ROTH & ROTH
[2014] FamCA 207
FAMILY COURT OF AUSTRALIA
ROTH & ROTH [2014] FamCA 207
FAMILY LAW – CHILDREN – Best Interests – Where there are two children of the relationship – Where the mother sought orders that the youngest child primarily live with her and that she have sole parental responsibility for him – Where the mother sought that the eldest child live with the parents as agreed between the parents and that the father have sole parental responsibility for her – Where the father sought orders that the parties have equal shared parental responsibility for the older child, that the youngest child live week about between the parties and that the eldest child live with him – Where the ICL proposed that the mother have sole parental responsibility for the youngest child and that the youngest child live mainly with the mother – Where the ICL proposed that the father have sole parental responsibility for the eldest child and that the eldest child live with the father – Where the proceedings primarily relate to the youngest child – Where the parties have found it difficult to constrain the eldest child’s behaviour, living arrangements and lifestyle – Where the parties accept that there is an estrangement between the eldest child and the mother – Where the parties disagree about co-curricular arrangements for the youngest child – Where the mother raises concern about the children’s lateness and absences from school when in the father’s care – Where the presumption of equal shared parental responsibility does not apply – Orders made for the eldest child to live with the father and for the father to have sole parental responsibility for the eldest child – Orders made for the youngest child to live with the mother and spend every second Thursday to Monday with the father – Orders made for the mother to have sole parental responsibility for the youngest child.
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC
Briginshaw v Briginshaw (1938) 60 CLR 336
Champness & Hanson (2009) FLC 93-407
G & C [2006] FamCA 994
Leighton & Carey [2010] FamCAFC 94
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Pavli & Beffa (2013) 48 Fam LR 677
APPLICANT: Ms Roth
RESPONDENT: Mr Roth
INDEPENDENT CHILDREN’S LAWYER: Maureen Power
FILE NUMBER: SYC 2744 of 2010
DATE DELIVERED: 2 April 2014
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Loughnan J
HEARING DATE: 29, 30 & 31 January 2014 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Dura
SOLICITOR FOR THE APPLICANT: Swifte Law COUNSEL FOR THE RESPONDENT: Ms Breeze
SOLICITOR FOR THE RESPONDENT: David H Cohen & Co
ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Cantrell
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Orders
1)All prior parenting orders in relation to L born … 1999 and S born … 2002 are discharged.
2)The father shall have sole parental responsibility for the child, L, born … 1999.
3)The mother shall have sole parental responsibility for the child, S, born … 2002.
4)The child L shall live with the father and spend time with the mother as agreed between the parents and after consultation with L.
5)The child S shall live with the father as follows:
a)During school terms each alternate Thursday from after school until before school the following Monday;
b)For half of each school holiday period by agreement, failing agreement for the first half of school holidays in years ending in an even number and for the second half of school holidays in years ending in an odd number;
c)In 2014 and each alternate year thereafter, from 9.00 am Christmas eve to 12.00 pm Christmas day and in 2015 and each alternate year thereafter from 12.00 pm Christmas day to 6.00 pm Boxing day;
d)Unless otherwise spending time with the father, on S’s birthday and L’s birthday each year from 3.00 pm or after school until 8.00 pm;
e)In the event that S is not spending time with the father on Father’s Day then S shall spend time with the father from 9.00 am until 6.00 pm;
f)The father’s time with S is suspended on Mother’s Day from 9.00 am until 6.00 pm during which times S shall spend time with his mother; and
g)Any other times or variation of the above as agreed between the parents.
6)That at all other times, unless the parties otherwise agree, the child S live with the mother.
7)That for the purposes of S’s living arrangements, unless otherwise agreed, the father will collect S from school or the mother’s residence at the commencement of his time with the child and will return the child to school or the mother’s residence at the conclusion of that time.
8)The father be restrained from enrolling S in any extra-curricular activities to occur during the times S lives with his mother without the prior written consent of the mother.
9)The mother shall ensure that the father is kept informed of:
a)Any medical problems or illnesses suffered by the children while in the mother’s care;
b)Any medication that has been prescribed for the children;
c)Any social, school or religious functions which the children are to attend;
d)The residential address of the mother and particulars of the others who may reside with the children; and
e)Any other matter relevant to the children’s welfare.
10)The father shall ensure that the mother is kept informed of:
a)Any medical problems or illnesses suffered by the children while in the father’s care;
b)Any medication that has been prescribed for the children;
c)Any social, school or religious functions which the children are to attend;
d)The residential address of the father and particulars of any other persons who may reside with the children; and
e)Any other matter relevant to the children’s welfare.
11)The father is to encourage the child L to spend time and communicate with the Mother.
12)The father is to encourage the child L to continue to attend upon Ms A for counselling.
13)Within seven days of the making of these Orders the mother is to contact Ms A to make an appointment for the child S on a date convenient to the parties.
14)The mother and the father are to attend with S at the appointment referred to in Order 13 herein.
15)The mother is to facilitate the recommendations of Ms A for future counselling of S.
