Roland & Atkins
[2008] FamCA 857
•20 August 2008
FAMILY COURT OF AUSTRALIA
| ROLAND & ATKINS | [2008] FamCA 857 |
| FAMILY LAW – CHILDREN – WITH WHOM A CHILD LIVES – In October 2005 parties consented to final orders that provided for the children to live half time with each parent and change overs to occur weekly – This arrangement did not work as the parties have not established a reasonable level of communication and are not parenting cooperatively – Eight months after the final orders were the father filed an Application seeking to change the orders wanting to keep the week about arrangement but change the way it was implemented – Mother wants to change the arrangement so that the children live mainly with her and spend time with the father – Rule in Rice and Asplund – If the week about arrangement continues or the children live with the father it is more likely that the father’s controlling behaviour will lead to further proceedings concerning the children – Ordered that the children live with the mother and spend time with the father each alternate weekend and half of school holidays FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Presumption of equal shared parental responsibility – Father’s controlling behaviour and the parents’ poor communications and relationship dictate that it is contrary to the children’s interests for the parties to have equal shared parental responsibility – It is in the children’s best interests that the father have responsibility for day to day decisions when they are in his care and otherwise the mother have sole parental responsibility FAMILY LAW – CHILDREN – CHILD’S VIEWS – The children expressed a preference for a week about arrangement of equal shared care – Because of the children’s exposure to the litigation and the competing proposals the children’s expressed preferences are not free choices but a product of that exposure – Because of their ages the expressed preference does not involve any careful understanding or consideration by the children of all the short term and long term implications of the options – Little weight can be given to the children’s expressed preferences for living arrangements FAMILY LAW – CHILD ABUSE – Emotional abuse – Father’s behaviour that exposes the children to or involves them in controlling behaviour by him, his conflict with the mother and the step-father and the litigation is emotionally abusive |
| Family Law Act 1975 (Cth) |
| Freeman and Freeman (1987) FLC 91-857 Rice and Asplund (1979) FLC 90-725 |
| APPLICANT: | Mr Roland |
| RESPONDENT: | Ms Atkins | ||||
FILE NUMBER: | NCF | 527 | of | 2006 | |
| DATE DELIVERED: | 20 August 2008 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | JUSTICE MULLANE |
| HEARING DATES: | 24 April, 4 & 6 September and 15 October 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr M Graham |
| SOLICITOR FOR THE APPLICANT: | Dawson Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr P Hartley |
| SOLICITOR FOR THE RESPONDENT: | Trisley Kilmurray, Solicitors |
Orders
Any existing parenting orders for the parties’ children Y born … June 1999 and E born … April 2001 are discharged, except the Order of 24 April 2007 requiring the parents to each complete a Parenting After Separation course and the Orders made by consent on 15 October 2007.
The children are to live with the mother.
The children are to spend time with the father as follows:
3.1each second weekend in school terms from end of school Friday to start of school Monday (Tuesday if the Monday is a public holiday or pupil free day);
3.2in school terms on a Monday, Tuesday, Wednesday or Thursday from end of school overnight to start of school the following day if during that period there is any time when none of the mother, her de facto husband and the maternal grandmother is available to supervise the children;
3.3for half of each school vacation being the first half of a vacation commencing in an odd numbered year and the second half of a vacation commencing in an even numbered year; and
3.4such other periods as the parents agree.
The mother must give the father prompt written notice of any Mondays, Tuesdays, Wednesdays and Thursdays under Order 3.2 as soon as she become aware that none of her, her de facto husband and the maternal grandmother will be available to supervise the children for any part of the period between end of school that day and start of school the next day.
The children’s time with the father under orders 3.1 and 3.2 is to be implemented by the father arranging collection of the children from their school (or after school care) at the start of the period, return of the children to their school (or before school care) at the end of the period, and payment of the fees for any after school care or before school care.
When the children are spending time with the father he has parental responsibility for decisions as to their day to day care.
The mother has sole parental responsibility for decisions as to the school(s) the children attend and any major decisions as to their education.
The parents must ensure that the children do not worship in any faith other than the Seventh Day Adventist faith unless the parents otherwise agree in writing.
Otherwise the mother has sole parental responsibility for the children.
The time the children spend with the father under Order 3.3 is to be implemented by the mother arranging another person known to the children (other than her husband) to deliver the children to outside the father’s residence at 9am on the first day of the period and the father arranging for another person known to the children to deliver the children to outside the mother’s residence at 4pm on the last day of the period.
During school vacations the parent with whom the children are at the time is to facilitate telephone communication by the children with the other parent between 7pm and 7.30pm each Monday and Thursday to be implemented by the children telephoning the other parent’s home landline telephone. If that other parent is not home, that parent may telephone the children.
Each party must endeavour to persuade his or her spouse or partner to attend and complete as soon as practicable a course in Parenting After Separation approved by the Manager of Child Dispute Services of the Newcastle Registry of the Family Court of Australia.
The mother must do all acts and execute all documents for Y to attend on a psychologist approved or nominated by the Manager of Child Dispute Services of the Newcastle Registry of the Family Court of Australia for assessment for depression and anxiety and for Y to attend such therapeutic attendances as the psychologist reasonably recommends.
Each party must:
14.1keep the other informed of his or her current telephone number(s) and address;
14.2notify the other promptly of either child being admitted to hospital or suffering any serious illness or injury;
14.3if requested sign a written authority to any hospital or health professional who is treating or has treated either child to provide the other parent any information he or she requests in that regard; and
14.4use a communication book (to be provided by the mother) to communicate with each other regarding the children and ensure the book goes with the children when they go from the mother’s household to spend time with the father and with the children when they return.
Each party is restrained from:
15.1denigrating the other or discussing any aspect of proceedings between the parties in the presence or hearing of either child or permitting anyone else to do so;
15.2going within 50 metres of the other’s residence; and
15.3threatening, abusing, harassing or interfering with the other parent or any person who resides with the other parent.
The mother must:
16.1authorise and request any school either child attends to provide the father with copies of any school reports, newsletters, school notices, school circulars, and letters to the mother that relate to the child; and
16.2notify the father by telephone or the communication book of any occasion either child fails to attend school, and the reason.
The father must within 28 days attend on a psychiatrist or clinical psychologist approved or nominated by the Manager of Child Dispute Services of the Newcastle Registry of the Family Court of Australia for assistance in appropriately emotionally parenting the children, especially when they enter into the adolescent phase of development and must provide the psychiatrist or clinical psychologist with a copy of these Orders and a copy of the Family Report of The Family Consultant when arranging the appointment.
The father must comply with all reasonable advice of the psychiatrist or clinical psychologist as to future consultations and therapy and pay any reasonable fees.
These Orders incorporate and have attached to them a document setting out:
19.1the obligations that these Orders create;
19.2the consequences that may follow if a person contravenes an Order;
19.3the availability of programs to help people understand the responsibilities under parenting orders; and
19.4the availability and use of location and recovery orders to ensure that parenting orders are complied with.
Any outstanding applications regarding the children are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Roland & Atkins is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCF 527 of 2006
| MR ROLAND |
Applicant
And
| MS ATKINS |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
When this hearing concluded the parties’ children Z and E were 10 and 6 and their parents had been fighting for four and a half years since they separated in March 2004.
In October 2005 they had consented to final orders that provided for the children to live half time with each parent and change-overs to occur weekly.
However, that arrangement did not work. The parties have still not established a reasonable level of communication. They are not parenting cooperatively. Their parenting is dysfunctional.
Only 8 months after the 2005 orders the father filed an Application seeking to change the orders. He wants to keep the week about arrangement but change the way it was implemented. The mother wants to change the arrangement so that the children live mainly with her and spend time with the father.
The children want the fighting to stop. They have both suffered stress and anxiety and Z may be suffering depression.
DOCUMENTS
The evidence at the hearing comprised the following documents and in addition the oral evidence:
1)Consent Orders made on 20 October 2005;
2)Application of the father filed 21 June 2006 in the Federal Magistrates Court;
3)Amended Application of the father filed 8 February 2007 in the Family Court of Australia;
4)Response of the mother filed 8 August 2006 in the Federal Magistrates Court;
5)Amended Response of the mother filed 6 February 2007 in the Family Court of Australia;
6)Affidavit of the mother sworn 13 February 2007;
7)Affidavit of the stepfather sworn 13 February 2007;
8)Affidavit of Ms V sworn 19 February 2007;
9)Affidavit of mother sworn 16 April 2007;
10)Affidavit of father sworn 20 April 2007;
11)Affidavit of Ms R Roland sworn 12 February 2007;
12)Family Report dated 8 August 2007;
13)Affidavit of mother sworn 28 August 2007;
14)Affidavit of the stepfather sworn 29 August 2007;
CREDIT OF THE APPLICANT FATHER
The Family Consultant reported from interviews of the father, and the Court accepts on the evidence, that the father was less than truthful in the interview when asked about the number of bedrooms in his home. He told the report writer that there were 3 bedrooms, but the fact was that at the time the third bedroom had not yet been built.
