 as prepared by Mr A, Regulation 7 family consultant, in the Melbourne Registry of the Court. Mr A was cross examined as to the contents of his family report.

5. At the commencement of the hearing, the orders as sought by the father were those set out in his amended response filed 3 March 2017. In that document the father sought sole parental responsibility for the children of the relationship. This differed from his initial response filed 15 August 2016 wherein he sought that each of the parties have equal shared parental responsibility of the parties’ two sons. The father also sought that the parties’ children live with him and spend time with their mother. In his initial response filed 15 August 2016 he had sought that the children live with each of their parents in a five nights with the father and nine nights with the mother fortnightly cycle in addition to school holidays and on special occasion days. This considerable change in the father’s position between August 2016 and March 2017, occurred in a period of time, that the parties failure to agree on the future schooling of their elder son was resulting in a heightening of the parties acrimonious relationship. On the second day of the hearing, the father handed to the Court a further variation of the amended final orders as sought by him in his response of 3 March 2017. He indicated agreement to the mother’s proposal of equal shared parental responsibility of the children, in circumstances where it had been apparent in the running of the proceeding, that if the presumption of equal shared parental responsibility was to be rebutted, the evidence favoured the mother having sole parental responsibility. The father continued to oppose the orders sought by the mother in respect of the children’s schooling. The father further proposed that if the children were to live with their mother and spend time with him, as opposed to living with him and spending time with their mother, the spend time with period should be from Friday 7.00pm until the commencement of school on the Monday morning for three out of every four weekends, and from Sunday 6.00pm until the commencement of school on the Monday morning on the fourth weekend. At the conclusion of the trial the father altered this proposal to indicate that he could ‘accommodate’ the children every second weekend on Friday to Sunday and the alternate Friday overnight. If the father was to be the primary carer he sought that all school holidays be negotiated between the mother and father. He sought particular orders in respect of Christmas and Easter Sunday, being initially orders which differed from those as sought by the mother.  Further, the father sought a raft of other, more general orders as set out in that response document of 3 March 2017.

6. The father, in his orders sought, proposed ongoing negotiation between the parties, despite the fact that there was an array of issues in relation to which they could form no agreement. The evidence also disclosed a fairly acrimonious relationship between the parties. Many prior agreements as to parenting issues were from the mother’s perspective, an acquiescence on her part to the father’s demands. From the father’s perspective, he was attempting to negotiate with a hostile, and at times abusive ex-partner, who could not focus on the children’s needs but instead focussed on his abandonment of her and the children.

7. The father specifically did not seek any time, albeit offered by the mother, with the children on his birthday, and nor did he seek, as offered by the mother, that the children spend time with him from Thursday after school until Monday before school in each second weekend.  The father described this as too disruptive for the children, given the travelling distance and time between the parties respective residences of (omitted) and (omitted). The father otherwise wished to be at liberty to telephone the children freely. The mother saw this as disruptive and unnecessary, and not in accordance with the children’s wishes.

8. Finally, the father did not seek an equal shared care regime over the school term and Christmas vacation holidays as sought by the mother, but rather sought for a continuation of the usual school term regime of spend time with, wherein, he would see the children for dinner on Monday night and for one or two nights in a fortnight, being nights at the end of the working week. He indicated however, his preparedness, (during the trial) to be a little flexible as to those times and to give up, if necessary, the overnight periods.

9. The father did not propose that he care for the children during one week in each of the three school term holidays, as a result of his work commitments.  The father’s work commitments are that he works four to five days a week as a contractor in his occupation as a (occupation omitted).  In the period before June 2017, he had already spent six weeks on vacation, three in January with the children and three, without the children. This is suggestive of the father not seeking to spend all of his available holiday time, limited as he claims it to be, with his children. He is, in fact, happy for the mother to take on that additional responsibility. It is necessary however for the father to take on this responsibility of holiday time. Such time spent with enhances the children’s relationship with the father in the pursuit of holiday activities and promotes their best interests. Should the father refuse to avail himself of the benefit of the orders which the Court shall make, and which are sought by the mother, it will be to the detriment of the children, in particular in the circumstances of the father’s reduced fortnightly spend time with. The father’s refusal will be a matter to be handled by the mother who may well seek a discharge of such orders.

10. Statements of fact in these reasons are findings of fact on the balance of probabilities.

History

1. The father was born on (omitted) 1975 and he is now aged 42 years.  The mother was born on (omitted) 1977 and she is now aged 40 years.  The parties married on (omitted) 2001, having lived together for a short period prior to their marriage. They separated on 10 July 2010 and divorced in the following year.

