Ragsdale & Ragsdale
[2023] FedCFamC1F 171
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ragsdale & Ragsdale [2023] FedCFamC1F 171
File number: SYC 8067 of 2019 Judgment of: REES J Date of judgment: 22 March 2023 Catchwords: FAMILY LAW – PARENTING – Application by the father for sole parental responsibility and that the children primarily live with him – Where the children currently live with the mother and spend time with the father four nights a fortnight – Where the children have a meaningful relationship with both parents – Where the mother has on multiple occasions obstructed the father’s time with the children – Where the mother has resisted the father’s attempts to spend more time with the children – Where the mother has failed to facilitate telephone contact between the children and the father pursuant to court Orders – Where the father demonstrates an ability to put the children’s interests above his own – Orders made for the father to have sole parental responsibility – Orders made for the children to live with the father and spend five nights a fortnight and half of the school holiday periods with the mother – Orders made for each parent to spend a block period of the Christmas holidays with the children. Division: Division 1 First Instance Number of paragraphs: 167 Date of hearing: 6-8 March 2023 Place: Sydney Solicitor for the Applicant: Ms Jenkins, Russell Kennedy Lawyers NSW Respondent: Litigant in Person Counsel for the Independent Children's Lawyer: Mr Sperling Independent Children's Lawyer: Ark Law Lawyers ORDERS
SYC 8067 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RAGSDALE
Applicant
AND: MS RAGSDALE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
REES J
DATE OF ORDER:
22 March 2023
THE COURT ORDERS:
1.That the father have sole parental responsibility for the children X born 2014 and Y born 2017 (“the children”) and that the children live with the father at all times when they do not live with the mother pursuant to these orders.
2.That, subject to Order 9, before making any decision relating to the children’s education; religious and cultural upbringing; health or changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the mother, the father shall inform the mother of his proposed action; consider any views she might express and inform her promptly of his decision.
3.That the children live with the mother during school terms as follows:
(a)Each Wednesday from after school until school starts on Thursday, commencing on 29 March 2023, the mother to collect the children from school or after school care on Wednesday and deliver them to school or before school care on Thursday.
(b)Each alternate weekend, commencing on 31 March 2023 from after school on Friday until school starts on Monday, or Tuesday if the weekend is a long weekend. The mother shall collect the children from school or after school care on Fridays and return the children to school or before school care on the morning school starts after the weekend.
4.That the children live with the mother during school holiday periods as follows:
(a)For the first half of each school holiday period at the end of terms 1, 2 and 3, the children to be collected from school by the mother on the last day of the school term and returned to the father’s residence at noon on the day which is the mid-point of the holiday.
(b)For the second half of each Christmas school holiday period in 2023/24 and in each alternate year thereafter, the children to be delivered to the mother’s residence at noon on the day which is the mid-point of the holiday and returned to the father’s residence at noon on the last day before the commencement of the gazetted school term, regardless of whether the first day of term is a pupil free day.
(c)For the first half of each Christmas school holiday period in 2024/25 and in each alternate year thereafter, the children to be collected from school or after school care by the mother on the last day of the school term and delivered to the father’s residence at noon on the day which is the mid-point of the holiday.
(d)For the Easter holiday in 2024 and each alternate year thereafter, the children to be collected and returned to and from school by the mother.
5.That in the event that the children are not living with the mother on Mothers’ Day, then the children shall live with the mother from Friday afternoon until Monday morning on the Mothers’ Day weekend.
6.That in the event the children are not living with the father on Fathers’ Day, then the children shall live with the father on that weekend and the operation of Order 3 (b) is suspended for that weekend.
7.That where the children have lived with the mother for the first half of any school holiday period, alternate weekend time in accordance with Order 3(b) will commence on the first weekend of the following term. If the children have lived with the mother for the second half of the school holidays, then alternate weekend contact will commence on the second weekend of the school term.
8.That each parent is permitted to travel with the children interstate or overseas during any period that the children live with that parent pursuant to these orders and, for the purpose of overseas travel:
(a)Each parent will sign all documents required and equally share the costs of obtaining current passports for the children.
(b)Each parent will give the other at least one calendar month’s notice of intention to travel and provide a copy of the itinerary and the children’s flight details.
(c)The father will hold the children’s passports when they are not travelling overseas with the mother.
9.That the father shall not remove the children from their present school without the written consent of the mother.
10.That each parent is entitled to receive any information usually provided by the school to parents and to attend any event at the children’s school or at their before and after school care to which parents are invited, including assisting as a volunteer.
11.That each parent ensure that the other is, at all times, aware of his or her residential address, email address and mobile phone number.
12.That each parent ensure that the children are freely available to make and receive calls from the other parent, provided that each parent shall not initiate calls to the children in the care of the other parent more than once each day.
13.That in the event of a medical emergency involving either of the children, the parent with the care of the children shall immediately notify the other parent and keep that parent informed of the child’s situation and provide the contact details of the persons or institutions where treatment is being provided and each parent shall be entitled to attend upon the treatment facility.
14.That in the event that either parent is provided with a medical report from a treating medical practitioner then that parent shall immediately provide a copy of the report to the other parent.
15.That each parent shall not:
(a)Physically discipline the children or allow any other person to do so.
(b)Denigrate the other parent in the presence or hearing of the children or allow any other person to do so.
16.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (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 a Ragsdale & Ragsdale has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Mr Ragsdale (“the father”) and Ms Ragsdale (“the mother”) are the parents of two children, X born 2014 and now nine years old and Y born 2017 and now five years old (“the children”).
The parents separated on 31 July 2019 and the children remained living with the mother. The time the children spend with their father has increased since separation but the mother has resisted the father’s wish to spend more time with the children.
These proceedings will determine the parenting arrangements.
The father seeks orders that the children live with him, that he have sole parental responsibility for them and that they spend time with the mother on five nights each fortnight and for half of each school holiday period. At the commencement of submissions, he proposed a secondary position where the children spend equal time with each parent but his primary position was that the children live with him.
