Rask & Owyong
[2021] FedCFamC2F 238
•29 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rask & Owyong [2021] FedCFamC2F 238
File number(s): SYC 2760 of 2019 Judgment of: JUDGE BOYLE Date of judgment: 29 October 2021 Catchwords: FAMILY LAW – parenting – Equal shared parental responsibility – Children’s time with father – Overseas travel Legislation: Family Law Act1975 (Cth), s 60CC Division: Division 2 Family Law Number of paragraphs: 42 Date of hearing: 11-13 October 2021 Place: Sydney Counsel for the Applicant: Mr Blackah Solicitor for the Applicant: Wmd Law Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: Longton Legal ORDERS
SYC 2760 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RASK
Applicant
AND: MS OWYONG
Respondent
ORDER MADE BY:
JUDGE BOYLE
DATE OF ORDER:
29 OCTOBER 2021
THE COURT ORDERS THAT:
1.The parties shall have equal shared parental responsibility for the children, X born in 2014 (X) and Y born in 2017 (Y) (collectively as the “Children”).
2.The children shall live with the Mother at all times they do not live with the Father pursuant to these orders.
3.The children shall live with the Father at the following times during school terms:
(a)Each alternate weekend from after school, pre-school or childcare Friday to 5pm Saturday, and from after school or pre-school each Tuesday to before school or pre-school or childcare Wednesday.
(b)Commencing the second weekend of Term 1 2022, from after school, pre-school or childcare each alternate Friday to 5pm Sunday, and from after school or pre-school each Tuesday to before school or pre-school or childcare Wednesday.
(c)Commencing the second weekend of Term 3 2022 from after school, pre-school or childcare each alternate Friday to before school, pre-school or childcare Monday, and from after school or pre-school each Tuesday to before school or pre-school or childcare Wednesday.
(d)Commencing the second weekend of Term 2 2023 from after school, pre-school or childcare each alternate Friday to before school, pre-school or childcare Monday
4.The children shall spend time with the parents over the Christmas period as follows:
(a)With the Father at Christmas from 9:00am Christmas Eve to 3:00pm Christmas Day commencing in 2021 and continuing each alternate year thereafter;
(b)With the Father at Christmas from 3:00pm Christmas Day to 7:00pm Boxing day commencing in 2022 and continuing each alternate year thereafter;
(c)With the Mother at Christmas from 3pm Christmas Day to 7:00pm Boxing Day commencing in 2021 and continuing each alternate year thereafter;
(d)With the Mother at Christmas from 9:00am Christmas Eve to 3:00pm Christmas Day commencing in 2022 and continuing each alternate year thereafter;
5.The children shall spend time with the father over school holidays as follows:
(a)During the 2021/2022 summer school holidays from 9am 1 January 2022 until 5pm 4 January 2022, from 9am 8 January 2022 until 5pm 11 January 2022, and from 9am 15 January 2022 to 5pm 18 January 2022.
(b)During the holidays at the conclusion of Term 1 2022 from 9am Friday 15 April 2022 to 5pm Tuesday 19 April 2022.
(c)During the holidays at the conclusion of Term 2 2022 from 9am Friday 8 July 2022 until 5pm Tuesday 12 July 2022.
(d)During the holidays at the conclusion of Term 3 2022 from 9am 29 September 2022 to 5pm 4 October 2022.
(e)During the holidays at the conclusion of Term 4 2022 for two periods of 6 nights on specific dates as agreed in writing, and failing agreement from 9am 2 January to 5pm 7 January, and from 9am 13 January 2023 to 5pm 19 January 2023.
(f)From 2023 one half of each of the short term holidays to commence on the last day of school term and conclude at the mid point of the holidays at 5pm in odd numbered years, and from the midpoint of the holidays at 9am until the day before school resumes in even numbered years.
(g)During the summer school holidays subject to order 4 herein, in 2023 and 2024 on alternating weeks commencing the last day of school and concluding at 5pm on the day before school resumes.
