ROSE and SALTER
[2011] FCWA 38
•20 MAY 2011
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT : FAMILY LAW ACT 1975
LOCATION : PERTH
CITATION : ROSE and SALTER [2011] FCWA 38
CORAM : CRISFORD J
HEARD : 11, 12, 13, 16, 17 & 18 MAY 2011
DELIVERED : 20 MAY 2011
FILE NO/S : PTW 1904 of 2009
BETWEEN : Applicant Father
AND
Respondent Mother
Catchwords:
Children's issues - time spent with father - father with complex work roster - schooling issues
- at which school 14 year old child to attend - wishes of children
Legislation:
Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant : Ms P Giles
Respondent : Self Represented Litigant
Solicitors:
Applicant : Kim Wilson & Co
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Respondent : Self-Represented Litigant
Case(s) referred to in judgment(s):
Nil
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1It has been approximately 15 months since the parties separated. During that time they have had difficulty in agreeing arrangements for their children [K], almost
14, [I], almost 12, and [D], almost 9.
2 They have asked the Court to make a determination for them.
3 The mother is aged 44 years and the father 42 years. They met in December
1992 and were married in July 1994. In late 1994 the parties moved to Melbourne and they returned to Perth late 2008. They separated in early 2009 and in February 2009 the father moved out of the former matrimonial home. The children remained with their mother.
4The father is a mine worker. The mother is qualified in a number of teaching areas.
5The father filed an application for final orders on 20 April 2009. The mother’s response was filed on 26 May 2009 and then amended on 11 August 2009.
6The parties settled their financial issues by consent on 1 February 2010. The parties have had ongoing difficulties and there have been numerous court appearances in an attempt to resolve the children’s issues. Although their positions have been polarised, when each filed a minute of the orders they were seeking at trial, the issues had, to an extent, narrowed. The parties consented to a number of orders the Court now makes.
Approach to be adopted
7These proceedings fall for determination under Part VII of the Family Law Act 1975 (Cth) as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
8The objects of Part VII of the Act are to ensure that the best interests of children are met by -
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
9This legislation is strongly in favour of both parents having substantial involvement in their children’s lives.
10 Section 60CA of the Act makes clear that the best interests of the child is the paramount consideration in my determination. Section 60CC sets out the matters I must take into account in determining what is in the children’s best interests. Section 60CC(2) details what are described as primary considerations and s 60CC(3) details additional considerations to be taken into account in determining what is in their best interests.
The presumption of shared parental responsibility
11 Section 61DA of the Act provides that a Court must apply a presumption that it is in a child’s best interests for parents to have equal shared parental responsibility. Parental responsibility relates to decision making and not the time to be spent with each parent.
12 The parties have sought an order that they have equal shared parental responsibility and have not argued the presumption does not apply or that it would not be in the children’s best interests for their parents to have such responsibility. The father was represented at trial. The mother had received legal advice earlier in the proceedings and appeared in person at trial. On 3 December 2009 the parties consented to an interim order for equal shared parental responsibility. The mother was represented at the time.
13 As I will make the order sought by them, I consider it useful to set out in some detail what this now obliges them to do.
14 There are certain consequences which arise when a parenting order is made for shared parental responsibility. The first consequence is that the parties must consult and make a genuine effort to come to a joint decision about major long-term issues. These long-term issues are specifically defined in the Act.
Section 4:
Major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and (b) the child’s religious and cultural upbringing; and (c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
15 The second consequence is that it is necessary for me to consider whether it is in the children’s best interests to spend equal time with their parents. Although I am mandated by the legislation to now consider this option, it is not something that either party has sought.
16 The father’s work commitments preclude an equal sharing of time. It is not something that any of the children have said they want, although they love both parents and enjoy the time they do have with their father. It is not appropriate in this case.
17 The proposals of both parties contemplate the girls spending substantial and significant time with each of them. This is what is happening already.
18 Although at first blush the Court had some reservations about the order each party had agreed that they have equal shared parental responsibility for the children, it became apparent during the course of evidence that issues about the provision of information and general consultation had been more effective in recent times. The father accepted things had improved. He said the mother had been much better in informing him about children’s issues.
19 In turn, the mother was anxious to explore with the Family Consultant, who gave evidence as to the wishes of the children, how she could communicate with the father, including the mechanism for instituting a successful communication book. The Family Consultant raised the problem of the parties using I as a messenger.
20 Despite their difficulties these are good and responsible parents. Their children need joint input from them. In all the circumstances I find an order for equal shared parental responsibility to be appropriate and that the parties are capable of modifying their own views to accommodate what is best for the children.
21 The Court must consider the impact on all the children of any arrangement it orders and also any other matters that are relevant. The Court has to evaluate the behaviour of the parents in order to determine what time is appropriate and in the best interests of these particular children.
22 Despite the often highly charged relationship between the parties, the ambit of their dispute is now relatively narrow.
23 Given that a considerable number of the orders each sought were agreed either before or during the course of the trial, I intend to deal with each of the contentious matters and apply the relevant legislation to each of these matters. Again, due to the nature of the matters agreed between the parties, I did not require them to canvass all the issues and evidence each had originally sought to raise.
24 On 11 May 2011 I made an order, at the mother’s request and opposed by the father, that the children be reviewed by a Family Consultant. The terms of the order were:
1The Director of Family Court Mediation & Counselling Services be requested to arrange for a Family Consultant to prepare an urgent
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report concerning the children K born June 1997, I born May 1999 and D born June 2002 .
2Any interviews to be conducted by the Consultant are to take place separately, the intention being that each of the children will be spoken to separately.
3In relation to the child K, his wishes in relation to schooling are to be canvassed.
4In relation to the children I and D, their wishes in relation to continuing to see their father on a third night each week are to be canvassed.
5The Consultant is to report on any other matter she considers to be relevant to the children’s welfare.
6By consent the Consultant canvass whether the children have been influenced by either parent or any other person in their preferences.
K
25 I will refer initially to the orders sought in relation to K. He was born in July
1997. After the parties’ separation he aligned himself with his mother and has generally refused to see or communicate with his father. There has been some difficult telephone communication and K and his father sometimes play computer games. It is common ground that K has been, and remains, a troubled child. He has been diagnosed with a number of disabilities of varying degrees.