The Independent Children’s Lawyer (“ICL”) in submissions proposed that the children live with the father.
The mother proposes that the children live with her and that the parents have equal shared parental responsibility. She proposes that they spend four nights each fortnight with the father. In school holiday periods, the mother proposes that the children spend four nights of the short holiday periods and four nights in each alternate week of the long Christmas holiday with the father.
They each seek orders in relation to special occasions and ancillary matters.
The father has re-partnered and lives with Ms B. The mother had re-partnered but her relationship with Mr C ended in late 2022, in circumstances which will be discussed later in these reasons.
THE FATHER’S INTERIM APPLICATION
At the commencement of submissions, the father sought a variation of the existing orders such that the children, pending the delivery of judgment, spend time with him overnight on Wednesdays so as to avoid a direct changeover between the parents. I declined to make those orders and indicated that I would give reasons.
Whilst it is desirable and appropriate that the changeovers be free of tension for the children and it was clear from the evidence of both parents that changeovers were problematic, I was in a position where the reasons for judgment were able to be handed down and orders made within a short period of time and it is preferable to make final changes to the children’s parenting arrangements rather than to make changes which will only be in place for a matter of a week or so.
THE TRIAL
The father relied on an affidavit sworn by himself on 15 September 2022 and an affidavit of his partner, Ms B sworn on 15 September 2022. Ms B was not required for cross- examination.
The mother relied on an affidavit sworn by her on 15 September 2022. The mother’s former partner, Mr C, did not swear an affidavit.
An ICL was appointed for the children.
A report, dated 28 April 2021, had been prepared by a Court Child Expert. The expert was not available for cross-examination and it was agreed that those parts of her report which set out her conversations and observations with the parents and other professionals would be admitted into evidence but that her conclusions and recommendations would not be read.
THE EVIDENCE OF THE COURT CHILD EXPERT
The expert conducted a Child Dispute Conference with the parents in December 2019. She conducted interviews in February 2021 and prepared a report dated 28 April 2021. The expert had available to her a substantial body of records produced on subpoena dealing with the issue of the father’s mental health.
At the time of the interviews, X was seven and Y was yet to celebrate her fourth birthday. The children were spending time with the father each Wednesday and Friday from 3.00 pm until 7.00 pm and each Saturday from 9.00 am until 7.00 pm. They had not spent any time with their father overnight.
Both the father’s partner Ms B and the mother’s then partner Mr C were interviewed.
The father’s position was that the children should spend alternate weekends from Friday afternoon until Monday morning and each Wednesday overnight with him and that school holidays should be equally shared. If the mother was not willing to support such an arrangement, he sought orders that the children live with him.
The mother’s proposal at that time was that the father undergo a mental health assessment with a psychiatrist nominated by her and that, if the assessment were positive, she would consider overnight time from 3.00 pm Friday to 9.00 am Saturday. The expert reported that the mother had no other proposal for a final parenting arrangement.
The father asserted that the mother was verbally and psychologically abusive towards him and coercively controlling of him and that she has sought to control his relationship with the children.
The mother asserted that the father lacked parenting capacity and the ability to ensure the safety of the children because of his mental health.
The expert noted the issues then in dispute as follows:
Issues in Dispute:
•Whether [the mother] should hold sole parental responsibility for [X] and [Y] or whether both parents should hold equal shared parental responsibility,
•Whether the children’s time with [the father] should remain as is, or transition to overnights and gradually increase to substantial and significant time or whether there should be a change of residence for the children,
•Whether the children should be permitted to travel overseas with both parents and which parent should hold the passports,
She further noted that the parents identified the following issues:
•[The mother] raised significant concerns regarding [the father’s] mental health and the impact on his parenting capacity,
•[The father] raised significant concerns regarding [the mother’s] ability to support his relationship with the children and the impact of this on the children’s emotional wellbeing,
The expert was concerned about “The impact that the parents’ poor co-parenting relationship is likely having, and will continue to have, on [X] and [Y] as they grow older and become more aware”.
The expert spoke with X who said positive things about each of her parents and each of their partners. The expert reported:
67.… [X] said that she likes that she gets to do “fun things” with both parents but that her ‘Mum’ and ‘Dad’ are not friendly and that “I see them be mean to each other…they shout at each other”. Without prompting, she said, “Mummy says that Daddy is a big liar but he is not lying”. [X] said that she would like her parents to “speak nice to each other and not shout”.
In relation to X’s views, the expert reported:
68.[X] said that she would like to see both parents at the same time, but knows that she cannot, as they do not like each other, that they have both told her they do not. [X] said that she would “really like a little more time” with her father. [X] explained that she would like if she and ‘[Y]’ could stay overnight with ‘Dad’, so that they could go to the park, pool and movies as she wants more time to do these things. [X] said she is not sure why her mother will not let them stay overnight and that she asks her mother “nearly every Friday”. [X] said that she would like to stay Friday nights, that her father has bunkbeds for them and they see their father on Fridays and Saturdays anyway. [X] said that she has never felt unsafe or scared with either parent. While drawing [X] demonstrated that she knows her colours, can spell her family members’ names and that she enjoys drawing and colouring. With stimulus material [X] indicated that she feels happy with everyone in her family and friends, that she feels sad and angry when [Y] hits her, that she does not like leaving her father’s home on Fridays and she would be happy to stay overnight.
The children were observed with each parent and were noted to have a warm and loving interaction with both.
The expert summarised the material produced on subpoena in relation to the father’s mental health. Her summary is set out below:
[D Medical Centre]
72.The subpoenaed material indicated that, in [early] 2018, [the father] was prescribed anti-depressants. In this material, there is a report from [Ms E], Clinical Psychologist that cites that [the father] had excellent attendance, and that he had recurrent episodes of depressed mood, with triggers including dissatisfaction with work, stressful family life and poor social connection. It also notes that [the father] experienced a history of family violence and harsh parenting in his family of origin. It noted that [in mid-] 2019, [the father] self-presented at the hospital for acute situational crisis with suicidal ideation ([…] following an argument with [the mother] – advised that he was immediately remorseful) and previously diagnosed depression. It was noted that [the father] was experiencing significant financial pressure along with stressful work and home environments. He was discharged a short time later, in 2019. [The father] was referred to [Mr F], Psychologist in mid-2019 for major depression [and serious self-harm issues].
