Pyke and Leon

[2018] FamCA 592

FAMILY COURT OF AUSTRALIA

PYKE & LEON [2018] FamCA 592

FAMILY LAW – PARENTING – Time children spend with a parent – International travel – Orders made in the best interests of the children.

Family Law Act 1975 (Cth) ss.60B, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346

APPLICANT: Ms Pyke

RESPONDENT: Mr Leon

FILE NUMBER: PAC 5181 of 2014

DATE DELIVERED: 13 July 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Baumann J

HEARING DATE: 9 & 10 July 2018

REPRESENTATION

THE APPLICANT APPEARED IN PERSON

COUNSEL FOR THE RESPONDENT: Mr Schroder

SOLICITOR FOR THE RESPONDENT: Mcphee Kelshaw

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Harris

INDEPENDENT CHILDREN’S LAWYER:

Ms A Jones

Legal Aid New South Wales

Orders

1. That all previous parenting orders for the children, X born … 2005 (“X”) and Y born … 2006 (“Y”) and collectively referred to as “the children”, be discharged.

2. That the parents shall have equal shared responsibility for the children on major long term issues.

3. The children shall live with the Mother.

4. The children shall spend time with and communicate with the Father at all reasonable times as may be agreed in writing, but at least as follows:

   4.1Each alternate weekend during school terms commencing Friday 27 July 2018:-

   4.1.1X shall spend time with the Father from after school Friday until before school Monday; and

   4.1.2Y shall spend time with the Father from after school Friday until before school Wednesday.

   4.2Subject to the orders which follow in respect of block holiday overseas travel time, the children shall spend time for half of each gazetted school holiday period with the Father, being the first half in even numbered years and the second half in odd numbered years.

Overseas Travel to Country Z, Europe in 2018

1. Pursuant to s 65Y(2) of the Family Law Act, the children shall be permitted to travel out of the Commonwealth of Australia with the Mother from 3 August 2018 until 1 September 2018 provided that the Mother has obtained from the appropriate Educational Authorities a written certificate for the children to be absent form school in Australia from 3 August 2018 until 1 September 2018. For the purpose of this Order the Mother is to provide a copy of such certificate to the father as soon as practicable after it is received by her.

2. That the Mother shall provide the Respondent with a copy of the teaching program for the children whilst in Country Z, such program to be provided prior to the children’s departure and within 14 days of return to Australia shall provide to the Father, details of the program having been completed.

3. That as soon as practicable and not less than 14 days prior to the children’s departure, the Mother shall provide to the Father: a copy of their travel itinerary, including a copy of the children’s airline tickets (including E tickets) together with particulars of where the children will be staying and a contact telephone number.

4. That not less than 7 days prior to the children’s departure from Australia, the Applicant shall organise and pay for full travel insurance for all travelling children. The insurance shall include emergency medical evacuation back to Australia. A copy of the insurance policy shall be furnished to the Father at least 7 days before leaving Australia.

5. That the Father and the children are at liberty to contact each other via telephone, Skype or Video Conference whilst the children are out of the Commonwealth of Australia with the Mother to facilitate the time at least on 2 occasions each week.

Block School Holiday Time Generally

1. Each parent shall be entitled to remove the children from the Commonwealth of Australia during the time the children are to be in their care under order 4.2, on the giving of not less than 6 months prior written notice, which sets out detailed itinerary; dates of departures and return and particulars of where the children will be staying and a contact telephone number.

   10.1If a parent wishes to take a block time for longer than the usual half of each gazetted school holiday, then subject to the following conditions, an election to do so can be made on not less than 6 months prior written notice to the other parent, namely:-

   10.1.1Unless otherwise agreed in writing, the parent electing to take a block time shall be:

   -    The Father in 2018 and even numbered years thereafter;

   -    The Mother in 2019 and odd numbered years thereafter

   10.1.2The “block time” can be no longer than 6 weeks in one block.

   10.1.3No more than 10 scheduled school term days are to be missed during the block period.

   10.1.4If the “block time” involves any school term days, a Certificate of exemption from NSW Education is to be procured by the requesting parent seeking to travel, for the children.

   10.1.5If the “block time” involves any school term days, then order 6 above shall be complied with by the travelling parent.

   10.1.6No travel overseas on “block time” shall occur that would require the children to miss any school term days, from the 2022 year, unless otherwise agreed in writing.

   10.1.7If a parent seeks, under these orders, to execute an election of block time during the end of year (Christmas/New Year) school holidays, the time shall occur from the first weekend and cease no later than one week before the commencement of e new school term, with the children being in the care of the other parent for the remainder of the end of year holidays.

2. Specific order for end of school term holidays 2018

   11.1The Father, as a “make up of time provision” arising from the children travelling overseas in August 2018, shall be entitled to elect to take a block period of time with the children from the commencement of the end of year 2018 school holidays for a period of up to 5 weeks;

   11.2If the Father elects to take this option for this year, he shall give notice in writing to the Mother by 30 September 2018.

   11.3If the Father elects to take a block period of longer than 3 weeks for the 2018 end of year school holidays, the children shall spend time with the Mother during the remained of those school holidays.

Changeovers

1. For the purposes of changeovers, changeovers shall occur at school if it falls on a school day and otherwise, the parent commencing the care of the children shall collect the children from the home of the other parent.

Passports

1. The Father shall hold X’s passport and the Mother shall hold Y’s passport and make the passport in their possession available at all times necessary to facilitate overseas travel, including to obtain any necessary visas. The passport shall be returned to the non-travelling parent within 7 days of return to Australia.