16)Leave be granted to the Independent Children’s Lawyer to provide Ms A with the following documents within seven days of the making of these Orders:
a)Copies of the Family Reports in this matter released in January 2013 and December 2013; and
b)A copy of the Final Orders.
17)The Court requested that the Independent Children’s Lawyer make arrangements at the earliest practicable occasion, if possible together with Ms B, to explain the import of these orders to S.
18)The Court requested that if practicable, a similar explanation be provided to L.
19)Pursuant to s 62B and s 65DA(2) of the Family Law Act1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
20)Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other in relation to the wording of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Roth & Roth has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT FILE NUMBER: 2744 of 2010
Ms Roth Applicant
And
Mr Roth Respondent
REASONS FOR JUDGMENT
Introduction
1.These are parenting proceedings involving L who is 14 years of age and S who is 11 years of age.
Applications
2.The applicant mother sought that she have sole parental responsibility for S and that the father have sole parental responsibility for L. She sought that L live with the parents as agreed between the parents, following consultation with L. In relation to S, the mother sought that he live mainly with her and spend time with the father either from after school Friday to 6.00 pm Sunday on two weekends each month or for three out of every four weekends.
3.The respondent father sought that the parents have equal shared parental responsibility for L and for S save that in relation to S, in the event that the parents are unable to agree about co-curricular and extra-curricular pursuits or schooling, including choice of senior school, then he would have the casting vote. He sought that S live between the households, week about, with handover after school on Monday. He also proposes that he be able to transport S to his after school activities. In relation to L, the father proposed that she live with him but that he encourage L to spend half the time with the mother.
4.The Independent Children’s Lawyer (ICL) proposed that the mother have sole parental responsibility for S and that the father have sole parental responsibility for L. She sought that L live with the father and spend time with the mother as agreed between the parents. In relation to S, the ICL sought that he live mainly with the mother and spend time with the father each alternate week from after school Thursday to before school Monday.
Expert Evidence
5.The following expert evidence was relied on:
Reports of Family Consultant Ms B dated 19 December 2012 and 11 December 2013.
The Hearing
6.The hearing commenced on 29 January 2014 and on 31 January 2014, judgment was reserved.
Short History
7.The father was born in 1959. As at the date of the hearing he was 54 years of age. In 1960 the mother was born. As at the date of the hearing she was 53 years of age. The parents met in 1997 and married in December 1998. They separated on 2 June 2009.
8.The parties’ children are L who was born in 1999 and S who was born in 2002.
Background Facts
9.The parties commenced cohabitation in 1997.
10.In December 1998 the parties married in Suburb I, New South Wales.
11.L was born in 1999.
12.In May 2001 the parties relocated from the Northern Beaches to the Southern Highlands.
13.Around the end of 2001, the parties purchased a property at C Street, Town D.
14.S was born in 2002.
15.Towards the end of 2003 the father was sued by one of the previous suppliers to his business, Company E. A settlement was reached in 2005 and the legal fees were in excess of $100,000. The litigation was funded by the sale of the C Street property.
16.In or about October 2004 the parties sold the C Street property and subsequently moved into a rented residence at Town F.
17.In around June 2006 the parties purchased G Street, Town F in the wife’s name.
18.Over time and for a number of reasons, the father’s business failed.
19.The father deposes that on 2 June 2009 he returned home to find that the mother had left the house with the children. The mother relocated to a townhouse in Town H.
20.Until December 2011 or January 2012 the children lived with the mother and father on a week about basis. At the date of separation, the father remained living in the former matrimonial home. From about December 2011 L moved into the father’s residence on a full time basis.
21.After separation in 2009, the children both participated in a number of activities outside of school. S participated in music lessons, soccer, Sport Z, tennis and basketball and L participated in dance, soccer and Sport R.
22.On 5 May 2010 the mother filed an Initiating Application in relation to property settlement. The mother sought urgent orders regarding the sale of the Town F property.
23.On 1 September 2010 the father filed a Response to Final Orders whereby he sought parenting orders. These proceedings were thereby commenced.
24.On 1 September 2010 interim consent orders were made requiring the mother to sell the former matrimonial home.
25.On 22 September 2010 the mother filed a Reply to the Response to Final Orders in relation to the parenting proceedings.
26.On 4 November 2010 interim orders in relation to parenting were made by consent. The orders provided for the children to live with the mother and father on a week about basis.
27.The former matrimonial home was sold in November 2010.
28.The father deposed that during 2011, the mother and L had a number of physical confrontations, including the mother dragging L down the stairs by her hair, the mother digging her nails into L and smacking L around the head. The father also deposed that the mother bit L on the hand as she was trying to forcibly take a note L had written about her complaints concerning the mother from her. The father alleged that a notification was made to the Department of Community Services. The mother said that she accidentally scratched L but otherwise substantially denies those allegations. That controversy was not explored in cross-examination and it is not possible to make findings about it.
29.On 12 January 2011 final property orders were made by consent.