2. There are two children of the marriage, X born on (omitted) 2004 and now aged 13 years and Y born on (omitted) 2007 and now aged ten years.  At the time of the parties’ separation, over seven years ago, the children were six and three years respectively.

3. Upon the separation and by agreement, the mother retained the primary care of the children and the father commenced to spend five nights a fortnight with the children together with after school time each Monday evening.  The children otherwise spoke with their father by phone on a regular and mostly daily basis.

4. Following separation, the father continued to work as a (occupation omitted) on a contract basis. The mother continued to work as a (occupation omitted).  The mother received pro rata annual leave whilst working for three days a week as a (occupation omitted) at the (employer omitted) in (omitted). The father was not entitled to annual leave payments as an independent contractor, but he was at liberty to take leave at any time of his choosing. 

5. The father remarried in (omitted) 2013. His wife has two children from a prior relationship. He and his wife had a child in (omitted) 2014. They reside in (omitted). The mother re-partnered in 2015 and trialled living with her new partner Mr M, in his house in (omitted) in (omitted) 2016. Her partner has a child aged approximately ten years. At the time of separation and until the time that the mother commenced to reside with Mr M, the mother resided at her home in (omitted).

6. Over the many years that have followed since separation, the parties’ residences have been approximately a 30-minute drive apart. That changed in early 2016. The mother’s evidence is that the distance from (omitted) to (omitted) is an approximately 50 minute drive. The father’s evidence is that it is a drive of approximately an hour and a half.  The Court accepts that the drive can be either 50 minutes or one and a half hours, or some time in between, and that these variations are dependent upon the time of day and volume of traffic.

X

1. (omitted) School in (omitted) is approximately a 10 to 15 minute drive from the mother’s residence in (omitted).  X commenced year 7 at the start of the 2017 academic year at that School.  This was despite the father’s opposition to his attendance, necessitating the mother to obtain an order for the child to commence at (omitted) School. Prior to his move to (omitted) School, X was in grade 6 at (omitted) Primary School in 2016.  It was necessary, to move him from that school, and the parties could not agree on his attendance at a secondary school. 

2. Orders were made by the Court on 7 September 2016 which were relevantly as follows:-

   “Until further order, the child X born (omitted) 2004 attend (omitted) School commencing in the 2017 school year and the Applicant mother be at liberty to do all acts and things to effect that purpose.”

3. Whilst at first blush it appeared that the main reason for proceedings being initiated was the dispute between the parents as to X’s secondary schooling, the evidence disclosed that historically there has been considerable difficulty in the parties communicating. There were so many areas of the orders sought in which the parties did not agree, that it is not possible to say that these parties are able to communicate in any meaningful way. That applies equally to matters of trivia as it does to matters of great concern, in particular, medical and educational matters concerning both children. Whilst the mother historically engaged in some abuse of the father, and failed to focus on the children’s needs, that was some considerable time ago. The mother impresses as insightful in respect of the children’s emotional, intellectual and physical needs. The evidence reveals that in the last three years, in particular, it is the father who has been overbearing and not necessarily child focussed in his negotiations with the mother. Although the father perceives himself as willing to negotiate with the mother, that is far from the current reality of the situation. He has become quite obsessive and exhaustive in his pursuit of a dialogue with the mother to give effect to that which he seeks. 

4. The mother’s evidence, which is accepted, is that the parties do not communicate well with each other. This has made it very difficult for them to discuss with each other X’s difficulties (discussed below), diagnosis and treatment. The father did not fully engage with the various professionals in the early stages of X’s diagnosis. Nor has he requested to be present at appointments. The mother’s evidence was that the father found it hard to accept that X suffered from any learning, speech or emotional issues.  The father was simply dismissive of the mother’s concerns.

5. The father did however participate in some of the meetings held with the speech pathologist at (omitted) Primary School being approximately once per term, and he attended the quarterly meeting with the teachers at (omitted) Primary School in relation to X’s needs, both academically and socially.  He also attended one appointment with Dr M, although he was very reluctant to do so.

6. X struggled at kindergarten and struggles at school both academically and socially. He has been assessed as having developmental delay, learning difficulties, speech issues, and, in December 2014, was diagnosed by Dr M, clinical psychologist, as exhibiting what she described as “the triad of impairments in areas of social interaction, social communication and behaviour that meet the criteria for a diagnosis of Autism Spectrum Disorder (ASD), mild in severity”.

1. X attended speech therapy from 2008 and has had ongoing assessment since that time. In February 2015, X was seen by Dr B, a paediatrician.  Thereafter, the mother returned to Dr M and Ms L, a speech pathologist, in 2015 and had discussions with both specialists at length about secondary school options for X.  She investigated their suggestions.