2. The Mother shall attend and complete a Parenting After Separation Course as soon as possible and shall provide a copy of the Certificate of Completion to the other party and to the Independent Children’s Lawyer. It is noted that the Father has attended and completed a Parenting After Separation Course.

Communication and Information

1. That each parent keeps the other informed of their current residential address and advise the other parent of any change 28 days prior to such change.

2. That each parent keeps the other informed of their current mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 24 hours of such change.

3. That each party shall facilitate the children talking to the other parent by telephone when the child is not in the care of that other parent and shall ensure that the children have access to a phone for that purpose and is able to speak to the other parent in private.

4. The Mother and Father shall forthwith notify the other parent of any appointment and/or consultation made for each of the children including time, date and address with any treating medical practitioner, specialist, psychologist, hospital or other health care provider.

5. The Mother and Father shall forthwith notify the other parent if each of the children is ill or injured, and shall provide the other parent with the name, address and telephone number of each of the children’s treating medical practitioner, specialist, psychologist, hospital or other health care provider and shall authorise such medical practitioner, specialist, hospital or other health care provider to provide information and discuss the child with the other parent.

6. In the event one and/or both of the children are absent from school, the parent whose care the child is in shall forthwith notify the other parent by email of the absence and reason for the absence and shall notify the school of the reason and absence and reason for the absence.

7. That both parents be permitted to liaise directly with the children’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.

8. That each parent is at liberty to attend at the children’s school for the purposes of any function or activity normally attended by parents.

Restraints

1. That without admission and without prejudice each party shall ensure they do not denigrate the other party or the other party’s family and shall take all necessary actions to ensure no other person denigrate the other party in the presence of that party, in the presence of each of the children, or at all.

2. That without admission and without prejudice each party is hereby restrained from discussion of any of the following with or in the presence of the child:

   24.1Contentious parenting issues which arise between the parties, including any legal proceedings;

   24.2Any financial disputes between the parties including but not limited to child support issues.

3. To facilitate the Father’s time with Y and X:

   25.1The Mother is restrained from attending upon the school or Y and/or X or permitting herself to be visible to Y and/or X at changeovers to and from school when Y and/or X is to go into the Father’s care, and is restrained from contacting Y and/or X or communicating with Y and/or X by any means, including through a third party or Y and/or X, at such changeover times.

   25.2In the event Y and/or X arrives at the Mother’s residence or comes into the care of the Mother by any means, when it is the Father’s time with Y and/or X, the Mother must immediately inform the Father this has occurred and do all such things to deliver Y and/or X to the Father forthwith, including instructing Y and/or X that they are not to remain in her care at that time.

4. The Independent Children’s Lawyer is hereby discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pyke & Leon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5181 of 2014

Ms Pyke

Applicant

And

Mr Leon

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. The parents of X aged 13 years, and Y, eleven and a half years, separated six years ago and are both qualified health professionals and exhibit strong traits and values with none of the usually apparent parental deficits.

2. Sadly, however, the ongoing litigation since May 2015, initially relating to the mother’s desire for the children to experience her culture and her family every year since 2013, has created entrenched conflict between these two good parents.  The conflict has caused effective parental communication to deteriorate with the inevitable consequence that the children have become acutely aware of the conflict and have tried, in different ways, to survive.  At least X’s way has been to align himself with his mother with the result being that he has, for at least 12 months, spent less and irregular time with his father.

3. With both parents focussed on the conduct of the other parent and keen to blame them for the current, unsatisfactory situation, the communication has become even less effective.

4. The reasons which follow seek to explain to these parents why the orders I pronounce today are, in the Court’s view, in the best interests of X and Y.

HISTORICAL CONTEXT

1. Statements of fact hereafter shall be construed as findings of fact.  Although, as one might expect in a period of six years post separation, there have been a number of issues causing differences of opinion between these parents, the issues requiring the determination now are more narrow and a detailed history is not necessary to recite.  To provide some context as to how we have reached the position these children are experiencing now, the following chronology will be helpful.

2. The parents met in the African country of Country C in 1999 when both were working.  The mother had spent some years of her life living in Africa as a child.

3. By June 2001, the parties had decided to live as a couple in Australia, marrying in that year.  I accept this was a big decision by the mother but shaped by the parties’ deep relationship at the time.

4. The parents both worked in their professions, the mother’s career interrupted by the birth of the couple’s sons, X in 2005 and Y in 2006.

5. I am satisfied both parents were then, as now, committed and caring parents.  The mother and X spent two months in Country Z from November 2005, but after the birth of Y no extended holiday to Country Z took place until July 2010.  It seems, traditionally, thereafter trips to Europe with the boys only took place in the northern summer (around July) and, as I reveal, have taken place since 2010 in the years 2013, 2014, 2015, 2016 and 2017.  These trips did not include the father (save for the trip in 2014 when he spent three weeks in Europe, one of which he spent alone with the children).

6. That the trips have taken place since separation in July 2012 and after the children began school might suggest that these parents have easily reached agreement about the trips.  However, that is not the case.

7. The mother commenced a relationship, long distance for most of the year, with Mr D in mid-2013.  The relationship developed such that Mr D spent some extended periods in the mother’s home in Australia and, over the years, the mother and children lived with Mr D when in Country Z.  He also was a person involved in “musical camps” in Country Z, which the children were attending on an annual basis.  Mr D was interviewed by the family report writer.  The mother says that the relationship with Mr D ended in December 2017, however she did not inform the father until some months later.  The mother says the children, who I accept were fond of Mr D, were sad that the mother’s relationship had ended.