30.In October 2011 the father moved to rental accommodation at J Street, Town D. The mother deposed that the father was evicted for unpaid rent in January 2012. The respondent father then moved to rental accommodation at Property X, K Street, Town F.
31.The father deposed that in or about the first week of January 2012, L moved into his home.
32.At some point the mother applied to enrol L at M School for the 2012 school year.
33.In January 2012 L commenced Year 7 at Town F High School.
34.In or around September/October 2012 L was moved by the father from Town F High School to M School. That was done on the spur of the moment and without further consultation with the mother.
35.Between 16 October 2012 and 13 November 2012 L was absent from school on 17 occasions. S was absent from Town F Public School for 9 full days and 16 partial days in semester 1 of 2013.
36.In about late 2012, Ms N, head counsellor at the Centre of Youth which is attached to the Mental Health Department at Town F, recommended that L spend more time with the mother. The father alleged that L resisted spending time with the mother.
37.In early 2013 L was assessed by psychiatrist, Dr O who diagnosed L to suffer from “severe depression”.
38.The mother deposed that in early 2013 she received a phone call from the Principal of M School stating that L could not recommence at the school for 2013 due to unpaid fees and behavioural issues. The father contends that a meeting of school authorities and others recommended a change of school and that in any event, L refused to continue at M School. Whatever the reasons, L was subsequently enrolled at Town H High School for Term 1, 2013.
39.On 18 January 2013 a family report prepared by Family Consultant Ms B dated 19 December 2012 was released to the parties.
40.As a result of the recommendation of Family Consultant Ms B, in January 2013 L commenced counselling with Ms A.
41.In around March 2013, L refused to attend Town H High School. She recommenced her schooling at Town F High School in Term 2 of 2013. L’s school attendance continued to be poor. She came to the attention of school authorities for behavioural issues at all the schools she has attended.
42.In March 2013 S competed at and excelled at Sport R championships.
43.On 2 May 2013, L and the parents entered into a “Student Learning Contract” with Town F High School.
44.On 15 May 2013 Mr P, the Deputy Principal of Town F High School sent the parties an email in relation to L allegedly being bullied at school.
45.On 19 July 2013 the mother was informed that L had been placed on an alert status (Red Level) for truancy at Town F High School.
46.On 24 July 2013 L was absent from school. Town F High School subsequently contacted the mother and advised her that L was suspended from school for 20 days for shoplifting at a retail store in Town F.
47.During August 2013 L frequently failed to attend school.
48.On 6 August 2013 the father and L entered into a further student-learning contract.
49.From August to December 2013 L mainly lived with her boyfriend Mr Q at the home of his mother, Ms Q. L told Ms B that she was permitted to stay at that accommodation provided she attended school and completed some chores.
50.L went missing on 19 August 2013. She reappeared at Town D at 7.30 am the next morning.
51.On 2 September 2013 the father was evicted by Sheriff’s Officers from his rented premises at Property X, K Street. The father would have it that he deliberately did not pay rent because of issues going to the state of repair of the premises. The father then moved in with his parents, Mr Roth Snr and Ms Roth Snr at T Street, Suburb U. L was delivered to the mother’s residence. The mother deposed that L kicked and screamed and used numerous expletives for about five minutes. I gather that L thereafter returned to live with Mr Q at his mother’s residence.
52.S continued to live with the parents on a week about basis.
53.In October 2013 S received a high distinction in the annual educational assessments.
54.On 10 October 2013 L went missing after school. The mother reported to the Town F Police Station that she was missing.
55.On 2 December 2013 the mother received an email from Mr P, the Deputy Principal of Town F High School, stating that L refused to attend class. Mr P also proposed a distance education scheme for L.
56.Around the end of December 2013, L broke up with her boyfriend, Mr Q. L commenced living at the Town F Youth Refuge on 28 December 2013.
57.On 16 January 2014, L was evicted from the Town F Youth Refuge due to her continual attempts to “escape” from the Refuge. L was taken to live with the mother later that day. As I understand it, that arrangement lasted only a day or two before L left the mother’s home.
58.The mother continues to reside at V Street, Town H. She currently works part-time as a receptionist and in a retail position.
59.In January 2014 the father signed a month by month holiday tenancy agreement for a four bedroom property at Property W, K Street, Town F. The father moved into that property on 28 January 2014. The father deposed that both children lived with him on 28 & 29 January and that they are able to walk to school from the property.
60.The father currently works part time at a retail store called Business Y. The father also deposed during the hearing that as of 4 February 2014 he will commence work in an education role in Town H and at a shop in Town F.
The Expert Evidence
61.The single expert was Ms B, a Family Consultant with post graduate qualifications as a Social Worker. Ms B prepared two reports, dated 19 December 2012 and 11 December 2013.
The Legislation
62.The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
63.Section 60B sets out the objects of the Part and the principles underlying those objects. Relevantly the section provides:
(1)The objects of this Part 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.
(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).