2. Dr M recommended that X would benefit from an integration aid.  That recommendation was lodged with (omitted) Primary School and an aid was organised through the (omitted) in 2015 with an aid still currently assisting X. Dr M also recommended that, given X’s marked levels of anxiety and social challenges, X should participate in a social skills program. Accordingly, the mother arranged for his attendance at a social skills group program at (omitted) Speech Pathology at the end of 2015.

3. At the time of the mother swearing her affidavit in July 2016, X was on a waiting list to attend further social skills sessions at (omitted) Speech Pathology.  X was also, whilst at (omitted)’s and in his early attendance at (omitted) School, attending (omitted) to help him with his academic needs at the mother’s instigation and cost. The father opposed such attendance. That attendance became too burdensome for X, a matter which had concerned the father, and such attendance has since been ceased by the mother on the recommendation of (omitted) School.

4. The father refused to assist in taking X to his social skills appointments. The mother arranged appointments on a Monday evening, which did not suit the father, and he was annoyed that the mother had not liaised with him first.  The mother gave up that placement and looked for a further social skills place, finding one in (omitted) on a Tuesday evening.  The mother was required to take X to that new location, the father refusing to participate, and, as a consequence, the mother cancelled X and Y’s (hobbies omitted) lessons on a Tuesday night and rescheduled such lessons to a Wednesday night.

Y

1. Y attends (omitted) Primary School in (omitted) and he is in grade four. Whilst his health is good, he has some bedwetting issues which require attention and treatment.  In paragraph 79 of the family report, Mr A noted:-

   “79. Speaking about Y- the fact that Y continues at primary school in (omitted) where his mother no longer lives- Mr Chesney agreed it would be in the child’s best interest for Y to change schools, sooner rather than later, to (omitted) Primary School in (omitted). In this way Y might then transfer to (omitted) School, together with other students finishing grade 6 at the same school. However, Mr Chesney intimated he would prefer, if such a change does occur, that it not take place “…before court”.

2. Y also attends Dr C, paediatrician, and in 2015 Dr C advised the mother that she suspected Y had ADHD.  That was also something noted by Ms F, who conducted speech therapy at (omitted) Primary School. Dr C requested the parents complete a questionnaire regarding Y’s behaviour.  The father refused to complete the questionnaire.  When the mother asked him to complete it, he said, “Do you want to label Y with a diagnosis as well?”  The questionnaire and assessment of Y has accordingly never been completed.

Mr A's Evidence

1. In considering the evidence of the parents of the children it is useful to place it both apart from, and with reference to, the evidence of the independent expert in the proceedings, Mr A. Mr A’s evidence was highly persuasive and the Court gives it considerable weight when determining that which it must, which is what is in the best interests of the children.

2. Mr A was cross-examined by each of the parties.  That cross-examination reinforced the appropriateness of the recommendations made by Mr A in his family report. At the time of the making of the report, the child X had been attending at his new school for only one week, and thus too short a time to reach any definitive conclusions, as acknowledged by the family consultant. Nevertheless, the evidence given in relation to that are of dispute was insightful and useful in making a judicial determination about the matter.

3. Mr A conducted a separate interview with each of X and Y, the mother and father.  He made observations of the two children with their mother and with their father.  He read all the relevant material that was provided to him, as set out under the heading ‘Documents Available to the Writer’. This material was extensive and included a number of medical reports with respect to X, who it is to be recalled, in December 2014, was diagnosed with mild autism (ASD).

4. In his evaluation, Mr A noted that it was a credit to both parents that over a period of in excess of six years since their separation, their children still retained a sense of family unity.  No doubt, he said, that was strongly contributed to by the quantum of time the boys had spent with their father over the years, namely, five nights a fortnight including weekend time, together with time after school each Monday.  He noted, however, that during that same six years the circumstances for the family had changed quite dramatically. X had been diagnosed with mild autism; the father had remarried and had a child; and the mother and the children had commenced to reside with the mother’s partner at his home in (omitted).

5. Mr A noted, at paragraph 74 of his report, the views of the father, as held at that time (being February 2017), that each of the parents should continue to share parental responsibility for the children, and his concession that their primary care should continue to be that as provided by their mother. On the question of the boys’ time with him in future, the father told Mr A that he was “willing to negotiate”, as set out in paragraph 75 of the family report.  The father told Mr A that he could not get the children to (omitted) for school during the week, and therefore understood that his time with the boys in future was most likely to be confined to the weekends during school term. This all appeared insightful on the part of the father.