26 Recently, K has exhibited some symptoms of agoraphobia.
27 The parties have agreed a number of orders which hopefully leave open and encourage lines of communication between K and his father. Their relationship has been fractured for some time and it has not improved, despite what I find to be concerted efforts by the father. However, there is clearly a power tussle between the two.
28 The mother says she accepts that K needs to have a good relationship with his father. Although at the present time there appear to be few benefits for K in his relationship with his father, it is desirable in the future that this relationship be given every opportunity to improve such that there will be long term benefits. A prospective approach is required.
29 Ms Willix, the Family Consultant appointed by the Family Court Mediation & Consultancy Service as a result of my order, assessed K on 13 May 2011 as being very mature, articulate and intelligent for his age.
30 Ms Willix held concerns about K. His manner of speaking about his father, although extremely rational, lacked any emotional content. This stood out for her.
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K’s sister, D, had talked about him having depression. Ms Willix told the Court there were difficulties for K and these needed to be addressed.
31 A report had been done by a Court appointed Single Expert, Stephen Cohen, which was published on 19 October 2009. He saw K alone for 30 minutes on 31 July
2009 and in a joint observation session of 43 minutes duration on the same day. This last session was in company with his sisters and mother. By the time of trial, Mr Cohen was extremely ill and unable to give evidence. He had been required for cross-examination by the mother. Both parties have referred to and relied upon parts of his report.
32 Mr Cohen found K to be a bright, intelligent young man who is able to make himself understood if he chooses to do so. He has trouble fitting in with his peers. This is consistent with other evidence.
33 In mid-2009 K’s then general practitioner, Dr Margaret Russell-Smith, referred him to Professor David Leach, clinical and educational psychologist, as he was showing signs of depression and increasing levels of anxiety.
34 I heard evidence from Professor Leach during the trial. He has seen K from
15 June 2009 to the present. It is difficult to know exactly how often he has been seen. However, it is clear he has a good rapport with K and has seen him far more frequently than any other health professional in his case. He said K was a “mature aged minor” and that in some ways he was very advanced. He held strong opinions and wanted a voice in his future. At the present he is very troubled.
35 The first matter in issue in relation to K is the parties cannot agree clause 4(h) contained in a minute of orders proposed by the father. The parties have agreed the balance of that clause which I set out in its entirety:
4. [K] spend time and communicate with the Father as follows:
(a) [K] and the Father arrange to play on-line games each week, for an hour, with the time to be agreed between [K] and the Father each week, no later than 24 hours prior to the proposed game time;
(b) The Mother is to do all acts and things required to ensure that [K] has access to the internet and a computer to facilitate paragraph (a) above;
(c) The Mother is to do all acts and things required to promote, support and encourage the Father’s relationship with [K], including facilitating games, telephone contact and such other contact from time to time.
(d) In addition to the on-line games, [K] have telephone contact with the Father not less than once per week;
(e) The Father telephone [K] once a week, at a time to be arranged between [K] and the Father each week;
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(f) In addition to the online games, the Father and [K] have unlimited emails with each other, with each to provide the other with a current email address;
(g) [K] is to spend any additional time with the Father in accordance with [K]’s wishes; and
(h) At such times as may be agreed between the parties and failing agreement, as may be recommended by the Counsellor.
36 Clause (h) is an order pressed by the father, but opposed by the mother. She is happy to consent to K agreeing with his father as to any further contact, but does not wish to agree to the clause as sought by the father which involves a counsellor’s recommendations.
37 I am not prepared to make the order sought by the father. There is provision for the father and K to agree further contact in clause 4(g) of the orders I intend to make and which are agreed. If further contact is recommended by any counsellor, then it is hoped that all parties and K would take steps to try and implement it. However, I foreshadow enforcement difficulties if such contact does not eventuate despite recommendations of a counsellor. K is almost 14 years of age, mature and has strong opinions. It is inappropriate, in my view, to make the recommendations of the counsellor mandatory on K and the mother.
38 To the parties’ credit, they were able, during the course of the trial, to agree on the appointment of a psychiatric expert to assist in having a firm diagnosis of K’s various physical and psychological difficulties and to devise a treatment programme for him. Both parties accept that such intervention is required to assist K generally and in relation to developing his relationship with his father.
39 I have made orders that allow the psychiatric expert to be the person to recommend such counselling for K as the psychiatric expert sees necessary and appropriate. He is currently seeing Professor Leach and I suggest this continue, at this stage, at least. Professor Leach has been able to address issues of bullying and how K can develop relationships amongst his peers. He has had an extended time getting to know K and I find he is a support to him. However, work needs to be done on K’s relationship with his father and further assistance may be required in this respect as recommended by the agreed psychiatrist.
40 The major issue surrounding K is his attendance at school. K is not currently attending school. Ms Willix said K had been at seven different schools since he started his education.
41 He was attending [Armadale Primary School] in 2009 when the parties returned from Melbourne. He was then removed from the school and commenced at [College 1] in around July 2009.
42 The circumstances in which K was removed from Armadale Primary School and enrolled in College 1 are contentious. I accept that the mother took some steps to
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discuss certain problems K was having at school with his father. However, I also accept the father was not fully informed about what was happening. Both parties must bear some responsibility. I accept K was being bullied and was very unhappy at the school. He was taken to his general practitioner. The mother discussed the matter with Professor Leach.
43 In a report of 17 August 2009 Professor Leach sets out the difficulties of teasing and chronic bullying K was experiencing at Armadale Primary School. His class teacher and the principal of the school were apparently reluctant to address the issue, although the father says he felt it was being addressed. At the time Professor Leach, given K’s difficulties, opined he may be better in a private high school where he could relate to older children.
44 In his report Professor Leach says that subsequently K was attending College 1 and his anxiety about school had gone. He reported K “loves” the new environment in which he is able to make friends and find his niche. He said during that period he saw K less.
45 On 9 August 2010 K and his father had a telephone conversation. K told his father he liked his new school and was happy there.