64.Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
65.The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
66.The way in which parenting issues are decided has been discussed in a number of cases. The High Court has provided an outline and some differences of approach have been adopted and have survived intermediate appellate attention. For the purposes of the determination of these proceedings, I will adopt the following approach:
(a)set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
(b)where possible and relevant, consider and make findings about matters set out in s 60CC;
(c)consider and make findings about parental responsibility, including considering the presumption in s 61DA;
(d)apply s 65DAA if relevant and assess the proposals in light of that provision;
(e)if 65DAA is not relevant, assess the proposals against the best interests criterion;
(f)consider and make findings about living arrangements; and
(g)make orders.
The Parties’ Proposals
67.I have set out the main proposals earlier in these reasons. It should be noted that the father’s orders about parental responsibility for S are not framed in accordance with the legislation. Although using the phrase “equal shared parental responsibility”, in effect he seeks that the parents each exercise parental responsibility for S but that he (the father) have the casting vote in relation to co-curricular and extra-curricular activities and for schooling, including choice of high school. The better view seems to be that it is not possible to have equal shared parental responsibility and then to qualify that in relation to one or more categories of long term decision making.[1]
[1] See Watts J in Pavli & Beffa (2013) 48 Fam LR 677.
68.An important issue is the connection between the father and S’s school week. Under her alternate proposals, the mother seeks that the father be effectively excluded, presumably so that there is no risk of S being late for school or missing school due to what she sees as the father’s lax attitude to timeliness. The father wants to retain his current equal involvement in S’s school terms. The ICL favours a change to the week-about regime but rather than excluding the father from all connection with the school week, proposes that S leave for school from the father’s home every second Friday and Monday. Obviously there are options between those extremes.
69.As to L, the parties accept the current reality that there is an estrangement between L and her mother and it is not likely that she will regularly live under her mother’s roof. I accept the logic of that but have a concern that the orders should not suggest that the parents, the ICL or the Court consider that L’s, at times, chaotic and potentially dangerous lifestyle is appropriate or in her best interests.
Section 60CC Considerations
(2)(a) the benefit to the child of having a meaningful relationship with both of the child‘s parents
70.I am satisfied that there has been a meaningful relationship between each of the children and each of the parents. The orders proposed by the parties will continue to promote the importance of S’s relationship with each of his parents.
71.Neither together nor individually are the parents able to constrain L as to where she lives, when she attends school or the company she keeps. Although the relationship between L and each of the parents is compromised and in the case of the mother, particularly fragile, I am satisfied that there is potential for those relationships to be meaningful in the future. Ms B observed a warm interaction between the members of this family during some parts of the sessions with her. There is no doubt that restoring a meaningful relationship with each parent would be in L’s best interests.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
72.‘Abuse’ and ‘family violence’ are defined terms. The definitions were changed as of 7 June 2012 but only for new proceedings. As the legislation related to these proceedings, s 4 of the Act included the following definitions:
“abuse”, in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
“family violence” means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
73.On her own case, the mother scratched L while trying to physically cause her to get ready for school. It is alleged that there have been other physical interventions between the mother and L. It is not possible to make findings about those allegations.
74.The evidence supports a finding that in the past L was violent to S, causing bruising to his torso and arms.
75.There are no allegations about sexual abuse.
76.Whatever the facts of their physical interactions, it is not submitted that the orders sought in respect of L should be tailored to ameliorate any risk of physical abuse by the mother. L is of an age and has a strength of will that means she is fully capable of self protection, for example, in respect of her mother. Similarly, as S grows and develops, the physical balance of power between S and L is likely to shift and he too will be capable of greater self-protection.
Additional Considerations
(3)(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;
77.L has voted with her feet. Albeit only since he secured new rental accommodation (which coincided with the commencement of the trial), it was reported that L was again living with her father. She told Ms B in late November 2013 that she had moved to her boyfriend’s place because she could not live at the home of her paternal grandparents, where the father was then living and she would not live with her mother. She said that if her mother made her stay with her she would “just keep running off”. She told Ms B that if her father found a home she would live with him.
78.L did spend some time at her mother’s home in January 2014 after her relationship with her boyfriend broke down and she was evicted from a youth refuge. The stay with her mother was brief and every indication is that she will not return to live with her mother for some time.
79.Ms B recorded the parents’ observations that S had not been good at expressing his true feelings, that he kept things in. At the November 2013 interview, the mother told Ms B that S was more relaxed than he had been a year before. In her second report, Ms B observed S to present as outwardly confident and upbeat. He seemed very articulate and composed for his age. However, when talking to Ms B about his family he often burst into tears and seemed extremely distressed. Ms B considered that he was very troubled by his family circumstances but tried to hide that from his friends, teachers and his family.
80.Ms B recorded that S was adamant that he maintained the view, reported in the first report, that he wants to spend the same amount of time with each parent. He told Ms B: “I can’t imagine staying with one parent more than the other. It just wouldn’t feel the same.” He was in tears when he told Ms B that he had observed the impact on his mother of L choosing (not to live with her) and had “seen the damage it’s done”. He told Ms B: “If I stay with Mum, Dad’d get depressed and, if I stay with Dad, Mum’d be really depressed”.
