Savard & Savard
[2021] FedCFamC1F 35
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Savard & Savard [2021] FedCFamC1F 35
File number(s): MLC 13808 of 2018 Judgment of: MACMILLAN J Date of judgment: 10 September 2021 Catchwords: CHILDREN – where the mother and father consent to equal shared parental responsibility – where the mother proposes that the children live with her and spend time with the father - where the father proposes that the children live with him and spend five nights with the mother – where the children are aware of the parents dispute and the mother’s negative views of the father and present with extraordinary levels of anxiety and agitation – where the children are aligning with the mother – where the children’s wishes should be afforded little weight – where the father is better placed to promote the relationship between the mother and the children – where orders made that the children live primarily with the father and live with the mother from after school on Friday until the commencement of school on Wednesday each alternate week – the children continue at their current schools.. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC Cases cited: Donnell & Dovey (2010) FLC 93-428
Mulvany & Lane (2009) FLC 93-404
U v U (2002) 211 CLR 238
Division: Division 1 First Instance Number of paragraphs: 85 Date of hearing: 15 – 18 March 2021 Counsel for the Applicant: Mr Indovino Solicitor for the Applicant: Starkie Law Group Respondent: In Person Counsel for the Independent Children's Lawyer: Mr Arnold Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 13808 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SAVARD
Applicant
AND: MS SAVARD
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MACMILLAN J
DATE OF ORDER:
10 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.That all previous parenting orders be discharged.
THE COURT ORDERS BY CONSENT THAT:
2.The Father and the Mother have equal shared parental responsibility of Y born … 2008 and X born … 2010.
IT IS FURTHER ORDERED THAT:
3.As and from 8 October 2021 the children live with the Mother during school term from after school on Friday (or 3.30 pm if not a school day) until the commencement of school on Wednesday (or 9.00 am if not a school day) and each alternate week thereafter or such further or other times as may be agreed in writing.
4.Save and except as may be otherwise provided in paragraphs 7, 8, 9, 10, 11 and 12 of these orders the children live with the Father at all other times.
5.From the date of these orders until after school on 8 October 2021(or 3.30 pm if not a school day) and subject to paragraph 6 of the orders herein the Mother be and is hereby restrained from approaching or contacting the children or attending at the children’s school or extracurricular activities.
6.The parent with whom the children are not living with be permitted to call the children between 6.00 pm and 7.00 pm every second day or at such other time as may be agreed in writing.
7.During Term School Holidays, commencing in 2022, the children’s term time living arrangements be suspended and the said holidays be equally shared between the parents as follows:
(a)In odd numbered years with the Mother having the first half commencing from the conclusion of school until 3.30 pm on the day that is the midpoint of said holidays and thereafter live with the Father until the conclusion of the holidays; and
(b)In even numbered years with the Father having the first half from the conclusion of school until 3.30 pm on the day that is the midpoint of said holidays and thereafter live with the Mother until 5.00 pm on the last Friday of the holidays.
8.During the 2021/2022 Summer/Christmas Holidays and each Summer/Christmas Holidays thereafter the children’s term time living arrangements be suspended and the said holidays be equally shared between the parents as follows:
(a)In odd numbered years with the Mother having the first half commencing from the conclusion of school until 3.30 pm on the day that is the midpoint of said holidays and thereafter the children live with the Father until the conclusion of the holidays; and
(b)In even numbered years with the Father having the first half commencing from the conclusion of school until 3.30 pm on the day that is the midpoint of said holidays and thereafter the children live with the Mother until 5.00 pm on the last Friday of the holidays.
9.The children’s time with the Mother pursuant to paragraph 3 of these orders recommence after Term and Summer/Christmas Holidays as follows:
(a)If the children have spent the first half of any holiday period with the Mother the first weekend after the commencement of school term; and
(b)If the children have spent the second half of any holiday period with Mother the second weekend after the commencement of school term.
IT IS FURTHER ORDERED BY CONSENT THAT:
10.The children spend time with the Father and the Mother for Christmas as follows:
(a)With the Mother:
(i)In odd numbered years from 4.00 pm Christmas Eve until 4.00 pm Christmas Day; and
(ii)In even numbered years from 4.00 pm Christmas Day until 4.00 pm Boxing Day.