8. The father re-partnered himself post-separation from May 2014, consummated by cohabitation in October 2015 and marriage 2016.  The father’s wife, Ms E, has primary care of three children, F, now aged 13 and twins, G and H, now aged 11 years.  The children, I find, have a good relationship with Ms E and her children – although I accept that after cohabitation X, in November 2015, complained to his then Psychologist, Ms J, that he was “angry” and he had “big issues” with the father’s behaviour around house “rules”, including that he and F were required to do jobs that were not fair as they were “just kids”.  When asked to explain what jobs he was asked to do, he is recorded as saying “set and clean the table for every meal, tidy up our toys and clothes and tidy rooms” (see Exhibit 8).  It is apparent to me that these comments by X identify the initial stages of his growing desire to get his own way.  He was 11 years old at the time and the events which followed only, in my view, encouraged and empowered him to act more defiantly.

9. In May 2015 the mother had commenced proceedings in the L Town Local Court, substantially for permission to travel overseas again in mid-2015.  The mother had purchased tickets for the trip some months earlier.  She says it was not until the application was filed that the father consented to travel.

10. Proceedings were transferred to the Federal Circuit Court of Australia Parramatta Registry and on 4 May 2016 Judge Newbrun made orders, by consent, prescribing that the term care arrangements were to be after school Friday to before school Thursday each alternate week with the father and otherwise the children live with the mother.  In a mathematical regime, a fortnightly split of eight nights/six nights.

11. I am satisfied that until the orders of 4 May 2016 there was an uncertainty about whether the mother and children would be permitted to travel to Country Z, as I am satisfied the mother and children expected, in mid-2016.  I am satisfied that the tensions around this uncertainty caused further friction between the parents and increased tensions between the father and his sons, particularly X.

12. This parental dynamic, now characterised by poor and ineffective communication (which was in stark contrast with the more agreeable communication which existed post separation for a couple of years) highlighted the differences of the parenting styles of the parents.  Furthermore, the boys were more aware of the conflict, and this is obvious from their comments to family report writer, Dr K, who interviewed and observed the family on 7 February 2017 and published his report on 24 February 2017.  Dr K was briefly cross-examined at the trial before me, and his report is Exhibit 5.

13. Apart from X’s defiance, by April 2017 Y had begun to return to his mother on Wednesday after school and not Thursday, as ordered.  The mother lives opposite Y’s school.  The mother did not require Y to remain at his father’s home on each alternate Wednesday as she should, in my view.  The father took no steps to enforce compliance with the order at the time.  However, at this time, tensions about whether the 2017 European trip would occur had erupted, only again to be resolved by the Court orders, by consent, made on 12 May 2017 by Judge Newbrun permitting such travel for approximately two months commencing 6 July 2017; only eight weeks away from the order.

14. Significantly and, I infer, shaped by Dr K’s recommendations, the substantive care arrangements were altered so that X was to spend time with the father from after school Friday to before school Monday each alternate week and Y was to spend time with the father each alternate week from after school Friday to before school Thursday “or until Wednesday if it is agreed between the parents”.  It is clear that the father did not agree with the reduction of one night a fortnight yet Y continued to return to his mother on the Wednesday and neither parent, it seems, did anything about it.

15. Judge Newbrun ordered some school holiday time (including that the father have the whole of the September 2017 school holidays and a block of three weeks in January 2018) (order 5) and, importantly, that the children spend from 6 July 2017 to 1 September 2017 in Europe with their mother on a number of conditions (see orders 9 to 15).

16. A notation to those orders provided:

    That within 21 days of the mother’s return to Australia, she shall provide confirmation to the father of the children’s completion of the teaching program pursuant to Order 10 of these Orders.

    The parents dispute whether the mother did so.

17. Another important order made by consent was order 8, which was as follows:

    8.        That (by consent and as Ordered on 8 May 2017) the parties do all acts and things to engage in family therapy with [Dr M], Psychologist or as otherwise nominated by the Independent Children’s Lawyer and the parties shall facilitate the attendance of each of them and the children [X] born … 2005 and Y born … 2006 at each appointment that is recommended by the psychologist with the Father to attend in the first instance for as long as recommended by the Psychologist with such cost to be shared equally between the parties.

1. At the hearing before me, Dr M was not available for cross-examination.  However, an Affidavit was filed on 29 June 2018 by the Independent Children’s Lawyer attaching Dr M’s report, which says, and I accept, that although the father, on 29 August 2017 attended upon Dr M, contrary to the spirit of the order made the mother did not attend until 6 March 2018 – after Hannam J, during a court event in February, made it clear to the mother that she was required to attend.  Dr M recorded in the report that although the mother had initially made an appointment for 1 November 2017, the mother “subsequently sent a letter and telephoned to explain that she would not be attending and that she wanted a closure to the problems between herself and [Mr Leon] first”.

2. The letter from the mother to Dr M is Annexure P to the mother’s Affidavit and it is long and, in my view, self-serving.  The mother simply concludes that the problems lie with the father (not her) and only a Court can give “closure”.  It seems to me that the intention for family therapy underpinning the order made for it to occur was frustrated by the mother’s behaviour.  An opportunity was lost for the boys to experience some better communication and less conflict between their parents if the therapy had succeeded.  Whether it would have caused the mother to challenge the increasingly oppositional behaviour of X towards the father (without any apparent mature or child-focussed foundation) is, I accept, speculative, but unlikely.