46 Unfortunately, in or about September 2010, the mother was unable to continue to pay College 1 fees which she had been responsible for. She had hoped she would be able to pay the fees. The father had objected to the enrolment at College 1, given he was not consulted. He had not made any contribution to the fees there. K could not continue at that school without the fees being paid. Due to the parties not agreeing on his education and the Court then needing to determine the matter, K did not attend school for at least some of the last term of 2010.
47 The father had made enquiries and considered that [College 2] would suit K’s needs. He had taken into account it was a small private school with appropriate facilities. The choice was opposed by the mother. The father applied to the Court and by order of 23 November 2010 the parties were to enrol K at College 2 for 2011.
48 K and his mother attended College 2 on 11 January 2011 in order to have an interview and complete the enrolment process for K. The mother’s evidence is that after the interview both K and herself felt reasonably impressed with what College 2 had to offer. However, K, of his own volition, ceased attending this school in about March 2011.
49 K has flatly refused to return to College 2. He is adamant that he does not want to attend there. Both Ms Willix and Professor Leach said he feels he is not being heard about his wishes in relation to the school he has to attend. Professor Leach said K had been doing really well emotionally until he went to College 2.
50 Ms Willix and Professor Leach said that K’ first preference was to return to College 1. He understood there might be some financial constraints for his parents in this choice and his second choice would be [Rosewood Senior High School]. His third choice is [College 3].
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51 At the commencement of the trial I gained the impression from the mother’s affidavit she wished K to go to Rosewood and the father wished him to remain at College 2 where he has been totally responsible for the fees of around $6,000 per annum. The father did not believe K had spent enough time at College 2 to have given it a chance. He said at trial that any school was better than none.
52 In cross-examination the father accepted that K had been doing reasonably well at College 1. He liked it there and was achieving well. In hindsight he accepts it may have been better for him to remain there. I find that would have been possible if the father had assisted with the fees.
53 The father says he wishes to have K reviewed by the agreed psychiatrist on
24 May 2011, who should then give recommendations about the resumption of K’s schooling, including the appropriate school. He says he is concerned that K is dictating to adults what choice should be made and that he is making decisions for himself that others should rightfully be making for him. He said he was at a loss to know what to do in the circumstances. He feels if K gets his way on this issue it will send a message that he can do as he likes.
54 Having heard K’s views, the mother said she would agree to pay 30% of the scheduled fee of $13,000 per annum at College 1. She seeks the father pay the balance of that fee. She will also pay for uniforms, books and up to $250 in excursion costs.
55 After the evidence the father says if the Court orders K to attend at College 1 and my orders do not necessitate him dropping his flying hours, he would pay 70% of the tuition fee at College 1. I consider he is able to afford this with or without reduction in flying hours. His gross income is close to $200,000. If he drops his flying hours, on a weekly basis his salary will be reduced by 15-20% for one day.
56 I have little hesitation in placing K’s current difficulties with his schooling at the feet of his parents. Given K’s health issues and the fact he is an unusual and gifted child, his progress through school was never going to be easy. The parents each have a tendency to allow their personal difficulties and their desire to control the children to take priority over what may be in the children’s best interests. Although both highly intelligent and generally well motivated, they have, in their own ways, assisted in creating the problem their son now faces.
57 I formed the view that at least in the latter part of 2010 the father was adamant that K be educated at College 2. At that stage he had a very poor relationship with K and had for one reason or another little understanding about his son’s maturity and school preferences. He pushed ahead with the College 2 proposal when it may have been more prudent to consider other options, such as the boy remaining at College 1. His position now is that he is uncertain about what is best. However, he makes it very plain that allowing K to return to College 1, unless given the imprimatur of a psychiatrist that it is in “K’s best interests”, would simply be a victory for K.
58 The mother’s difficulties have been well documented. I accept at least historically she has not done all she could to encourage K’ relationship with his father. I accept she has, at least in 2009, involved him in her grievances about the father. I do not accept there is evidence to establish she has an “enmeshed” relationship with K.
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The term “enmeshment” was first coined, according to Mr Cohen’s report, by the father himself and it seems to have taken on a life of its own in his reply to questions put to him by the father’s solicitors. Mr Cohen was not available to explain what he meant by it and the relevance of it given his conclusions and recommendation in the main report.
59 Professor Leach said he did not see K as enmeshed. I accept that the mother is very close to K and shares his opinions. She may not always treat him as the teenage boy he is. I accept there is work to be done in terms of boundaries and the keeping of K away from adult issues. Respect for this mature young man and consideration of his views is important, however, he is still a young man.
60 Given that, I do accept that the mother has done as much as she possibly can, within her own personality constraints, to try and encourage K to attend College 2. She has reasoned with K. She has consulted Professor Leach on how to deal with it. She has discussed it with the school. Work is sent home from the school for K to complete. I fail to see that she can do anything more in this regard.
61 I also accept that Professor Leach has done what he can to encourage K to continue at College 2. Professor Leach is a clinical and educational psychologist. He works at the psychology clinic at Murdoch University. He had been in private practice for 30 to 40 years and has been at Murdoch University for two years. Although he presently has a small clinical patient load, his past experience in that area spans many years. His view is that K should, within financial constraints, be able to return to College 1. I accept that he is appropriately qualified to make that assessment. I had no concerns about his opinion in that regard.
62 The father feels Professor Leach is not an appropriate counsellor for K. He said there is a “lack of progress” in the mending of his relationship with K. This fails to recognise the fact that Professor Leach did address other educational concerns such as bullying and engagement with peers.
63 The father also says that the mother has added fuel to K’s refusal to go to College 2 by allowing him to attend a workshop on 10 December 2010 which focussed on human rights. The workshop was conducted on Human Rights Day and was held at Murdoch University. The workshop was run by SCALES (Southern Communities Advocacy Legal and Education Service). The father’s solicitors issued a subpoena for this organisation to produce its file in relation to contact with K. An objection was raised to the inspection of the file. In submissions made as to why the content of the file should not be inspected by the father’s counsel, a representative of SCALES explained by way of background that the workshop was targeted at young people. It had been advertised and K had emailed the centre indicating he would like to attend. He did attend for the whole day and was involved in discussions around child rights in the context of Australia meeting its obligations under the United Nations Convention on the Rights of the Child.
