Pyper & Carley
[2022] FedCFamC1F 404
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pyper & Carley [2022] FedCFamC1F 404
File number: MLC 6288 of 2013 Judgment of: CARTER J Date of judgment: 3 June 2022 Catchwords: FAMILY LAW – CHILDREN – with whom the children live – best interests of children – previous final orders made – where there is poor parental communication – where there is a lack of parental co-operation – where the parties are unable to promote a positive parenting relationship – allegations of physical and verbal abuse – orders sought for a split sibling relationship – equal shared parental responsibility – where the recommendations made by the Family Consultant are impracticable and not in the child’s best interests – where both parties are capable and loving parents – best interest of children to remain in primary care of mother – orders made. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 60CA, 60CC, 61DA, 65DAA
Cases cited: AMS v AIF [1999] HCA 26
In the Marriage of Hall [1979] FamCA 73
Klein & Klein [2010] FamCAFC 150
Mazorski v Albright [2007] FamCA 520
McCall v Clark [2009] FamCAFC 92
Division: Division 1 First Instance Number of paragraphs: 201 Date of last submission: 17 May 2022 Date of hearing: 12 – 13 May 2022, 17 May 2022 Place: Melbourne (via Microsoft Teams) The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
MLC 6288 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CARLEY
Applicant
AND: MR PYPER
Respondent
ORDER MADE BY:
CARTER J
DATE OF ORDER:
3 JUNE 2022
THE COURT ORDERS THAT:
1.All previous parenting orders in relation to the children X born 2007 (“X”) and Y born 2010 (“Y”) (collectively referred to as “the children”) be discharged.
2.The parents have equal shared parental responsibility for the children.
3.The child X live with and spend time with each parent in accordance with her wishes.
4.The child Y live with the mother.
5.The child Y live with the father during school terms as follows:
(a)from the conclusion of school Wednesday until the commencement of school Monday each alternate weekend (and in the event that Monday is a pupil free day or public holiday then until the commencement of school on Tuesday);
(b)from the conclusion of school Wednesday and to the commencement of school Thursday each alternate week; and
(c)at such other times as is agreed in writing between the parties.
6.In the event the father lives within a 30 minute drive of Y’s school, Y shall live with the father during school terms as follows:
(a)from the conclusion of school Wednesday until the commencement school Monday each alternate weekend (and in the event that Monday is a pupil free day or public holiday then until the commencement of school on Tuesday);
(b)from the conclusion of school Wednesday to the commencement of school Friday each alternative week; and
(c)at such other times as is agreed in writing between the parties.
7.The child Y shall spend one half of all school term holidays with each of her parents at times agreed.
8.For the purposes of the long summer school holidays, Y shall spend one half of the holidays with each of her parents at times agreed and failing agreement:
(a)for the first half with the mother and the second half with the father in 2022 and each alternate year thereafter; and
(b)for the first half with the father and the second half with the mother in 2023 and each alternate year thereafter.
9.Notwithstanding Order 8 herein, Y shall spend time with each of her parents over Christmas and Boxing Day at times agreed and failing agreement as follows:
(a)in 2022 and each alternate year thereafter with the mother from 4.00 pm on Christmas Eve to 4.00 pm on Christmas Day and with the father from 4.00 pm Christmas Day until 4.00 pm Boxing Day; and
(b)in 2023 and each alternate year thereafter, with the father from 4.00 pm on Christmas Eve to 4.00 pm Christmas Day and with the mother from 4.00 pm Christmas Day to 4.00 pm Boxing Day.
10.Notwithstanding all previous orders Y shall spend time with the parent who would otherwise not be entitled to her care pursuant to these orders on special occasions at times agreed and failing agreement as follows:
(a)on her birthday for not less than three hours at times agreed in writing and if no agreement is reached from the conclusion of school on a school day or from 9.00 am on a non-school day;
(b)with the father on his birthday, and with the mother on her birthday for not less than three hours at times agreed in writing and if no agreement is reached from the conclusion of school on a school day or from 9.00 am on a non-school day;
(c)with the father on the Father’s Day weekend each year, from 6.00 pm on the Saturday immediately preceding Father’s Day to the commencement of school Monday; and
(d)with the mother on the Mother’s Day weekend each year from 6.00 pm on the Saturday immediately preceding Mother’s Day to the commencement of school Monday.
11.Each of the parties forthwith notify the other as soon as practicable in relation to any major illness or injury suffered by either of the children and:
(a)provide to the other parent the full name and contact details of any medical or allied health professional upon whom the child has attended; and
(b)authorise any such treator to provide information to the other parent in relation to the child.
12.Both parties be and are hereby restrained from:
(a)denigrating the other parent or member of that parent’s family or household to or in the presence or hearing of either child or permitting anyone else to do so; and
(b)discussing these proceedings in the presence or hearing of either child or permitting anyone else to do so.
13.Each parent shall ensure the children’s mobile telephones, laptops, chargers, SIM cards and any other personal electronic device/s travel with the children when they spend time with the other parent.
14.As soon as practicable each of the parents enrol in and complete a Parenting Orders Program with B Services, or other similar provider, and provide a certificate of completion to the other parent forthwith upon receipt of same.
AND THE COURT NOTES THAT:
A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pyper & Carley is approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
INTRODUCTION
The parties in this matter have two daughters – X, born in 2007 and aged 14, and Y, born in 2010, aged 11. Whilst they have agreed that X is able to make her own decisions regarding her living arrangements, the parties have been unable to reach an agreement regarding Y’s care during school terms.
Essentially, the father seeks that Y live with him in C Town, and spend time with her mother each alternate weekend, for an evening meal each week, and for half the holidays.
The mother asserts that Y’s best interests will not be met by moving her to C Town, but rather by Y remaining at her school in Suburb D, living with her mother and sister, and spending six nights per fortnight with the father together with time on holidays and special occasions. In the event the father lives within 30 minutes of her home, the mother proposed a shared care arrangement be implemented.
BACKGROUND AND PROCEDURAL HISTORY
The mother is 48. She works full time as a public servant. She lives in Suburb D with the children in a five bedroom home. The mother’s son Z, aged almost seven, lives in the home as well. Both he and Y attend E School. In addition, the mother cares for an international student billeted in her home. That student and X attend F School where X is in year nine. The mother has an older daughter, Ms G. She is 20 years old and lives separately and independently.
The father is 43. He works as an educator at H University on a part time basis. He is currently completing a PhD. He lives with his partner, Ms J (“Ms J”), who is employed by the L University. They currently spend at least part of the working week in a one-bedroom flat owned by Ms J in Suburb K. The father drives Y to and from school in Suburb D from Suburb K when she is in his care. They otherwise spend time at their home in C Town. They do not have children together.
The parties were in a relationship from around August 2005 until February 2013. The children were just five and two when their parents separated. The father was by then in a relationship with Ms J.
There were parenting and property proceedings before the then Federal Circuit Court in 2013, which resulted in final orders being made by consent on 5 June 2014. Those orders relevantly provided for the parties to have equal shared parental responsibility for the children, and for the children to live with the mother. They were to spend time with the father, initially five nights per fortnight, with such time to increase to six nights per fortnight once Y commenced prep. Holidays were to be shared, and provisions were also made for special occasions. The orders included an order that the parties were to reside within a 45 minute drive of the other unless otherwise agreed in writing between them.
As best as I can tell, at the time those final orders were made, the parties were both living in Suburb M.
The mother re-partnered post separation with a Mr N (“Mr N”), who is the father of Z. That relationship has also come to an end. The mother said she and Mr N have remained on good terms, and have an amicable parental relationship. They share the care of Z.