81.The orders recommended by Ms B do not accord with S’s expressed wish to retain the equal time arrangement. She noted that the concerns for S she highlighted in her first report are now heightened. He may be arriving late to school and missing too much school. Because of his parents attitudes he is put to playing some team sports on every second weekend; he saw his father evicted from his home; and he is aware of his father’s precarious financial position. Although he presents as a boy who copes well and is popular, sporty and academically capable, Ms B was concerned about “a well of sadness and distress” he displayed. She opined that S feels under great pressure to support an equal time arrangement because he dearly loves both his parents and does not want to see either of them upset further. She concludes: “[S] presents as emotionally mature because he understands the consequences of supporting one parent over another, but in doing so he appears to be sacrificing himself.”
82.Ms B considered that it would be in S’s best interests “for his views to be given less weight than the considerable potential risks to him of the current circumstances continuing, that is that [S] will not achieve his educational potential and that he may be continually overburdened by the circumstances of his family.”
83.Ms B did not resile from those opinions during cross-examination.
84.The parents have asked the Court to make a decision about the living arrangements for their children. The level of distress revealed by S to Ms B suggests that he feels responsibility for protecting his parents. That fact and S’s age argue that his views be given less weight rather than more.
(3)(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);85.There is no doubt that each of the parents love each of the children and that the children have a loving relationship with each other.
86.I have no doubt that, despite the very significant difficulties in their relationship, the mother wants the best for L. Ms B observed that the mother seemed genuinely thrilled to see L at the November 2013 interviews. They had lunch together and the mother said that she was “very happy because [L] seemed emotionally connected to her in a way that she had not (been) for a very long time.” On the evidence, the events in the 2013/2014 Christmas holidays caused a set back in their relationship but that does not discount the nature and fundamental importance of the relationship between mother and daughter.
87.Ms B noted that at one point in her interview with the whole family, S sensed that L was being difficult and he tried to distract everybody by making exaggerated voices, making everybody laugh. That seems to suggest that S is highly attuned to the triggers for conflict in the family and actively works as a peacemaker. It also suggests as Ms B opined, that S has been taking responsibility for addressing the family dysfunction and for the feelings of the other members of the family.
(3)(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;
88.Due to the level of conflict between the parents I have some doubts about their capacity to promote each other to the children.
89.Neither party seeks orders that would discourage a close relationship between the children and the other parent. They each express support for the relationship between the other parent and the children and they each say they value those relationships. The father told Ms B that he sincerely wishes that L had a better relationship with the mother.
90.At times the parties have acted unilaterally but at other times they have acted together. For example they have joined in making agreements in respect of L’s schooling.
91.The father believes that the mother harbours ill-will towards him and he is upset that she is pressing for orders that would reduce his time with S, and thereby his ability to promote S’s interest in sport and to be involved in S’s life.
92.The parties’ relationship and communication is poor and although they assert to the contrary, there is a question about their ability to enthusiastically promote the other parent to each of the children. Were this not the case, they might have taken steps to reduce their calls on S’s loyalty.
(3)(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;93.The issue here arises from the mother’s proposal that S live mainly with her.
94.The positive benefit of effectively excluding or restricting the father from S’s school routine would be to stop what seems to be a worrying tendency for S’s school attendance and punctuality to fall off.
95.There is no doubt that the mother is more concerned and more capable of ensuring S’s timely attendance at school than the father. The father returned L to live with the mother at one point, presumably because he agreed that the mother was better able to address that matter. It is of concern in my view that S seemed dismissive of the issue himself. Ms B, records “[S] denied that he is often late when his father takes him to school; he seemed to minimise this issue. [S] said that, when his ‘Dad’ drops him off, ‘The majority of the time the teacher has not even called the roll’.”
96.Albeit not of the order of L’s poor attendance, S’s school attendance has been a problem. The school report[2] for the second semester of last year not only shows that S had six days absent and 11 partial absences for that semester but S’s teacher made specific mention of those absences and the detrimental effect of frequent absences on student learning. There is also reference in the evidence to S himself referring to his poor attendance in a speech or presentation he made at school. That suggests that it is an issue that has concerned him.
[2] Exhibit 2.
97.The evidence does not allow the absences or even the preponderance of them to be linked to S’s time with the father. However, the fact remains that of the parents, the mother is more interested in school attendance and better able to promote it.
98.The particular concern for S arises because neither of the parties was able to resolve the issue of school attendance for L and the outcome for her has been very unsatisfactory. Importantly, for whatever reason or reasons, the mother does not have a workable relationship with her daughter. What then would be the implications for S if the mother had the opportunity to impose a more rigid school attendance requirement on him on every school day? Ms B did not think that would be a problem. She opined: “It seems quite possible, given the different personalities of [L] and [S], that [S] may not face the same clash of will with his mother that [L] has. His cooperative and sunny nature may make for a better fit with [the mother’s] more structured parenting style than does [L’s] more combative and wilful nature.”