In cross-examination the father did not present well. He swore in an affidavit that the parties separated on 29 October 2004. But he conceded in cross-examination that they lived separately and apart under the same roof from March 2004 to October 2004.
He swore in an affidavit on 20 April 2007 that from May 2005 to August 2005 the children were with him every second weekend from Friday after school until start of school Monday and one evening per week, usually a Wednesday. But when it was put to him in cross-examination on 24 April 2007 that it was not until about August 2005 that an arrangement was put in place which involved the children spending more time with him, he denied that proposition. He denied that the children were predominantly with the mother until August 2005, although this accords with the mother’s evidence and his own previous evidence.
When it was put to him that prior to August 2005 there had been an issue about his capacity to communicate with the mother about the children, he rejected that proposition and said the problem was the mother’s behaviour. However, Exhibit M3 is a lengthy letter he delivered to the mother on Christmas Day 2004 and he acknowledges in that letter and apologises for his very poor communications with the mother.
In cross-examination he was at times very evasive. Sometimes he avoided the same question twice or more. He was cautioned by me about the need to respond directly to questions and the danger of appearing to be less than frank and honest, if he was evasive.
The father was cross-examined about a period prior to separation when he abandoned his employment as a school teacher, allegedly because he could not cope with the job, and became a self-employed handyman. In answers to questions in cross-examination he said he did not consult a doctor about the reasons he could not continue as a teacher and he did not think it would have been a good idea to consult a doctor about the stress issue. He said the problem was “compelling enough to change my career”. He has since returned to teaching, however, and when asked why he believes he will not have similar stress problems, he replied, “a different job description”.
Exhibit M2 is correspondence the father submitted to the Child Support Agency in relation to assessment of child support for the children. That document is dated 16 November 2006 and in it he states:
In relation to an income from returning to a teaching position I do not see this a viable option.
·As previously stated during the telephone conference to enable a return to a teaching position I would have to sell my business, most likely with a significant financial loss to myself given the current business situation
·Additionally, to return to teaching I would be forced to resign my position [in emergency services], a role that I take great personal a[sic] professional satisfaction from
·After working as a teacher for four years I resigned my position as I was unable to effectively deal with the stress and pressure that I encountered in that role. During this time I suffered from an episode of glandular fever as a result of the tiresome work load. My physician advised me to reduce my stress levels to benefit my mental and physical health. Given the continued work routine concerns were raised regarding a progression to chronic fatigue syndrome and depression. At the completion of that academic year I resign[sic] my teaching position.
The father testified in cross-examination that he did not seek any employment in a school after separation, but was approached by his present employer (V High School) and accepted an appointment less than 3 months after he wrote the letter to the Child Support Agency. When he swore his Amended Application (filed 8 February 2007) he had resumed his occupation as a school teacher.
In his affidavit sworn 20 April 2007 the father testified:
36I have made enquiries regarding [C Christian School], the education provided, the curriculum for the years that [E] and [Z] would be enrolled in, and of the resources of the School. From my enquiries with the School, Counsellors and Teachers, I am of the opinion that the children’s education, well being and experiences would be best served if they attended [V] School compared with them attending [C Christian School].
He conceded in cross-examination that he had sworn to the truth of a similar statement in his affidavit sworn 27 October 2006. When he was questioned about the nature of his enquiries of the C Christian School, his evidence was that he did not visit the school, he merely telephoned. He said he spoke to a person called “Michelle”, but “didn’t leave my name”.
He alleged that he made the enquiries in May 2006. He insisted that it happened in May. However, Exhibit M1, part of the records of the school, shows that his telephone call occurred on 6 December 2006 after he had sworn the affidavit of October 2006. The records show that he spoke to the Principal’s Secretary, Ms W. In answer to his questions, he was informed that the children did have enrolment applications lodged with the school pending the outcome of the Court proceedings. He was told that the enrolment interview process had not occurred yet. He was told that school preference was for both parents to sign enrolment forms and attend interviews (separately if necessary). He was told that the children attended an orientation day as a “what if measure”, and “We were very careful but they knew they were here for a look only”.
He was informed that the school would be more than happy to show him the school or meet with him if would like. He told the school that there had been an affidavit sworn by the mother alleging that the children had been enrolled with the school. He asked about basic skills test results and concerns about behaviour disorders and was told that there were a number of students in the classes who suffered from ADHD. He asked to be sent information and a prospectus from the school was sent to him. He did not attend the school, speak to a teacher, or speak to a counsellor.
On the balance of probabilities, the evidence that he gave in two affidavits was untrue. In October it appears he had not yet made any enquiries of the school. At the time he swore the April affidavit, the only enquiries he had made were those referred to and these were not enquiries of the nature that he alleged in paragraph 36 of his affidavit of 20 April 2007. In cross-examination it was put to him that where his affidavit alleged he had made enquiries of the school counsellor and teachers at the school, it was untrue. He then claimed that was a reference to the V School where the children attend; not to the Christian School. When it was put to him that the way his sentence was constructed it was trying to convey that he had made enquiries of counsellors and teachers at the Christian School, he avoided the question and said, “Any misunderstanding was unintentional”. Eventually he conceded that his affidavit “could be” very misleading. The finding is that he twice swore to the truth of propositions he knew were false.
He also denied that he had not received any prospectus from the school, but the school records record that a prospectus was sent to him.
Z’s birthday is in June. Orders made on 26 October 2005 by consent in the Federal Magistrates Court provided for Z to spend part of his birthday with each parent. If it was a school day, then he was to be with the non-residence parent from end of school to 6pm. If it was a non-school day, then he was to be with the non-residence parent from 1pm to 6pm. The father swore in his affidavit: “[Z’s] birthday was on a school day last year and he was living with me at the time. [The mother] did not pick up [Z] from school at the conclusion of the school on his birthday, did not telephone me or contact me or have any contact with [Z] on his birthday.”
The only birthday that Z had between the orders of October 2005 and the father’s affidavit in April 2007 occurred in June 2006. He agreed in cross-examination that Z’s birthday in 2006 was on a weekend. He agreed that he could have been mistaken when he swore his affidavit. When he was asked was there any explanation why he was mistaken, he said, “I must have meant the year before”. However, the order did not exist in June 2005.
When the father was asked about an incident at a cafe at G when the children were having breakfast with their mother and step-father and the father and the step-mother arrived, the father said he did not believe his behaviour of not acknowledging the children at all caused an incident. When he was asked whether he thought his behaviour would be different after the Parenting After Separation course he attended, he answered, “Not really. The incident wasn’t instigated by me.”
When I asked him whether he thought his behaviour on that occasion was consistent with the contents of the course, he avoided the question. I asked him a second time and he again avoided the question. He said, “It’s consistent with respect”. When I asked him whether it was consistent with respect to not greet someone you knew when you saw them, he replied, “If I had an issue with them”. It appeared that he was over-looking the fact that he did not greet the children and he was focussed on the adults. When I asked him why, assuming he had no issue with the children, he did not greet them, he was again focussed on the adults and said, “Because I did not want to intrude in their time with the children”.
It is obvious that the father’s behaviour on that occasion in not acknowledging the children, and indeed, not extending respect to them and to the mother and the step-father, was very poor. It is not a reasonable proposition that he did not recognise this. But he was not prepared to make any acknowledgment in cross-examination and in that sense was not being frank or honest.
Overall, the father presented as a less than reliable witness. He was often evasive in his cross-examination. At times he gave false evidence.
CREDIT OF THE STEP-MOTHER
The step-mother in cross-examination on 4 September 2007 conceded that she had been in the foyer of the Court with the father after he had completed his evidence on 24 April. When asked if she and the father had discussed the evidence on the last occasion, she said, “I didn’t think so”, and then, “I don’t recall”. When asked whether she was denying that they had discussed the evidence, she said, “No”. She did not agree that they had, but she said, “We may have”.
She said they had talked about the case many times. She said in answer to the question whether they talked about the case on that occasion, “I don’t recall”, and then, “I don’t recall discussing specifics”. She later said, “There is so much about the case – we have discussed various things about the case – but I don’t know that they were part of the evidence that day”. She acknowledged that she had been told many times that “we weren’t allowed to discuss … anything about the evidence in the case”.
She conceded that they had talked about the incident at the G café “many times” before the evidence was given about it on 4 September 2007. She conceded that they had discussed the incident that day before she gave her evidence. She conceded that they had had discussions about what was said on that occasion. She conceded that those discussions had occurred less than an hour before she was called for cross-examination. She said that the father told her that there was an “inference made that I made a comment – called [the stepfather] ‘a loser’.”
When questioned further, she became argumentative. In answer to questions she said that she had had lunch with the father and the paternal grandfather in a café immediately prior to her being called for cross-examination. She conceded that they had discussed about how the case was going and the likely outcome. She proceeded to volunteer material that was unresponsive.
In her cross-examination she often volunteered unresponsive material to questions and was very defensive. At times she volunteered material before she had heard the question.