…
[Ms E], Clinical Psychologist – [G Psychology]
74.It noted that [the father] attended [Ms E] between [early] 2019 and [mid-] 2019 and attended nine sessions. [In mid-] 2019, [he] reported that he had cut down on work and was feeling better. [The father] referred to not feeling connected to [the mother] and that they were experiencing arguments over household tasks. He also made reference to poor social contact.
[H Community Health]
75.[The father] was referred to [H Community Health] team upon his discharge from hospital [in mid-] 2019. He was discharged from the service [in mid-] 2019 as he was engaged with his GP and a private psychiatrist. [The mother] re-referred [the father] [a short time later, in] 2019, as she had concerns regarding his low mood and agitation following an argument. [The father] contacted also [sic] and he acknowledged feeling overwhelmed […] during and after an argument with [the mother]. [He] reported feeling well supported by [Dr J]. [Ms K], Clinical Nurse Consultant (CNC), noted in [late] 2019/[early] 2020, that [the mother] was stressed as [the father] wanted an equal shared care arrangement for the children, despite him living in a [mobile home] and declining the children’s calls and the opportunity to see the children on Christmas Day.
[Mr F] - Psychologist
76.It was noted that [the father] attended [Mr F] for four appointments [in mid-2019].
[Dr J], Senior Clinical Psychiatrist – [L Specialists]
77.The material noted that the [father] attended [Dr J] from [mid-] 2019 and was discharged [in mid-]2020, during which time [he] attended [several] appointments. [Dr J]’s notes indicated that [the father] experienced depression due to personal, work and financial stressors, […] and was admitted to hospital [in mid-] 2019. By [late] 2019, [Dr J] notes that [the father] is experiencing continued good and stable mood and a change of employment. In [mid-] 2020, it was noted that [the father] did not present as depressed, anxious was dealing with work stress and seeing his children. [Dr J] wrote in his discharge letter, that [the father] had one depressive episode in the context of stressors factors, that he did not deem him a risk to children or others and that he has made a full recovery.
The expert also summarised the records produced on subpoena in relation to the mother:
[Dr M] - Clinical Psychologist
80.[The mother] was referred to [Dr M] in [mid-] 2019 due to stress associated with [the father] being unwell and having young children to care for. [The mother] attended for [several] sessions between [mid-] 2019 and [early] 2020. It was noted that [she] was exhibiting symptoms of depression and anxiety […]. Later in 2019, [the mother] was experiencing financial and emotional distress and [she] reported having “some passive suicidal ideation” but no plan or intent. By [early] 2020, it was noted that [the mother] had improved mood, reduced anxiety and engaged in supports.
The expert stated,
87.… It would seem from the subpoenaed material that [the father’s] account appears to be the case and that he did engage with GPs, psychologists, hospital, Community Mental Health and a psychiatrist. From the psychiatrist’s material, it would seem that [the father] commenced seeing him immediately after his discharge from hospital, […], and that [the father] attended routinely for a period of a year. Each of the psychiatrist’s reports indicated increased stabilisation in [the father’s] mental health and this lead to [his] discharge in [mid-]2020. It would be difficult to see if a standalone mental health assessment could identify any issues, at this stage, almost two years from [the father’s] hospitalisation …
Before me, the focus of the evidence was the father’s assertion that the mother had frustrated his spending time with the children and the difficulties in communication.
Although the mother, in the course of cross-examination, said on a number of occasions that their communication had improved, the totality of the evidence does not support that contention.
It is not possible here to deal with each and every disagreement between the parents over the father’s spending time with the children but I propose to concentrate on these incidents which were the subject of cross-examination.
At the time when the parties’ separated, the mother was working as a health professional between 9.00 am and 5.00 pm. X was at school and enrolled in before and after school care from 8.00 am until 6.00 pm. Y was in day care. The father’s time with the children was by negotiation and very limited. I accept that, on occasions, the father did not choose to spend time with the children and that, on other occasions, the mother did not allow it. For a period of time after separation, the father had no suitable accommodation for the children. He lived in shared premises and then in a mobile home. But a pattern arose where the mother controlled the time that she permitted the father to spend with the children and where he spent that time.
In late 2019 a text conversation between the parents about financial matters ended with the mother saying, “no visitations until we come to an agreement”.
A short time later, in 2019 there was a disagreement about financial matters, specifically health insurance. At the time, the mother had permitted the father to see the children at her home on Wednesday evenings. The mother texted the father,
Don’t even bother coming over Wed night, you are not welcome in the house while there is disrespect. It’s a very basic human virtue. Or Sat for that matter… One day the kids will know.
(As per the original)
In late 2019, the father’s solicitors wrote to the mother’s solicitors proposing that the children spend time with him on Tuesday and Thursday from after school until 7.00 pm and on Saturday from 9.00 am until 5.00 pm.
Some days later, in 2019, the father went to the mother’s home but no one was there. The father sent the mother a text asking where the children were and she responded, “Nothing was confirmed. We have other plans today”.
A short time later, in late 2019, having been advised by the mother’s solicitors that they no longer acted for her, the father’s solicitors emailed the mother, again proposing he spend time with the children on Tuesday, Thursday and Saturday.
The mother emailed the father’s solicitors:
… I also understand that any arrangements for care of the kids needs to be agreed upon as i am the primary carer and therefor decline the immediate request tonight at this time until discussed further.
(As per the original)
The mother sent a text to the father stating, inter alia,
I really don’t want a fight or threats to take the kids “immediately”. Can we please talk? We should at least have an agreement. If you just take the kids without an agreement tonight I will be calling the police.