It seems that by and large the parties were able to work cooperatively until around 2019. At that time, the mother sought the parties attend mediation, which occurred on a handful of occasions. The arrangements for the children remained unchanged.
The father told the family report writer that “things changed” in 2020 with the mother’s parenting becoming increasingly punitive. I note, however, that at trial the father also asserted that the mother’s punitive parenting style has been a long standing problem, preceding the COVID-19 pandemic.
On around 9 November 2020, the father and Ms J settled on what they then described as a holiday home in C Town. I understand that is a three bedroom home.
During the 2021 school year, Y attended P School, where she had attended from prep.
In around the first week of March 2021, it is common ground that there was a conflict between Y and her mother, which resulted in the mother confiscating Y’s mobile telephone. The mother said Y had kicked her brother and was being disruptive. Y was upset and expressed a wish to spend time in the father’s home. The mother agreed to Y staying with the father, which the mother said was only to be a temporary arrangement, to give her and Y the chance to calm down.
The father collected Y from school on or about 9 March 2021 and after a few days, on 14 March 2021, he emailed the mother saying Y wanted to live with him, and that he supported that decision.
The mother responded the next day making it plain that she did not agree that the father could retain Y, and that the final orders were to remain in full force and effect. She sent a further email to the father in the evening of 15 March 2021 advising him she did not agree to him retaining Y or enrolling her in school in C Town. She proposed that Y could remain with the father until the end of term, with him continuing to facilitate Y’s attendance at P School in Suburb D.
The father responded “let’s stick to the court orders”, and accordingly, Y returned to her mother’s home on Tuesday 16 March 2021. That night, the mother apparently stayed in a motel for the evening. Ms G attended at the home to look after her sisters.
Pursuant to the final orders, the father was to collect Y from school on Wednesday 17 March 2021, which he did. He said Y told him she did not feel welcome at her mother’s home and wanted to live with him.
On 18 March 2021, the father again emailed the mother and said that Y wanted to live with him and Ms J permanently and asked whether the mother agreed to that. The mother responded advising she did not believe a change of residence or schools was in Y’s best interests.
The following day, the father sent an email to the mother advising he would retain Y for the rest of the term, but would not be able to get her to school in Suburb D each day, as it was too difficult to drive from Suburb K to Suburb D and back. He said he had explained the situation to Y’s school and had arranged for work to be provided. The mother responded that she did not agree to Y not attending school each day, and that if that could not be arranged, she did not agree to Y remaining in the father’s care until the end of term.
That day, being 19 March 2021, the father sent an email to Q School incorrectly advising them that Y “has been asked by her mum to leave her mum’s home for the rest of the term”. He subsequently took Y to tour the Q School and meet the staff there. This was despite the father knowing the mother strenuously opposed Y being enrolled at another school.
On Sunday, 21 March 2021, the Mother sent another email advising that Y was to be delivered to school on Monday morning and that he was breaching the final orders by retaining her in his care.
The father did not respond to the mother’s email until Tuesday, 23 March 2021, at around 2.15 pm. He wrote again that it was not possible for him to deliver Y to school in Suburb D each week day;
…so she is currently continuing her schooling at [Q School]. She started there yesterday and really enjoyed it.
He also wrote that he and Y were “keen for her to live with [him] permanently”, and that he believed Y would be “happier, healthier, and safer with me”.
It is abundantly clear that Y’s attendance at Q School was a decision unilaterally made by the father. The mother had not in any way agreed to Y being enrolled at or taken to attend at Q School.
Also on 23 March 2021, at around 3.00 pm and again at around 5.00 pm the mother responded to the father’s email. She said she did not agree to Y living with the father, or attending any school other than P School.
On Wednesday 24 March 2021, the mother engaged lawyers to act on her behalf. They wrote that day to the father, advising him Y was to be forthwith returned to P School and to the mother’s care the following day.
On Thursday 25 March 2021, the father sent an email to the mother’s solicitors advising that he would not be returning Y to Suburb D that day as requested.
The mother issued these proceedings on 26 March 2021, seeking an urgent hearing and a recovery order. The father opposed Y being returned to the mother’s care.
The matter was listed before his Honour Judge O’Shannessy on 14 April 2021. Orders were made that day by the court for Y to be returned to the mother’s care. The father was also ordered to pay the mother’s costs of and incidental to the mother’s Application in a Case fixed at $5,528.
Y was then returned to the mother’s care, and the parties have subsequently abided by the terms of the final orders regarding Y’s care.
On 27 May 2021, the matter was again before Judge O’Shannessy. Orders were made for the preparation of a Family Report and the matter was given a final hearing date on 12 May 2022.
On about 20 January 2022, Y was in the father’s care. She apparently had a dispute with Ms J, and contacted the mother, complaining that Ms J had mocked her and she wanted the mother to collect her. The mother advised the father that Y was “upset, fearful and lonely” in the father’s care at that time. The father denied that Ms J had mocked Y, but arrangements were made for Y to be collected from her father’s home earlier than previously arranged.
On 26 January 2022, when Y was in the father’s care, she had another disagreement with Ms J, whilst on holiday in R Town. The mother collected Y from R Town earlier than previously agreed. She said Ms J had told Y to leave.
At the commencement of the school year in 2022, the parties agreed that Y would attend E School. That is the primary school where Z also attends. It is a five minute walk from the mother’s home.
In February 2022 the mother sent an email to the father asserting that both girls were reluctant to spend time with the father. She said Y’s attitude was as a result of there being “a fracture in the relationship” with Ms J. She said X’s reluctance arose from the Suburb K property being so small.
On 12 May 2022, Judge O’Shannessy was unable to commence the matter. It was transferred to Division 1 of the Federal Circuit and Family Court of Australia that day, and the hearing commenced before me.
At the time the matter was listed before me, it was common ground that X had stopped spending time with the father overnight. She has had some meals with him instead. It is hoped by both parties that she will resume spending overnight time with him, most likely over holiday periods when the father and Ms J will be in C Town.
THE EVIDENCE
The matter was conducted via Microsoft Teams. There were few technical issues that impacted on the running of the trial. I am satisfied I was sufficiently able to hear and assess the evidence, and that each of the participants in the hearing was well able to participate.
Each of the parties appeared as a litigant in person. I explained the trial process to them at the outset of the proceedings, and it was conducted in a respectful and reasonably focussed manner. I formed an impression that each of the parties was able to adequately present their case, test the evidence of the other party and of the Family Consultant.
The mother relied on her affidavits filed 27 March 2021 and 10 May 2022. The father relied on his affidavits filed 13 April 2021, and 4 May 2022. The father had not filed an affidavit from Ms J regarding her capacity to assist with the care of Y, or as to her relationship with Y.
At the outset, the father noted the mother relied on an affidavit filed only two days before the hearing commenced. However, he did not seek an adjournment. He was given the opportunity to present any response to that late filed affidavit by way of evidence in chief.
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
Each of the parties presented as caring, concerned and competent parents. They gave their evidence and conducted their cases in a respectful manner, and generally answered questions directly. They both appear to have limited trust in the other parent. Regrettably, each parent has at times accepted at face value complaints the children have made about the other parent. The lack of communication between the parents has meant when the children have made complaints, neither parent contacts the other to discuss what is actually going on. This dynamic has at times undermined the other’s parenting, and enabled the children to effectively “play off” one parent against the other.
The father
The father proposed that Y live with him and Ms J in their home in C Town, and that she attend Q School where he said she developed good friends in the two weeks she attended there over 12 months ago.