(h)During the summer school holidays 2025 and thereafter, subject to order 4 herein, for one half of the school holidays to be the first half in even numbered years and the second half in odd numbered years
6.The children shall spend time with the parents on special occasions as follows:
(a)With the parent who does not have care of the children on their birthday’s from 3pm to 7pm if the birthday falls on a school day and from 9am to 1pm if the birthday falls on a weekend;
(b)With the father, on the father’s birthday from 3pm to 7pm if the birthday falls on a school day and from 9am to 5pm if the birthday falls on a weekend;
(c)With the father, on Father’s Day weekend from 5pm on the Saturday immediately before Father’s Day until 5pm Father’s Day;
(d)With the mother, on the mother’s birthday from 3pm to 7pm if the birthday falls on a school day and from 9am to 5pm if the birthday falls on a weekend;
(e)With the mother, on Mother’s Day weekend from 5pm on the Saturday immediately before Mother’s Day until 5pm Father’s Day;
(f)With the mother from 9:00am on the eve of each Lunar New Year to 3:00pm on the second day of the Lunar New Year.
7.That in the event that the mother proposes to take the children from Australia to Country B she must on each occasion pay into her solicitor’s trust account the amount of $100,000 which shall not be returned to her until after the children are returned to Australia.
8.Within 7 days of these orders, each party shall do all things necessary to enrol in the Keeping Contact Programme through C Family Centre and attend as directed, and participate in any courses or mediation they may be referred to, and shall remain engaged with the programme for not less than 12 months, or such longer period as recommended.
9.Within 7 days of these orders, the father shall propose a mobile telephone app for the parties to jointly use for communication and to maintain a calendar of the children’s activities such as My family Wizard or 2Homes, and the parties shall each meet their own costs of use of the app, and maintain the app.
10.That except in case of a medical emergency, or if otherwise agreed in writing, the parties shall ensure that the children attend Dr D at Suburb E Medical Centre, F Mall, or such other doctor in the practice as is available.
11.That each party shall keep the other advised of any referrals for the children to specialist doctors or allied health professionals, and ensure that the other party is aware of any appointments made so that they have the opportunity to attend.
12.That each party shall advise the other as soon as is practicable, and within 2 hours, of either of the children having any medical emergency, which advice shall include the nature of the emergency and the name of the treating doctor.
13.That each parent shall consult with the other prior to enrolling either child into extracurricular activities, and if the activities occur during the other parent’s time the child shall not be enrolled unless both parties agree.
14.That each party is restrained from denigrating, or speaking critically about the other parent in the hearing or presence of the children, or permitting anyone else to do so.
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 the pseudonym Rask & Owyong has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYLE
These are parenting proceedings with respect to the parties’ two children, X born in 2014 who will soon be seven years, and Y born in 2017 who is now four years.
BACKGROUND
The parties commenced their relationship in 2005, and separated in 2018. X was three years, and Y eleven months, when they separated. Brief periods of time with the father occurred following separation.
The proceedings were commenced by the father on 3 May 2019, and interim orders were made for increasing day time periods between the father and children. At the time of the hearing no overnights had occurred between the children and father.
APPLICATIONS
The father seeks equal shared parental responsibility of the children. The father sought time each Tuesday after school, and each alternate weekend from Friday until Sunday. There is a graduated increase of time, culminating in an equal time arrangement from the beginning of 2023. He seeks holiday time, and on special occasions. He sought that the children be put on the Airport Watchlist until January 2023, and additional orders with respect to overseas travel on security provided by the mother.
The mother seeks sole parental responsibility, and that the children live with her and spend time with the father as agreed between the parties. In the event that equal shared parental responsibility is granted, the mother sought that she has makes the final decision with respect to Y’s eye surgical treatment and the children’s enrolment in school. If parties cannot agree on the father’s time with the children, the time each alternate week from Friday to Saturday, increasing to Friday to 5pm Sunday from Term 2 2022, and from Term 2 2023 from Friday to the Monday, with time in holidays and special occasions.
ISSUES
The issues for determination are:
(a)The manner in which time between the children and their father should progress, including the pace of increasing overnight time.
(b)The endpoint for the children’s time with the father, and whether that should be an equal time arrangement.
(c)The extent to which either parent has engaged in family violence, and the extent to which that would impact on the parent’s ability to share parental responsibility
(d)Whether there should be an order for equal shared parental responsibility for the children.
(e)What, if any, restraints should exist on overseas travel for the children to Country B.
TIME ARRANGEMENTS
The manner in which time between the children and their father should progress, including the pace of increasing overnight time.
The endpoint for the children’s time with the father, and whether that should be an equal time arrangement.
The proposals of each of the parties would give the children the benefit of a meaningful relationship with each of their parents.[1] These children are not at risk from either of their parents, in the sense set out in the legislation.[2] Risk to these children arises from their parents’ inability to communicate effectively at times, and the lack of trust between them.