In fact I will call the police before then and tell them of this threat so they can be aware to attend promptly tonight…
(As per the original)
The solicitors for the father responded that the father agreed to see the children for three hours on Saturday and on Tuesday and Thursday afternoons. The mother agreed only to the Saturday time for three hours.
In late 2019, the father received a text from the mother saying she and the children were at the park. He replied saying he was almost there. The mother texted,
Before that happens I need an email from you stating you agree to 9-12 today otherwise we stay at the park.
(As per the original)
The father responded, “No, it’s a given. Every Saturday unless we say otherwise. I’m not playing your games.” The mother replied “Not happening then”. The father deposed that he arrived at the park, X was in tears and the mother pulled her away from him and said to her “Okay [X], daddy won’t send me an email so we are leaving”. The mother then sent the father an email, at 9.31 am, stating, inter alia, “[X] burst into tears when she heard you say you wouldn’t stay with her…”. The father sent an email to the mother confirming the 9.00 am to noon time and the mother allowed him to spend the balance of that time with the children.
In late 2019, the children told the father they were moving to a new house. The mother refused to give the father the address.
These proceedings were instituted by the father’s filing an application on 27 November 2019. The mother, in response, sought an order that the children spend time with the father each Saturday from 9.00 am until noon. On 16 December 2019, orders were made which provided for the father to spend time with the children each Saturday from 9.00 am until 12.00 pm and each Wednesday from 3.00 pm to 7.00 pm. Those orders also provided for the children to have contact with the father by FaceTime or telephone between 6.00 pm and 6.15 pm each evening.
The mother did not accept any calls between the date of those orders and late 2020.
In early 2020, the father asked the mother if he could use Y’s pram when Y was in his care. She refused.
In early 2020, the father’s solicitor wrote to the mother’s solicitor proposing an increase of time. The letter informed the mother that the father had rented accommodation with a room set up for the children, bought a suitable car and completed a parenting after separation course. A copy of a letter from the father’s treating psychiatrist, dated early 2020, was forwarded. The psychiatrist stated that the father was “well and stable and coping well” and his mood was good. The psychiatrist stated that the father “has made a full recovery”.
The mother responded to the father by text stating,
I’ll be pressing for the full psych and family assessment through the court. But we could agree to keep things as is for a while? And review in 6-12 months say? That way you can avoid the assessment.
(As per the original)
The mother agreed to extend the father’s time on Saturday to 5.00 pm.
The orders provided for the father to collect both children at 3.00 pm on Wednesdays. X was at school and Y at day-care at a different venue. In late 2020, the father arrived at Y’s day care at about 2.30 pm. He was kept waiting for 15 minutes while the staff contacted the mother. The following day, in 2020, the mother’s solicitors wrote to the father’s solicitors stating “Your client is on notice that our client will not agree to the father collecting the children early on an ongoing basis”.
It was a theme of the mother’s oral evidence that the time the children were in care, on the days when there was no court ordered time with the father was her time, despite the fact that she was at work and the children were not in her care.
In late 2020, the mother sent an email to X’s school, headed “Court orders and emergency contact”, stating, inter alia,
•In the event of needing to be contacted for anything in relation to [X] i remain the full responsible primary contact.
•Please find attached again the copy of court consent orders in regards to [X]. They stand for interim full custody to myself as the Mother and for visitation time Wed 3pm-7pm only for [the father] … if [the father] were to try to collect [X] outside of the court ordered visit time then I would hold serious concerns for [X’s] safety at this point in time due to the history of [the father’s] Mental Health and Domestic Violence history and i would be calling the police.
…
•Add my Partner as the only emergency contact [contact details provided]
(As per the original)
The orders in force on 21 September 2020 were those made on 19 December 2019. Those orders did not make any reference to parental responsibility and did not, as the mother infers, give her sole parental responsibility for the children. The mother had no authority to remove the father as an emergency contact with the school or to include Mr C as an emergency contact without the father’s agreement. As to the mother’s assertion of concern about the father’s mental health, she had the report from the father’s psychiatrist which had been forwarded to her in early 2020. As to the mother’s assertion of concern about domestic violence, there is no evidence that the father has ever been violent towards the children. The mother made a report to the police in late 2019 where she referred to the father yelling but did not report that he had ever been physically violent towards her.
In cross-examination, the mother denied that the purpose of this email, which was also sent to Y’s day care centre, was to blacken the father’s reputation with the school and the day care centre but it is difficult to conceive of any other reason the mother might have for sending an email containing statements she must have known to be untrue and damaging to the father’s reputation.
The mother arranged for Y to see an eye specialist in early 2021. She did not tell the father about the appointment or give him an opportunity to attend. He was advised by letter in early 2021 that Y had a “rare syndrome which needs further investigation…” and that Y was now wearing glasses for which the mother had paid $320. The father was asked to contribute half the cost of the specialist’s consultation. The father asked for a copy of the invoice and information about the next appointment. The mother did not respond.
Some time later, in early 2021 when Y came into the father’s care, she was not wearing her glasses. The father spoke to the mother who said, in the presence of the children, “It is not my responsibility to make sure she wears her glasses at your house”. The father suggested they continue the conversation by text, not in the presence of the children. The mother said, “I’m not arguing with you. You need to buy your own pair for your house or you can give me $150 and I’ll give you a spare pair”. The father said he would buy another pair of glasses for Y and asked the mother to send him the prescription. She said “No. You can go pay for your own eye test and get the details yourself”. The father purchased two pairs of glasses for Y.
In cross-examination, the mother said that Y’s glasses were always in her school bag and had been available to the father. I do not accept that evidence. The children went into the father’s care at 9.00 am on Saturday for the day only and it is unlikely Y had her school bag with her.
Y’s next appointment was in mid-2021. In cross-examination, the mother agreed that she did not tell the father about the appointment beforehand. She said that she “presumably” sent a text to him afterwards but was unable to produce the text.
A short time later, the father took X to have her eyes tested. X was prescribed glasses. The father bought two pairs of glasses and gave one pair to the mother. He also provided to her a report of the advice of the optometrist.