3. I am satisfied with all the evidence that the intentions around reaching agreement about the yearly European trip (the mother prefers to now call it the “project”) fuelled X’s alignment with the mother and partial estrangement from the father, which only, sadly, deepened after the children’s return from Country Z in September 2017.  X’s time with the father became less regular, infrequent, with no significant time occurring before the block Christmas school holidays in January 2018.

4. Hannam J, seemingly with the consent of the parties, bifurcated the proceedings and progressed the parenting proceedings through a hearing before me as a visiting judge.  Whilst this means financial disputes still are unresolved (and from the evidence before me, will be contested), it could cause further angst between the parents.  The benefit of bifurcating the proceedings has not only allowed final orders to be pronounced more quickly, but it was possible to make some orders that caused X to spend some of the current New South Wales school holidays with the father.

5. Curiously, there are no orders for X (or, for that matter, Y) to spend any holiday time with the father for the end of the term one or end of term two holidays.  The parties arranged for Y to spend time in the father’s home around the Easter holidays, and he was spending time with the father on 9 July 2018, the first day of the hearing before me, when, after hearing submissions, but at the Court’s invitation, I ordered that X spend time with the father commencing that evening.  I heard from the bar table the next day that X went; had not at that time “run away”; had texted his mother to explore the possibilities of returning, and that the parents had made arrangements for X to spend time with a friend on 10 July.  As far as I am aware, at the day of delivery of this Judgment, X is still in the care of the father for the holiday, as ordered, and that will continue until Monday, 16 July 2018.

6. It might be a little early to predict we are back “on track” with X and the father in their relationship, however, the modification of the mother’s response is, in my view, a positive outcome, if sustained.

7. At the conclusion of the hearing and with final submissions delivered by Mr Harris of Counsel for the Independent Children’s Lawyer, Mr Schroder of Counsel for the father and the unrepresented mother, it was clear that the parents agreed to:

   a)an order for equal shared parental responsibility;

   b)that the children live with the mother;

   c)that X spend time with the father for half of the holidays and during school terms Friday to Monday and that, unlike the initial proposal of the Independent Children’s Lawyer, which was modified in final submissions, this time is not to be “subject” to X’s wishes; and

   d)a range of specific issues orders.

8. The disputes that still existed included the core issues of:

   a)the time Y should spend with his father during school terms.  In this respect, the father seeks an order for each alternate weekend from Friday to Thursday whilst the mother and the Independent Children’s Lawyer propose Friday to Wednesday;

   b)the frequency and time taken for a yearly European holiday; and

   c)whether family therapy should continue.

9. The competing proposals which are set out were modified by final submissions:

   a)by the Independent Children’s Lawyer in short form in the case outline filed 5 July 2018;

   b)by the Applicant mother in Exhibit 1; and

   c)by the Respondent father in his case outline filed 27 June 2018.

10. The reasons which follow build on this background and seek to explain the Court’s reasons for the orders pronounced which deal with the substantive issues in dispute.

Statutory pathway

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

4. In Goode & Goode [2006] FamCA 1346 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

5. I will now deal with some discrete issues before examining the competing proposals on the evidence before me within the matrix of the relevant primary additional considerations.

Parenting Styles

1. Both parents, who are highly experienced, trained health professionals, are articulate, intelligent and caring, but they are quite different in their personality and parent differently in now quite starkly different households.

2. I find the Applicant mother, as I put it to her during final submissions, shows her “heart on her sleeve”, with which she agreed.  Her upbringing in both Country Z and Africa infused her with a sense of social justice and helping others – but, although she is a much more emotional person than the father, she has a steely resolve and determination and is not easily persuaded from her entrenched views.  This last character trait is demonstrated by her unwavering view that nothing other than two months in Europe each northern summer will be appropriate.  She articulated opposition to engaging in the family therapy with Dr M in a way which speaks volumes, in my view.

3. The mother’s household enjoys a calm and peacefulness that she has created with the benefit of having X being with her by himself much of the time and exists even when Y is not spending time with his father.  The boys have space and individualism.  The boys regularly converse with their mother in her native language.  The mother, somewhat defensively, says she is a “strict” mother and has rules too.  I accept the mother sees herself in this way.  However, the application of her rules means, at times, in my view, more flexibility.  The rules around X’s use of his mobile phone (which he only got when he turned 13 years of age) is one example.

4. The father showed some degree of offence when characterised as non-affectionate.  I accept it is likely, from his demeanour in the witness box and the evidence generally and how the boys have at times described him as angry, that he has a more intense personality that hides his underlying sensitivity, which I am sure exists.  He is, in my view, no less caring of his sons than the mother.  He very much seeks routine and structure in his household and, having seen his partner, I accept he is perhaps the more dominant personality in that coupledom.  I am, however, not persuaded that he is an “angry” person although his sense of frustration with the mother and with what he sees as her support of X reducing or not spending time with him is palpable.

5. As Dr K opined, and I agree, maintaining some sense of order when a household consists of a blended family with five school age children between 10 years and 13 years would be a challenge to any parent, and survival almost demands some structure and understanding of rules.  There are benefits, of course, of blended families and, where both X and Y have a close and warm relationship with Ms E and her three children (with normal sibling rivalries aside), the need to conform and share is sometimes less demonstrated in the mother’s home.