[1] Family Law Act1975 (Cth) s60CC(2)(a).
[2] Family Law Act1975 (Cth) s60CC(2)(b).
The children need their parents to work together in their interests. The parents need assistance to achieve that. It is clear from the observations of the report writer that the children have a close relationship with each of their parents.[3] There is nothing in the evidence that supports it being in the children’s interests for time with the father to not exceed one night each week during school terms, as the mother proposes. Nor is there anything to suggest that the children could not manage spending half the school holidays with each of their parents, once Y is a little older.
[3] Family Law Act1975 (Cth) s60CC(3)(b).
The father seeks that the endpoint of time arrangements be an equal time arrangement. Such arrangements work best, as the report writer noted, when parties are able to be flexible and cooperative with each other. I would add when each parent trusts the others’ parenting capacity and decision making ability. The parents do not have that kind of relationship at the present time. It is clear on the evidence that neither trusts the other.
These children have diverse and rich cultural backgrounds from their mother’s Country B background, to their father’s Anglo-Australian background.[4] They are growing up as bilingual children, which I accept is in their best interests. This will promote their connection to both their families of origin, and enable them to communicate with their extended maternal family.
[4] Family Law Act1975 (Cth) s60CC(3)(g).
The mother has no issue with the father taking the children to church services from time to time. Religion is not a major issue for either party.
The father has suggested that the children lead an isolated life with their mother, without a great deal of social contact. This hearing began on the first day of New South Wales emerging from a lockdown of some 16 weeks. Prior to that there have been restrictions at different times since March 2020. It is difficult to assess the father’s concerns within that context. It would appear that in the mother’s care, the children are engaged in a range of activities: they play in the park with friends, and their dog; X participates in sports; they know people within their local community. X attends a local public school, and Y a local pre-school. They have been invited to friends’ birthday parties, and had friends to play at home. There is no evidence upon which I could find that the children are socially isolated when with the mother.
The mother’s attitude towards learning and education is perhaps more rigid than the father. She and her parents were observed by the report writer to focus on meeting the children’s needs: “at times this seems to involve a somewhat intense focus on aspects of their day-to-day care and routines”. This accords with the mother’s oral evidence.
The parties each have different attitudes towards the responsibilities and duties of parenthood. The mother is critical of the father’s parenting capacity. In her view the father is able to play with them, but she is not confident that he is able to attend to other needs such as engaging in homework, teaching the children, and managing their day to day lives. As the report writer noted children learn many things through play, including sharing. It is valuable for a child’s development. There is nothing in the evidence that the supports the father’s incapacity to meet the children’s needs. He has done so in the time he has spent with them.
It is clear from the material that the mother is particular about hygiene and cleanliness. An example of this is that, prior to X’s birth, she purchased a washing machine to use solely for X’s clothing. She used a different washing machine for all the other household washing. On her evidence she continues to wash the children’s clothing in a separate machine.
The father does not share the mother’s views about those matters. This difference with respect to matters of cleanliness and hygiene has been a source of conflict between them. This has included matters such as the return of swimming costumes mixed with other clothing. There is nothing adverse for the children in either of the parties’ approaches. Their approaches are simply different, and reflect their different backgrounds and outlooks. The parents need to respect the different approaches of the other. These are matters that go more to trust between the parents, than to issues of parental competency.
I accept that the different views of the parties have caused friction between them. The referral of the parties to the Keeping in Contact programme is in part to address issues, and to assist their communication.
I do not accept that an equal time arrangement for the children is sustainable given the parties’ relationship, and attitude to each other. The children need to be able to develop a secure relationship with their father through regular overnight time with him. I accept that this should happen in a graduated manner, particularly taking into account Y’s developmental needs and ability to sustain separation form his primary carer. He will start school in 2023.
The children are used to a routine of seeing their father each week. The orders I propose making build on that arrangement until block periods of 4 nights each fortnight commence in term 2 2023. This is to give Y an opportunity to settle into school before longer, fortnightly periods commence. Blocks of time mean that both the children and the parents do not need to manage too many changeovers. This minimises the possibility of homework, and things they need for school, being left in the other home. It is intended to minimise the potential for the children to be exposed to conflict between their parents.