The family report was released on 7 May 2021. The reporter recommended a graduation to overnight time increasing over a period of time. The mother did not agree.
On 16 August 2021, orders were made after a defended hearing which provided for the children to spend time with the father on each alternate Friday after school until 7.00 pm Saturday, in addition to the time specified in the orders made on 19 December 2019. The effect of the orders was that the children spent each Saturday with the father.
The mother refused to allow the children to spend time with the father on the Saturday when they should have spent time with him from 9.00 am until 3.00 pm and the father brought the matter back before the court for the times to be specifically stated. This did not happen until 29 September 2021. The mother did not comply with the orders for the children to spend alternate Saturdays with the father during that period.
Y started school in 2022. The father texted the mother, “Would you mind if I am at the school on […], [Y’s] first official day to send her in too?” The mother replied, “She will be at before school care from 7 as usual so it is not applicable”. The father responded, “I’d be happy to look after them and take them for breakfast from 7 and then drop them at school. That would be nice for them don’t you think?” The mother relied, “No, she is in my care at that time”.
The father called the before school care centre and was told they had no objection to his coming and spending time with Y on her first day but that Y was not present at the centre. He called the school and confirmed that he could come to the school. At 9.20 am, the father watched from a distance as the mother walked Y into school for her first day.
File notes produced by X’s school counsellor show that in early 2022, the mother rang the counsellor and told her that, while she was running with X, X became frustrated and said “I don't feel like I want to live anymore”. The counsellor agreed to conduct a risk assessment.
Later that day, the counsellor spoke with X. She noted:
When asked what she likes about her mum she said she’s very helpful and kind but she gets angry sometimes. When asked what she likes about her dad she said he helps people… but he yells when he gets angry. [X] described having difficulty going between the two houses as she doesn't want to report things that happen at dad’s house to her mum for fear of them ending up in a fight.
X told the counsellor she was running with her mother and that she felt tired and frustrated because her mother was running ahead of her. The notes state,
[X] reported getting very stressed, upset and then she said that she says things sometimes that she doesn't always mean and she remembered saying the comment about not wanting to live any more. [X] was asked if she ever thought about harming herself and she quickly said “no never”.
X was assessed as being at no immediate or foreseeable risk of harm to self or others.
In early 2022, the children's school sent an email to parents asking for volunteer help at the before and after school centre. The father offered to help. He volunteered to work at the centre from 3.30 pm until 6.00 pm on Tuesdays. In cross-examination, he said that he had helped with a group of about 20 children which did not include his children.
In mid-2022, the father spoke to the children at the centre. He was not caring for them but said “Hello”. At 5.34 pm he received a text from the mother stating, “I will not be facilitating handover tomorrow. I will be corresponding with my lawyer to you asap.” The father asked, “Why not?” The mother replied, “You are in breach of court orders”. He texted, “How so?” She replied, “Read the court orders to remind yourself” and he responded,
I’ve read them. I haven’t breached anything. You will be in breach if you don’t facilitate my time with them tomorrow. Need I also note that you still haven’t allowed me to call the girls every day at 6 which is also a breach on your part?
The mother texted, “I’m sure you calculated the situation already.” The father asked, “What do you mean?” and the mother replied, “Talk to your lawyer in the morning”.
The exchange continued on the next day with the mother texting,
I have it noted that you had time with the girls yesterday directly in your care 3-6pm in lieu of this afternoon…
The father replied that the girls had not been in his care and the mother stated,
You were the carer with them. It is documented as such… The court has ordered your time only as Wed and fri 3-7 Sat 9-7. Only this time can they be in your care or contact … you had your time yesterday in lieu and were notified last night … Next handover due is Friday 3-7pm.
(As per the original)
The mother sent an email to the school and the after care centre in mid-2022 referring to the father’s volunteering as a breach of court orders. The mother wrote:
Deeply concerning, today Tuesday, [the father] was working at [the centre] 3pm-6pm. But also in direct care of [X] and [Y] outside of strict court ordered day and time. You have this on file as does the school and available again on request, both notified of this serious incident.
Please be aware that there court orders currently in place, a risk assessment and a court lodged undertaking for [the father]. With a history and ongoing reports of domestic violence.
I understand the severe staff shortages as I am affected too as a full-time single parent with two girls at [the centre]. But this is neither appropriate or safely responsible for [X], [Y] and all of the children in [the centre] and operations at the school. This must be addressed urgently.
Can I additionally request that the school Councillor be available this week for [X] as a result.
(As per the original)
The father was not provided with the email or told it had been sent. There is no evidence that the father had either a “history” of domestic violence or that there were “ongoing reports of domestic violence”. The only report by the mother was that made to the police in late 2019. The mother’s suggestion that the father was a risk to X and Y and to “all of the children in the [centre] and operations at the school” was untrue and the mother knew it to be untrue. At that time, it was the mother’s position that the children should be in the father’s care on alternate weekends and for short blocks during the school holidays. It is inconceivable that she would have maintained that position if she believed that the father was a danger not only to his own children but also to other children.
The court orders currently in place at the date of the email placed no restrictions on the father’s attending at the school or the after care centre. There was no court ordered risk assessment. The father had given an undertaking to the Court in late 2021, not to physically discipline or chastise the children (or allow any other person to do that) and not scream aggressively at the children.
The father was told by the centre that his assistance was no longer needed. He asked the mother if she was “…the reason why they've asked me not to help” and she replied, “Maybe they actually didn’t need your help anymore? Thank goodness for that”.
In mid-2022, the father sent a text to the mother saying, “[Y’s] teacher called to tell me that [Y] is receiving an award at the assembly this morning and inviting me to attend. I would like to attend. Do you have an issue with that?” The mother replied that she would be attending the assembly and the father pressed for an answer about whether he could also attend. She replied “It’s a free world”. The father did not attend.
The notes of the school counsellor in mid-2022 record:
Check in with [X] following email from mother around breach of family court order involving father working at after care on a day when he did not have court mandated custody of the children.