64 After the workshop he had sought legal advice from someone at the centre. He had several telephone attendances, an attendance by Skype and an in person meeting. He attended alone.
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65 The mother said she had not initiated his attendance at the workshop but had been supportive of it. It was on a school day, but he was refusing to go to school. She saw some benefits in him attending as it was an interesting and age appropriate workshop. She had not attended.
66 The father’s complaint is the fact K had any involvement with SCALES and was allowed to seek legal advice about his own position. Although this child seeking his own legal advice is unusual, I accept in K’s case it was not so surprising. He is very intelligent and wanted information. Professor Leach did not see it as harmful.
67 Despite any legal advice K had he did subsequently attend the College 2 intake interview and was prepared to start the term. I do not intend to draw the adverse inference against the mother as sought be drawn by the father.
68 I intend to make an immediate order that K resume schooling at College 1 and that the costs be borne by the parties as proposed by the mother. However, the Court considers the father can, and should, assist with excursions and other schooling requirements if that becomes an issue. I have made the decision on schooling based on the following:
• The issues of K’s education is critical. Currently, he is losing touch with peers.
This is an important issue for him. He will lose touch with the school curriculum if he does not resume his education as soon as possible. This is in line with the evidence of Professor Leach. Ms Willix saw it as a priority for him to recommence his schooling.
•College 1 is a school K had attended for a period of time in 2009 and 2010. He enjoyed it. It was intellectually and academically challenging for him. He was able to deal with the little amount of bullying he confronted at that school and his academic progress was appropriate. He wishes to return there. He has had more emotional problems since he left the school. Given his maturity I accord his wishes considerable weight in this regard. However, the wishes are only a part of this decision.
•The other options put forward by the parties are less than satisfactory. There is no evidence that K can actually attend at Rosewood Senior High School given, at least, the geographical location of his mother’s home. K is opposed to the religious content provided by College 2 and is unhappy there. He refuses to attend.
•I am not persuaded that this matter should be left to the psychiatrist chosen by the parties. The parties have agreed on a psychiatrist and I have been provided with his curriculum vitae. As from 11 May 2010 he has been self employed as a consultant psychiatrist in private practice. There is nothing that I can discern from his curriculum vitae that suggests any extensive experience or qualifications specifically in the area of education or children. The father’s position that the psychiatrist can make a determination as to schooling based on “the best interests” of K is really a matter for this Court to determine on the evidence before it. I am satisfied on the evidence I have that it is important that K returns to schooling at this point and that it should not be delayed for possibly weeks or months.
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•I consider that College 1 is a financially viable option if both parties are prepared to place K’ education high on their individual agendas. The mother needs to return to work and the father needs to place on hold his attempts to “recover financially” from the property settlement. I consider he could contribute more.
•I have difficulty with the argument that allowing K to return to Murdoch will be seen as a victory for him. Both Ms Willix and Professor Leach said K was aware that a return to College 1 might not be financially viable and was willing to consider other options as long as it did not include College 2. The father needs to accept this is not a win/lose situation between himself and K. I do not accept there is persuasive evidence to show K is “blackmailing” his parents as stated by the father in his re-examination. The fact of K returning to school and trying to successfully complete his high school education is a victory for all involved in this case.
I and D
69 I will now turn to the issues surrounding the two girls. I was born in May 1999 and D in June 2002.
70 On 10 December 2009, after the publication of Mr Cohen’s report, the Court ordered that I and D spend time with the father from 9.00 am each Sunday until
8.50 am Tuesday each week. It was also ordered there be one additional night each week, either from the conclusion of school until the commencement of school the following day, or in the event of a weekend or non-school day, from 9.00 am until
9.00 am the following day. This was in accordance with the father’s proposals.
71 Superimposed on any orders for the girls to spend time with their father is the difficulty he has with fixing the times he is available to spend with the girls.
72 He works on a roster system which allocates the time he is to work in 28 day blocks. He receives his roster seven days before the start of a work period. The father has set out in his affidavit material the details of the roster system. He explained this further in his oral evidence. To a certain extent he is at the mercy of a regime which uses a point system arranged on a seniority basis. The rotation period for seniority is about 11 months and during that period each worker’s seniority improves by a small increment until they are at or near the top. At this time they fall to the bottom and start climbing the seniority ladder again.
73 In 2009 the father requested a special modified roster based on his proposal to spend every Sunday and Monday with the girls. This was granted and he was not allocated to work on any Sunday or Monday to enable him to care for the children on those days of the week. Occasionally, he has had to work on a Tuesday morning or on the morning of the additional day. In that event the children have been delivered to school by either the husband’s mother, or his girlfriend.
74 The additional day he has is not fixed although, especially as he gains rotated seniority, it is regularly on a Tuesday. It is less regular if he is less senior.
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75 In order to secure a fixed third day off each week the husband would need to obtain permission from his employer and, if granted, it would have an impact on the remaining hours he was able to work. In evidence he said his hours, and thus his income, would reduce by between 15-20%. He is reluctant to reduce his income as he is anxious to re-establish himself after the property settlement. He says that even if he is able to secure a third fixed day off each week, it will reduce the time available to fit in his required shifts. Thus, he would be likely to be absent on the third morning of the fixed cycle on a more regular basis than at present. This would impact on his ability to take the children to school. He made it clear, however, that his priority is to see his children as much as possible.
76 Holiday periods are also at the mercy of the roster system and the father says he cannot always secure a full week’s break for end of term holiday periods. His evidence was that he is entitled to annual leave of six weeks. He can also apply for ad hoc days.
77 In cross-examination it became apparent the father had accrued four and a half months long service leave. He is also able to access two days a year for important events. He can swap days “here and there” with friends. He was unable to explain to the Court with any precision how he would need to bid or request his long service leave.
78 The parties are each content to continue the arrangement whereby the girls spend the time with their father from 9.00 am Sunday until 9.00 am Tuesday of each week although the mother wants the father to be available at all times for the children. The real point of contention is the one further night.