When she was asked about Z’s facial colour at the G café when they first saw the children, she avoided the question and said, “To me he looked too scared to move out of his chair”. She said she did not recall whether she and the father had discussed the issue of Z’s skin colour with the father beforehand. She said she could not deny such a discussion and “I don’t know”.
In cross examination it was put to the stepmother that she said to the stepfather and the mother at the G café “incident”, “you’re pathetic”. She replied, “I don’t recall saying that”. When asked again, she said she was sure she didn’t. Then when asked if she was denying she said it, she said, “I don’t deny it, but I don’t recall saying it”.
The step-mother persisted with evasion and volunteering material despite at least three cautions from me about the adverse consequences for her credibility.
Overall, the step-mother presented as an unreliable witness. She appeared to see her role as attending the Court to support the father rather than to honestly and accurately answer questions asked of her. She appeared to perceive her role as a “mission” to assist the father in the proceedings.
CREDIT OF THE RESPONDENT MOTHER
In cross-examination the mother often made concessions against her interest where appropriate. She was very direct in her evidence and rarely evasive. She presented as generally an honest and reliable witness. She was more credible than the father or the step-mother.
CREDIT OF THE STEP-FATHER
The step-father also willingly made concessions about inappropriate behaviour of his in the adult conflict. He also conceded that the father is “a good father with the children”. He appeared not to bear any bitterness or a serious hostility to the father or the step-mother. He was direct in his answers in cross-examination and generally not evasive. He presented as an honest and reliable witness.
BRIEF HISTORY
The history is sourced from the evidence in the case and also to some extent from information common to the chronologies provided by both parties in their Case Outlines.
Where the versions of particular events or facts of the parties conflict, the mother’s version has generally been preferred (because of her better credibility) unless contradicted by evidence other than that of the father or the step-mother.
The parents married in December 1996. Z was born in June 1999 and E was born in April 2001.
In about late 2003 the husband left his employment and became a self employed handyman. The wife was in paid work, but the father’s business was not profitable and the wife’s income was insufficient to support the family. The parties had serious financial difficulties and arguments about financial matters.
In January 2004 the mother attended a health services training school in Sydney 5 days per week over a period of 7 weeks. During that period the father cared for the children apart from when the mother was available at weekends. The children were attending V Early Learning Centre. After the course the mother commenced work in health services on a 7 week roster, which involved day and night shifts. She also was involved in some extracurricular activity. When she was not available, the father minded the children.
In March 2004 the parties separated under the same roof and continued living in that arrangement until the father left the home in late October 2004. The children then stayed about 3 nights per fortnight (apparently every second weekend) with the father at his home in the Lake Macquarie region.
In November 2004 the mother vacated the home and moved with the children to the coastal area between Sydney and Newcastle. She later moved back closer to M in southern Newcastle.
Z commenced kindergarten at V Seventh Day Adventist School in January 2005. E continued attending the early learning centre at the same campus.
The mother formed a romantic relationship with the step-father in January 2005.
In April or May 2005 the parties reached an agreement on parenting issues for the children and thereafter the children spent each second weekend with their father from Friday after school to start of school Monday, and also were with him for one evening per week, usually the Wednesday.
In June 2005 the step-father commenced residing in the matrimonial home with the mother in a de facto marriage. By that time the parties had resolved property issues between them whereby the father was to transfer his interest in the home to the mother.
The parties reached agreement in August 2005 for final orders regarding care of the children. They agreed that the care of the children would be shared equally week about.
In October 2005 the mother completed the sale of the former matrimonial home and she and the step-father completed the purchase of their present home at L in northern Newcastle. The mother and the step-father have since resided there and the children have resided there in periods when they have been in the mother’s care.
Final parenting orders were made by consent by the Federal Magistrates Court on 26 October 2005 providing as follows:
1)That the children, namely [Z] (dob […]/6/99) and [E] ([…]/04/01) reside with the Father each alternate week commencing Monday the 31/10/05 until before school the following Monday. That the said children reside with the Mother each alternate week commencing after school Monday on the 7/11/05.
2)That for the purpose of implementing clause (1) above the Father shall collect the children from their school at the commencement of his residential period at the conclusion of school Monday and deliver the children to their school at the commencement of school Monday at the conclusion of his residential period and the Mother shall collect the children from their school at the commencement of her residential period at the conclusion of school Monday and deliver the children to their school at the commencement of school Monday at the conclusion of her residential period.
3)That for the purpose of implementing clause (1) above during NSW gazetted school holiday periods the Father shall collect/deliver and the Mother shall deliver/collect the children to/from McDonalds, [G] Shopping Centre at 6.30 pm at the commencement/conclusion of their residential period.
4)That both parties shall have telephone contact with the children no more than three (3) times per week during the periods where the children reside with the other party. Such telephone contact shall be at a time not later than 8.00 pm.
5)That the non-residential parent have contact with the children on each of the children's birthdays as follows:
a) In the event the birthday falls on a school day from the conclusion of school until 6.00 pm.
b) In the event the birthday falls on a non-school day then from 1.00 pm to 6.00 pm on the child's birthday.
6)In the event that the children are residing with the Mother on Father’s Day then her residential period shall be suspended at 9.00am on Father’s Day.
7)In the event that the children are residing with the Father on Mother’s Day then his residential period shall be suspended at 9.00am on Mother’s Day.
8)The Mother shall have contact with the children from 9.00am Christmas Day until 9.00am Boxing Day in even numbered years and from 9.00am Boxing Day until 9.00am on 27 December in odd numbered years.
9)The Father shall have contact with the children from 9.00 am Christmas Day until 9.00 am Boxing Day in odd numbered years and from 9.00 am Boxing Day until 9.00 am on the 27th December in even numbered years.
10) The parties shall have extended contact with the children for a period of two (2) weeks each during the last four (4) weeks of the NSW gazetted Christmas school holiday period as agreed between the parties but failing agreement the Mother shall have the last two (2) weeks and the Father shall have the first two (2) weeks in that said four (4) week period.
11) For the purpose of implementing residential changeover outside of school terms clause (3) above shall apply.
12) Each party shall keep the other informed as to their current contact numbers and residential addresses.
13) Each party is at liberty to speak to and attend upon the children's treating physician.
14)Neither party shall criticise the other party in the presence of the children.
15)Each party shall have the sole responsibility for the day to day care, welfare and development of the children whilst ever the children are in their care.
16)Both parties shall have the joint responsibility for the long term care, welfare and development of the children.
Notation
A)That neither party shall attend upon the other party's residence unless by agreement.
The father married the step-mother in May 2006. She has a child N, who was born in 2000 and is a member of the household. She and the father have continued to cohabit in M in southern Newcastle.
The child of the mother and the step-father, J, was born in May 2006.
Eight months after the final orders were made by consent, on 21 June 2006 the father filed his Application in the Federal Magistrates Court commencing these proceedings and seeking orders:
1That orders 3 through 12 inclusive, made at the Federal Magistrates Court on 26th October 2005 be discharged.
2That for the purpose of implementing clause one (1) during the NSW gazetted school holiday period the father shall collect/deliver and the mother shall collect/deliver the children to/from McDonalds, [G] at 6.00pm at the commencement/conclusion of their residential period.
3That for the purposes of implementing clause two (2) that the collection/delivery time be only attended by the mother and father.
4That both parties shall have telephone contact with the children no more than three (3) times per week during the periods where the children reside with the other party. Such telephone contact shall only occur between the hours of 12.00pm (noon) and 6.00pm. Such telephone contact is limited to the children and the mother/father.
5In the event that the children are to be residing with the mother on Father’s Day then her residential period shall be suspended at 6.00pm on the day before, with the children remaining with the father until the commencement of the usual residential period.
6In the event that the children are to be residing with the father on Mother’s Day then his residential period shall be suspended at 6.00pm on the day before, with the children remaining with the mother until the commencement of the usual residential period.
7The mother shall have contact with the children from 6.00pm on Christmas Eve until 6.00pm on Christmas Day in even numbered years and from 6.00pm on Christmas Day until 6.00pm on Boxing Day in odd numbered years.
8The father shall have contact with the children from 6.00pm on Christmas Eve until 6.00pm on Christmas Day in odd numbered years and from 6.00pm on Christmas Day until 6.00pm on Boxing Day in even numbered years.
9The parties shall have extended contact with the children for a period of two (2) weeks each during the last four (4) weeks of the NSW gazetted Christmas school holiday period. The mother is to have the first two (2) weeks and the father shall have the last two (2) weeks in the said four (4) week period.
10For the purpose of implementing residential change over outside of school terms, on long weekends or public/school holidays occurring on a Monday clause two (2) shall apply.
11Each party shall keep the other informed as to a current contact phone number and residential address.
12Each party is at liberty to speak to educational staff and attend upon the children’s school as required.
13Both parties are restrained from attending upon, or being in the vicinity of the residence of the children whilst the children are in the care of the other parent.
14Both parties are restrained from denigrating the other, other’s partner, family or friends, in the presence of or within hearing of the children.
15Both parties are restrained from discussing these proceedings with or within hearing of the children.
16Both parties are restrained from discussing decisions regarding the care and welfare of the children with or within hearing of the children.