Mother sent email to school and after care quite angry in relation to this.
(As per the original)
The counsellor spoke to X and noted,
She reported feeling quite happy at the moment with no worries and that things are fairly peaceful apart from when mum and dad argue via text because her mother tells her about that.
She was unaware of her father working at after care as a volunteer on the wrong day and was made aware of this by her mother who told her that it was illegal.
(As per the original)
The mother denied that she had told X that the father’s volunteering was illegal but agreed that she told X he was wrong to do so.
On 22 August 2022, orders were made in defended proceedings which provided, relevantly, for the children to spend time with the father as follows:
3.Commencing the first week following the date of these Orders and continuing until 1 November 2022, the children shall spend time with the father during each school term in a fortnightly cycle as follows:
(a) In week one:
i. From after school on Wednesday or 3.00pm to 7.00pm;
ii From after school on Friday or 3.00pm to 7.00pm on Sunday.
(b) In week two:
i. From after school on Wednesday or 3.00pm until the commencement of school on Thursday or 9.00am;
4.From 1 November 2022, and continuing thereafter until the final hearing of this matter, the children shall spend time with the father during each school term in a fortnightly cycle as follows:
(a) In week one:
i. From after school on Wednesday or 3.00pm to 7.00pm;
ii. From after school on Friday or 3.00pm to 7.00pm on Sunday.
(b)In week two:
i.From after school on Wednesday or 3.00pm to before school on Friday or 9.00am.
5.For the purpose of the school holidays, the arrangements in Orders 3 or 4 shall be suspended and the children shall spend time with the father from 9:00am on the first Wednesday of the school holiday period until 7.00pm on Sunday.
…
12.Unless otherwise agreed between the parties, for the purposes of effecting the changeover pursuant to these Orders, the following will apply:
a.On school days, changeover shall occur at the children’s school and/or pre-school; and
b.On non-school days, changeover shall occur at such place as agreed between the parties in writing, and failing agreement, the father shall collect the children from the mother’s place of residence at the commencement of the children’s time with the father and the mother shall collect the children from the father’s place of residence at the conclusion of the children’s time.
…
The mother insisted that the father return the children to her at 7.00 pm at the school and refused to collect them from his home.
The order was silent about the arrangements for the Christmas holidays at the end of 2022. The father proposed that he have time with the children every second week in accordance with Order 12 made on 22 August 2022. The mother refused. In cross-examination she confirmed that it was her position that the children could spend time with the father in the first week of the Christmas holidays but otherwise they would be with her. The father made another application to the court and, over the mother’s objections, orders were made on 30 September 2022 for the children to spend time with the father between 9.00 am on Wednesday to 7.00 pm Sunday in each alternate week of the Christmas holidays.
Records produced by the Department of Communities and Justice (“DCJ”) include a notification from a person who worked for the N Program which the children attend. The notes record:
Reporter rang the mother today […] 2022 and she was talking about the financial impact of going through FC. The mother said “the children represented trauma to her”. She said she would not have had the children if she knew things would be this way. The mother made comments like “they are not my children, [X] can look after [Y]”. The mother said she has lost attachment towards the children. Reporter states the mother came across “cold” when she spoke about the children. She said she has only been feeling this way this week.
Reporter asked the mother if she has any self-harming thoughts and the mother said “no comment”. The mother did not want to refer to any support services because she was worried that the information will be subpoenaed. The mother said speaking to reporter was “triggering her” and she did not want reporter to call her again.
(As per the original)
In cross-examination, the mother agreed with the reporter’s account of their conversation with the exception that she did not say, “They are not my children. [X] can look after [Y]”.
The notes record:
Reporter saw the children last week and they appeared fine. [X] is caught between her parents. The children did speak about the mother’s partner… the children said mother and [Mr C] had some minor argument.
(As per the original)
In late 2022, the father notified the mother that he wanted to take the children to visit his parents in Victoria over the Christmas period. The mother replied,
We are having Christmas here in Sydney
I do not agree to the girls travelling interstate as you have not allowed me to do for the past three years.
You will need to apply to the court to travel to Vic.
Because I don’t give my consent
(As per the original)
The mother told the father that her family were coming to Sydney to spend Christmas with the girls. He asked, “Well, can they go to [City O] in a different week?”. The mother responded, “As above I do not give you consent to travel interstate with the girls” and the mother in cross-examination said she had not agreed.
In his trial affidavit, the father raised concerns about the behaviour of the mother’s then partner, Mr C. He deposed,
Both girls have told me that [Mr C] has thrown objects across the room at the wall in their presence. When they witnessed this [the mother] has also told them not to tell me about this.
[In late] 2022, [X] said to me words to the effect of “we had a horrible weekend Dad. [Y] and I sat in our bedroom the whole time listening to Mum and [Mr C] fighting. [Mr C] said “fuck” so many times and Mum called him a narcissist. I don’t even know what that means. All they did was yell all weekend”. [Y] chimed in and said “we weren’t in the bedroom the whole time. I went to the kitchen once but it was loud in there so I went back to [X]”.
Asked about this evidence by counsel for the ICL, the mother’s initial reply was “No comment”.
She eventually conceded that Mr C had thrown a vase “in my direction” and the vase had broken but insisted that the children had not been present although she conceded that the children’s account of the incident to their father was substantially accurate.
Documents produced by the police note that in late 2022, there was an incident in the mother's home between the mother and Mr C. The mother did not call the police.
X told her father about the incident and he reported it to the police who spoke to both the mother and Mr C in late 2022 and to DCJ. The mother gave a recorded interview and provided the information recorded below.
The mother told the police that X was hit by Mr P, Mr C’s son. Mr C was not at home at the time. When he returned home, the mother asked him to speak to Mr P and an argument ensued. The mother told police that Mr C’s behaviour escalated and she asked him to stop multiple times. She said Mr C stood over her. The notes record:
[The mother] was of the belief that [Mr C] was attempting to humiliate her and threatening to have her children removed from her custody. [Mr C] then informed [the mother] that she and her children were not allowed to have dinner.