It is the father’s evidence that the mother’s parenting style, and her focus on her rights and needs over those of the children, has caused stress, tension and conflict in her home, such that Y’s best interests will be met by her immediately moving into his primary care. He said he and Ms J have a less authoritarian parenting style, and that he is concerned that Y’s conflicts with her mother will only increase as she enters adolescence. He said in his view it is inevitable that Y will come to live in his primary care, and that it is more in Y’s interests that the change occur now, as that will be less disruptive than a change once she has started secondary school.
The father also said that Y needed to be provided with her own room, which the mother had not provided for her prior to the final hearing. He said she had privacy and her own room at his property in C Town.
The father does not believe that Y will experience any real difficulties in being substantially separated from the mother, her sister or her brother. He said Y will see them each fortnight for two days, for half of the holidays, and he proposes an evening meal at a location between Suburb D and C Town such as City S each week for the siblings to catch up and for Y to see the mother. City S is about an hour’s drive from each parents’ home. He says he will foster and encourage the relationship between Y, her mother and her siblings.
The father described Y’s relationship with X as currently strained. It is his belief that Y’s relationship with X may improve if they do not live together.
The father sought additional orders that included restraining the parties from confiscating the children’s devices, including their mobile phones, laptops, charges and SIM cards from either of the children.
The father outlined a number of instances which he said indicated the children were not safe in the mother’s care. On the evidence before me, whilst I agree that at times the mother needs to find more appropriate responses to parenting challenges, I do not share the father’s concerns regarding the children’s safety.
The mother
It is the mother’s evidence that the father has engaged in a campaign to weaken the mother/daughter relationships she shares with X and Y. She acknowledged that she has struggled particularly during the government mandated lockdowns implemented as a response to the Covid-19 pandemic in 2020 and 2021. She acknowledged that she has at times sworn at and lost her temper with the children. She said that when the children were returning to school following periods of online learning they were often resistant to getting ready or getting to school. She said those moments were “particular breaking points for me”. I will turn shortly to the events in November 2020 and early 2021 to which I understood the mother to be referring to.
The mother deposed that she knows there were better ways to handle the situation, that the children ought not have borne the brunt of her stress and that she regretted acting the way she did.
Notably, the mother said that the father had not offered her support and assistance during times of difficulties. Instead, she said he took the opportunity to undermine her parenting to the children, questioning them about any issues or difficulties they experience with their mother and encouraging them to feel unsafe in her care. In relation to Y, she said the father has taken the opportunity to encourage her to want to live with him.
The mother acknowledged that there have been conflicts between Y and the mother on occasion, but said these fell well within the realms of normal family conflicts. She deposed that at times Y – like many children her age – struggles to get out of bed and get ready for school on time, which can result in an argument. Similarly, she deposed that on occasion Y and Z argue and Y has at times physically hurt Z. Again, she said these sibling arguments have not fallen outside the realm of ordinary sibling disputes. She also deposed that at times Y has railed against boundaries and limitations the mother has imposed. That has included Y being angry when the mother has not allowed her to attend a sleep over, or if the mother has confiscated a device. On approximately two occasions, the mother said that Y had stayed at Ms G’s house when she and Y had had an argument.
The mother gave evidence that after reading the Family Report, she reflected on the comments made by Y and is able to acknowledge that there are areas in her parenting that need improvement. She said she had now realised that it was important to provide Y with her own bedroom, which the mother said she would ensure would occur. She also said she had enrolled in a parenting course called ‘Keep Calm and Parent On’ and was learning to understand better ways to deal with conflict with the children, and tools to de-escalate arguments and disagreements. Her current course involves one on one coaching. At the date of trial she had attended two sessions, and there were a further two sessions scheduled. She said she was committed to engaging in courses, or therapy to learn different and better ways to parent.
It is the mother’s case that removing Y from her care will be destabilising for Y. The mother said Y is well settled in the Suburb D community, with close friendships, and her older sister Ms G living nearby. A move would necessarily curtail the amount of time Y could spend with her mother, her sisters X and Ms G and her brother Z. It would require a change of schools, noting she has recently changed primary school to E School. The mother said additionally, Y enjoys a close relationship with Z’s father, who remains part of the children’s world notwithstanding that he has re partnered.
The mother said travelling weekly or even fortnightly for a two hour return trip to City S for a mid-week meal was simply not practicable on a school night. She works full time, and has Z to care for and another student in the household, in addition to the girls.
The mother denied any suggestion that she poses a risk to the children. She said that in order to have the international student in her care she has been assessed as an appropriate carer, and is subject to unscheduled and ongoing monitoring of her home. This is not the first international student she has accommodated in her home, which the mother said has benefitted the children, exposing them to different nationalities and cultures.
The mother acknowledged that Y has expressed a desire to increase her time in the father’s care. Accordingly, she proposed an additional night – bringing the care arrangement to one of shared care – provided the father lived sufficiently close by so that Y would not be subjected to substantial travelling between the father’s home and her school.
Having heard from both of the parties, I accept the mother’s evidence that the disputes she has with Y appear fairly normal, and unremarkable. There is, however, clearly room for the mother to improve her responses and reactions during those arguments.
Specific concerns raised
The parties deposed to several events or areas of concern regarding the children in the care of the other parent. I have not referred to all concerns raised, as some of the matters, in my view, did not assist me in determining the issues in dispute.
It is the father’s evidence that the mother has angry outbursts, subjects the children to harsh chastisement, and threats to require them to leave their home. He has at times asserted that they are not safe in her care. He said she is a narcissist, and thrives on causing difficulties for people.
The mother denied that the children are unsafe in her care. She said the father undermines her parenting of the children, and that Y has her own issues with Ms J. I note there is no psychiatric or psychological evidence to support the father’s assertion that the mother is a narcissist or that she exhibits narcissistic traits.
Alleged threats to require child to leave home
The father asserted that the children have been told on several occasions that they are not welcome in the mother’s home. He also asserted that on a number of occasions the mother also “kicked” Ms G out of home.
These allegations are denied by the mother. She gave plausible evidence regarding these allegations, including that at times she has told the children they are not to return home, for instance, when they are meant to be at school. She also advised that there were a couple of occasions, when the children dragged their feet in the morning, missed the school bus and then asked to come home rather than waiting for the next bus at the bus stop. The mother took the view that the children needed to understand the consequences of being disorganised and resistant to leaving the house in the morning and told them they were not to come home. She essentially felt that allowing the children to return to their home in the circumstances would send them the wrong message.
In relation to Ms G, the mother said that after finishing secondary school, and when she was gainfully employed, Ms G made her own decision to move out. The mother denied that she had ever ‘kicked’ Ms G out.
I note that neither Y nor X identified to the Family Consultant that they had been “kicked out”. Indeed, Y could not recall being “kicked out” of her home by the mother.
November 2020 incidents
On about 18 November 2020, there was an argument between X and the mother in the morning near her school. It was alleged that the mother dragged X from her car, and physically and verbally assaulted her. The mother said the dispute arose as X did not want to get out of the car to go to school, and the mother insisted that she do so. The mother acknowledged she was frustrated, and under pressure as she had to return home to work after delivering the children to school. However, she denied having subjected X to physical or verbal abuse.
On about 25 November 2020, there was another argument between X and the mother on the way to school. It was again asserted that the mother dragged X from the car.
Reports were made to the Department of Fairness, Families and Housing (“the Department”). No investigation was undertaken and the report was closed at intake.
The father also took X to SOCIT to be interviewed. As I understand it, X did not make any disclosures to the police, despite, according to the father, that he took X to the police because she wanted to go there and she thought it “would be cool”.