79 The mother originally opposed the third night. During her evidence, in answer to direct questioning by both the father’s counsel and the Court, she accepted it was in the best interests of the children if they continued the third night each week with their father on the basis it was fixed.
80 However, at the commencement of her closing the following day she resiled from that view having reflected overnight. She opposed the third night on the basis it was not what the children wanted and there was uncertainty over the care arrangements.
81 Given the ages of the children, this was a matter that my orders of 11 May 2011 sought to address with the Family Consultant.
82 Ms Willix reported that D, although younger than her sister I, joined with I in giving considered and thoughtful responses to her questions. She was a chatty girl who said she wished to return to her mother after school on Tuesday. Although she has a positive relationship with the father’s girlfriend, she said she did not want to be taken to school on the Wednesday morning by her. D made it clear that she very much enjoyed her time with her father on the Sunday and Monday, but did not wish to remain for a third night. D told Ms Willix that she missed her mother and her cats.
83 Ms Willix reported that I was more quiet and considered her responses carefully.
I has a positive relationship with the father’s girlfriend. She, too, wished to return to
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her mother’s home on Tuesday. She said that she found it frustrating transporting her belongings to and fro. I has a ballet commitment on Tuesday afternoons and there is some difficulty in relation to having her belongings with her during the school day. Overall, she said it was easier to go to her Tuesday evening commitment from her mother’s house.
84 The mother says the children do not feel comfortable with the father’s girlfriend or the father’s mother being used routinely to take them to school. The mother says that the aim of the children spending time with their father is for him to be with them and to carry out their morning routine, rather than others. This is something that is echoed, at least by D, in her interview with Ms Willix.
85 I accept the mother’s further argument that certainty in routine is desirable. It allows her household to know what is expected each week on a regular basis in terms of movement between houses. I am satisfied it also gives the mother the opportunity to optimise her chances of obtaining employment on set days each week. Although she enjoys the time with her children and they are her priority, I also accept that she enjoys working and will have a greater opportunity to do so if those days are fixed. Given my decision on K’s schooling, she will need to explore this. I also see it important that she have the opportunity to develop and expand her social networks. She needs to do this both for herself and the children.
86 The two girls were able to state their wishes clearly. There was nothing to suggest from the evidence of Ms Willix that they were immature or that their responses had been anything other than considered. She did not say they had been influenced by any person, although had not seen them for long enough to explore this issue. The general question of the children’s wishes and attitude being influenced by the mother was something addressed by Mr Cohen in his report. He reports that there was no indication, at least at that time, that the children’s wishes had been influenced consciously by the mother, the father or any other person. He specifically said there was no indication that the mother has consciously influenced the children against the father. He did, however, feel that the mother has unconsciously influenced the children by, primarily, showing disrespect to the father “by having discussions with him about incidents. This has tended to undermine the father/children relationships”. Mr Cohen was not available to clarify this point.
87 I do accept that the mother may have, albeit unconsciously, influenced the children in her views. She is clear that she wants the father and not third parties to care for them during the time they spend with him. She is strong in this view. She misses the children very much when they are absent. However, she spends the majority of the week with them, as does K.
88 The father’s girlfriend was not required for cross-examination on the content of her affidavit. She deposes:
23I sometimes walk the girls to school in the mornings when [the father] is at work. [D] usually shows me around the campus and introduces me to her teachers and class mates. [D] enjoys demonstrating the computer games of spelling for me and shows
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me her art work. [D] will often hug and kiss me when I leave her school.
89 There is no mention of taking I to school, but I note from the Family
Consultant’s report this was not the issue for I.
90 The Family Consultant reports the girls have a strong relationship with the father’s girlfriend. It may assist Ms Savage if she was to meet the father’s girlfriend. These are not very young children. They are two girls who are together during the time they spend with their father. They have each other for support. I am not satisfied that there is a genuine objection to the father’s girlfriend taking them to school some mornings. It is not uncommon in intact households that persons other than the children’s parents are utilised to take them to school. This alone is not sufficient for me to reduce any time the father presently spends with the children. I have little difficulty finding that D may have absorbed some of her mother’s views in this particular regard.
91 I’s objection of inconvenience is a common objection in these circumstances. If a day is fixed it may ameliorate some of the concerns.
92 These children have a meaningful relationship with their father. Their relationship with him is well developed and they benefit from his input. His parenting style and attitudes are different from the mother and they provide a different perspective for the children.
93 There is tension in the decision I have to make. Fixing a further day each week with his employer will necessitate substantial changes to the father’s work roster and it will reduce his income. Importantly, it will not necessarily address the fact that on one of the mornings a third party may be involved in taking the children to school. On the father’s evidence this may happen more frequently. I accept this is so if it is fixed each week. A reduction in his income may impact on his ability to appropriately contribute to the children’s schooling.
94 I intend to adopt a position of compromise. However, in this case I see the compromise as being in the best interests of the children. I intend to order a third day every fortnight. Thus the father will have three days one week and two days the following week. I will fix the third day in the one week. I am not satisfied on this basis that the husband will need to change his work arrangements. I do not require him to do so. He will need to try and bid for the Tuesday night and, given the recent past, I accept he has a good chance of securing that time. He is confident and his evidence is that he regularly secures that day in the roster system. I also take into account he has other leave to utilise. I accept the roster system is uncertain, but the father has become more adept at it. If for some reason he is unavailable for most of that extra Tuesday period, then the children should be returned to their mother. If he is substantially available and is simply unable to take the children to school on Wednesday mornings, then they should remain with him. By “substantially available” I mean he should be present at least until midnight of the third day.
95 Having a fixed day will give stability and certainty to the arrangement. It is a more practical arrangement for the children. It does not entirely discount the
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children’s views and it will allow both parties to maximise their employment. Such a reduction will not diminish the father’s relationship with the children as it is firmly cemented.
96 The father is a responsible parent. I have confidence that any person utilised by him to take the children to school will be known and familiar to the children. It should be someone who is attuned to their needs. If this happens on some Wednesday mornings, I do not see it as being a difficulty.