Due to [Mr C’s] behaviour, [the mother] retreated to her bedroom located on the second floor. [The mother] stated that she was crying in her bedroom with her children when [Mr C] approached her and continued with the argument and mocked [the mother] for crying. [Mr C] was approximately half a meter away when he took one step, and with open palms, pushed [the mother] on the shoulder with force, causing her to fall on to the bed.
[The mother] informed police that she immediately stood up and punched/pushed [Mr C] in the stomach area immediately after, in an attempt to have him leave the bedroom. [X] witnessed the incident and was described by the mother as screaming and crying, requesting [Mr C] to stop.
[Mr C] left the bedroom however the argument continued …
The argument continued until 11.00 pm.
The father collected the children the day after the incident, in 2022.
The father told the police that X had told him she was told by her mother to “Keep it a secret”. The mother denied that she said that to X but it is likely that she did. The mother did not herself report the incident to the police and she did not tell the father about it. In cross- examination, she said that she didn’t tell the father “because I felt I couldn’t trust him with that information”. It is likely that she also told X not to tell her father for the same reason.
Mr C was arrested and charged with multiple offences. He has pleaded guilty to an offence. An Apprehended Domestic Violence Order (“ADVO”) was issued for the protection of the mother and the children.
Mr C left the mother’s home in late 2022 and their relationship is ended.
In cross-examination, the mother said that the children were emotional and upset after the incident and that either one or both of them started wetting her bed. She did not tell the father.
She did not tell the father that she had asked the school counsellor to speak to X on that, or any other, occasion.
In late 2022 there was a phone meeting between the mother and the school counsellor. The mother told the counsellor about the incident in late 2022 and that Mr C “was charged and given an ADVO”. The mother said she was “trying to find a rental property at the moment and they might be moving because of this”. The counsellor recorded, “I asked if she was seeking psychological support as she appeared distressed and she indicated that she is reluctant to do so, given that her records can be subpoenaed at any stage”.
The mother refused to respond to the father’s texts asking if Mr C had left the house. A text exchange a short time later, in 2022, about the possibility of both parents moving back to City O with the children, is reproduced below;
Father: [Mr C] isn’t there anymore.
Mother: Since when?
Father:Last week sometime. The girls said him and [Mr P] weren’t around anymore and you had to move house. Is none of that true?
Mother:You haven’t communicated at all with me even though you called the police to my house.
Do you want to talk about that?
(As per the original)
The exchange continued but the mother did not tell the father that Mr C had moved out.
The father’s solicitors wrote to the mother asking her to give an undertaking not to bring the children into contact with Mr C. She refused. In cross-examination she said the undertaking was not necessary because of the terms of the ADVO against Mr C. There is no evidence that the father had been made aware of the terms of the ADVO. The mother did not tell him.
The mother, in cross-examination, continually answered questions put to her in relation to her failure to communicate with the father by asserting that these were historic failures and that communication between the parents had improved. There is no evidence to support that assertion. To the contrary, when asked about their communication, she said that the failure to communicate was embarrassing “that we haven’t been able to do it better – it’s a failure”. She said, “we really need to be able to do it… the friction that I have with the father is by not communicating.” She said that communication by text message is an adequate method of communication but when pressed, she retracted that assertion.
There are numerous text exchanges annexed to the father’s affidavit where he asks the mother for basic information such as the date of an appointment for the children and her response is “talk to your lawyers”.
On 16 December 2019, an order was made in relation to the children communicating with the father by FaceTime or telephone each evening. The mother has not complied with orders relating to the children having FaceTime or telephone communication with their father daily. The mother said that she had encouraged the children to call their father, “probably once a month over the course of the last year” but that the children had not, in fact, called him on any of those occasions.
In contrast, the mother agreed that she is able to speak to the children when they are in the care of their father
The mother complains of a number of occasions when she asserts that the children were injured while in the care of the father although in cross-examination, she said that she did not allege that he had hurt the children but rather that he was negligent in caring for them.
The mother photographed the injuries. None required a doctor’s attention.
Although she agreed that the children also hurt themselves while in her care, those injuries were not photographed. The mother said that when she told the father that the children had been hurt in her care, he always accepted her explanation.
The father told the mother when the children were injured and told her how the injury had occurred. His explanations, in his affidavit, are consistent with children playing and I do not accept the injuries are indicative of the father’s being negligent in his care of the children.
CONSIDERATION
These children have a secure and loving relationship with each of their parents and it is not in dispute that they will both benefit from maintaining those relationships.
The issue for determination is which parent is more likely to allow the children to maintain their relationship with the other parent.
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The children’s views have not been canvassed.
When X was interviewed by the expert in 2021, she said that she would like to spend more time with her father and to stay overnight with him.
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The expert observed a loving relationship between each parent and the children.
X told the expert that she “gets on good” with Ms B. And the mother deposed that in mid-2022, Y said to her, “I have two mums, [Ms B] and you” which suggests that Y has a comfortable and loving relationship with Ms B.
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
It is not in dispute that, at least since late 2019, the father has attempted to participate in decision making for the children, and to spend more time with them, the mother has staunchly resisted those attempts.
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Whilst the mother was critical of the father’s financial contributions towards the care of the children, she does not suggest that he did not pay child support as assessed from time to time.
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children are currently in the father's care for four nights each fortnight. On his proposal, that time would increase to nine nights and the time with the mother would decrease from ten nights per fortnight to five nights and they will spend half of the holidays with her.
On the mother’s proposal, the time the children spend with the father will not change and they will not have any extended holiday periods with him.
There is no evidence that the children will not be able to maintain their current relationship with their mother in the time the father proposes they spend with her.
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
At the present time, both parents live in Sydney, a short distance apart. There is no practical impediment to the children spending time with each parent.
While in the mother’s care, the children have not maintained regular contact with their father by FaceTime or telephone and nothing in the evidence suggests that this is likely to change because the mother has no wish to change. She did not give evidence that she has any proposal which would improve either her ability to communicate with the father or her ability to allow the children to communicate with him.