99.S is a good student. The report referred to above has him with both high academic achievements and being acknowledged as having the highest ranking for all aspects of his behaviour and work habits in virtually every area of his school work. The comments in the report reveal that he has engaged and excelled in most subjects. For example, it is recorded that he was awarded a High Distinction in the annual educational assessment writing competition.
100.Provided L continues to live with the father, the dispute about S’s living arrangements will impact on the time he has with his sister. S clearly worries about his sister but more importantly, he loves her. Ms B was asked about this issue and noted that teenagers float in and out of each other’s lives and that whether the arrangement was week about or three or four nights each fortnight with the father, Ms B opined that there would be sufficient time for that sibling relationship.
101.The father’s concern about the mother’s proposals is not just for the loss of time with S but the risk to S’s access to sporting and other extra-curricular activities. As he sees it, of the parents, he prioritises, arranges and pays for S’s involvement in various sports including Sport R. In my view it is correct to say that the father places greater import on those other activities, than the mother. The mother was asked about her attitude to S’s sporting commitments during cross-examination and said something to the effect that although she would discuss the matter with S, she was minded to require that he play only one winter sport, for example.
102.S is a talented sportsman. He excels at and enjoys both soccer and Sport Z. If he could only play one sport he would likely elect to play soccer. Such is his skill at Sport Z that, although he played only one week in two (because of his mother’s requirements), he alone in his team was chosen for representative honours. A photograph of S engaged in Sport R was the subject of a pictorial[3] on a special edition of a Sport R magazine for the 2013 Sport R championship for that year.
[3] Exhibit 1
103.Informed minds can reasonably differ about the balance to be struck for a child between academic achievement and sport and other extra-curricular activities. Informed minds can reasonably differ about the extent to which a child should be committed to formal activities as opposed to free time and unstructured play. Children have different capacities to manage a heavy extra-curricular schedule without it adversely impacting on school work. Ms B considers that S has a significant capacity to cope with extra demands on his time. However, as children get older, the demands made on their time by their formal education increase.
104.The Court has not been asked to make any of those decisions for S. And sensibly so. Instead the Court is asked to make orders that will leave the relevant decisions to one of the parties. Both parents have asked to have carriage of those decisions for S and that is the choice to be made. I am confident that both parents want S to develop in a well-rounded way and will want him to achieve to his potential in all areas of life. The choice is not all or nothing. The father does not intend to take S out of school, any more than the mother will ban him from all involvement in sport. If S spends more of his time with the mother and she has decision making responsibility for long term decisions and by virtue of her time with him, a significant influence on day to day matters, S will continue to have access to sport. If S spends more of his time with the mother he will still spend time with the father, allowing the father to be involved in identifying, supporting and sharing in S’s sport. The choice on the one hand is whether to give parental responsibility to the father, who will involve S in many activities outside school and is not as determined or interested or successful as the mother in ensuring timely school attendance. On the other hand, if the mother is given responsibility, she is not interested or not as interested as the father, in sport but favours unstructured play and will make it a priority to have S punctually attend school.
105.In my view this factor argues in favour of the proposal of the mother and the ICL. If there is to be an emphasis in the focus of S’s time then in my view, the balance should be struck in favour of his formal education.
106.As between the proposals of the mother and of the ICL, the ICL would leave the father some practical role in S’s school week, whereas those of the mother would not. The legislature has expressed a broad preference for parents having substantial and significant time with children. That would not be achieved for the father under the orders proposed by the mother.
107.The orders sought by the ICL would have S leaving from the father’s home on two school mornings each fortnight. As he gets older, increasingly S will be responsible for getting himself to school in the morning. In my view, with a firm regime implemented in the mother’s household for the preponderance of school days, the risk of S developing a habit of poor attendance is reduced.
(3)(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;
108.The mother and father live about 9 kilometres apart at Town H and Town F, respectively. They each have access to a motor vehicle.
(3)(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;109.Unremarkably, each of the parents has strengths and weaknesses. There are indications that after separation each of them emphasised the aspects of their parenting approach that differed from those of the other parent. That might account for the increasingly polarised regimes that apply in the respective households.
110.The mother has been a stable, conservative, firm but loving influence on the children. It may be that she has felt that she had to be more structured and restrictive because of the father’s relaxed personality and approach to parenting and in any event because of L’s behaviour. However, as Ms B acknowledged, the mother is open to criticism for walking out of a Ms A therapy session for L. Ms B also noted that this is a complicated situation and the mother may well have felt that she was being blamed for the problems.
111.As is referred to above, the mother is more capable than the father of promoting punctual school attendance for S. Ms B identifies the risk that in the application of a stricter regime, the mother’s relationship with S could suffer the same fate as her relationship with L. However, Ms B notes the different personalities of the children and given his sunnier disposition, considers that will not occur.
112.The father is an enthusiastic, loving and supportive parent who prides himself on encouraging and facilitating the children in having exposure to a broad range of interests and activities.
113.However, the father’s own life has been unstable in recent years. He lost his job and has been in financial difficulty. He told Ms B that he had been financially destitute at the end of 2012. That lead him to a conviction for stealing. The father was evicted from his accommodation. He was excluded from Sport R, probably because of something he said or did.