6. That X has seen some prospects for him to find a crack in the co-parenting relationship of his parents is hardly surprising.  Sadly, litigation of the type found in this Court tends to draw out the differences in parents rather than to acknowledge the similarities in values which often were the basis for parents being attracted to each other and maintaining, as this couple did, an intact relationship of over 11 years.

7. These children, X and Y, are indeed fortunate to have a mother and father of such quality and focus who are not diminished by family violence, mental illness, drug or alcohol addiction or social dysfunction as many parents the Court sees sadly present.  These parents have the same values around hard work, helping others, working industriously and being a good citizen.

8. The key to both these children reaching their potential is not to select one parent’s style over the other, but for these parents to respect and appreciate, genuinely, the slight differences and nuances in the other’s approach and to support, not undermine, the other parent unless to do so would put the children at some real risk of harm or neglect.

9. The sad reality of this case is that these two good parents have been so focussed on “blaming” the other parent for things or events, they have failed at times to fully comprehend their contribution to the parental conflict.  They are both capable of doing better.  If, after these proceedings end, they can do so and work more cooperatively to parent these children, then X and Y will, indeed, be the rightful beneficiaries of their parents’ effort.  If not, then, sadly, the outcome for the boys continuing to manage their parents’ conflict is poor and probably life shaping in an adverse way.

Family Report

1. Without any intended criticism, understanding the limited resources in this registry, the family report by experienced, former Family Consultant, Dr K (Exhibit 5) arose from interviews and observations conducted nearly 18 months ago.  As the history recorded demonstrates, many things have changed since then and the expert (after reading those affidavits for the trial before me) opined that, sadly, it seems things had “got worse”.  This was a reflection of the continuing poor parental communication.

2. In his oral evidence, Dr K expanded on his written report.  Amongst his opinions, he expressed that:

   a)any order made subject to X’s wishes is likely to be problematic as X is more aligned with the mother and this could lead to a further reduction of time between X and the father and could also in time cause Y to seek to reduce his time with the father.  Neither of these outcomes are, in my view, in the best interests of these children, and X’s reaction to the father’s parenting style and rules was, in my view again, disproportionate;

   b)parents fighting over teenage children are “going up the wrong path”, opined Dr K, and often leads to teenagers being more manipulative and prone to tell a parent (especially one they are more aligned with) what the child thinks the parent wants to hear;

   c)Y is a different lad to X, and because the boys are at slightly different developmental stages as well, Dr K saw no long term difficulties for the relationship between the siblings and the parents if slightly different orders for time were made.  To be fair to the parents, they seem to now agree with this opinion (as I do and as their final proposals attest);

   d)after reading the mother’s letter (Annexure P) to Dr M and focussing on the mother’s claim that she was the subject of long term abuse perpetrated by the father, if the mother genuinely felt this to be so, then it is likely that X, who is very close to the mother, would “pick up” this feeling, and this would probably create a hurdle for his relationship with his father.  I agree with this opinion by Dr K and further note, as I will set out shortly, I am not satisfied the father abused the mother as the mother alleged to Dr M;

   e)unless the mother is able to modify her behaviour, and with X’s current alignment towards the mother, it might be extremely difficult for Y’s desire to have a relationship with his father where the negative views of the mother and X challenge his wishes.  I agree with this opinion; and

   f)in response to a question from the Bench in which it was identified that, on the evidence, the father represents the only consistent male role model to X and Y moving forward, Dr K agreed that gender identification and the boys’ sense of self is enhanced by a strong and available male role model, and the father is, in my opinion, such a person.  Although as children progress through their teens, peers and peer experience (through school and suitable extra-curricular activities) become increasingly important, guidance of parents is critical.  I agree with the observation that the father will also need to adjust some of his techniques (perhaps more one on one time is an example) to encourage the boys to see him as a reliable supporter and adviser.

3. The mother needs to be more careful not to engage the children in the parental conflict, which I find has occurred in the past around payment of expenses and allowing X to read adult text exchanges, for example, which she acknowledged.  This is likely to inhibit the father’s positive influence where the boys may perceive they are being “disloyal” to the mother.  The boys are not required to make such a choice.

4. Dr K’s report contains many observations and opinions, and on the evidence at that time, I would find the opinions and recommendations well founded and I do give them some weight.  Dr K did offer some views on the continuing issue of annual trips to Country Z, which I incorporate in my discussion of that issue, which now follows.

Annual European Trips

1. The mother is a proud and passionate Country Z native and has an ailing father living there and a sister who has children living in neighbouring Country B.  Understandably, the mother sees it as important to maintain a real connection with the country of her birth; her family, and to enrich the children with cultural experiences she says can only be truly embraced by being in that country or region.  I am satisfied the father agrees this is important for X and Y, and that the mother’s desire to travel regularly to Country Z is genuine.  When the children were younger and for the trips in 2006, 2010 and 2013, no real opposition arose.  Even after separation, the 2014 holiday (for that is what it is) proceeded without Court intervention.  However, for the 2015, 2016 and 2017 visits, the mother pressed for a Court order in circumstances where the father raised concerns or opposition – although on each occasion, finally consenting for an order.

2. Each party should not be required to come to the Court every year to take a holiday overseas.  The orders I make today deal with that issue.  I have no doubt the children enjoy every trip and see, as their mother does and I believe explains to them passionately, only positives from being in Europe every year for the northern summer.  During their regular trips, I accept that, although little corroborative evidence was offered, the boys meet up with members of their maternal family.  It has been a feature of their trips of recent years that the boys attend a music camp.  I accept the mother’s evidence it is likely that they have made some friendships or peer contacts with children who live in Country Z and attend this camp.