6. The father was clearly however, at the time of the family report interviews, not reconciled to X remaining at (omitted) School as had been ordered by the Court, telling the family consultant that it was “...not for the long term”. Not long thereafter, the father sought sole parental responsibility of the children and that they live with him.

7. Mr A noted in paragraph 104 of the family report in a discussion with X about his new school, (omitted) School:-

   “X sounded distinctly positive. He started by telling the writer, “It’s very different to primary school” and that he does not have a grade teacher anymore;  instead he has “a home room teacher” who is “Ms M”, who he likes because she is “very nice”.”

8. X identified three friends he had made in his first week, and as set out in paragraph 107 of the family report, after just one week at secondary school, X told the family consultant he thought it was “...a happy place” where he could make friends.  He also added that his new school is “more spacious” when compared with (omitted)’s in (omitted), which was his former primary school.

9. Mr A spoke with Ms A of (omitted) School, the welfare coordinator at the school, about X.  He set out that discussion in paragraphs 133 to 136 of his family report and, in the giving of his evidence, noted that Ms A spoke confidently and credibly about her school, and his impression of her was that she was both very professional and very credible.  He set those conversations out as follows between paragraph 133 and 136:-

   “133. Ms A explained that (omitted) School has 60 students with varying degrees of ADS (sic) and that 30 of these students have totally or partially funded teaching aides, and that X will have a partially funded aide.

   134. She emphasised that the teaching program for each of the children with a disability is under constant review in conjunction with the parents; and that adjustments are made in consultation, where necessary. She emphasised the importance of both parents being in contact with the school and taking part in the various review processes as they occur.

   135. It was clear from the writer’s conversation with Ms A that she already knows X, and told the writer X “...is too high-functioning to have ever been accepted at (omitted)”.

   136. She further added that she is aware, even after a week of first term, that X has begun to make friends in his class; and, made the observation, that of the 15 students in year 7 with varying degrees of ADS (sic), X had been the only one during the first week who had not required her intervention or support.”

10. Mr A concluded from his contact with (omitted) School, that the school had a great deal of experience with children with disabilities and that it was capable of supporting them for the best academic outcomes, in conjunction with their parents. He thought it would promote X’s best interests. Further Mr A supported X and Y continuing to reside with their mother.

Other Issues

1. In April 2014, the children were violently unwell after returning from their father’s house, to the extent that the mother had to call an ambulance. The ambulance officers asked the mother what the children had eaten or been exposed to.  The mother tried to contact the father by telephone to ask him.  The father did not answer his telephone.  The mother tried to call him on approximately 10 occasions. She additionally tried to call the father’s mother, but she, likewise, did not answer her telephone. The father did return the mother’s call the following day and indicated that he had not heard the telephone ring on the various occasions on which it had. The mother told him how unwell the children had been, and the father’s response to her was “What’s wrong, Ms Pine?  Can’t you handle the kids?” In fact, the children had suffered food poisoning from a pizza that they had consumed at their father’s home.

2. During the marriage and post-separation, the mother has been almost wholly responsible for the children’s medical needs.  This has made it more difficult than necessary to ensure that X, in particular, has received the support, assistance and consistency that he needs in both households.

3. The father has refused to take the children to medical or dental appointments if they have fallen within his time with the children.  In June 2015, the child Y needed a crown inserted.  The dentist scheduled the appointment for a day the children were due to be in the care of their father.  The mother sent an email to the father advising him of the appointment.  The father sent a text message back to the mother saying he would not allow her to collect the child and take him to his appointment, and nor would he take the child himself.  Ultimately, the father allowed the mother to collect the child and take him to the appointment.  He sought an extra 17 hours of time with the children to make up for the two and a half hours of time he lost due to the mother taking Y to his appointment.

4. The current regime of care for the children between the parents’ households has resulted in the children moving between such households some six times each fortnight.  As the children have become older and more engaged in extracurricular activities and set homework, the arrangement has become unworkable.  The children have spent extensive periods in the car and also travelled on a Monday evening after school to the paternal grandmother’s home for dinner. 

5. The regime in place has also not allowed the mother to have an uninterrupted weekend with the children in her care.  As they have grown older, this has become more important for the children, who want to relax at home or have friends over.  Additionally, the children and mother have never been able to go away for the weekend, as she has had to have the children home to hand over to the father at 1.00pm on a Saturday.

6. The mother’s evidence was that such a regime has been destabilising for the children and that the current care arrangements do not provide X with the stability and consistency Dr M has recommended he have.  The mother’s evidence was that the children are often disruptive and unsettled when they return from staying at their father’s home, and take some time to reintegrate into the family home.