Under cross examination, the father advised he did not contact the mother to discuss the incidents, nor to tell the mother he was taking or had taken X to the police. He said he did not want the mother to know that X had spoken to the police. The father told the Family Consultant that when interviewed by the police (which the father arranged) X told them she could not remember what happened. Accordingly, no action was taken by the police.
The mother gave evidence in relation to these incidents. She appeared to give a frank and plausible explanation for the events, acknowledging her frustration, and conceding that she could have managed the situation better. She said X was refusing to get out of the car to go to school. The mother said she initially tried to negotiate with X, telling her it was important she go to school, and that the mother needed her to attend. When X continued to refuse to leave the car, the mother said she did get angry, and that she was under some pressure as she had to return home promptly to work. She acknowledged she had pulled X by the arm to get her out of the car, which she said she regretted. She also conceded she pulled X’s bag out of the car, and told her she was not welcome to return home – the context of which the mother described as meaning the mother did not agree with X returning home instead of remaining at school where she was required to attend that day.
The mother said these events occurred during COVID-19 restrictions and in between lockdowns. She said being a single parent throughout the COVID-19 pandemic was difficult.
The father agreed that at no time did he reach out to the mother to offer any support to her regarding the children’s schooling, or offering to have the children for additional periods to assist the mother.
As observed, although reports were made to child protection, and the police, no action was taken. Further, Y did not raise these matters as being of concern to her in the Family Report. Moreover, they were almost 18 months ago and there was no evidence that incidents such as this have been repeated in that time.
February 2021
Until Y started at E School, both children had to catch two buses to get to school. The first bus took them from close to their mother’s home to Suburb D train station. At the station, both girls boarded different buses to take them to their respective schools.
It is apparent that the children at times did not leave their mother’s home sufficiently early to catch one or other bus. For instance, in around February 2021 the children had not left home in time and were going to miss their bus. It appears the mother was out of the home at that time, and told the children they were not to be at home when she returned, and that if they missed their bus, they would have to learn their lesson “the hard way”. Her text message to the children read, in part:-
So you’re fucked aren’t you? You will need to wait for the next bus. Too lazy to get to the 8.11 bus hmm…the alternative is far far worse!
Clearly, the mother’s response was mean, unpleasant and unhelpful.
The mother said in her evidence that the children were dragging their feet that morning, and that this had been a growing problem. She said on that particular day she had made it really clear that they had to leave home around 8.00 am, and that she would not be driving them to school if they missed their bus.
The father said the children then called him distressed and looking for assistance. He described that the mother left the children stranded and without funds. I note the mother said the children were never without funds, and that X had access to her mother’s account if she needed money.
The father did not contact the mother. Instead, he instructed the children to go to a nearby café, and wait for him to drive from C Town to collect them. I note also in the father’s affidavit filed 13 April 2021 he referred to a recording of the children’s “full verbal account” of the events which he said he could provide to the court. That recording was not provided to the court. It is troubling if the father has recorded the children making complaints about their mother.
Essentially, the father’s response undermined the mother’s parenting decision. It sent the children a clear message that their father does not support the mothers’ choices regarding boundaries and discipline. A far better response would have been for the father to contact the mother, and for the parents to jointly work out an appropriate way to manage the children at that time.
Having made those observations, it would also be prudent for the mother to carefully consider her attitude and language in those moments, to ensure that the children fully understand that their stability and security of living arrangements is never in doubt.
Privacy
The father deposed that the mother has exposed the children to her sexual activities. The father sought to rely on text messages sent to him from Ms G and exchanged between the mother and Ms G in which Ms G complained that the mother engaged in sexual activities in the home which were audible to her. My understanding is that at that time, the mother was in a relationship with Mr N.
The mother denied that Ms G would have been able to hear any sexual activity. It was the mother’s evidence that Ms G was exaggerating the situation, as the mother always ensured that her bedroom door was closed when she had sexual relations. I note that some of the text message responses from the mother to Ms G were inappropriate, which the mother was able to concede.
I do not regard the risk of children being exposed to the mother’s sexual activities as a real concern. Firstly, neither child raised this with the Family Consultant. Further, the mother said she ensured the door to her bedroom is closed when she is engaging in intimate behaviours. That appeared to be a genuine answer.
I note the father and Ms J share a bed in the living room of their Suburb K flat when either of the children stay overnight there. The children have to walk through the living room to access the bathroom from their bedroom whilst staying there. Whilst not ideal, again, I do not regard this as a real concern particularly as it was not raised by Y to be a matter that bothered her.
Access to explicit material
The mother acknowledged that almost six years ago, Ms G told her that she saw some explicit photographs of the mother on the mother’s mobile. The mother said when Ms G raised that with her, she acted immediately to ensure that the children did not have access to her photos via the cloud or by any other means. There was no evidence to suggest either Y or X had been exposed to any explicit material in the mother’s home.
Other alleged behaviours of the mother
The father referred to the mother confiscating mobile telephones from the children, which he described as “a coercive measure, isolating them from me and their support networks”. I accept the mother’s evidence regarding this issue – being that at times confiscating a mobile phone may be an appropriate response to discipline the children.
The father further asserted that the mother has frighted Y by making her turn off her night light. There is no indication when this is alleged to have occurred. The father made other undated assertions including that the mother threatened to make Y sleep in the shed, and that she threatened X with a bar stool. I note that none of these matters were raised by Y in her interviews with the family consultant. Whilst Y confirmed that she and her mother do have fights, and that the mother has “grab[bed] things off me”, she did not report being frightened, scared or even wary of her mother.
The father further claimed in his affidavit filed 13 April 2021, under a heading ‘Neglect of Y and X’ that the children have to prepare their own meals at the mother’s home, and that they and their clothes are often unwashed. The mother denied these allegations. Such concerns were not raised by Y, and there was no independent evidence to support the father’s concerns.
Ms G’s complaints about the mother
The father referred to text messages sent to him from Ms G regarding alleged issues between Ms G and the mother from as early as October 2014. It is clear from those text messages that Ms G’s relationship with the mother has been conflictual at times. Ms G described herself as being “kicked out” of the mother’s home on a number of occasions, subjected to verbal abuse and blamed by the mother for various issues. It is also clear that at times the mother has been rude and offensive towards Ms G in some of those messages.
The mother acknowledged that she and Ms G did have disagreements over the years, and that at times Ms G railed against some of the boundaries the mother imposed. She said also that Ms G at times could be overly dramatic, and that she exaggerated issues to attract the father’s attention and gain his approval. It seems to be common ground that notwithstanding Ms G contacting the father and making complaints to him about the mother’s behaviour, the father never sought to address these matters with the mother.
Ms G was not put on affidavit by either party. That is understandable, as it would be most unpleasant for the parties and Ms G had she been required to be a witness in these proceedings. However, it also means that I am unable to make any findings regarding – or put much weight on – Ms G’s engagement with the father, what she has reported to the father in her text messages to him or her comments to the Family Consultant. I can similarly put little weight on the mother’s explanations of Ms G’s actions and motivations.
I do note that in the exchanges between the father and Ms G, it seems the father repeatedly undermines the mother’s parenting. That is, rather than contacting the mother to ascertain what is going on, the father immediately takes Ms G’s ‘side’. I do not form the view that the father has done this maliciously – it is just an unfortunate dynamic that emerges where there is a strained co-parenting relationship and little trust between the adults.
Y’s complaints about Ms J
The mother said that in January 2022, Y and Ms J experienced a period of conflict and disagreement. Y apparently reported to the mother that Ms J did not want her in her care, and that she was rude and mocking towards Y. When Y requested the mother collect her, the mother did. This happened on two occasions. On one occasion, as best as I can understand, Y was refusing to sit up in the car properly. On the other occasion, Y did not want the food that had been arranged.