97 There has been difficulty over school holiday periods. I consider it appropriate that, in theory, each parent should be able to have the children for one half of each term school holiday period. The father has accumulated long service leave and he is in a position to either allocate chunks of his annual leave or to attempt to utilise some of his accumulated long service leave to accommodate those periods of time. He did not disclose his long service leave or some of the other leave available in his affidavit material although it is relevant. Even if it is not available a week at a time, I am of the view that he can utilise it for longer periods of time, perhaps in the Christmas school holiday periods, and be available more often during term time holidays by utilising his annual leave during those periods. However, if he is not available, he will continue to have three days or as many days as he can arrange up to half the holiday period with the mother having the balance of his time if he is unavailable. She would also have her own week. I accept that the time he can have during his holiday week should extend to 5.00 pm on the Wednesday, or such other further time as he is able to arrange up to a week in total. If the parties cannot agree, then his time will fall in the first week.
Handovers
98 By orders made on 10 December 2009 any handover of I and D was to take place at the Armadale Primary School, or such other location as the parties agreed in advance. The evidence is that generally the father has collected the children from the mother’s residence on a Sunday. During the term time the Armadale Primary School is the venue due to school being in progress. During holiday periods, in the main, the father has collected the children from the mother’s residence. There have been times when she would pick the children up at the conclusion of contact from his residence.
99 Due to the poor relationship between the parties, the mother has insisted at times that handover during school holiday periods takes place at Armadale Primary School. Given she had earlier been prepared to go to the father’s house, this has created difficulties. The orders the father now seeks are:
16To facilitate the time in the paragraphs above, handover is to take place as follows:
(a) the Mother is to deliver I and D to the Father, at the Father’s home, at the commencement of each period; and
(b) the Father is to deliver I and D to school (in the event the conclusion falls on a school day) and otherwise to the
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Mother’s home (in the event the conclusion falls on a weekend or school holiday period),
or such other location as may be agreed in advance in writing between the parties from time to time.
100 The parties agree 16(b), but the mother does not agree with 16(a).
101 The father says it is appropriate that the mother does her share of attending his premises for either delivery or collection of the children. He said he wants to even things up. He says it sends a positive message to the children that their parents can come and go to each other’s residence with ease.
102 The mother gave evidence that she is very uncomfortable in delivering the girls to the father’s home. She says she has done it on occasions, but it has caused her great anxiety. She feels better if there is someone with her, but she cannot guarantee that a third party will be available on each occasion required by the orders the father seeks. I accept the mother is currently on medication for anxiety and depression. The father has admitted that, at least historically, he has had a problem with anger. Even if the anger issues no longer remain, I accept he can act in a loud, controlling and demanding manner. For a less than robust personality, this may be intimidating. I accept it is for the mother. Due to the dynamics of the parties’ relationship, I accept it is difficult for the mother to attend the father’s home.
103 Although the father wants to send the children a positive message that each of the parents feel comfortable at the other’s home, the fact is the mother does not feel comfortable at the father’s home. I do not accept it is useful for the children to see their mother in an anxious state. She has already told them it frightens her to go to the father’s house. Until the relationship between the parties is restored to a greater extent I see little benefit to the children in having to deal with their mother’s anxiety. However, I would have thought that the mother should make herself available to drop the children off when she can go in the company of another person.
104 The issue of collection and delivery during term times arises only once each week. It arises infrequently during holiday periods. Thus, it will be the father who conducts the collections and delivery of the children from the mother’s home.
105 In any event, I am not satisfied that the issue the father raises of the children being late when he collects them from the mother’s house would be ameliorated by the mother dropping them at his residence. I do not accept that there are currently long delays in changeovers. As much as the father, and indeed the mother, would like changeovers to run like a well oiled machine, or in a business like fashion, there are simply issues of organisation of these girls. A ten minute buffer is not unreasonable and the mother needs to facilitate the changeover.
Education
106 The girls will remain at Armadale Primary School this year. If either party wishes to change this for 2011 or the years following, then a further application will need to be made later in the year.
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Injunctions
107 The father has sought to restrain the mother from removing any of the children from school without his consent unless in the event of an emergency or the children are sick. The consent must be obtained in advance in writing.
108 The father’s evidence is that on at least two, perhaps three, occasions the mother has removed the children from school during a time he considers to be “his time”. I do not accept there is a basis for such an injunction being granted against the mother.
109 I am not satisfied that she routinely removes the children from school during the father’s, or even her own, time. I am not satisfied that she has done so without reasonable cause. The mother is diligent in her education of these children and I will not make the order the father seeks in that regard.
110 However, I do consider it inappropriate that the mother, or indeed the father, removes the children from school for any interview/auditions which relate to further schooling unless it is by consent or court order. Further education is an issue I will deal with before the end of the year. If the parties are to agree to such course then obviously I hold no concerns, but in view of the strong views each has about schooling, I intend to allow the injunction as sought by the father, although on a mutual basis.
111 I am not satisfied that either of these parties has fairly and squarely addressed the counselling issues recommended by Mr Cohen. I accept the submissions of the father’s counsel that the mother has misconstrued the meaning of boundaries in the context of Mr Cohen’s report. His emphasis is more on emotional boundaries than physical boundaries. It is a matter she needs to address as her behaviour has the potential to continue to impact on the children unless it is taken firmly in hand.
112 Likewise, I am not persuaded the father has really addressed his anger, or possibly control, issues. Although there has been an improvement, he needs some independent assistance in dealing with the oppositional behaviour of at least K. It may well be more of an issue with the girls as they enter their teenage years. Although he took some steps by himself to, amongst other things, increase his physical activity, that alone is unlikely to address the issues. He had some counselling, but on the basis he may not consider he has any issues, this was not likely to fully address the problem.