114.The father’s financial problems meant that he was not able to continue to offer suitable accommodation to the children in recent times. At the home of the paternal grandparents, S was put to sharing a bed with his father and L felt that she needed to continue to live with her boyfriend and his mother. After her relationship with her boyfriend ended, L had no suitable accommodation. She “couch surfed” in undesirable premises and stayed in a youth refuge, until she was evicted.
115.The father has been better able to maintain his relationship with L than the mother. However, Ms B noted that the father took little responsibility for the predicament he is in.
116.Ms B was also concerned that if the mother is granted sole parental responsibility for S, the father is likely to be very distressed and may well feel inclined to sabotage that arrangement because of his own sense of being criticised and being treated unfairly. However, Ms B also allowed that the father’s love for S could allow him to accept a change in the parenting arrangements that would provide S with a greater sense of stability.
117.As has been identified the father has not been able to promote punctual school attendance as well as the mother. He does not think it is a problem. He was nonplussed when Ms B raised the issue with him. Among other things he said that S may have been five minutes late for school because it was difficult to park nearby. That attitude was echoed in something S said.
(3)(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;
118.A feature of these proceedings is the potential of these children. For all that they have been through and despite L’s struggles over recent years, she and S are bright, thoughtful and loving individuals. No doubt in part they reflect qualities in their parents. The concerns in relation to what will happen to them over the next few years must be seen in the context of their potential.
119.L is reported to be a bright, physically capable and attractive young lady. The parents report that she had a good Year 6 but otherwise struggled through primary school. Her transition to high school was unsuccessful. The breakdown of her parents’ marriage came as she entered puberty and she suffered badly with acne. She commenced using make-up, leading to hair extensions and false eye lashes and for those or other reasons, she was bullied at school. She became increasingly unwilling to arrive at school on time or at all, to a point where, presumably in desperation, the mother asked the police to take her to school on some occasions.
120.Of recent times L has refused to spend time with her mother. When her father lost his accommodation and was living with his parents, she was unwilling to live with her paternal grandparents. It is not certain whether she has close friends and if so, who they are but apparently she mainly spends her time with and perhaps leads, other school refusers. Prior to her return to live with her father (coinciding with the commencement of the hearing) the police referred to her “couch surfing” and the indication from them was that some of the premises involved were known to police and were not suitable for her. The father received an SMS message from L during the hearing. He reported that the message included something to the effect that she had attended at school that day but left early because someone, presumably a teacher, had treated her in a condescending way. If the father accurately reported the comment, that suggests that she is self-possessed. There is evidence that when she is old enough, L plans to work in a hair dressing salon. Emphasising her intellect and potential, the father gave evidence that despite her very poor school attendance she scored well in a recent English test.
121.S is achieving well in all areas of his life but has been emotionally caught up in the breakdown in the parents’ relationship. He is very much affected by the conflict between his parents and is worried about his sister given the chaotic lifestyle she has adopted. He displayed distress in his interviews with Ms B and there is a concern that he is taking responsibility for and in any event is caught in the middle of the breakdown of his family.
122.Ms B observed that while there is an obvious focus on L, there should be real concerns for S’s emotional well-being. Ms B supported the suggestion of putting in place a therapeutic relationship for S now. That could be usefully done as a preliminary step through Ms A, whether she would be the ultimate therapist or referred S out.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child‘s parents;
123.L has struggled over recent years and while the breakdown of their relationship may well have contributed to the problem, I have no doubt that her parents both want the very best for her.
124.Although not directly made in relation to parenting, several decisions made by the father have had a deleterious effect on his parenting capacity. He was evicted from his accommodation, he says for reasons other than an inability to pay rent. Although S was able to cope with the resultant move to the home of the father’s parents, L was not. That meant that she was not living with either of her parents. The father was convicted of stealing and his suspended sentence expires in October 2014. S is aware of and has been affected by his father stealing and being excluded from the Sport R organisation.
125.The parties have stuck to their respective parenting approaches. Presumably with some difficulty, to date S has tolerated and accommodated the different parenting regimes. L has not. Ms B opined that there was scope for movement by each of the parents. That said, L presents a considerable parenting challenge and the complexity of that challenge should not be trivialised to being the product of the mother being too restrictive and the father being too permissive. L finds herself in a very difficult situation and credit is due to her and to each parent for the fact that, to date, she has apparently avoided serious harm.
(3)(j) any family violence involving the child or a member of the child‘s family;
126.It is not asserted that family violence is relevant to the particular orders that should be made.
(3)(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;127.There is no relevant order.
(3)(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;
128.It is not possible to identify an order or type of order that would least likely lead to further proceedings.
(3)(m) any other fact or circumstance that the court thinks is relevant.