(b)With the Father:
(i)In odd numbered years from 4.00 pm Christmas Day until 4.00 pm Boxing Day; and
(ii)In even numbered years from 4.00 pm Christmas Eve until 4.00 pm Christmas Day.
11.In the event that the children are not already living with the Father:
(a)On the children’s birthdays between 3.30 pm and 7.00 pm if on a school day or from 12.00 noon to 7.00 pm on a weekend;
(b)On the Father’s birthday between 3.30 pm and 7.00 pm if on a school day or from 12 noon to 7.00 pm if on a weekend;
(c)On Father’s Day between 5.00 pm on the Saturday prior to Father’s Day until 5.00 pm on Father’s Day.
12.In the event that the children are not already living with the Mother:
(a)On the children’s birthdays between 3.30 pm and 7.00 pm if on a school day or from 12.00 noon to 7.00 pm on a weekend;
(b)On the Mother’s birthday between 3.30 pm and 7.00 pm if on a school day or from 12 noon to 7.00 pm if on a weekend;
(c)On Mother’s Day between 5.00 pm on the Saturday prior to Mother’s Day until 5.00 pm on Mother’s Day.
IT IS FURTHER ORDERED THAT:
13.The children be enrolled and attend Suburb B High School or such other high school as may be agreed in writing for their secondary education and the Father and Mother do all acts and things and sign all necessary documents required by Suburb B High School for the purposes of the children’s attendance at the school.
14.The child X complete his primary education at C Primary School, Suburb B or such other primary school as may be agreed in writing and the Father and Mother do all acts and things and sign all necessary documents required by C Primary School for the purposes of his attendance at the school.
15.The children attend upon Ms Z, or if she is unavailable such other counsellor or psychologist as may be agreed in writing for non-reportable therapeutic counselling (subject to paragraph 16 of the orders herein) after 8 October 2021 and the Independent Children’s Lawyer provide the counsellor or psychologist with a copy of the following documents:
(a)Family Report and Psychological Assessment of Dr N dated 13 May 2014;
(b)Section 11F Child Inclusive Memorandum dated 2 July 2019; and
(c)Mr M’s Family Reports dated 8 March 2020 and 25 February 2021.
16.The said psychologist be at liberty of reporting any breach of the injunction contained in paragraph 24 of these orders, and that such report may be used in evidence.
17.The Father and Mother continue to attend upon Ms AA for family counselling as reasonably directed by Ms AA, including and not limited to resolving parental responsibility issues.
18.The cost of the counsellors or psychologists referred to in paragraphs 15 & 17 of these orders herein be shared equally by the Father and the Mother.
IT IS FURTHER ORDERED BY CONSENT THAT:
19.Changeover that does not occur at school take place by the Father collecting the children from the Mother’s residence at the commencement of the Father’s time and the Mother shall collect the children from the Father’s residence at the conclusion of his time with the children or such other location as agreed between the parents in writing.
20.The Father and the Mother do all acts and things required to ensure that the children receive their church Sacraments.
21.Each of the Father and the Mother is to notify the other within seven (7) days and provide written particulars of any change of residential address or telephone number.
22.Each of the Father and Mother inform the other, as soon as practicable of any illness or injury sustained by the children whilst in their care and further provide the other party with full particulars of the names, addresses and contact telephone numbers of any medical or other health professional or hospital from whom or at which the children have received or are to receive treatment.
23.Subject to paragraph 5 of these orders the Father and Mother be at liberty to attend parent-teacher interviews, concerts, sports days where parents are normally invited to attend such school events/functions and each be authorised to receive copies of school reports, notices, newsletters and photographs subject to paragraph 6 of these herein.