17Both parties are restrained from removing or attempting to remove the children’s place of residence more than 100 kms from their current location.
18Both parties shall have the joint responsibility for the financial costs associated with the children’s education.
19Both parties are restrained from removing, or attempting to remove the children from their current educational facility which is [V School].
The mother filed her Response on 8 August 2006 in which she proposed that the children reside with her, that she be able to enrol them in an Anglican School at F, and that the father spend time with the children as follows:
a) From after school Friday to before school Tuesday each alternate weekend.
b) For one half of the New South Wales gazetted school holiday period being the second half in even numbered years and the first half in odd numbered years.
c) From 6.00pm Christmas Eve to 9.00am Boxing Day in odd numbered years.
d) From 6.00pm on the Saturday immediately preceding Fathers Day Sunday to 6.00pm Fathers Day Sunday.
e)In the event the children's birthday falls on a school day then from after school on each of the children's birthday until before school the following day.
f) In the event the children's birthday falls on a non-school day then from 4.00pm on the child's birthday to 9.00am the following day.
4)The Father's time with children shall be suspended at the following times:
a) From 6.00pm on the Saturday immediately preceding Mothers Day Sunday to 6.00pm on Mothers Day Sunday.
b) From 9.00am Boxing Day to 9.00am on 27 December in odd numbered years.
She also sought the following orders:
5)That the Father be entitled to communicate with the children by telephone three times per week whilst the children are living with the Mother.
6)That the Mother be entitled to communicate with the children by telephone each alternate Sunday at 6.00pm whilst the children are spending time with the Father pursuant to paragraph 3(a) herein
7)That the Mother be entitled to communicate with the children by telephone three times per week whilst the children are spending time with the Father pursuant to paragraph 3(c) herein.
8)That for the purpose of implementing the Father's time with the children pursuant to paragraph 2(a) herein the Father shall collect the children from their school at the conclusion of school Friday and deliver the children to their school at the commencement of school Monday.
9)That for the purpose of implementing the Father's time with the children pursuant to paragraphs 3(c), (d) and (e) herein the Mother shall deliver the children to McDonalds, [G] and the Father shall collect the children from that venue at the commencement of the Father's time with the children and the Father shall deliver the children to that venue and the Mother collect the children from that venue at the conclusion of the Father's time with the children.
Some time prior to February 2007 the proceedings were transferred to the Family Court of Australia. The mother amended her Response on 6 February 2007 and in that document she sought the following additional orders:
10) That the Mother be at liberty to enrol the children in [C Christian School] forthwith.
11) That each party share equally the costs associated with the children's schooling.
12) That if the Father refuses or neglects to sign within fourteen (14) days of a written request to do so any documents necessary to put into effect the terms of Order 10 above the Registrar of the Newcastle Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of the Father.
The father then amended his Application on 8 February 2007 to seek orders for equal shared care of the children week about with change-overs on Monday. He also sought the following orders and notations:
4.That both parties shall spend time with the children by telephone 2 times each week when the child is spending time with the other parent, on Wednesday and Saturday from 6.30 pm to 7.30 pm.
5.In the event that the children are living with the Mother on Father's Day, then the time the children are living with the Mother shall be suspended from 6.30 pm from the day before Father's Day.
6.In the event that the children are living with the Father on Mother's Day, then the time the children are living with the Father shall be suspended from 6.30 pm from the day before Mother's Day.
7.That the Mother shall spend time with the children from 9.00 am Christmas Day until 9.00 am Boxing Day in even numbered years and from 9.00 am Boxing Day until 9.00 am on 27 December in odd numbered years.
8.That the Father shall spend time with the children from 9.00 am Christmas Day until 9.00 am Boxing Day in odd numbered years and from 9.00 am Boxing until 9.00 am on 27 December in even numbered years.
9.The parties shall have extended time with the children for a period of 2 weeks during the last 4 weeks of the New South Wales gazetted Christmas school holiday period, with the Mother having the first 2 weeks in odd numbered years and the second 2 weeks in even numbered years, and the Father spend time with the children in the second 2 weeks in odd numbered years and the first 2 weeks in even numbered years, for the 4 week period.
10.For the purpose of implementing the above Orders, during New South Wales gazetted school holiday periods, the Father shall collect or deliver and the Mother shall collect or deliver the children to/from McDonalds Family Restaurant at [G] Shopping Centre at 6.30 pm at either the commencement or the conclusion at the period the children spend live with them.
11.Each party to notify the other, in writing, within 7 days of any change to their contact mobile phone numbers and residential addresses.
12.Each party is at liberty to speak with and attend upon the children's treating physician.
13.Each party will give to the other after a written request to do so, and within 4 days of such request, an Authority for the other party to speak with the children's treating physician or medical provider.
14.Neither party shall criticise the other party or denigrate the other party or the other party's family, in the hearing of or presence of the children. Each party use their best endeavours to prevent any person or persons from denigrating the other party or the other party's family in the hearing of or presence of the children.
15.Each party shall have the sole parental responsibility for the children whilst ever the children are in their care.
16.Both parties shall have the joint parental responsibility for the long term care, welfare and development of the children.
17.Each party to notify the other party, within 2 hours of any medical emergency, in respect of either of the children, and each party notify the other within 4 hours of any sickness or illness of either child.
18.That each party not approach within 200 metres of the other party's residence. Each party is at liberty to speak with and attend upon the school the children attend, and each party is at liberty to attend all school activities, receive school notices and reports and attend all school events parents or guardians are usually invited to.
19.That each party provide to the other party within seven (7) days of a written request to do so, copies of all school reports, any other reports on school progress and behavioural issues and other school circulars in relation to the children.
20.That each party provide to the other, in a timely manner, copies of all notices received from school and details of all functions, parent and teacher nights and other activities to which the parents are invited, within seven (7) days of receipt of such notices.
21.That each party not threaten, abuse, harass or otherwise interfere with the other parent or anyone having a domestic relationship with the other parent.
22.That each party be restrained from removing or attempting to remove the children from their current school, [V School], without the written consent of the other party.
23.That each party must not discuss or talk about these proceedings with the children or in the presence of or hearing of the children.
24.That each party is to advise the other forthwith by telephone and in writing, of any absences the children have from school which absences are more than 1 day.
25.That each party shall not prevent the children from attending school except if the child or children are ill or there is an emergency regarding the child or children.
26.That each party shall be liable for one half of all the costs associated with the children's schooling and such costs and school fees to be paid as and when they fall due and payable. Any additional costs associated with late payment or non payment of fees, is to be borne by the party who did not pay the children's schooling fees as and when they fell due and payable or were responsible for those additional penalty fees.
NOTATIONS:
A.The parties are to discuss the children's care and welfare with the other and not use third persons to convey such communication.
B.The parties are encouraged to maintain the use of a communication journal or other such similar document to enable open communication between the 2 parties regarding the care and welfare of the children.
C.That the parties intend that their communication between each other shall be in a positive manner and not in a manner which the other party may consider to be offensive, or construed as threatening.
On 24 April 2007 the hearing commenced and at the end of the day the following orders were made:
1 The proceedings are adjourned part heard to a date to be fixed by the List Clerk for a further 2 days.
2 The Director of Child Dispute Services of the Newcastle Registry of the Family Court of Australia is requested to arrange preparation of a Welfare Report in relation to the children and the parents’ proposals to address:
2.1the relationship of the children with each other, each of the parents and any significant other;
2.2the emotional state of the children and each of the parents;
2.3the parents’ conflict’
2.4the children’s exposure to the parents’ conflict and the effect on the children’
2.5the issue of whether the present shared care arrangements should continue or some other care arrangement will better suit the children’s interests;
2.6the issue of whether the children should continue to attend their present school or [C Christian School] or some other school including any benefits or disadvantages to the children of attending a school where the father or mother’s friend [Ms V] is employed;
2.7the prospects of each parent improving skills in co-operative parenting; and
2.8 any other issue the report writer considers significant.
3By consent each party must attend and complete a course in Parenting After Separation approved or nominated by the Director of Child Dispute Services of the Newcastle Registry of the Family Court of Australia and must:
3.1telephone the Manager within 7 days and obtain the necessary approval or nomination;
3.2give the provider of the course a copy of these Orders at the first session;
3.3attend each session of the course;
3.4pay any reasonable fees for the course;
3.5 upon completion of the course obtain a letter from the provider certifying the sessions attended and completion of the course; and
3.6 promptly provide the other party with a copy of that letter.
A Family Consultant, Ms T, was appointed by the Manager of Child Dispute Services to prepare the Family Report ordered. The Family Consultant’s qualifications include a Diploma of Critical Care awarded in 1981, qualification as a Registered Nurse obtained in 1977, and a degree of Bachelor of Social Work with 1st Class Honours awarded in May 1998.
Her relevant employment history includes a Lecturer in Clinical Psychology Masters Course at the University of Newcastle from 1996-1999, Educator in the Diploma of Welfare Studies for TAFE from 1999-2001, Social Worker in private practice in the Hunter in 2001, Contracted Social Worker in private practice with Samaritans “Creative Times” from 1998-2000, Social Worker in private practice contracted to the Department of Community Services from 1998-2000, and Family Court Counsellor/Family Consultant with the Family Court of Australia, Newcastle since October 2001 to date.