The mother has characterised these arguments as “severe conflict” and described “a fracture in the relationship” between Y and Ms J. She said their relationship “has decayed”. The disputes did not appear to me to amount to anything close to a severe conflict. Nor would it suggest Y’s relationship with Ms J was fractured or decayed. I would not have expected either of those events to have resulted in a child being distressed and requiring time with the other parent to end early.
In her email to the father at that time, the mother asserted that Y was fearful and lonely in the father’s home, and wanted the mother to collect her. Beyond what Y allegedly told the mother, there does not appear to be any evidence to support a finding that Y is ever fearful or lonely whilst in the father’s care.
The Family Consultant
Mr T prepared a Family Report in this matter dated 31 March 2022. He conducted interviews for the report via Zoom and FaceTime, meeting with the mother and children on 21 March 2022, and with the father, Ms J and the children again on 23 March 2022. In addition he spoke with the mother on the phone on 24 March 2022 and with Ms G on 26 March 2022.
X was briefly spoken to most likely whilst at her boyfriend’s home and again whilst at her father’s home. She was described as much more interactive at that second interview. She told the family consultant she did not really like going to her father’s home as it was small and her friends were not there. She also described having had altercations with her mother “in the past”, with the mother confiscating her devises and sending her to the father’s when she did not want her in the home. She said on occasion she stayed with Ms G. However, X also said she wanted to remain at her mother’s home and to choose where she spent time.
Y told the Family Report writer that she liked the Suburb D region, and she enjoyed being able to catch up with her friends. She said she liked her brother Z, and liked being with both of her parents. She did note that the father lives a fair distance from her school. She said she gets on “okay” with Ms J, but said they have argued in the past. She described her relationship with X as “okay”, saying they do not talk much as X’s time is mostly spent “at school or with her boyfriend”. She told the Family Report writer that she and her mother do fight, and when they do “it’s not a tiny fight”. However, she also said they do not fight much.
The Family Report writer said Y was “extremely hesitant” to express a view about her living arrangements. It is recorded that she said “she would like to spend a couple more days with her father, but also wanted to be close to her mother and her friends in the Suburb D region”. In her subsequent interview she said she loved both her parents, did not want to choose and has friends in Suburb D, and also friends in C Town.
X did not participate in an observation session with the mother. In relation to the mother’s relationship with Y the Family Report writer simply said “[t]here were no observed attachment issues….with both interacting well in the short space of time”.
In relation to the observations of the children with the father and Ms J, the report writer said “[t]here were no observed issues”.
The Family Report writer interviewed Ms J who said she was happy for the children to be at the home in C Town and to assist in any way possible with the children.
The Family Report writer also interviewed Ms G via telephone. She lives in Suburb U, and said Y stays with her “a lot”, and that she sees her sister once a week or so. She said she has a good relationship with her mother. I note that in her evidence, the mother also described a positive relationship with Ms G.
Ms G reported that Y and her mother do have conflicts and that every few months there is a conflict and Y comes to stay with her. She said that the mother does have “issues”, that “she can be quite reactive”, that she did not help Ms G much with her school work and that the mother wanted Ms G to go to her father’s home on Wednesday evenings, regarding that to be the mother’s time. I note that the Family Report writer’s discussion with Ms G occurred after he had completed interviews with the parties. Accordingly, Mr T did not have the benefit of hearing the mother’s response to matters raised by Ms G.
In relation to Y, the Family Report writer recommended she live with the father, and spend alternate weekends with the mother, from Friday to Monday morning as well as time on a week night each alternate week, together with holidays and the like. In relation to the proposed change of residence splitting the sib-ship, the report writer noted that Y had a sound attachment to all three of her siblings. Presumably he considered the relationships sufficiently developed to endure living in different households. He further noted that a change of residence would require Y to establish a new friendship group. He concluded, however that
…the long term benefits for [Y] are substantial in [the father’s care], taking into consideration the parenting styles, the household set up and [Y’s] needs.
In relation to the household set up, Mr T was referring to Y not having her own bedroom.
In relation to the parenting styles, the Family Report writer was concerned about the mother’s “extremely authoritarian” parenting style. He wrote that children of authoritarian parents are “at greater risk of developing self-esteem issues because their opinion is not valued, along with other behavioural issues such as aggressiveness”. He contrasted that with the father’s “authoritative” parenting style, which he said generally reflected parenting that validated children’s feelings, using positive discipline strategies and taking children’s opinions into account. In his oral evidence he agreed there was no suggestion that Y currently had any self-esteem issues.
In his oral evidence, Mr T opined that the mother could engage in therapeutic counselling to address her parenting style. He expected such counselling would need to be undertaken over a protracted period to allow the mother to consider and alter entrenched behaviours that most likely arose as a result of the parenting she herself received.
The Court is under no obligation to accept the recommendations of a Family Consultant. As the Full Court said in In the Marriage of Hall [1979] FamCA 73 at [24], there is no magic in a report. The Family Consultant is not the adjudicator. Their function is to assist and advise the court, bringing their expertise and experience. But that role does not usurp that of the Court; Klein & Klein [2010] FamCAFC 150.
Importantly, a Family Consultant does not have the same opportunity as a trial Judge to weigh the evidence, observe the parties in court giving their evidence and make findings of fact based on evidence that may not have been put to the report writer.
In this matter, I do not agree with the conclusions reached, or the recommendations made by the Family Report writer. Firstly having had the opportunity over several days to hear from the parties, who appeared as self-represented litigants before me, I do not share the same concerns as the report writer as to potential risks to Y’s emotional wellbeing if she is not promptly placed in the primary care of her father. I am satisfied the mother has begun to reflect upon and address the parenting style she has adopted to date, and that she is committed to seeking better ways to parent.
Secondly, in terms of the household set up, I accept that Y will now have her own bedroom at the mother’s home. That is obviously important to Y as she enters adolescence.
Additionally, I am concerned as to the impact on Y in relation to the disruption to all her supports and relationships if she was to move to C Town with her father. Her relationships with her mother, her siblings with whom she currently lives, her relationship with Ms G who lives in reasonably close proximity to her mother’s home, and her peer and friendship relationships will all be impacted if such a move is implemented.
Moreover, the recommendations of the Family Consultant are impracticable. It seems the Family Consultant had not understood the distances between the parties’ homes. He envisaged a three night weekend, and another overnight stay in the mother’s home each fortnight. That is, he anticipated Y would be in her mother’s care – and in a household with her siblings – four nights per fortnight, including school nights. Given the distance between the parties’ homes, that would be entirely impracticable.
If Y lives with the father, they will reside in C Town. The mother lives in Suburb D. They would be living over 160 kilometres from each other. It would be almost a two hour drive between their homes. It would clearly be impracticable for Y to travel from Suburb D to C Town on a school morning. She would have to get up very early to get to school on time.
If time instead were to conclude on a Sunday afternoon, again, given the tyranny of distance, and given the mother’s commitments to care for Z and X, it would be difficult for the mother to arrange a four hour return trip. Y’s time with the mother would need to end reasonably early on a Sunday afternoon so that the mother could return to Suburb D at a time that would allow her to prepare Z for the new school week.
Mid-week time would also be problematic to arrange. Overnight time would not be practicable, given the distance, requiring Y to travel after school for two hours, and then to return to school the next morning after a further two hours of travelling. If instead there was an evening meal as suggested by the father, that would still require Y to be driven for approximately one hour after work and school to a mid-point between her parents’ homes, for a meal, and then driven another hour home again.