7. The father has spoken to the children every night by telephone, just before bedtime.  The mother’s evidence is that this is now quite disruptive. The father has indicated to the mother that he will not agree to reducing the telephone contact he has with the children. His focus is on his own needs in this regard. The children can call him if they wish, and at any time, but the need to be responsive on a daily basis to the father’s enquiries is increasingly not appreciated by the children, who are often tired and who consider the 20 to 30 minute conversations excessive.   

8. Mr A recommended that the children spend time with their father during the school term for at least two overnights on alternate weekends and that they spend half of the school holidays and long summer vacation with their father for defined and prearranged periods of time. Mr A asked X to comment about the phone calls that occur every day between the absent parent and the boys, and X commented in regard thereto, “sometimes with dad it can be a bit annoying.” Mr A concluded that telephone contact occur between the absent parent and the boys on two defined occasions each week.

9. The parties were not able to agree on X’s secondary school for the commencement of the 2017 school year.  Given the evidence, it is not surprising that they were unable to agree. The mother considered and visited a number of schools and proposed (omitted) School in (omitted).  Her reasons for doing so were as set out in paragraphs 43 and 44 of her affidavit sworn 21 July 2016. In summary:-

   a)(omitted) School is co-educational and X gets along better with girls;

   b)it is a supportive environment for children with learning difficulties;

   c)it is situated next to (omitted) School which also caters for children with learning difficulties and the two schools share academic staff and resources.  In this sense, the staff are aware of how to properly support children on the autism spectrum;

   d)it provides a well-rounded curriculum, including introduction to trades;

   e)it is a (omitted) school and the funding received at (omitted) Primary School for a teacher’s aide and academic support carried over into (omitted) secondary school. The Court notes the parties agreement whilst together that the children have a (omitted) education;

   f)the mother attended the open day at (omitted) School and was impressed by the facilities, subjects and support the school advised it had to offer its students; and

   g)the mother’s evidence was that (omitted) School, whilst optimal for X, would also be very suitable for Y.

10. The mother noted the father’s refusal to consent to (omitted) School and his refusal to contribute to the school fees which are approximately $7000 per student per year. The father refuses to contribute ongoing to the payment of any form of private school fees for the children.

11. The father also nominated various schools, including:-

    a)(omitted) School in (omitted), a school which did not provide support for children on the autism spectrum as clearly stated on their website. It also had significant annual fees for each student;

    b)(omitted) School in (omitted), which had only an academic stream and no trades and could only offer limited support for children on the autism spectrum.  Being a public school, funding for an aide was only allocated to children who were classified as severely autistic. Whilst the father denied he made such nomination, the Court accepts the mother’s evidence that he did so;

    c)(omitted) High School where X would not have access to funding where the diagnosis had to be of severe autism for public funding to be made available;

    d)(omitted) School in (omitted), once again a public school with difficulty obtaining a teacher’s aide, a very academically-focused school; and

    e)(omitted) School in (omitted), being a public school, again with difficulty in obtaining funding for a teacher’s aide. 

    The father at trial proposed (omitted) School but put no material of any description about that school before the Court.  The father’s proposals were all put at a time when the children resided primarily with their mother and a considerable distance away from the schools selected by the father.

12. The orders that the Court makes follow the recommendations by Mr A which, on the evidence, clearly promote the best interests of the children. Mr A recommended that the parents share parental responsibility for their children, that they continue to live in their mother’s primary care and that X continue his secondary education at (omitted) School.

13. Mr A further recommended that each of the parents share responsibility for transporting the boys in relation to the time spent with.  He also recommended that each parent separately undertake and complete a post-separating parenting program as provided by Relationships Australia.  That is the only recommendation the Court shall not transpose into orders, as, in the Court’s view, there is no necessity for the mother to further engage in any such educative process, and the Court does not propose to insist on the father’s attendance, although, clearly, it would be of some benefit to him.

Conclusion

1. Section 61DA of the Family Law Act 1975 (Cth) (‘the Act’) provides for a presumption of equal shared parental responsibility and is as follows:-

   “             (1)  When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

   Note:          The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)  abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

(b)  family violence.

(3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”

1. Despite evidence going to the rebuttal of equal shared parental responsibility, there remains sufficient evidence before the Court to determine, on the balance of probabilities, that the presumption is not rebutted. There was, of course, the need for the Court to intervene and determine the schooling of the two children and in favour of the mother’s decision-making processes but hopefully the issue of education is now resolved.

2. The Court in considering the evidence before it, has been mindful of the mandatory requirements as set out in 60CC of the Act and has considered the evidence in light of those primary and additional considerations.

3. There is no risk to the children of any relevant description in the care of either parent. The Court makes the orders it does to promote the best interests of the subject children.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  6 December 2017