The Family Consultant conducted the interviews for the report on 25 July 2007. The report was released on 8 August 2007.
She made the following Recommendations at the end of the report:
71It is recommended that the week about shared care arrangement not continue in this matter.
72It is recommended that the children live with the mother and spend each alternate weekend from school Friday to school Monday (or Tuesday if a long weekend) and defined halves of each school holiday period with the father.
73It is recommended that changeovers during holidays and any necessary changeovers on Father’s and Mother’s Day occur at the Rainbows Contact Centre, Newcastle. It is further recommended that telephone time occur on each of the children’s birthdays rather than incur a further changeover.
74It is recommended that any changeover necessary during the Christmas periods be undertaken by either of the maternal grandparents and the stepmother only.
75It is recommended that the mother have sole responsibility for the choice of the children’s schooling and any further educational decisions. It is recommended that the parties have joint responsibility for any medical decisions.
76It is recommended that the children do not worship in any other faith than the Seventh Day Adventist faith, in which both the father and the mother were raised without the written agreement of both parties.
77It is respectfully recommended that if these orders are made that these orders be explained to the children by the Judicial Officer or a nominated Family Consultant.
78It is recommended that [Z] be assessed by a psychologist or social worker, experienced in working with children, for his level of depression and enter into therapy if this is recommended by the therapist.
79It is strongly suggested that the father enter into long term therapeutic counselling with a psychiatrist or clinical psychologist to assist him in appropriately emotionally parenting the children particularly as they enter into the adolescent phase of development.
The hearing continued on 4 and 6 September and then concluded on 15 October 2007. On that day orders were made by consent and Judgment was reserved. The consent orders were:
1)That the Father and the Mother forthwith sign all necessary applications for an Australian passport for the children.
2)That the parties shall inform each other in writing on at least 42 days notice of their intention to take the children outside of Australia.
3) That the parties shall keep each other informed as to the destination(s) the children will be attending and further supply the following particulars at least 42 days prior to departure:
a) The name of the carrier
b)Departure and arrival dates and times and a written itinerary including date of return to Australia
c) The address of all accommodation that the children will be staying
d)Contact details including relevant phone numbers for the children whilst they are overseas
e)Ensure that the children where possible be in telephone contact with the other party on at least one occasion per week.
4)The parties shall not take the children to a country other than a country (which signatory to) belonging to the Hague Convention.
5)In the event that the children become ill or have an accident whilst travelling each party shall notify the other forthwith.
6)Each party shall ensure that the children have travel and health insurance and provide full particular of same to the other party prior to departure.
7)In the event that either party neglects or refuses to sign the documents referred to in Order 1 herein then the Registrar of the Family Court at Newcastle sign on behalf of that party pursuant to s106A of the Family Law Act as amended.
In closing submissions the father proposed an alternative set of orders, being his second preference. That proposal was for the children to reside with him and spend time with the mother for half each school vacation and each second weekend in school terms from end of school Friday to start of school Wednesday.
The final orders were made 3 days later on 18 October 2007.
THE CHILD Z
At the time of the orders Z was 8 years of age. The Family Consultant reported:
“[Z] presented as an anxious child, who appeared slightly wary of the interview process. He appeared to present within the normal developmental parameters.”
Z has been attending the V Seventh Day Adventist Primary School. In August 2006, his Year 1 teacher reported that she had found him to be “an enthusiastic student who is keen to learn. He is making excellent progress academically.” She reported that he had close friends at school, including his step-brother (N) with whom he played and about whom he talked about constantly. She said, “Familiarity, order and routine are very important to [Z]. He likes to know that the ‘constants’ in his world are not going to change.”
She also reported that Z had been seeing a counsellor for a number of weeks prior to the Term 2 break and “he had developed a close relationship with her and looked forward to the visits”.
From the school records the Family Consultant concluded that he has academic ability and should succeed academically at whatever school he attends.
Ms H was the counsellor to whom Z had been referred for counselling. She has a Masters degree in Educational Psychology and a Masters degree in Counselling. She reported in July 2006 that Z had been referred to her by his teacher and she at that time was the school counsellor. She reported:
His Year 1 teacher was concerned that [Z], while at school, would be absent from class, needing to be searched for and found. At times he seemed to be struggling with his feelings, possible keeping back strong emotions. There had been an incident of aggression towards another child. The teacher described him as a creative child with many interesting ideas, and she wanted to see him more relaxed and happy. His parents gave their consent for him to see the school counsellor.
I saw [Z] in term 2, 2006. During the eight weeks of work with [Z], I saw him weekly for play therapy. I also saw him with his mother and sister and newborn baby brother. I saw him with his father and younger sister. I met separately with each parent. In connection with a school concert, I happened to meet his maternal grandparents.
[Z] presented as an intelligent and inquiring child, whose wishes and aspirations include care for other people. He wants to understand what is happening, and to make sense of the world around him. He is unsure of his position, not sure who to trust. He is desperately looking for security. [Z] is a sensitive boy who is watchful of parental mood states. He does not want to rock the boat. He wants to achieve peace between mum and dad. Any stability gives him hope. He does not have a relationship he fully trusts, but he hopes to have one in the future. .
Both parents bring their own dynamics to the situation. Both parents are well meaning towards the child, and both are distressed. Both would benefit from opportunities to clarify their hopes and fears.
[Z] is struggling with the hazards of life in the form of his parents' divorce. Dad does not always collect on time, so [Z] can never be sure. Tension around phone calls inhibits spontaneity for a child who needs open access to both mum and dad.
[V] School has been a stable part of [Z’s] life for almost half of his life. A school change, which involves a change of peer network, is a probable critical event. To move schools at this time will make further demands on his resilience.
Peace in the interaction between mum and dad is likely to bring greater benefit to [Z].
If the primary concern here is the welfare of [Z], in my understanding it is [Z’s] deepest wish to experience peace between mum and dad.
In cross-examination the mother expressed an opinion that Z is “not as fragile as (he is) made out to be (by the school counsellor)”.
The Family Consultant considered that Z was probably suffering from depression and anxiety, and that this would usually have roots in some low self-esteem. She said that this comes about because of his awareness that he is “half Mum and half Dad”. She said she thinks that E is much more robust. She said that Z would feel powerless to stop his parents fighting and that is likely to contribute to his sadness. She said that E told her that if she were “the boss of the world” she would “turn them all into frogs until (they stopped being unkind to each other)”.
The mother’s evidence is that Z has known N since preschool and they have attended school and preschool together. It appears to be common ground that they are very close.
Z enjoys playing soccer, but his father had not at the time of the hearing been facilitating Z’s attendance at weekend soccer when Z was in his care. The father alleged at the hearing on 5 September 2007 that he did not know until the weekend before that that Z was playing soccer in a weekend team. The finding is that on the balance of probabilities he knew.
The step-mother’s evidence is that Z enjoys constructing Lego, watching Star Wars movies, riding bikes and helping his father with odd jobs around the house. She said he also enjoys constructing and playing with his car set and that he and E get on very well with N, and N often calls Z “Brother”.
In the home of the father and the step-mother the Sunday routine for the children includes attending Church at the Salvation Army Church, mixing with other children there, and after Church attending the local shopping centre to do shopping.
The Family Consultant reported that the only thing one of the children told her that they would like an adult to stop doing was for the step-mother to stop smacking them when they misbehave. It appeared that both children reported this. The thing that both children most wanted was for the parents, step-mother and step-father to have more amicable relationships with each other. Both children told her they would like to be able to speak to their step-father on the telephone when they are talking to the mother, but the father and step-mother would not allow this while they are in the father’s care. The father and step-mother confirmed this to the Family Consultant. The children refer to these arrangements in their father’s house as “Dad and [the step-mother’s] rules”.
The Family Consultant reported that the children appeared both to be “unnaturally focussed on the issue of fairness for the parties”. She said they were both very focussed on keeping the father happy. She said in cross examination that if before, at or after separation the children were exposed to the father being sad and wanting a reconciliation with the mother, that might have affected their view of their father and contributed to their attitudes about his happiness and “fairness” between the parents.
She further reported:
18…. They commented more than once that living week about was the only “fair” way to manage the situation. Both children reported missing the other parent during the week. Both children spoke of [V School] as “the best school” although they both conceded they enjoyed the day they spent at [C Christian School] and reported the other children at the school were “nice”. An allegation was made that [E] reported the father coached her in regard to what to say in the interview. The children’s focus on fairness and to a lesser degree their comments about [V School] may have been evidence of this occurring. In a further telephone interview with the mother, the mother alleges on the night of the interviews the father telephoned to speak to the children. She claims [E] spoke to the father first and although the mother was unable to hear what the father was saying, she claims she heard [E] answering multiple “yes”, “no” to the father’s questions, then [E] allegedly said, “We told her we want your option Daddy, the fair option” and “No Daddy, it’s not your fault, you haven’t done anything wrong.”