As a matter of practicality, if Y lived with her father in C Town, she could not realistically spend four nights a fortnight in her mother’s care as recommended by the Family Consultant. Realistically she could only spend overnight time with the mother two nights a fortnight. That is obviously a profound change from the long standing arrangement the parties have put in place.
As will become plain from these reasons, I am satisfied that Y’s best interests will not be met by changing her residence, and subjecting her to that significant upheaval. It seems to me that an immediate change of residence is a somewhat radical step to recommend in light of the evidence before me. This includes the mother’s accommodation of Y’s need for her own bedroom, her preparedness to reflect upon and improve her parenting style, and in light of the range of additional matters I am required to take into account.
THE RELEVANT LEGAL PRINCIPLES
The legislation
Part VII of the Family Law Act 1975 (Cth) (“the Act”) guides the process in relation to the making of parenting orders.
Section 60CA of the Act requires that in deciding whether to make a particular parenting order in relation to children, the Court must consider the best interests of the children as the paramount consideration.
When determining the children’s best interests, there are two primary matters or considerations and several additional matters or considerations set out in s60CC of the Act, which I am required to take into account. I will turn to those considerations shortly.
Parental responsibility
Pursuant to section 61DA of the Act, the court must apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. If there are reasonable grounds to believe that a parent has engaged in family violence or abuse of the children, the presumption does not apply. Alternatively, the presumption can be rebutted by evidence that it would not be in the children’s best interests if parental responsibility was shared.
It is common ground that following the final orders being made, the parties have had restricted communication with each other. The father said he has insisted communication only occur by way of email between the parties, as he said the mother has used other forms of communication to harass and badger him. The mother denied this. She said she would welcome the parties being able to communicate appropriately and effectively regarding the children. She said that the father’s insistence that communication be restricted to emails is unnecessary and at times frustrating, as he will not speak directly to her, even when urgent situations arise.
The parties have included some of their email communications between them in their affidavit material. It is clear that at times the mother has been insulting and rude to the father. They have both, at times, made threats to the other regarding child care arrangements. The father’s retention of Y in early 2021 and enrolment of her at C Town was highhanded, and in disregard of the mother’s clearly stated position. The mother has also complained that the father has taken the children to medical and dental appointments without speaking to the mother first. It is clear from the evidence that neither party trusts the other, and each has a view that the other has deficits in their parenting.
Notwithstanding the limitations regarding the parties’ communication, and their concerns regarding the other’s parenting, they both seek an order for equal shared responsibility. I agree. They are both competent parents who should continue to play an important role in the children’s long term care, welfare and development.
I am also satisfied that notwithstanding the conflict and distrust, the parties do have the capacity to liaise with each other and make genuine efforts to come to a joint decision about major, long term issues for the children. Whilst their communication is limited to email communication only, they have generally been effectively able to use that medium to reach joint decisions. For instance, they agreed to enrol Y at E School. They also appear to have agreed as to X’s secondary schooling. Moreover, I note that despite the apparent distrust of one another, they both advised the court that they did not need detailed prescriptive orders regarding days and times for changeovers on holidays, as they have been well able to work out those matters between themselves over the years. This gives me significant confidence that the parties are able to jointly reach decisions, if they both commit to doing so. However, it also seems to me appropriate that the parties’ make efforts to improve their communication, and to that end, I will make an order that they both attend a parenting orders course.
As I am making an order for equal shared parental responsibility, I must follow the legislative pathway set out in s65DAA. I must consider firstly, whether an equal time arrangement is both in the children’s best interests and whether it is reasonably practicable. If the answer is no to either of these questions, then I must consider whether an order for significant and substantial time is both in the children’s best interests and reasonably practicable. If either of those criteria is not met, then I must make orders on the basis of the children’s best interests. The court cannot make an order for equal time, or for substantial and significant time unless both of those questions are answered in the affirmative.
I note that in reality, I am asking those questions in relation to Y, as the parties have appropriately agreed X shall decide her care arrangements.
It is also plain that given the parties’ respective residences, or proposed residences, an equal time arrangement is not reasonably practicable.
The primary considerations
Section 60CC(2) of the Act sets out the two primary considerations I must consider being:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying those primary considerations, I am required to give greater weight to the need to protect children from harm.
Meaningful relationship
There is no definition of the word “meaningful” in the Act. In the case of McCall v Clark [2009] FamCAFC 92 (“McCall”), the Full Court of the Family Court agreed with the remarks made by her Honour Brown J in the decision of Mazorski v Albright [2007] FamCA 520, that the term is synonymous with notions such as “significant”, “important”, “of consequence” and “valuable to the child”. Her Honour also observed that “meaningful” is a qualitative and not a strictly quantitative adjective.
The parties agreed that both children will benefit from having a meaningful relationship with each of the parents.
In relation to Y, it is the father’s contention that Y’s relationship with her mother will continue to be significant to her even if their face to face time together is reduced in accordance with his proposals. Indeed, he asserts the relationship will improve if there is a change of residence for Y.
The mother contends that her relationship with Y will be severed if the father’s proposals are implemented.
I am satisfied that Y’s relationship with both her parents will continue to be of importance to her whichever of the parties’ proposals I adopt. Whilst the father’s proposals would quantitatively reduce the time Y spends in her mother’s care, she is at an age and stage of cognitive development where she does not require frequent interactions with her parents to maintain a meaningful relationship with them. Certainly, the mother/daughter relationship will be impacted if the court implements the proposals advanced by the father. However, not to the extent where the relationship would no longer be meaningful.
Need to protect child from physical or psychological harm
It is part of the father’s case that the mother’s parenting is causing psychological harm to Y in particular, and that the children are not safe in their mother’s care.
The Department provided a s67Z response dated 20 April 2021. That response outlines that there had been one previous report to Child Protection, in November 2020 regarding concerns for X. It was asserted that X was forced out of the car, pushed against a fence and hit by the mother. No action was taken by Child Protection or SOCIT at that time. The Department closed the report at intake phase, noting that the mother had accepted a referral to V Services to assist her with management strategies and parenting support.
It is apparent that the mother did not engage with V Services at that time. This is regrettable.
A second report was received on 16 April 2021 asserting that the mother employed inappropriate physical discipline, and subjected the children to rages, humiliation and punitive parenting practices. The Department record that they spoke with the school who revealed no significant concerns. They concluded that there was insufficient information to indicate the children were at risk in the mother’s care.
I have considered the father’s concerns regarding the mother’s parenting of the children. Certainly, there are aspects of her parenting that could be improved. However, in my view, this is not a matter in which the Court needs to act protectively to prevent the children from being subjected or exposed to abuse, neglect, or family violence. Whilst the mother may adopt an authoritarian approach to parenting, I am not satisfied that her practices are such that they amount to abuse, neglect or family violence.
I note that the Family Consultant observed that many of the issues raised “are reflective of differences in parenting styles, as opposed to presenting as significant risks to [X] or [Y]”.
Additional considerations
Any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give those views
X reported to the Family Report writer that she does not really like going to the father’s house, describing it as small, and saying she can’t see her friends there. I understand she is referring to the flat in Suburb K when she said his home is small. The report writer described X as expressing a “forthright” wish to live with the mother and spend time with each parent at her discretion. I agree with the Family Consultant that given her age and stage of development, substantial weight should be given to that view.
Y indicated a view that she likes the Suburb D region, likes being with both of her parents, and loves both her parents. She would like a little more time in the father’s home, but also noted that he lives a fair way from her school. She also wants to remain close to her mother and her friends in Suburb D.