The extent to which either parent has engaged in family violence, and the extent to which that would impact the parent’s ability to share parental responsibility
The parties have engaged in poor behaviour with each other. This have had disputes over, for example, the use of a blanket. When the children were little and co-sleeping, the mother used a particular blanket as a buffer to stop the child falling out of the bed, or being rolled on by an adult. On an occasion the father was leaving the bed to sleep elsewhere, he tried to take the blanket. The mother did not agree. This dispute led to pushing and shoving between the parents over the blanket, and ended with the mother being pushed against a wall by the father. This was done with sufficient force to cause a crack in the wall. This was unacceptable behaviour.
As was clear from their evidence, each parent regards the other as being at fault on this occasion. I find that each participated in the dispute. I note that it occurred at night, when the father was leaving the bed to sleep on the couch. The children were in bed with the parties. He wanted to take the blanket to use on the couch. Neither party were prepared to give way, which led to a tug of war. Each agreed there was no shortage of bedding that could be used. Each regarded the other as at fault. Neither were prepared to concede their role in the dispute, nor displayed insight into their conduct.
I do not find that the mother was subjected to family violence by the father. I find that both parents engaged in argumentative and disrespectful behaviour. The mother was clear that she is not frightened of the father. There have been no incidents of any type of family violence following separation.
Both parents need to have regard to their behaviour, and the inappropriateness of it. Fortunately it has not been repeated between them following separation.
The mother raises a concern that as the children grow older, they may have disagreements with the father which could lead to him responding in a physical manner towards them. The father has previously slapped the mother during the course of an argument. His evidence is that she slapped him back harder. The mother denies doing that. I do not find this incident significant for the father’s care of the children. Theirs was not a relationship marred by family violence.[5] Their disputes are more about their incapacity to agree and deal calmly with each other. This causes verbal disputes to escalate, with neither prepared to give ground.
[5] Family Law Act1975 (Cth) s60CC(3)(j).
In my view, both parents would be assisted by participating in a program that assists their communication with each other, and developing an understanding and respect for the strengths of the other as a parent. The report writer considered anger management courses as not terribly effective, and that a men’s behavioural change course would be unlikely to accept the father based on his conduct. She regarded a programme such as Keeping Contact as appropriate.
There has been some recent improvement in the parties’ capacity to communicate, and make arrangements to vary orders between them. The use of an app such as MyFamilyWizard or 2homes has been identified by the report writer as perhaps benefiting the parties. It would be helpful that they have a calendar they can utilise for the children, so that each is aware of appointments scheduled for things like speech therapy and other matters.
It would also be helpful for these children not to be exposed to dispute between their parents, and the potential for conflict. I accept that once both children are at school, the potential for disputation between them increases, as the children’s lives become more complicated. There is the movement of a number of items between parents’ households, with which the children may need assistance. One would expect for these children that would include things like musical instruments, sporting equipment, homework, consent forms for excursions, and school projects.
The use of school to collect and return children can provide children with an important buffer in moving from one household to another. They do not have to instantly manage the shift between households with different rules and expectations. They do not need to deal with tension between their parents, the two most important people in their lives. I find this would be of assistance to X and Y, particularly once Y commences at school. At the present time, the mother delivers Y to the father outside X’s school from day care. It would be helpful for the father to collect both children from their school and day care, and return them to school and day care. It allows the children to settle into time with each of them, and be confident that their parent can manage those situations for them.
The mother is clearly a competent and caring parent. She does, however, have a lack of regard for the father’s capacity as a parent. It would be helpful if she can appreciate the benefits that the children have from their relationship with their father. The father needs to grow in his understanding and respect of the mother’s views on parenting. Increasing respect for each other is likely to minimise conflict.
The parties’ dispute over celebrating X’s birthday exemplifies some of these matters. The father wanted to swap afternoons, so the children were with him from after school to 7pm on her birthday. The mother did not regard this as giving her time with the children on X’s birthday, although they were waking up in her home. She proposed dividing the afternoon time, as she did not regard the morning before school as significant. The father proposed that he collect them from the mother at 5pm, and have them overnight as a compromise. In cross examination the mother was clearly upset by the father’s proposal, referring to it as “unfair”. When asked unfair to whom, she was clear: unfair to her. This was not about what the children might prefer, or what might work for them. I accept that this is indicative of her view that the father’s role in the children’s lives is not as significant as hers.
As the report writer has noted, conflict is the factor that will cause problems for these children. Neither party seem to have addressed or really considered that as being an issue. Time with the children and their father culminating in four nights each fortnight, will ensure their security in their relationship with their father. It also has the benefit of not challenging the mother to such an extent that she cannot fully support their relationship with the father.