3. The extent of those relationships, other than them being foreign acquaintances, is not possible to assess on the evidence before me.  For this year, the mother’s desire to travel does not seem to have been diminished by the end of her relationship with Mr D.  In my view, that relationship contributed significantly to the mother’s desire to go to Country Z post-2013.  The mother also says that her father is terminally ill and the children need to go to Country Z to see him, for what I infer (although no reliable medical evidence of the gentleman was offered) might be their last chance to do so.

4. I am prepared to accept this is a genuine motivation for the mother this year, even though as her statements in her email to the father of 26 April 2018 (which I accept is denigrating the father in many respects) raises the quality of the mother’s relationship with her own father, in saying her father is similar to the father in this case, that that is someone “without who it would have been better”.  I find such remarks about the father in this case as needlessly hurtful and grossly inaccurate on the evidence, and it does the mother no credit at all.  That the mother chose to send such an email two months before the trial began demonstrates a capacity to provoke, and such actions are unlikely to engender any support from the father for a trip to Country Z this year.

5. The mother, in her email to the father, dated 11 February 2018 said, inter alia:

   Here we are.  I had to tell the children that there (sic) won’t be going to Europe this year.  X stayed silent, he’s given up in giving sense to all this.  Y’s face showed disappointment or disgust, and then he went to bury it in the sofa.  It was particularly important to him, as this year he was going to join for the first time the teenager’s group at the [N Camp] (music camp) and he has been speaking lately of things he would like to do next time we are in Europe.

6. With the trial commencing on 9 July 2018, it was not possible for the trip to commence this year as early as the mother had hoped.  It was not possible for the trip to include the current school holidays, as the mother in past years has achieved.  The mother’s initial application, Exhibit 1 at order 11, sought two calendar months per year and it was clear that her preferred time to travel is now, resulting in a loss of school days of at least six weeks.  By final submissions, the mother had adjusted her proposal to travel in 2018 to Country Z from 3 August 2018 to 1 September 2018, the main reason being to allow the children to participate in the music camp between 8 and 19 August 2018.

1. The best description of what the camp entails is what the mother told X’s school in her letter to the principal dated 13 March 2018 (Exhibit 6).  The note includes a handwritten notation dated 15 March 2018 that the principal advised the mother that leave for two months “is not approved”.  Whether the mother, if the Court so orders, is able to secure approval from the school for a shorter trip this year for X is not known.  No evidence from the school, for either of the children’s schools, was offered to the Court in that respect.  For reasons not adequately explained to the Court, neither the father or the Independent Children’s Lawyers or the mother offered any evidence from the schools (or their teachers) attended by the children as to the likely effect of the long absences for these children from school, and what it would do to their education.

2. The best the Court has, apart from each parents’ genuine views (neither of whom are teachers, although both are educated), is school reports, being Exhibit 4 (first semester 2018) and Annexure A to the mother’s trial Affidavit (semester 1 and 2, year 2017).  The father says his concerns about the effect on X is clear from the 2017 reports overall, which reveal X (said to be a child offered a program at school for gifted children) was not performing to his potential, and in maths in particular the teacher comments that X had difficulty with fractions and percentages “due to his absences when these concepts were introduced”.

3. The father further says that had the mother completed the schoolwork set by the school over the mid-2017 holiday, this comment would not have been made.  Although disruption to the children’s schooling appeared to be the father’s main concern, the absence of better evidence from teaching staff at least requires the Court to be cautious about making the absolute findings the father seeks.  Certainly, the Court is entitled to have confidence that the school will not lightly give approval for any absences, as quite rightly their focus is on the children’s educational progress primarily.  The school reports show at least the boys seem socially engaged with peers and generally polite and attentive in class.

4. I take into account the father’s other concerns about the loss of time with him and their stepsiblings arising from two months away, and also the interruption to their peer relationships.  Sensibly, he raises no real concerns about extended block time (as Dr K, when asked, was comfortable their relationships would not be severed merely by an absence of time for some six weeks), but says this can be accommodated by the mother extending her half-share of the end of year holidays.  Dr K gave the descriptor of the trips not being “life and death”.

5. The disadvantage to an end-of-year holiday, as the mother sees it, apart from the obvious climate differences going in winter, is that the boys cannot attend the music camp and would have less time with cousins and other peers in Country Z who are likely to be in school for much of that time.  It is, in my view, a great pity that this issue has caused so much conflict.  In fact, in many ways, the parental conflict around this issue has, I find, adversely affected the father’s relationship with X at least.  I have taken into account a multitude of perspectives raised in the evidence, and have reached a conclusion that the orders that I pronounce are in the best interests of X and Y, for the reasons which succinctly follow:

   a)Subject to the mother obtaining an exemption from each of the children’s schools, I will give leave to the mother to travel to Country Z with the children this year between 3 August 2018 and 1 September 2018.  I accept losing 21 days of school at this stage of their educational journey is not ideal.  The school may not give approval.  However, in making this order, I find:

   i)as X is only in grade seven and Y is in grade six, they are able to recover from the lost time during the remainder of their school life;

   ii)now that hopefully the father’s relationship with X is back on track, it is likely X will see this trip in August and the father’s support, which hopefully he can accept and give, as a positive to their relationship;

   iii)four weeks away is less disruptive to the children’s relationship than two months away;

   iv)they can see their aunt and grandfather in Country Z; and

   v)they can say their goodbyes to children at the music camp in a way that might allow them to create some connection by electronic means once returning to Australia.