In his oral evidence the report writer described Y as being somewhat ambivalent about her views.
I note that at age 11, Y’s views are not to be determinative of the dispute, but I do regard it as appropriate to give some weight to what she has said.
The nature of the children’s relationships with each of their parents and other significant persons in their lives
The Family Consultant observed that the children “both demonstrated a close affection for both their parents”.
I note further that the mother said she and Y enjoy each other’s company, and have a close, loving and affectionate relationship.
I am satisfied that Y also has a close and loving relationship with her father and Ms J. Additionally, she has a strong and loving bond with her brother Z, and her sister Ms G. I accept the mother’s evidence that Y and Ms G see each other at least weekly, and that Y also enjoys having a sleepover with her big sister on average about once per month. That is consistent with what Ms G reported to the Family Consultant.
There was little evidence from either party as to the relationship between X and Y. The father described their relationship as somewhat strained. Y said she does not speak much with X who is often at school or with her boyfriend.
The extent to which the children’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the children, to spend time and to communicate with the children
It is apparent that both parties are engaged parents, who have taken all opportunities to spend time with the children, and make appropriate long term decisions for their care, welfare and development.
The extent to which each of the children’s parents have fulfilled or failed to fulfil their obligations to maintain the children
There was no evidence that either party has derogated from their duties in this regard.
The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives
If orders were made as sought by the father, Y would spend considerably less time with her mother, her brother and her sisters than she does currently.
She would go from living eight nights per fortnight with her mother – who has been intimately involved in her care throughout her life – to spending more limited time with her. She would go from living more than half her time in a busy household with two siblings, and attending school with her brother, to living the bulk of the time as a single child in her father’s care. The opportunities she would have to spend time with Ms G would be reduced. As would the opportunities to spend time with X. I note that currently Y appears to spend limited time with X, who she said is usually either at school or at her boyfriend’s home. If Y lived primarily with the father it is likely that would further reduce the time that Y and her sister could spend together.
The father’s proposal would also see Y change schools to Q School – in circumstances where she has already attended two primary schools in Suburb D. It would see her removed from the Suburb D area – and her friends and connections there – save for two nights each alternate weekend and during school holidays. It is notable that Y identified her school and her friends in Suburb D as important sources of happiness.
The father said that Y really enjoyed changing school, and likes meeting new people. He is not at all worried that taking Y from Suburb D to live with him for the bulk of the time, and changing schools again would be disruptive. That seems simplistic and unrealistic. The father’s proposals would necessarily require Y’s care arrangements to be profoundly changed. It seems to me that such changes would likely expose Y to a sense of loss and aloneness, disrupting her sibling relationships, her relationship with her mother and her dislocating her from her peers and friends in Suburb D.
The mother does propose that there could be a modest increase in Y’s time with her father, provided the father lives within 30 minutes of her residence. That more modest change in Y’s current care arrangements would have the benefit of enabling her to spend a little more time in her father’s care, without substantially changing her daily life, her peer group, or impacting significantly on her relationships with her mother and siblings in her mother’s household.
The practical difficulty and expense associated with the children spending time and communicating with a parent, and whether that difficulty substantially affects the children’s right to maintaining personal relations and direct contact with both parents on a regular basis
In considering practicality, I must take into account the distance between the parties’ homes, their current and future capacity to implement a shared care arrangement; whether the parties are able to appropriately communicate with each other and reach agreements; and the impact on the child of such an arrangement. I must consider the reality of the situation confronting both the parents and the children. It is not a question of determining what is desirable in relation to a child’s best interests alone. It is also a consideration of what is feasible.
The mother said she works in Melbourne on a Monday morning, and accordingly, if Y was living in C Town and stayed overnight in Suburb D on a Sunday night, they would have to leave very early on Monday morning to ensure the mother was back in Suburb D by 7.45 am to then travel in to Melbourne for work. Even if the parties met half way, Y would need to leave the mother’s home around 5.45 am for the mother to be back in Suburb D to catch a train into the city. If the father was collecting her, he would have to leave around 5.00 am to drive two hours to Suburb D and then two hours to get her back to C Town in time for school. On any version, Y would be travelling two hours before school starts.
A mid-week overnight visit would require Y to travel two hours after school, and then two hours again back to school in the morning. Even if that time was for a meal only, half way between the parents’ homes, Y would have to travel one hour after school, for the meal, and then another hour home again before bedtime.
For any of these early morning trips, the mother would also have to arrange for Z to be cared for, and make arrangements to ensure X was up and ready for school.
Accordingly, in the event Y lived with the father in C Town, time would have to end on a Sunday afternoon. Assuming the father was to deliver Y to Suburb D on a Friday afternoon the mother would then have to return her to C Town on the Sunday. Given the tyranny of distance, and the mother’s commitments to care for Z and X, it would be difficult for the mother to make herself available for a four hour return trip. In order to be back in Suburb D by around 6.00 pm, so that the mother could provide meals and a bedtime routine for the other children, Y’s time at the mother’s home would need to end around 2.00 pm. Whilst Y and the mother could spend time chatting in the car, the early end time would necessarily curtail social activities or outings she could enjoy with her mother and siblings on the Sunday.
The father said he and Ms J would continue to live in Suburb K during the week, so as to facilitate Y’s attendance at E School in the event I did not order a change of residence to his home in C Town. That will still require Y to endure travelling around 45 minutes in the car each way to and from school whilst in the father’s home. The living arrangements in that household are also not ideal. It is a small, one bedroom flat. Y has the use of the bedroom when she stays there, and the father and Ms J sleep on a bed in the living room. That has apparently been the arrangement for a protracted period.
The father said that he enjoys the travel with Y, and that the periods of time in the car allow them protracted opportunities to speak with each other. Notwithstanding that evidence, it is trite to say that excessive travel is difficult for children. As Y gets older, her homework requirements will likely increase. She may be engaged in extra curricula or social activities outside school hours. Accordingly, increasing Y’s time with the father without him moving closer to her home would not, in my view, be reasonably practicable nor in her best interests.
The father asserted that his proposal pursuant to which Y would live primarily in C Town would actually result in less overall travel for Y. She would travel the two hours between C Town and Suburb D twice per fortnight, and half way once or twice a fortnight. That would be around six to eight hours travel each fortnight. Currently, she spends at least six hours each fortnight between school and her father’s home in Suburb K.
It seems to me that to reduce the travel burden Y is facing, the father could make arrangements to live closer to Y’s school. It is unfortunate that he was initially dismissive of the suggestion that he do so, insisting that the mother would probably move away from Suburb D, to make things more difficult for him.
The capacity of the children’s parents and any other significant person to provide for their needs, including their emotional and intellectual needs
As already observed, the Family Consultant expressed concerns regarding the mother’s parenting style “and to an extent her capacity to effectively parent”. He described her as “extremely authoritarian in her parenting style…with all three young people describing [the mother’s] style of parenting as reactive and punitive”. He said that children who grow up with strict authoritarian parents will generally follow rules, but that their:
obedience does come at a price, with children of authoritarian parents being at greater risk of developing self-esteem issues because their opinion is not valued, along with other behavioural issues such as aggressiveness often in their later years…
I note that there was no evidence to suggest that either child’s self-esteem has been impacted by the mother’s parenting. I also note that whilst there may be more constructive ways to respond to the challenges of parenting adolescents and young people than the mother has employed on occasion to date, none of the incidents individually, or taken as a whole in my view attract the descriptor “extremely authoritarian”.