19The mother alleges the father then spoke with [Z], who also seemed to be answering questions put to him by the father and then became upset saying, “We told her we wanted your option Daddy.” When [Z] had finished the call the mother reports she lightly asked [Z] what option he was referring to. The mother claims [Z] answered, “Dad said your option will mean we are with you all the time and we won’t see him but his option is the fair option like it is now, we see both of you.” The mother reports she then changed the subject and distracted [Z] onto another topic.
Z told the Family Consultant that he wished his parents were still together so that he would no longer be sad. It is noted that this was more than 2 years after the parties separated under the same roof and 21 months after they ceased residing in the same home.
The Family Consultant further reported:
26[Z] appeared focussed on “looking after” the father’s feelings when he said “if I had to choose, I’d choose Dad, ‘cause if I chose Mum it wouldn’t be fair on Dad.” [Z] appeared to believe that the mother would cope better than the father with the “unfairness.”
27[Z] was clear to say that he and [E] feel free to talk about the father and stepmother in the mother’s home. [Z] obviously feels anxious and under pressure, at times, in the father’s home as evidenced by him reporting that “I have to be careful not to mention [the stepfather] at Dad’s, sometimes I get confused and do it and I say oopsy, I don’t get into trouble then but if I say [the stepfather’s] better at doing something than Dad I get into trouble.”
28It would appear that [Z] feels sad a lot of the time as evidenced by him reporting that he thinks he will stay sad until “I grow up and have my own home.”
The Family Consultant reported specifically on the effect of the exposure of the children to the parents’ conflict:
47The subject children are both well aware that the mother and father do not enjoy an amicable or respectful parenting relationship. They are also aware that neither step-parent enjoys a respectful relationship with the other parent. The children both report that the mother and father often fight on the telephone and that both the mother and the father shout at each other at times. [Z] reports he clearly remembers one occasion when the parents were talking on the telephone, when [E] came to him and told him that “mum and dad are talking quietly to each other on the phone.”
48It is unfortunate that both step-parents appear to have been recruited into the conflict and hostility in a misguided attempt to support their respective partners.
49This matter has many of the symptoms of a prolonged and conflictual post separation relationship. These symptoms include unresolved anger, a fixed belief that the other is a bad parent, uncommunicative behaviour, a high degree of distrust, an inability to separate the adult’s own feelings and needs from the children’s needs, prioritizing the fighting over what the children need and the involvement of extended family in the disputes.
50Current research reports significant numbers of children involved in ongoing conflictual matters are at greater risk of becoming maladjusted than children involved in less conflictual matters.
51Children involved in ongoing conflictual matters often suffer from depression, fear and anxiety, poor adult relationships, drug and alcohol abuse, conduct and social difficulties, poor social relationships and poor academic achievement in adolescence. Often children model their own intimate relationships on the parents’ behaviours and many carry through life, a general mistrust of relationships. It would seem that [Z] and [E] are already displaying symptoms of anxiety and in [Z’s] case, possible depression.
52Children’s self esteem can be badly damaged by ongoing exposure to such hostility and conflict. As children know they are a mixture of both parents they are at risk of believing that, if they are like one parent more than the other, then they must be “bad” as well.
53Children of [Z] and [E’s] age are still quite egocentric in their development and therefore may well feel, “it must be my fault” and that they have caused the conflict as the parents are always fighting over them, the children.
54Children often report feeling guilty and disloyal if they do not stand up for the absent parent if they are being criticized or denigrated or conversely anxious, fearful, guilty and disloyal to the critical parent if they do support the absent parent.
55When parents cannot or will not communicate in regard to the children, children often become the messengers between parents. Sometimes they are expected to carry unwelcome messages and suffer the resultant “fall-out” from the parent receiving the message.
56Children in these situations are often fearful that they will be rejected at some time in the future by one of their parents and they often exaggerate or tell lies to each parent in order to firmly align or bond with them while they are in that parent’s care. Children will often repeat this behaviour when they move into the other parent’s care. These children often end up as “people pleasers” rather than having their own views and attitudes. This can result in high risk situations when they enter the stereotypical risk taking adolescent phase. Children in this phase of development can take full advantage of their non-communicative parents by telling each parent a different account of what they are doing and then confidently engage in risk taking behaviour knowing the parents will not check with each other.
THE CHILD E
E was 6½ at the time of the orders. She commenced at the V School at the start of the 2006 school year and is still attending there. In August 2006 the kindergarten teacher described her as “a happy confident child”, and said she had made “impressive progress” in the first half of the year. She said that E was achieving above her chronological age and producing very good written work. At that time E was speaking “clearly and confidently” and was confident with numbers and beginning to add and subtract. The teacher considered her to be “well adjusted socially”. She said that E spoke of both parents and extended family and “she loves her brothers [Z] and [N]”. She also said that E was working well with the school routines and “loves order”.
The Family Consultant concluded from the school records that E has such ability that she should succeed academically at whatever school she attends.
With her father, E attends dance classes at a gymnasium for half an hour each Wednesday after school. But because of travel times from School to her mother’s, her mother has been unable to enrol her in dance classes in her area as the classes for children her age commence at 4.00 pm or earlier.
The step-mother says that in the home of her and the father the children enjoy time in the evenings such as watching movies, reading, listening to music and doing homework. She said that E loves constructing craft objects, colouring-in, and writing letters to her friends and family. She also likes having friends visit to play, cooking cakes, cookies and jelly with the step-mother in the kitchen, shopping and playing with her doll’s house. She enjoys reading books and having books read to her.
On weekends Z and E enjoy activities with the father, the step-mother and N such as swimming, bike riding, craft, bar-be-cues with friends, shopping and occasionally visiting the step-mother’s parents’ farm.
The Family Consultant reported:
20……She appeared to present within normal developmental parameters. The father describes her as the ‘sweetest child, she’s bright, intelligent, articulate, she’s the youngest in her class but in the top three, she’s very outgoing and loves to help people.” The father reported he thought [E] was “coping” with the separation initially but that “in the last little while she’s been clingy and upset when she has to go.” He described the last changeover as [E] clinging to him until the mother approached and physically took [E] from him. He alleges the mother was angry with him saying “you’re making it worse, you’re stirring her up.” The father denied doing this.
21The father claims [E] leaves one of her toys on his bedside table for him to sleep with under his pillow while she is gone. The father described [E] as being “right by my side whatever I’m doing around the house or outside.” He described proudly that [E] kept getting out of the car when he was chopping firewood, as she was concerned that he would hurt himself.
22It was suggested to the father that this behaviour appeared to be rooted in anxiety and when asked if he thought this was normal behaviour for a child of [E’s] age, he smiled and said, “kids want to spend time with their parents but I do want to know why she is so clingy.” The father reports he has sought advice from staff at Interrelate where he apparently underwent the Parenting After Separation program. He claims it was suggested that he give [E] an object of his to take with her when she was away from him. The father reports he gave [E] a “little book, she calls it her secret book” in which the father suggested she “write or draw anything” whilst she is in the mother’s care. The father reports he gave one to [Z] as well.
23The mother describes [E] as an outgoing child who feels able to speak her mind. The mother’s concern in regard to [E] is that [E] becomes very distressed at any changeovers which are not from school, that is when the children are transferring directly between the parties. The mother claims [E] does not want to leave the mother’s care but that they remind [E] that she will have fun with the father and his extended family and that it is only for a week. The mother reports this strategy plus some distraction normally assists [E] in transferring from the mother to the father.
24Conversely, when [E] is transferring from the father to the mother that [E] becomes distressed and clings to the father. The mother’s view is that the father makes no attempt to distract [E] or encourage her to separate, rather he is alleged to “keep whispering in [E’s] ear” and makes no attempt to have her separate from him. The mother reports on the last such changeover it was necessary for her to approach the father and physically take [E] from him. She alleges the father spoke no words of encouragement to [E] and did not assist the mother with the transfer.
The Family consultant reported regarding the children’s relationship with each other, the parents and significant others:
10The subject children reported to have and were observed to enjoy an affectionate sibling relationship with each other and their half brother, [J] and stepbrother [O]. Both children spoke positively of their relationship with the stepbrother, [N], however he did not attend for the interviews so this relationship could not be observed.
11Significant others in the children’s lives in the father’s household are the stepmother and the stepsibling, [N]. The paternal grandparents live in Melbourne and do not have substantial time with the subject children. The paternal aunt lives in Sydney and the father claims to see her monthly.
12Significant others in the children’s lives in the mother’s household are the stepfather, the half brother [J], the maternal grandparents, [Ms V] and the stepbrother, [O]. The maternal grandmother reports she has in the past and will continue to travel from […] to care for the children overnight or on a weekend if the mother and stepfather’s rosters coincide.
13[E] described her family as “[the mother], [Z], [the stepfather], [O], Nanny and Pa.” When prompted in regard to the father and his family, [E] said, “Daddy lives in a different house, there’s [the father], [the stepmother], [N], me and [Z].” [E] reported she lives with the mother and goes to the father’s home for “six or seven sleeps.”