   b)Overall, on balance, I find this trip this year for that shortened time to be in the boys’ best interests;

   c)On reflection, rather than the father taking time with the boys for the whole of the September school holidays, I propose to order that he have an election to take a block time up to five weeks at the end of this year and each alternate year.  The mother, from 2019, can do likewise and if she seeks to do so, although not her preferred option, X and Y will have a chance to maintain their maternal links and Country Z cultural interactions in the winter;

   d)If the mother can obtain school approval and no more than 10 school days are missed, the mother, in the future, in alternate years could use the mid-term holidays for an overseas trip; and

   e)The mother says when X begins HSC assessment in grade 11 (the 2022 year) that missing any school days is not appropriate.  I agree.  It could be argued, as the father does, that missing any school days now is not appropriate.  However, with the history of this matter coupled with the expectations generated in the children by that history, I regard the orders I pronounce as a fair balance of the needs for the children and achieve an order in their best interests.

Primary additional considerations

1. I believe I have dealt with most of the factors prescribed by the considerations under section 60CC(2) and (3) of the Act in the findings already made, which I rely upon but do not repeat.  I find the children will benefit from having a meaningful relationship with both of their parents.  In this respect, as a result, the interruption in the natural relationship between X and the father reflected by his opposition from mid-2017 puts at risk him maintaining that relationship, which I believe is important to his orderly development.  It is the Court’s hope that the orders made will support a renewed repair and momentum in their relationship.

2. Apart from the issues of parental conflict and the children’s exposure to that conflict and subtle involvement in the proceedings and adult issues through access to Court information, parents’ text exchanges and hearing their parents talk about the Court proceedings, all of which create risk to the children’s emotional wellbeing, these children have not been the subject of abuse, nor are they likely to be.  Dr K, in his report at paragraphs 38 to 43 “X”, and paragraphs 44 to 47 “Y”, records what the children expressed to him in February 2017, and a lot has happened since then.

3. At that time, X wanted to reduce his time (from the orders then existing of six nights a fortnight);  X said he wanted the Court to “listen more to my mum”; expressed his concerns about the “stupid rules” in his father’s home and that the father’s unfairness and criticisms of his mother were the source of tensions between them.  These statements remained before the two month trip in 2017 to Country Z.  I apply limited weight to the child’s wishes at that time, because of the likely influence events (like the father’s opposition to the Country Z trip that year) were having on X’s feelings.

4. X expressed, at paragraph 41, that he wanted to go to Country Z because “it means everything to me”, which I assess was the child partly echoing the mother’s express need to go.  I note that Dr K saw, during his interviews, a warm interaction between the father and X, which belied some of the statements he was making to Dr K at the time.  Y, at the time, expressed a wish for “his parents to stop fighting” and liked the way his present living arrangements were going at that time.  He wanted them to continue.

5. As the history reveals, some months later in April 2017, Y commenced returning to the mother’s home on a Wednesday rather than Thursday (as ordered).  That regime has now effectively been in place by default for over 12 months.  The Act requires the Court to consider relationships.  Clearly, the most important relationships these children have are to their mother and their father, and to their sibling and also, it seems, they have developed a warm relationship with the stepsiblings in the father’s household, F, H and G.  I am satisfied with the evidence they have a warm relationship with the father’s wife, Ms E.

6. There is little evidence before me as to the relationships they have with the family on the mother’s side in Country Z, but I am satisfied and accept her evidence that it is warm and is of benefit to them.  There are no real practical difficulties in time being facilitated.  The father pays child support as assessed.  It is a concern that X felt the need, as recorded at paragraph 41, to share with Dr K his concerns about the mother’s financial position.  How he could know those things without his mother explaining them to him is a mystery.

7. It is to be hoped that when the property proceedings are finalised, both parents, who are in full-time employment, can equitably contribute to the children’s needs as required.  I accept that if the mother wishes to continue to travel to Europe, the travel costs of doing so will be met by her and that is an impost on her modest income.  I believe I have actually dealt with the capacity to parent and the attitude and the responsibilities of parenting exhibited by the parents.  Section 60CC(3)(g) prescribes that the Court is specifically required to consider, if relevant, the children’s background, including culture and traditions, and the culture and traditions of either of their parents.

8. As the Reasons already demonstrate, the children have a strong connection with their Country Z culture and ethnicity, not only through the mother and the speaking of her native language in their home, but because of the regular trips over many years to Country Z.  I do not sense that the father, in any way, diminishes the importance of this cultural connection to the children.  They are, it has to be said of course, also connected to their Australian culture, where they were born and where they are schooled.  I believe the orders I make allow those cultural experiences to be maintained although, as I accept, it will be costly.

9. Although the mother asserted in writing to Dr M that she had been the victim of domestic violence, and although the wider interpretation in the Act appropriately covers behaviour like verbal and controlling abuse, the evidence of the mother in her Affidavit for trial fails to establish any basis for a finding that domestic or family violence occurred, other than the verbal exchanges of which I find both parties are both contributors.  Dr M (at paragraph 4 of her report) recorded that the mother:

   Considers herself to be a case study of a person who has been exposed to serious family violence and wants to share her experience as an advocate for others.