Certainly, the mother is urged to reflect on her parenting style, so that she can find better ways to manage and respond to various situations, to ensure that the children do feel heard and valued. I was comforted by the mother’s actions in having enrolled in a parenting course, and in her willingness to engage more deeply with a psychologist to consider her parenting style. She was able to articulate that in the few parenting sessions she has already attended she is learning to identify high trigger situations before they occur, finding better ways to respond when the conflict is escalating, and ways to eliminate or reduce situations that give rise to conflict.
Overall, I am satisfied the mother is able to meet the children’s needs, and that she has a capacity to reflect on – and a desire to improve – her parenting of them. It is very important that she ensure her responses to the children are moderate and controlled and do not make them feel their relationship with her, or their access to housing is insecure.
I note further that she has said she is providing a separate bedroom for Y.
Similarly, the father is able to meet the children’s needs by and large. However, he has involved X at least in the parental dispute. In his evidence he said he had told X about the court case coming up. He could not see that there was any issue in telling her about the proceedings, describing her as “mature” and “well aware of the conflict”. It is regrettable that the children have been embroiled in their parents’ dispute, and both parties should make every endeavour to shield the children from that in the future.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
The matters relevant to this consideration have already been canvased in these reasons.
Attitude to the child, and to the responsibility of parenthood demonstrated by each of the child’s parents
The matters relevant to this consideration have been referred to earlier in these reasons.
Any family violence involving the children or a member of their family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
There was no evidence before me that either party had sought or obtained an Intervention Order against the other. The allegations – that the mother imposes punitive or overly harsh punishments on the children including violence towards them – have been dealt with elsewhere in these reasons. In relation to the physical altercations between the mother and X I note again that the police and Child Protection have determined not to take any action.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
It is preferable to make orders that will be least likely to lead to further proceedings. It is hoped the orders I am making will end the dispute between the parents, providing for Y’s time with the father to increase should he move closer to Y’s school. I accept that there is some risk that as she matures, Y may want different orders to those I am now making for her care arrangements. At this stage, however, she has not expressed a clear view that she would like to move to live primarily with her father.
ORDERS TO BE MADE
Parental Responsibility
The parties both sought an order for equal shared parental responsibility. As already set out, I am satisfied that the children’s best interests are met by such an order.
Care arrangements for the children
I am satisfied that X’s best interests will be met by orders allowing her to determine her living arrangements, given her age and stage of development, and her clear views.
In relation to Y, I am satisfied that her best interests are met by remaining in her mother’s primary care, and continuing to spend substantial and significant time with her father. It is clear that unless the father moves closer to Y’s school, a shared care arrangement is not reasonably practicable. Should he chose to do so, a shared care arrangement would be both practicable and in Y’s best interests. It would enable her to spend a little more time in her father’s home, and to also remain at her current school, providing her with stability and predictability. Such an arrangement would also not unnecessarily disrupt or significantly impact Y’s relationships with her mother, her siblings and her peers. The mother’s proposals in relation to a shared care arrangement involved multiple changeovers, including Y returning to the mother’s care for one night before spending an alternate weekend in the father’s care. In my view the mother’s proposals could potentially be disruptive. Accordingly the orders that I am making provide for a block of five nights and a block of two nights in the event that the father lives close enough to Y’s school to enable that to occur without unnecessary travel.
In relation to holidays and special occasions, the orders I am making reflect the long standing orders, to which both of the parties consent.
No order that the mother attend therapy
The Family Consultant has raised a real concern regarding the mother’s parenting style and the impact this may have on the children. It is open to me to make an order requiring that the mother engage in therapeutic counselling to address her parenting style, and for Y’s residence with the mother to be dependent upon the mother engage in that treatment. However, I am not satisfied that such an order is necessary.
As observed by Gaudron J in AMS v AIF [1999] HCA 26 at [85]-[87], the power of the court to exercise its welfare power and place limits on a parent’s conduct is restricted only to what is necessary for the welfare of the child. It is not a supervisory power.
In my view, I am satisfied that the mother is prepared to reflect upon and address the issues raised as to her parenting, and that it is not necessary for the court to make an order that she engaged in a course of therapy to do so. The mother impressed as willing to learn and improve her parenting. I am satisfied that the risks to the children and to Y in particular are not such that an order making the mother’s care of Y dependent upon her taking certain therapeutic steps is appropriate or necessary. Notwithstanding that I am not prepared to make an order requiring the mother to engage with a therapist, the mother is well advised to do so. If she does, my orders will provide that she is at liberty to furnish a copy of the Family Report upon such treator.
No orders as to vaccination
The mother sought an order seeking the father be restrained from having Y vaccinated including for COVID-19. It is plain from her affidavit material that she is, in particular, opposed to the COVID-19 vaccinations. It does seem both children have had their first dose – which the mother said was facilitated by the father and done so against her wishes.
However, I am not prepared to make a restraint as sought by the mother. She did not adduce any evidence as to why it would be inappropriate for the children to be vaccinated in accordance with the Australian Government guidelines.
I note that the parties are both proposing orders for equal shared parental responsibility, and the father did not seek an order giving him sole parental responsibility regarding the vaccination issue. Given the Court’s approach in a number of recent matters, had the father sought such an order, in the absence of clear evidence to the contrary I anticipate an order to that effect would likely be made. It would be regrettable if the parties had to return to Court to litigate that issue.
Access to devices
I am not prepared to make an order that each parent ensure the children have access to their mobile telephones at all times. It is obvious that there will be times when it is appropriate to limit access to phones and social media. However, I will make an order that the children’s devices, and computers are to travel with the child. No doubt they will need access to computers at least to attend to school work. However, I will leave it to each parent to determine what will or will not be appropriate limitations on screen times/social media and the like in their respective homes.
Steps to address the co-parenting relationship
As already observed, it seems to me that the children are in the unfortunate situation where they are able to play on their parents’ mutual distrust of the other, complaining about one parent or their household to the other parent, garnering their sympathy and support. It is notable that both parents report that the children at times have called them crying and complaining about the other parent, asking to be picked up, or begging to not return to the other parent.
For instance, the mother asserted that X has now said she “hates going to dads [sic]”, and that Ms J and the father “trash talk” about the mother to X. The mother accepted X’s complaints, although the father denied having done so. Rather than discuss with the mother why X might make that claim, it is his evidence that the mother is probably lying about X making that complaint.
Similarly, the father asserted that Y tells him she wants to live with him. Rather than the parents speaking to each other about how to address Y’s needs, the father retained Y in early 2021.
Instead of the parents working cooperatively together, or appropriately supporting any disciplinary action or boundary setting imposed by the other, they each readily accept the children’s complaints. I note under cross examination the father said he does not believe a word the mother says, that talking to the mother “it’s a futile endeavour” and there is “no evidence she tells the truth when she’s talking to me”. Accordingly, unless the parents find ways to communicate with each other effectively, these issues are likely to continue to surface, ultimately harming the children’s relationships with both parents.
The parties both indicated a willingness to engage in therapy to address their co-parenting relationship. However the father advised he was not willing to attend any therapy that required him and the mother to conduct joint sessions. That is regrettable. Unfortunately for these children, I anticipate that there will be ongoing issues unless the parents wholly commit to finding ways to support – rather than undermine – each other in parenting these children. I will require the parties to forthwith enrol in and complete a Parenting Orders Program with a suitable provider, which it is hoped will assist the parties in developing a more co-operative parenting relationship.
Non-denigration
I am making orders injuncting the parties from denigrating the other parent, member of the parents’ household or family member to or in the presence or hearing of the children. I am also making injunctive orders preventing the parties from discussing the proceedings with the children. It is apparent from my reasons why such orders are regrettably necessary in this matter.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding two hundred and one (201) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 3 June 2022
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