129.I am very confident that it was never intended by the parties but the polarised nature of their parenting may have meant that they missed an opportunity to address L’s mental health. Mental health can be more difficult to address than physiological conditions, because the condition itself can deter or prevent the sufferer from identifying, accepting and consistently addressing the problem. The comments[4] from L’s counsellor, Ms A to Ms B reveal that at Ms A’s initiative, L saw a psychiatrist in April 2013. It was Ms A’s observation that the failure of the parents to agree lead to a recommended treatment not being applied. Without underestimating the value of the supportive counselling relationship itself, the two targets of Ms A’s therapy – school attendance and the relationship between L and her mother, continue to be unsatisfactory.
[4] Paragraph 51 of Ms B’s second report.
130.Although he seeks no formal orders and despite the issue not being raised in his case until late in the piece, the father has previously made enquiries about and is apparently interested in S attending boarding school in Sydney. The first thing to say is that the concept runs entirely against the thrust of the father’s case for the maintenance of a week about arrangement - S missing the father, S missing L etc. Ms B observed that in some ways boarding school might offer S a sense of relief because he would not be exposed to conflict between his parents and the school would set his weekly regime. However, she noted that if he was to attend boarding school, S would really miss his parents.
Parental Responsibility
131.Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
132.An order for shared parental responsibility has the following effect:
SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
133.Presumably that must also apply to equal shared parental responsibility.
134.It is likely that L was violent to S and there was at least one incident in the course of which the mother scratched L. Therefore the s 61DA presumption of equal shared parental responsibility does not apply.
Conclusion
135.It is common ground that there should be an order for sole parental responsibility for S. The parties are at issue in relation to the type of order that should be made for L.
136.Having regard to the findings made above, the better course is to leave the father with sole parental responsibility for L and the mother with sole parental responsibility for S. I have referred above to the problem identified by Ms A of the parents’ disagreement preventing a course of treatment for L as recommended by a psychiatrist. I will order that the parties consult with each other about major issues. An order for sole parental responsibility in favour of the father may be of assistance to the implementation of medical advice in relation to L.
137.The question of S’s sport will necessarily be affected by his living arrangements. In her oral evidence Ms B noted:
·That putting one parent in charge of decisions about sport and other activities will not prevent there being resentment from the other parent and disruption to S’s life;
·S has expressed a preference for soccer over Sport Z;
·It is not uncommon for children to be restricted in the number of different activities in which they engage or to be asked to choose which sports they will take up;
·S seems to be able to cope with a high level of activity;
·As S gets older, he will increasingly influence those decisions, himself; and
·The problem is not making S choose between sports, the problem is the conflict between the parents.
Living Arrangements
138.The Court will not make an order that the parties have equal shared parental responsibility for either child.
139.That means that the sequence of considering equal time and substantial and significant time for each child with each parent under s 65DAA does not apply. In any event the only child in respect of whom equal shared parental responsibility is proposed is L and it is an agreed fact that it is not reasonably practicable to have her living with the mother at all, let alone for substantial and significant time.
140.Although there are different proposals for the wording of the orders about L, the import of those orders is agreed, most significantly, because of her age and proven independent nature.
141.In my view an order that will best meet the circumstances would have L living with the father and spending time with the mother at times agreed between the parents but after consultation with L.
142.As to S, in my view the proposal of the ICL will best balance S’s need for his mother’s stability and firm focus on scholastic achievement, without losing the involvement of his supportive and enthusiastic father in all aspects of his life. Ms B did not think that alternate weekends with his father would be sufficient for S. She acknowledged that S would miss his father. Ms B considers that because of S’s inclination to sacrifice himself when caught between his parents, the success of such an arrangement will depend in part on the father’s reaction. More optimistically, Ms B opined during her oral evidence, that if the father coped well then so would S. She also said that the benefits of the routine would outweigh sadness felt by S.
Conclusion
143.These proceedings necessarily focus on S. Although her parents are very worried about her, L’s age and the proven inability of her parents to constrain her behaviour make it impracticable to craft orders that directly address the concerning features of her lifestyle and living arrangements. Orders that confirm that her parents are available to her may take the pressure off and encourage L back to a more ordered lifestyle.
144.The parents have much to offer both children. S, like his sister, is bright and capable of excelling in both physical and academic pursuits. Like L at a similar age, S has matched his potential by achieving at a very high level in various fields of endeavour. In my view, the orders I have outlined will best promote a continuation of those achievements.
145.Although the orders are necessarily directed at the parents it is particularly important in this case that if practicable, the effect of the orders is communicated directly to the children. That was raised with Ms B and she said that it would be helpful if she and or the ICL were able to do that. That could alleviate some of the pressure on S arising from the very different expectations and household regimes of his parents and him taking responsibility for the family. It could put the orders in relation to L in context that might bring home to her the heartfelt and objectively justified concerns of her parents; encourage her to withdraw from or avoid what seems to be an anarchic and potentially dangerous lifestyle; and promote opportunities for her to return to a plan for her life for the medium term that keeps her safe and matches her obvious potential.
146.The parties may bring the matter back in the short term, in relation to any agreed changes or any changes to the wording, rather than the substance of the orders.
I certify that the preceding one hundred and forty six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 2 April 2014.
Associate:
Date: 2 April 2014
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