10. The evidence offered to this Court; the lack of any AVOs; the lack of any police or other agency involvement does not support the mother’s asserted belief that she has been the victim of serious family violence.  Having said that, of course, that does not mean that she does not feel that way.  However, if she does, and if she allows the children to accept her views are correct, it is to be expected they would feel negatively towards their father who they might be seeing as described, namely as an “abuser of women”.  In my view, that would be an unfair impression to give them.

11. In considering the effect of any changes arising from the parties’ proposals, I make the following specific findings.

    a)The parties now agree that X’s time with the father should not be subject to his wishes.  I agree.  The mother has not, in my view, over the last 12 months or so properly supported, encouraged and facilitated, as she should have, X’s relationship with the father, falling into the trap of falling in line with X’s expressed views that did not have any significant foundation, it seems to me and merely allowing a 13 year old the power to make such decisions (in the absence of any real provable concerns of risk when with the father).  It speaks of a concerning lack of insight by the mother, who as I saw in the witness box, is a very caring person and is no doubt very attuned to her children emotionally.

    She has not, it seems, parented a teenager before.  Hopefully she has learnt something from this trial and the evidence that has come before the Court.  She is a person who is capable of learning these things.  For these reasons, I have some hope that the mother may have learnt something from the trial, but not from an “online” parenting course.  For that reason, I will order her, as previously suggested, to complete a parenting after separation course that requires personal attendance.

    b)The father desires that Y return to spending six nights a fortnight with him.  I am not satisfied that one night a fortnight is likely to improve the quality of the interaction or meaningfulness of Y’s relationship with the father compared to what has occurred for the last 12 months.  This is not about sending a message to the mother about what, at this stage, is in Y’s best interests. I form the view that seeking to enforce the extra night now is more likely to create issues with Y. Further reduction, which I accept lies at the centre of the father’s fears, when considering what happened with X, is not in Y’s best interests.

12. The reason I have taken time to deliver very detailed reasons is that if there is any attempt by either of these parents in the future to seek to vary these orders, then any other Judicial Officer will have findings (hopefully regarded as considered) about these parents in shaping any further discretion.  The orders I make should be able to endure for the rest of the children’s schooling.  I am satisfied that when Y begins at L Town High School next year, as I suspect he will, the easy option of walking across the road to the mother’s home will not exist.

13. I appreciate that the wishes expressed by Y to Dr K are more consistent with six nights of each block, rather than five nights, but that view was expressed 18 months ago.  I am satisfied the orders I have pronounced today are orders least likely to lead to further parenting proceedings.  However, although I have raised some criticisms about how the father interacts with his children and Dr K gave him some guidance in that regard, the greatest risk of future proceedings, in my view, is if the mother again falls into the passive stance when the children express to her concerns they have with the father of his parenting style.

14. In my view, this is likely to trigger ongoing future parental conflict, and the inability of some level of mutual trust and respect to return.  In my view, to achieve these things, it would be assisted by both parents undertaking some post-hearing individual counselling.  I agree with Dr K that ordering people who see no benefit in counselling rarely achieves the awareness such personal counselling is desired to achieve.  People such as these trained health professionals should accept, from listening during the trial, that some personal counselling will likely assist them.  I believe it will give them a greater capacity to co-parent and make decisions together.

Final Conclusions and Form of Orders

1. I agree that it is in the best interests of children that the parents have an order for equal shared parental responsibility.  It is not in the best interests of these children for an equal time regime to be ordered, and neither parent nor the Independent Children’s Lawyer contend for such an order.  The mother has been the children’s primary carer since separation in July 2012, and she continues in that role.  The father, save for her support of X’s relationship with the father, expresses that the mother is a good mother who meets their daily emotional needs and physical needs of the children.

2. It is in the best interests of the children that X and Y spend substantial and significant time with the father in the routine which I propose to order.  I also find such an order to be reasonably practicable.  I have already set out why I have determined the overseas holiday orders and the school holiday orders (including the election to extend in the end of year school holidays in alternate years) are in the children’s best interests.  Although the father has not indicated any intention like the mother to spend a significant block of time with the children overseas, and in his case he now has seven airfares to pay in any event, he is a keen camper and experiencing some of the Australian camping experiences where travel is required is a cost-effective option he indicated might be attractive to his family.

3. In respect to these orders, I have adopted some from both the father’s proposed orders and the Independent Children’s Lawyer’s proposed orders, and taken account of the mother’s proposals, although what I have ordered in respect of holidays is quite different from that which the mother sought.  I also note that:

   a)for the reasons I identified, the Court makes no order for the parents to undertake individual counselling as a pseudo educative strategy which would assist to reduce parental conflict through more effective communication.  Nonetheless, the Court strongly recommends they undertake such counselling;

   b)although it is likely X will be assisted with some counselling (if for no other reason than to offer him an independent qualified person who can listen and explain the issues to him), I do not make an order for that to occur.  Although no evidence was tendered from X’s most recent Psychologist, Mr O (who he commenced counselling in December 2017), I am comfortable that the parents, vested with equal shared parental responsibility, shall make the necessary arrangements for X and, if needed in the future, Y.

   c)the restraints set out in order 25 as proposed by the father seek to deal with a scenario where the children may, as X and Y have in the past, sought to return to or remain with the mother, and in my view the mother has been supportive (if not facilitative) of that occurring.  A similar order was made on 9 July 2018 to ensure X remain with the father for the school holidays.

4. Other than that, I find that the orders pronounced today are in the best interests of the children, X and Y.

5. I discharge the Independent Children’s Lawyer.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 13 July 2018.

Associate:

Date:  8 August 2018