14[Z] described his family as “I have two families, number one family is [the stepfather], Mum, [J], [O], [E] and Pa and Nanny, family number two is Dad, [the stepmother], [N], the other Pa and Nanny.”
15[E] and [Z] both reported to have a close and loving relationship with the father and the mother and the stepmother and the stepfather. Both children described the stepfather as shouting at times, [Z] reporting sometimes and [E] reporting “a lot.” One child described the stepmother as “she gets really cross” and that the father “gets cross and shouts sometimes.” One child reported the mother as shouting “sometimes.” Neither child reported feeling fearful of the adults when they become cross or shout. Both children reported the only adult who physically disciplines them is the stepmother. The children reported the other adults either withdraw privileges or send the children for time out.
THE APPLICANT FATHER AND HIS PROPOSALS
The father is 33 years old. He is in full time employment as a Teacher at V High School, a school conducted by the Seventh Day Adventist Church on the same campus as the V Primary School. He also works part time in emergency services and is on call Monday to Friday after 6pm and on weekends.
The Family Consultant from her interviews with the father described him as follows: “The father presented as an articulate, charismatic man who was assessed as having a high opinion of himself as a man and as a parent.”
The father’s proposal is that when the children reside with him, they would live in the 3 bedroom home occupied by him and the step-mother at M. In that home Z and N share a room and E has her own room. The father proposes that the children would attend V Public School and it appears that this is quite close to his residence at M. It appears that he also proposes that the children would attend V High School, where he is a teacher. The father sometimes visits the children during their lunch break and has lunch with them. He sometimes buys them lunch and brings it with him.
The step-mother’s son, N, who is about the same age as Z, attends the same school as Z and E and is a member of the household, except when he spends time with his father in Sydney. In school terms he has time with his father each second weekend and in school holidays he spends half the vacation with him. N has a very close relationship with Z. N enjoys playing with Lego, doing constructions and playing with his car set, having books read to him, swimming, riding his bike and trains.
In the father’s home the routine is that he takes the children to school each day and brings them home. He then supervises them at home. In his care E attends dancing classes and he proposes that continue. The children all play soccer at school during the winter months. The weekend activities of the members of the father’s household include swimming, bike riding, craft, bar-be-cues with friends, shopping and occasional weekend visits to the home of the step-mother’s parents.
The father was working as a teacher during the marriage and in late 2003 found himself unable to cope with the stress of the work and resigned. However, he did not seek any medical help or advice regarding the stress he experienced or, probably, depression. He then commenced a business doing handyman jobs. That business was unsuccessful and appears to have been unprofitable. The marriage had financial problems then with the mother seeking to support the family from her income.
The father’s application is supported by the step-mother, his new wife. She is employed full time as an executive assistant in Newcastle. She works from 9am to 5pm Monday to Friday. She leaves home for work at about 8am before the children leave for school and returns in the evening at about 6pm.
The father’s proposal is that he would undertake any required supervision outside school hours on school days and that the step-mother and he would share that responsibility in respect of other times.
The parents were members of the Seventh Day Adventist Church as were the other members of the mother’s family. The parents married in a Seventh Day Adventist Church. The father is employed in the V School, which is a Seventh Day Adventist School. However, since the father married the step-mother he has been attending the Salvation Army Church on Sundays with her and the children have also attended when they have been staying with their father. The step-mother was a member of the Salvation Army Church before she married the father. In cross-examination the mother said that she does not have an issue about whether the children go to the Salvation Army Church. She said that she would prefer to send them to the Christian School rather than the Seventh Day Adventist School. She said, “I don’t participate in Church activities at this stage”.
The step-mother did not appear to have any objective position in the parents’ dispute and the proceedings, but to be strongly supportive of the father and very blinkered about some of his inadequacies or problems. On the evidence she is very unlikely to provide him with the benefit of objective advice in relation to the adult conflict. Her affidavit evidence was extremely brief (8 paragraphs). Her position is that she is happy to assist in the care of the children as the father proposes and to more particularly mind them when he is not home, including when he is called out for his work with the emergency services, which has happened from time to time in the past. She said she enjoys having the children around her.
The Family Consultant reported regarding the step-mother about the incident when Z was sick with chicken pox:
37The stepmother gives quite a different account of the state of [Z’s] health at this time. She was very critical of the mother sending [Z] to school on that day. The mother claims the children both had rashes from playing in the grass the night before and reports she telephoned the father to let him know [Z] may have chicken pox but that she was not sure. She claims the next morning [Z’s] rash was no worse and he was well so she sent him to school. The stepmother reports all three children in her household contracted chicken pox but that “[Z] got it really badly, it worried [the father] so much he rang the After Hours Doctor and described [Z’s] condition to the doctor. The doctor said if you’re that concerned bring him in, which [the father] did.” The stepmother reports to be unaware that the mother telephoned to try to speak to [Z] to alleviate her concerns. The stepmother agreed the father did not invite the mother to come and see the children when they were sick but suggested the mother should have asked the father if she was concerned.
Subsection 60B(2) provides:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Subsection 60B(3) provides:
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
Subsection 60CC provides:
Determining child’s best interests:
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) 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;
(b) 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);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) 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;
(e) 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;
(f) 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;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) 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;
(m) any other fact or circumstance that the court thinks is relevant.
SUBSECTION 60CC(3) FINDINGS
The findings under subsection 60CC(3) are as follows:
a) Expressed wishes of the child
Both Z and E have expressed a wish that their parents will stop fighting. The children have been exposed to the adult conflict and have been stressed and anxious about it. What they most want is for the parents and step-parents to have amicable relationships with each other.
The children have also been exposed, particularly by the father, to this litigation, and unnecessarily included in it. They have been informed of the competing proposals. They are focussed on getting a result of fairness for the parents. They are particularly concerned about their father’s unhappiness, and, achieving fairness and happiness for him. That is the reason they have expressed a preference for a week about arrangement of equal shared care. It is also an inappropriate responsibility and stress for young children.
Because of the children’s exposure to the dispute, the litigation, the competing proposals, and the father’s unhappiness, the children’s expressed preferences are not free choices, but a product of that exposure. In addition, because of their ages, the expressed preference does not involve any careful understanding or consideration by the children of all the short term and long term implications of the options. For those reasons little weight can be given to the children’s expressed preferences for living arrangements.
b) The children’s relationships
The children’s strongest and most positive relationship is with the mother. This is a natural result of her being their primary carer for all of their lives, except the period of 7 weeks just before separation.
The children have developed a positive but less close relationship with the step-father.
The children’s relationship with the father is close and generally positive, but involves the perversity that by his conduct the father has caused the children stress and anxiety and caused them to feel responsible for his happiness, at least in terms of the outcome of these proceedings and other specific aspects such as not making positive statements about the step-father in the father’s presence.
The children’s relationship with the step-mother is fairly close and generally positive but is marred by her being the only parent or step-parent who hits them as a form of discipline. Despite the Family Consultant’s concerns about this, she has not adopted better methods, she does not propose to, and the father supports her stance.
The children have a close and positive relationship likely to be at least as significant and beneficial to them as their relationships with the step-father.
On a less important level, Z has a close, positive and enjoyable relationship with N. Both the subject children have a positive relationship with the maternal grandmother.
E enjoys her relationship with N and both children enjoy their time with J and with O.
c)Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
Subsection 60CC(4) provides:
4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfill, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfill, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The mother and the step-father are likely to facilitate the father spending time with the children, communicating with them, and participating in long term decisions about them.
Because of his controlling nature, more negative attitude to the other parent and other step-parent, and other attitudes, the father’s willingness and ability to facilitate the mother and step-father spending time with the children, communicating with them, and participating in decisions about them are seriously compromised. The step-mother is unlikely to influence him to improve such willingness or ability.
d) Likely effect of any changes including any separation
There could be a change so that the children resided with the mother, attend the Christian School and spend time with the father for half each vacation; each second weekend in school terms and in school weeks overnight whenever there is time when the mother, step-father and the maternal grandmother will not be available to care for them.
Such a change could have the following disadvantages:
· The children would spend less time with the father;
· The children would in the short term be concerned for their father’s happiness and welfare, they would perceive he would be very disappointed, and they would be stressed and anxious about this. It appears, though, that this is not likely to be long term.
· It would involve a change of school and a disruption to the children’s school education and social life. The disruption to their school education is likely to be less serious than if they were older and more advanced in their schooling. The disruption to their schooling involves moving from familiar to relatively unfamiliar in terms of classmates, teachers and other staff, physical facilities and location. Both children have academic ability and are performing well. It appears they have the capacity to cope with a change of school without major problems but it will still be a disruption.
The advantages of such a change include:
· The school is not so far from the mother’s home and between the parents extracurricular activities will be better facilitated.
· The school will be much more of a refuge from the adult conflict than the present school, where the father works on the same campus.
· The children will be treated more “normally” by staff and fellow students because their father will not be teaching at the school or on the same campus.
· The children will less often suffer adverse consequences of controlling behaviour by the father as there will be less opportunities for this to occur.