Orders
113 The orders I intend to make are as follows:
1 All previous parenting Orders be and are hereby discharged.
Parental responsibility
2 The parties have equal shared parental responsibility for the children.
3 The children live with the mother.
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K
4 K spend time and communicate with the father as follows:
(a) K and the father arrange to play on-line games each week, for an hour, with the time to be agreed between K and the father each week, no later than 24 hours prior to the proposed game time;
(b) the mother is to do all acts and things required to ensure that K has access to the internet and a computer to facilitate (a) above;
(c) the mother is to do all acts and things required to promote, support and encourage the father’s relationship with K, including facilitating games, telephone contact and such other contact as agreed between K and his father from time to time;
(d) in addition to the on-line games, K have telephone contact with the father not less than once per week;
(e) the father telephone K once a week, at a time to be arranged between K
and the father each week;
(f) in addition to the online games, the father and K have unlimited emails with each other, with each to provide the other with a current email address; and
(g) K is to spend any additional time with the father in accordance with K’s wishes.
5The mother and father urgently confer with a view to arranging for K to be examined by Dr van Wyk, or such other psychiatrist they agree, with a view to having a firm diagnosis and plan devised for the treatment of K’s mental health problems.
6 The father agrees to pay any costs associated with paragraph 5.
7That the mother do all acts and things required to enable K to attend counselling on such terms and conditions as recommended by Dr van Wyk or such other psychiatrist they agree.
8Each party co-operate fully with the psychiatrist’s requirements in attending appointments and facilitating K’s attendance at appointments.
I & D
9During school term (school term is defined in accordance with the school calendar published by each school which each child may attend from time to time), D and I spend time with the father as follows:
(a) commencing on the first weekend, and each alternate weekend thereafter, after the children return to school from 9:00 am each Sunday until 9.00 am on Wednesday each week, with the father to be substantially available to care for the children during times they are with him;
(b) commencing on the second weekend, and each alternate weekend thereafter, after the children return to school from 9.00 am each Sunday
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until 9.00 am on Tuesday each week with the father to be substantially available to care for the children during times they are with him;
(c) if he is not substantially available, the children are to be returned to the mother. (substantially is defined in the Reasons for Judgment published this day); and
(d) this order is to commence on Sunday 19 June 2011 in accordance with the arrangement set out in paragraph 9(a), and on Sunday 26 June 2011 in accordance with the arrangement set out in paragraph 9(b).
10During each school holiday period (school holiday period is defined as in accordance with the school calendar published by each school which the children may attend), I and D spend up to one half of each holiday period with the father, subject to the father’s work roster, as follows:
(a) by no later than 90 days prior to the holiday period at the end of each school term, the father is to provide to the mother, in writing, his proposals to spend time with I and D during either the first or second week of the forthcoming school holidays;
(b) that within 7 days of the mother’s receipt of the father’s proposals, the mother respond in writing, with her response to the father’s proposals;
(c) in the event that any agreement is reached between the parties that I and
D spend time with the father as agreed; and
(d) failing any agreement, I and D spend time with the father in the first week of the holidays in accordance with the father’s proposals for that week.
11 That notwithstanding the paragraphs above:
(a) I and D are to spend time with the parent with whom they are not otherwise living, on each of their birthdays;
(b) if the birthday falls on a school day, for a time to be agreed and failing agreement, from the conclusion of school until 6pm;
(c) if the birthday falls on a weekend, for half a day to be agreed and failing agreement, from 9.00 am until 1.00 pm;
(d) I and D are to spend time with the father on Father’s Day from 9.00 am until 9.00 am the following day, in the event that the children are not otherwise living with the father on that date;
(e) I and D are to spend time with the mother on Mother’s Day from
9.00 am until 9.00 am the following day, in the event that the children are not otherwise living with the mother on that date; and
(f) I and D are to spend time with the parent with whom they are not otherwise living, on each of the parent’s birthdays from 9.00 am on the relevant parent’s birthday until 9.00 am the following day.
12During the Christmas period I and D are to spend time with each parent to be agreed in writing in advance by 1 November of each year, and failing any agreement by that date, then I and D will:
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(a) live with the mother from 9.00 am on Christmas Eve until 2.00 pm on
Christmas Day 2011 and each alternative year thereafter;
(b) live with the father from 2.00 pm on Christmas Day until 5.00 pm on
Boxing Day in 2011 and each alternative year thereafter;
(c) live with the father from 9.00 am on Christmas Eve until 2.00 pm on
Christmas Day 2012 and each alternative year thereafter; and
(d) live with the mother from 2.00 pm on Christmas Day until 5.00 pm on
Boxing Day in 2012 and each alternative year thereafter.
13Each party be entitled to take the children for up to 4 weeks during the summer holiday period, in each alternate year, commencing with the father in the
2011/2012 summer school holiday period, for the purposes of travel in Australia or overseas on the provision of 6 months written notice to the other party of the dates and destination.
14Subject to paragraphs 12 and 13, or any other written agreement of the parties: (a) the arrangement set out in paragraph 9 will continue in the Summer
school holiday period up to 27 December each year; and
(b) after 27 December each year the parties are to share the remaining Summer school holiday period on a rotating one week about basis and subject to any other agreement with the mother to have the first week commencing 28 December and each alternate week thereafter with the father having the intervening week or so much of that week as he is substantially available to care for the children, with the father providing to the mother 90 days notice of his availability during his designated weeks.
15In the event that time spent with a parent pursuant to clause 13 above is greater than one half of the summer school holiday period, the other party shall be entitled to make-up time during the subsequent term time holidays on the provision of 90 days written notice.
16In the event that either party takes the children out of the metropolitan area for longer than 7 days, pursuant to the extended holiday clauses the travelling parent shall (prior to their departure) provide the other parent with:
(a) contact details such as telephone numbers and addresses of which the children may be contacted; and
(b) the travelling parent will facilitate weekly telephone communication with the non-travelling parent.
17Each parent be at liberty to take the children for one extended holiday in every year, during or adjacent to the school term time holidays after terms 1, 2 and 3, on the following basis:
(a) the provision of at least 90 days written notice to the other party of the proposed dates and destinations;
(b) the holiday not to exceed 14 days;
(c) each party exercise their best endeavours to avoid taking the children on holiday during the second half of Term 2 holidays;
(d) the children not miss more than 5 days school as a consequence of the holiday; and
(e) if I or D miss any dance exam preparation as a consequence of the holiday, and provided the dance exam is in a dance course to which both parties have previously agreed, the party taking the children on the holiday shall pay for them to attend private dance lessons to prepare for the exam.