24.The Father and Mother, their servants and/or agents are hereby restrained by injunction, from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of the other parent’s family or household;
(b)Discussing these proceedings with or in the presence of the hearing of the children or permitting any other person to do so;
(c)From inflicting upon the children or either of them any form of corporal punishment or physical chastisement;
(d)Discussing the children’s living arrangements with them or in their hearing or presence or allowing any other person to do so;
(e)Discussing any change to the children’s school with them or in their hearing or presence or allowing any other person to do so; and
(f)Discussing any alleged abuse of the children in the other parent’s care with the children or in their presence or hearing or allowing any other person to do so.
IT IS FURTHER ORDERED THAT:
25.Within seven (7) days of the date of these orders the Independent Children’s Lawyer meet with the children in person or via videoconferencing to explain these orders to the children.
26.All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.
27.The Independent Children’s Lawyer be discharged upon complying with paragraphs 15 and 25 of the orders herein.
28.All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Savard & Savard has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MACMILLAN J
The father and the mother in this case separated in 2013 and have been engaged in litigation in the Federal Circuit Court of Australia (“Federal Circuit Court”) and this Court in relation to their two children Y born in 2008 now 13, and X born in 2010 now 10 (“the children”) since 2014. In his report dated 8 March 2020 Mr M (“Mr M’s first report”) described the father and the mother in the following terms:
From any perspective, Mr Savard and Ms Savard have a high conflict separation, and present as high conflict personalities in relation to this dispute. Both show a marked propensity for an external locus of control, that is, that they place blame and responsibility for their behaviour upon the behaviour of the other parent. There is an immature quality to their conflict, a flavour of tit-for- tat, and justification of their own behaviour. The ease with which both have entered into a narrative of criticism and blame, leaping to the worst conclusions first, and having such significant doubt about the competence and integrity of the other parent, belies the reality of their situation.
It is clear from Mr M’s second report dated 25 February 2021 (“Mr M’s second report”) and his oral evidence that little had changed in the period between his first and second reports. To the contrary it was his observation and opinion that there had been a further deterioration in the children’s presentation.
Although there was a significant focus on the question of which school the children should be attending, I accept Mr M’s observation in his second report that:
…decisions regarding the children’s long-term welfare should hinge not on which school they attend but rather of which of their parents is better able to advance their psychological health and welfare, which parent is best able to encourage and promote a relationship with both sides of the family, and which parent is best able to protect them from ongoing enrolment [sic] in the conflict.
And as he said in his first report the “decision needs to be made whether the children will live with their mother or their father, and the issue of school then becomes self-executing.”
BACKGROUND
The father was born in 1971 and is 49. The mother was born in 1973 and is 48.
The parties were married in 2000 and separated in October 2013. The father and his new partner live in Suburb A. The mother lives in Suburb D and is in a new relationship.
On 21 August 2014 the Federal Circuit Court made final parenting orders by consent (“final orders”). The final orders provided inter alia for the parties to have equal shared parental responsibility for the children, that they live with the mother and spend time with the father on a fortnightly cycle with time to increase from four nights with the father in 2014 to five nights in 2015 and from term 1 2016 from Thursday to Monday in week one and Wednesday to Friday in week two. The orders also provided for the school holidays to be shared equally on a week about basis and for special occasions.
There were two further orders which were relevant to the proceedings that followed and ultimately that which I am required to determine. They were as follows:
18. That:
(a)The parties do all acts and things required to ensure that the children receive the sacraments of Holy Communion and Confirmation;
(b) The children attend a church secondary school proximate to the home of the Wife or as agreed between the parties and failing agreement the parties shall attend mediation with respect to this issue.
19.The parties do all acts and things required to ensure the enrolment and attendance of the children at C Primary School
In September 2015, the mother moved to Suburb D. At that time she removed X from the kindergarten he was attending in Suburb E and enrolled him in a pre-school in Suburb D without any consultation with the father or having obtained his agreement. The father filed a Contravention Application and on 21 December 2015 Judge Harland found that the mother had contravened the final orders and made further final orders inter alia as follows:
(1)The parties do all acts to re-enrol X at Suburb E Pre-School; and
(2)The mother is restrained from sending X to Suburb D Pre-School and is restrained from further changing either X’s pre-school or primary school.