· The children will be less exposed to corporal methods of discipline.
· The children will be more likely to have and maintain meaningful relationships with both parents.
· More often both parents will be included in parenting decisions when it is in the children’s interests that they do be.
· The children are likely to have less exposure to pressure or emotional abuse from the father and less likely to have adverse consequences in terms of damage to their self-esteem or need to make negative statements to the father about the mother, the step-father or events in their care.
· The mother and step-father each have better parenting capacity and better attitudes to the children and to the responsibilities of parenthood than the father and step-mother.
e)Difficulty and expense of spending time with and communicating with a parent and whether they will substantially affect the right to maintain personal relations and direct contact on a regular basis
When the children reside with the father there are likely to be more occasions where he causes obstructions or difficulties for communications between the children and the mother and denial of the children’s right to maintain personal relationship with the mother.
f)Capacity of each parent and any other person to provide for the child’s needs
The father’s parenting capacity is seriously compromised by his inability to recognise and address the children’s emotional needs. This is particularly because of his attitudes, including his controlling nature and hostility to the mother and the step-father. It is of particular concern that he has gained little from attending the Parenting After Separation course. He has little insight into the children’s emotional needs, and often does not recognise their interests as different to his and fails to give priority to the children’s needs.
The mother has better parenting capacity than the father.
The step-father’s parenting capacity is better than that of the step-mother.
g) Maturity, sex, lifestyle and background of the child and of either parent, and any other characteristics of the child
As a male child Z has a need for a close and positive relationship with a suitable adult male role model. The father, because of his controlling nature, is not a suitable role model. The step-father is an adequate role model and has a close and positive relationship with Z.
As a female child E has a need for a close and positive relationship with a suitable adult female role model. The mother is a better role model than the step-mother because she has a closer relationship with E.
Both parents were members of the Seventh Day Adventist church, were married in the Church and continued as members of it. The father works in the Church’s school at V School. The Family Consultant has recommended that there be an order that the children not attend any other Church unless the parents agree in writing. The mother no longer attends Church and says she raises no objection to the children attending the Salvation Army Church with the father. The father made the decision that the children attend that Church without the mother’s consent or notice to her.
Because of his controlling nature the father is likely to make other such decisions in the future without notice to the mother. There should be an order as recommended by the Family Consultant.
Attitude to the child and the responsibilities of parenthood
Subsection 60CC(4) provides:
4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfill, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The father has often failed to facilitate his obligations under 4(b) and is likely to continue to behave in those ways in the future. The mother’s attitude under 4(b) has been adequate in the past and is likely to be so in the future.
The father has not been able to recognise needs of the children, particularly emotional needs, that are different to his. He has problems giving priority to their needs over his needs to exert control or pursue conflict with the mother or the step-father.
The father does not recognise and fulfil his responsibility to protect the children from exposure to the adult conflict and the litigation. His conduct in exposing them to those things has been emotionally abusive and stressful. They have suffered considerable anxiety as a result, including reverse parenting in the form of their concern to have an outcome that is fair to their father, that makes him happy.
As the children get older, the father’s controlling nature is likely to create increasing problems for the children in terms of their relationship with him and him as a role model. As they learn increasing independence and start to exert independence, his controlling nature will cause increasing difficulties for them and their relationship with him.
The father does not recognise the children’s need for school to be a neutral place and haven from the adult issues and adult conflict. His hostility to the mother and step-father and his controlling nature will mean that if the children continue to attend the V School, he is likely to at times at school expose them to or involve them in the adult issues and adult conflict or any further litigation.
Despite the children’s upset about corporal discipline by the step-mother, the fact that the mother and step-father do not resort to such methods, and the concerns expressed by the Family Consultant, the father does not propose to do anything to end the use of such methods in his home. He appears not to recognise his responsibility to the children in this area to respect the other parent’s views, to promote the parents’ relationship, to promote consistency between the two households, and to utilise better methods of discipline.
The father generally, despite the Parenting After Separation course and other counselling, does not appear to recognise how important it is to the children (and himself) to establish a respectful and cooperative relationship with the other parent. He is resistant to such advice.
The mother still bears hostility to the father and needs to attend a Parenting After Separation course to obtain a better understanding of the children’s needs, the effect on them of the parents’ conflict and better ways to deal with the father. Her decision to delay her attendance at the parenting After Separation course failed to recognise the need of the children (and herself) for her to attend and failed to give priority to the children’s needs in this regard to her other needs.
l)Whether it is preferable to make the order that would be least likely to lead to the initiation of further proceedings in relation to the child
If the week about arrangement continues or the children reside with the father it is more likely that the father’s controlling behaviour will lead to further proceedings concerning the children.
PRIMARY CONSIDERATIONS
The findings as to primary considerations under Subsection 60CC(2) are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents
If the time the children spend with the father is no longer half the time, but only half school holidays, each second weekend in school terms and some other days, it will be significantly less than the week about arrangement in the current orders.
But the change would be in the children’s interests because any potential benefits of spending more time with the father would be outweighed by the disadvantages, particularly emotional abuse and exposure to adult conflict.
Because of the father’s behaviour and the poor relationship between the parents, orders for the children to spend more occasions of time with the father, particularly special days, are likely to be contrary to the children’s interests, as because of the real risk of the children being exposed to adult conflict, controlling behaviour, or power play at their expense, for a marginal benefit to them.
b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The father’s behaviour that exposes the children to or involves them in controlling behaviour by him, his conflict with the mother and/or the step-father and the litigation is emotionally abusive. There is a need to minimise this.
Z has suffered significant anxiety as a result and possibly depression. The Family Consultant recommends he be assessed by a psychologist about these matters and have therapeutic assistance if recommended. It is in his interests that there be such an order.
The Family Consultant also recommended in her report that the father attend on a psychiatrist or clinical psychologist for assistance in appropriately emotionally parenting the children, especially when they enter the adolescent phase of development. The father has not implemented the recommendations or indicated any intention to do so. The children’s interests require that there be such an order. It is also in the father’s interest.
PARENTAL RESPONSIBILITY
There is an issue as to parental responsibility.
Section 61DA of the Act provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In these proceedings the father’s controlling behaviour and the parents’ poor communications and relationship dictate that it is contrary to the children’s interests to have equal shared parental responsibility.
The children’s interests require an order about what Church they attend as previously discussed. The children’s interests require that they live with the mother and she have responsibility for any major decisions about their education, including what school they attend. It is in the children’s best interests that the father have responsibility for day to day decisions when they are in his care and otherwise the mother have sole parental responsibility.
OTHER CONCLUSIONS
The children’s interests require that if the mother, step-father and grandmother are not available to supervise the children on any part of a Monday, Tuesday, Wednesday or Thursday night, the mother should give the father prompt written notice so he can assume the care of the children that night and collect them from school.
Because of the parents’ relationship, and to avoid the father prolonging separations from E and also to avoid the children being exposed to ugly interactions between adults, so far as possible the time the children spend with the father should be implemented by him collecting the children from school (or after school care) and returning them to school (or before school care). For the same reasons any other periods he spends with them should be implemented by the mother arranging for another person (not the step-father) to deliver the children to outside the father’s home at the start and the father arranging for another person to deliver the children to outside the mother’s home at the end of the period.
Because of the father’s behaviour and the parents’ poor relationship, the children’s interests are best served if the only order for telephone communications be for two occasions per week (Mondays and Thursdays) in school vacations and provide for communication with each parent when the children are with the other. If the parents come to be able to facilitate additional telephone communication for the children without stress then they are free to implement it by agreement. The most convenient time for the children appears to be between 7pm and 7.30pm.
The children’s interests also require that each parent be ordered to endeavour to persuade his or her spouse or partner to attend a Parenting After Separation course.
For the children’s sake, there should be orders retraining the parties from denigrating each other or discussing proceedings between the parties in the presence or hearing of the children or permitting anyone else to do so.
The father seeks an injunction restraining each party from going within 200 metres of the other’s residence. It is in the children’s interests that each stay away from the other’s home and that the injunction be made, but the distance be 50 metres.
It is in the children’s interests that the parties each be restrained from threatening, abusing, harassing, or interfering with the other parent or any person who resides with the other parent.
The mother sought an order that each parent pay one half of the children’s school fees. That is a child maintenance order and the child maintenance powers in the Family Law Act do not apply to these children, as the Child Support (Assessment) Act does. If the mother seeks a departure order whereby the child support payment by the father is increased to cover half the school fees, then she should apply to the Child Support Agency.
The children’s interests will be better served if there are orders for the parents to use a communication book, as the record it creates is likely to encourage respectful communications.
Also, for the same purpose, there should be orders for the mother to authorise the children’s school to make available to the father copies of school reports and other communications parents receive.
Similarly, there should also be an order for each parent to:
· keep the other informed of their address and telephone number;
· notify the other of any injury or medical emergency; and
· authorise health professionals treating one of the children to inform the other parent.
_____________________
The Hon Justice Mullane
Date: 20 August 2008
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Consent
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Remedies
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Procedural Fairness
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