Orders that provide for time to gradually increase to two nights, then to three nights, culminating in four nights and half school holidays I find are in the interests of these children. As Y settles into school, an arrangement that moves to one longer weekend with the father rather than a back and forth should minimise the potential for conflict between these parents.
What, if any, restraints should exist on overseas travel for the children to China
Country B is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). The father has raised a concern that were she to travel to Country B she may not return the children, without providing a security. He also regards this as being a greater risk when the children are younger. The mother argues that she has made her life in Australia, has studied in Australia since she was 19, owns has an interest in three properties in Australia, and has no intention of returning to live in Country B. She became an Australian citizen in 2010. On her unchallenged evidence this required her to relinquish her Country B citizenship, so that she requires a visa for travel to Country B.
The maternal grandparents have permanent residency status in Australia, which they obtained in 2011. The maternal grandfather has returned to Country B in 2021 to care for his elderly and unwell mother. The mother would like the children to take the children for holidays to Country B, as she did during the marriage. She anticipates doing that in the June school holidays. She wants the children to see their grandmother, whose age and health does not permit travel to Australia. Engagement with their extended family is important for the children. They should be able to do so in Country B.
I accept that the wife is committed to residing in Australia. She is supported in this by her parents. She has made a settled life here, including investing in property. She is prepared to put up $100,000 as security for the return of the children to Australia. The husband agreed during the course of the hearing that was an adequate amount, rather than the $200,000 initially contended. The husband additionally sought a restraint on travel prior to 2023. I do not regard that as necessary to ensure the children’s return to Australia, and do not propose restraining travel. There may be health issues in the mother’s family that require travel earlier than that, and I do not propose inhibiting that.
PARENTAL RESPONSIBILITY
As is clear from the findings with respect to family violence, I do not regard the allegations made by the mother as a basis for disturbing the presumption that there should be an order for equal shared parental responsibility. The orders will provide for significant and substantial time between the children and their father.
The parties are both educated people. The mother is dubious that the father is invested in the children’s education, as she sees him as only playing with the children rather than involving himself in more formal aspects of X’s education. Play for children the age of these children is very important. The children learn important skills of sharing, negotiation, problem solving, and other matters. That the father has not promoted educational activities as much as the mother, does not mean he is not interested in their education. I find that he is. Both parents have involved themselves in X’s reading homework for school. Both parents support X learning to play an instrument, and encourage her to practise.
The example of potential conflict over, for example, tutoring prior to selective high school examinations was raised. Firstly, that is not an issue of parental responsibility. Secondly, parents need to resolve which activities children engage in when it occurs during time the children spend with each of their parents. If it is not agreed, extra-curricular activities can happen only when with the parent promoting the activity, or not at all. Having heard the evidence of both parents, I do not doubt that they are both committed to their children receiving a good education, and having access to a range of opportunities through extra-curricular activities.
The mother raised in her orders, although there is scant evidence about it, an issue of treatment for a “lazy eye” for Y. On medical advice they have used an eye patch to assist him. It is unclear on the evidence to what extent the problem is resolved. The mother is concerned that the father may seek a surgical option for treatment, which she does not presently favour.
The evidence supports that both parents seek medical assistance for the children, and act reasonably with respect to advice given. As was raised with the parties during submissions, orders requiring the parties to take the children to the same medical practice would assist. They can both build a relationship with the GP, as can the children. The children have one complete medical history, which can be useful for them. If necessary, the parents can seek a referral to a suitable paediatrician to provide advice as may be required.
Both parties have engaged with the children’s health and development. It is extraordinary that the parties’ communication was so poor Y was seen by two different speech therapists. This is a problem for the parents to work on, so they improve their communication. Both of them give evidence that they are prepared to work on these issues. A programme such as Keeping Contact, suggested by the report writer, will assist the parties. Such services also provide referrals to mediation, which may help where disputes occur. Whilst the parents have some difficulties in reaching agreements at the present time, they are working towards improving that. I do not find there is a basis for ordering sole parental responsibility to the mother, and instead propose ordering equal shared parental responsibility for the children.
CONCLUSION
As is clear from these reasons, I find that both parents have a great deal to offer their children. The orders are intended to assist the parties improve their communication, and to minimise the potential for the children to be exposed to conflict between them. This will allow the children the best opportunity to develop a meaningful relationship with each of their parents.
I certify that the preceding forty two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boyle. Associate:
Dated: 29 October 2021
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