18The children shall spend time from 9.00 am Easter Sunday to 9.00 am Easter Monday with the mother, commencing in 2012 and in every alternate year thereafter, provided that:
(a) make-up time for the father has been the subject of prior written agreement; and
(b) the arrangement does not interfere with extended holiday arrangements already notified pursuant to these orders.
Handovers
19Unless otherwise agreed in advance in writing by the parties, the father is to collect I and D from the mother’s home at the commencement of each period and he is to deliver them to school (in the event the conclusion falls on a school day) or otherwise to the mother’s home (in the event the conclusion falls on a weekend or school holiday period).
Education
20The mother and father do all things necessary to ensure that: (a) I attends Armadale Primary School in 2011; and
(b) D attends Armadale Primary School in 2011.
21The parties forthwith do all things necessary and sign all documents required to ensure K attends College 1 for the balance of his high school education.
22 The costs of K attendance are to be borne as follows:
(a) as to 70% of the scheduled tuition fee by the father; (b) as to 30% of the scheduled tuition fee by the mother; (c) books and uniforms by the mother;
(d) excursions up to $250 by the mother; and
(e) any further expense by agreement between the parties.
Passports/Visa applications
23That the mother and the father do all acts and things reasonably required to ensure that the children’s Australian and British passports are kept current.
24That the mother and father do all such acts and things reasonably necessary, including providing all consents and signing all documents requested by the
other parent, to enable the children’s passports to be renewed from time to time, on the following basis:
(a) each party do provide to the other party, in writing, the necessary documents required to be signed to renew each child’s passport; and
(b) within 14 days of receipt of that request, the other party sign the documents and otherwise complete the documents as required and return to the other parent.
25That the mother and father do all such acts and things reasonably necessary, including providing all consents and signing all documents requested by the other parent, to enable the children to travel overseas including completing any visa applications or associated documents as may be reasonably requested from time to time, on the following basis:
(a) each party do provide to the other party, in writing, the necessary documents required to be signed to for any proposed overseas holiday; and
(b) within 14 days of receipt of that request, the other party sign the documents and otherwise complete the documents as required and return to the other parent.
26That Australian passports for the children remain in the father’s possession and then he will provide them to the mother or her nominee within 7 days of receipt of a request in writing and not later than 14 days prior to the proposed date of travel overseas.
27That the British passports for the children remain in the mother’s possession and then she will provide them to the father or his nominee within 7 days of receipt of a request in writing and not later than 14 days prior to the proposed date of travel overseas.
28That each parent or his nominee return the said children’s passport to the other parent upon return to Australia at the conclusion of the holiday and no later than 7 days after return to Australia.
29That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then a Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth), to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument, upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Injunctions
30The parties be restrained and an injunction is hereby granted restraining them from taking any of the children to any treating medical practitioner (excluding the children’s general practitioner or for routine or follow up appointments with existing neurologists, orthopaedic practitioners, endocrinologists, orthodontists, physiotherapists, podiatrists and psychologists) without either
the prior written consent of the other party or an order of the Court, save and except in the event of an emergency.
31The parties be restrained and an injunction is hereby granted restraining them from taking any of the children to any interviews/auditions or otherwise removing them from school without the other parent’s consent to be obtained in advance in writing or order of the Court.
32Each party be restrained and an injunction is hereby granted restraining them from changing the school enrolment of the children without the written consent of the other party or an order of the Court.
33 The parties are restrained by injunction from:
(a) permitting any other person to discuss Family Court proceedings with any of the children or in their presence; and
(b) speaking or permitting any other person to denigrate the other party or family of the other party in the presence of the children or within the children’s hearing.
Access to information
34That within 7 days of the receipt of these Orders, the parties each provide to any school at which the children may attend from time to time, including College 1, a copy of these orders and authorisation in writing to provide directly to each of them the children’s school reports, copies of all school newsletters and any further documents or correspondence in relation to their education, with any costs associated with so providing to be borne jointly.
35The father and the mother each inform the other of any hospitalisation, significant injury or health problems suffered and treatment received by the children, whilst they are in the care of the father and the mother, in a timely manner.
36The father and the mother authorise and instruct each medical and dental institution attended by the children to release to the father and the mother such information regarding the children’s medical and dental health as may be reasonably requested from time to time.
37The father and the mother inform each other and keep each other informed of their current contact details including a home telephone number and mobile telephone number, for the purpose of communicating in relation to the children.
38That in the event that any child is hospitalised and in particular, requires any child to be admitted and stay overnight at hospital, the parent with whom the children are living with pursuant to paragraphs above, offer the other parent the first option of caring for the girls.
39The father and the mother permit the other parent to have reasonable communication with the children by telephone on one occasion every second day of 10 minutes duration for each child and email (if available) during times that the children are in his or her respective care.
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40Unless contrary to the children’s immediate welfare, the father and the mother must, before making any major long term decision about the children such as medical treatment, where the children live and extracurricular activities:
(a) consult with each other in writing setting out any major long term decision making proposal and the reasons for that proposal;
(b) give proper consideration to the other parent’s proposal and any counter proposal and respond in writing in a timely manner, making a genuine effort to resolve any issues; and
(c) in the event of no resolution to a major long term decision making dispute, consult with a Family Dispute Resolution Practitioner and invite the other parent to attend with the Practitioner.
41Nothing in this Order prevents either parent from attending any school function, parent-teacher appointment, medical appointments, school activities, sporting or extracurricular activity of the children and each parent permit the other to do so.
42Neither parent is to make social arrangements, medical appointments, extracurricular or sporting activities for either of the children affecting the time that the children are to spend with the other parent, except with the other parent’s prior agreement in writing.
43Both parents are to provide the other with not less than 30 days advance written notice in the event of an impended change of residence or contact details with this notice to include details of the new proposed residence and/or telephone numbers.
44Both parents are to take reasonable steps of their own to ensure they keep up to date with the children’s extracurricular activities.
45Both parents are to forthwith take steps to enrol in and complete a parenting course to specifically address the issues raised by Mr Cohen in his report published 19 October 2009.
I certify that the preceding [113] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court
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