In the Minute of Orders which she proposed, the mother includes the following order:
14.The children shall have FaceTime communication with the party with whom they are not living or spending time with from 6.00pm to 6.15pm on such days as agreed to between the parties and failing agreement, every second day for this purpose, the party with whom the children are not spending time with shall initiate the call.
On 16 December 2019, an order was made in very similar terms and the mother did not comply with that order. There is no reason to assume that she will comply with the order she proposes.
The father has facilitated the children’s communication with their mother when they are with him overnight and there is no reason to assume that he will not continue to do so.
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Each of the parent is capable of providing for the children’s physical and intellectual needs.
There was evidence in relation to the mental health difficulties of each of the parents but I am not satisfied that either parent is not able to care for the children adequately by reason of any mental health issues.
The mother’s past behaviour raises doubts that she is the better parent to provide for the children’s emotional needs.
It is likely that she has told the children not to tell their father about events in her home associated with family violence perpetrated by Mr C.
She has inappropriately involved X in her dispute with the father.
The court expert reported that, when she interviewed X in February 2021, “Without prompting, she said, ‘Mummy says that Daddy is a big liar but he is not lying’”.
The reporter from the N Program referred to X being caught between her parents.
The school counsellor reported that X had “difficulty going between the two houses as she doesn’t want to report things that happen at dad’s house to her mum for fear of them ending up in a fight”.
Further the school counsellor reported that X knows when her parents argue by text because her mother tells her and that the mother told X that the father was illegally volunteering at the after care centre. Even on the mother’s version, the mother told X that it was wrong for the father to be at the after care centre.
The mother’s willingness to malign the father in her communications with the children’s school and carers is concerning. Her assertion that the father posed a danger to the children and to all of the children at the school and the after care centre is egregious.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother has not demonstrated any willingness to include the father in decisions relating to the children or even to consult with him before making decisions.
Such was the mother’s focus on obstructing the father’s time with the children, that she sought an order restraining him from undertaking paid employment at their before and after school care centre. Given that the children would only be in the centre because the mother is at work and not able to care for them, the mother’s attitude to the father’s assisting with their care can only be prompted by her need to exclude the father.
The mother’s refusal to allow the father to participate in Y’s first day at school was both unreasonable and indicative of her unwillingness to consider the children’s interests where they do not align with hers.
The father’s actions, such as not insisting on participating in the first day at school but watching from afar, and not attending the school assembly when Y was receiving an award, give confidence that he is able to put the children’s interests above his own.
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The intractable nature of the communications between the parents, or the lack of communication, has led to the circumstances that the children have not received care which both parents thought was necessary.
Both parents believe that X should see a psychologist but, despite negotiations since 2020, they have not managed to agree on how that might happen.
The mother in cross-examination, said that there was a possibility that, if the children lived with the father, they would be asked to leave their present school because they would no longer live within the catchment area.
The father’s evidence was that he would keep the children in their present school.
In the course of the hearing, the mother had a conversation with one of the administrative staff at the school and was told that the school would not require the children to leave. She did not tell the father that. Ultimately, the ICL was able to speak to the school principal and was assured that the children would not be required to leave the school.
The mother presently lives within the school catchment area but she is looking for alternate accommodation which is more affordable. Her evidence was that she wants to stay in the area or, in the alternate, in the suburbs close to her work. There may come a time when the children’s present school is inconvenient to both of the parents. It is difficult to predict that they would then be able to agree on an alternate school.
For those reasons, it is appropriate that the parent in whose care the children will primarily live will have sole parental responsibility.
The mother, throughout the proceedings, has been adamant that the father’s time with the children should not increase beyond alternate weekends, one overnight in the second week and alternate weeks in the school holidays. There is no reason to expect that she will ever agree to the children spending block periods of time with the father in the Christmas holidays or to their spending more time with him during school terms.
CONCLUSION
I give greatest weight to my assessment that, in the father’s care, the children will be allowed and encouraged to have a close and loving relationship with their mother and to communicate with her as they wish.
I am persuaded that the father’s primary proposal is appropriate. Whether the children spend seven nights out of every fortnight or five nights out of every fortnight with their mother will have no effect on their ability to maintain their relationship with her. The five nights out of every fortnight arrangement will provide the best opportunity for the children to pass from the care of one parent to the other without the need for the parents to be present and without difficulties about the provision of school uniforms and the like.
The children will live with the father and spend five nights in each fortnight and half of the school holiday periods with the mother.
ANCILLIARY ORDERS
The mother seeks orders for shared time on parents’ birthdays, children’s birthdays, Easter, Christmas Day, New Year’s Eve and New Year’s Day. On each of those occasions the mother’s proposal involves a changeover that, with the possible exception of the birthdays, will not occur at school.
Both the father and the ICL proposed that there be no changeover on Christmas Day and that the children spend the first half of the Christmas holidays with one parent, noting that both parents’ extended families live in country Victoria.
I do not propose to make any orders about the parents’ birthdays.
X’s birthday falls in a holiday period. Y’s birthday is likely to fall during a school term but can still be celebrated with each parent, although perhaps not on the day of the birthday.
It is appropriate that the children have the opportunity to have a block period of time with each parent in the school holidays so that each is able to arrange to spend Christmas with his or her extended family and also able to travel with the children if he or she should wish to do so.
Easter holidays will alternate.
The father’s proposal is the least likely to lead to stressful changeovers on special days.
Both parents ask for an order restraining physical discipline.
The mother sought an order that each parent pay for the before and after care costs on the days that the parent uses the services. That is not an order that can be made other than as a Child Support Departure Order and since no notice of the proposed departure was given to the Child Support Registrar no order will be made.
COSTS OF THE INDEPENDENT CHILDREN’S LAWYER
An application was made for the parents to equally pay the costs of the children’s representation.
However, these parents are not in strong financial positions and I do not propose to make any order.
I certify that the preceding one hundred and sixty-seven (167) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 22 March 2023
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