On 29 November 2018 the father filed an Initiating Application seeking orders inter alia that the children live with him 8 days per fortnight, reversing the existing live with arrangements, and that the children attend G School in Suburb H for their secondary education. The mother filed a Response to the father’s application on 21 February 2019 together with a Notice of Risk. By this time the mother had made various notifications to the Department of Health and Human Services (“DHHS”) and on 19 March 2019 Judge Hartnett (as she then was) made orders for a s 69ZW Report to be prepared by DHHS, a s 11F Report and the appointment of an Independent Children’s Lawyer (“ICL”).
On 2 July 2019 the allegations of physical abuse not being substantiated by DHHS, the family consultant who prepared the s 11F report concluded that there was “insufficient information indicative of a substantive risk”. The s 11F report also recommended that the parents partake “in a therapeutic intervention to support and develop their co-parenting” such as a parenting orders program. On 4 July 2019 Judge O’Sullivan made interim orders by consent providing in summary that:
(3)The parenting orders of 21 August 2015 and 21 December 2015 remain in force;
(4)The parties attend upon Mr M for the preparation of a Family Report;
(5)The parents be restrained by way of injunction from taking the children to any mental health practitioner without the written consent of the mother, father and ICL and such practitioner is to consult with both parents and be provided with the current s 11F memorandum and the previously completed Family Report of Dr N in 2014; and
(6)The parents attend upon Ms O or such other counsellor she nominates for family counselling.
On 22 April 2020 Judge O’Sullivan transferred the matter to the Family Court of Australia. A notation was made to these orders that the parties had been litigating for over half a decade and have had two trials in the Federal Circuit Court.
On 15 October 2020 the father filed an Application in a Case seeking orders that Y attend Suburb B High School commencing in January 2021 and ancillary orders with respect to the parties signing the necessary enrolment documents. The mother did not file a response to that application however in her Affidavit filed 21 October 2020 she sought orders that the children attend a church secondary school proximate to her residence, either R School or in the alternative L School, and that X attend J Primary School in Suburb K in 2021, and that she remain the children’s primary carer. The matter was listed for hearing in the Judicial Duty List on 26 October 2020 and on that date I made orders setting the matter down for final hearing in March 2021. On 18 November 2020 I made orders that until further order Y attend Suburb B High School commencing in 2021 and that the father and mother forthwith sign all the documents required to secure his place at the school.
In his Amended Application for final orders filed 18 December 2020 the father sought orders that he and the mother have equal shared parental responsibility, the children live with him and spend time with the mother on alternate weeks from after school on Friday to the commencement of school on Wednesday, half of the school holidays and on special occasions, that X attend C Primary School for the remainder of his primary school education and that both children attend Suburb B High School for their secondary education.
In her Amended Response filed 21 January 2021 the mother sought orders that the children live with her and spend time with the father each alternate week from after school on Friday until the commencement of school on Monday and half of the school holidays. She also sought orders that X attend J Primary School in Suburb K. Although not referred to in her Amended Response in her Affidavit the mother referred to both R School and L School as possible schools for Y.
THE EVIDENCE
The father relied on the following documents:
(1)Amended Application for final orders filed 18 December 2020;
(2)Affidavit of Mr Savard filed 18 December 2020;
(3)Affidavit in Reply of Mr Savard filed 5 February 2020;
(4)Affidavit of Ms Q filed 18 December 2020;
(5)Affidavit of Ms P filed 17 December 2020;
(6)Financial Statement filed 10 December 2020; and
(7)Case Outline document filed 10 March 2021.
The mother relied on the following documents:
(1)Amended Response to final orders filed 21 January 2021;
(2)Affidavit of Ms Savard filed 21 January 2021;
(3)Affidavit of Ms BB filed 21 January 2021; and
(4)Financial Statement filed 22 January 2021.
At the commencement of the final hearing, the mother sought leave to rely on previous affidavits filed in these proceedings. The father did not oppose leave being granted to the mother to rely on her Affidavits filed 21 February 2019, 20 June 2019, 17 February 2020, 13 July 2020 and 21 October 2020 with the Court noting that these had been part of the evidence in the interim proceedings and/or were repeated in the mother’s trial affidavit.
The father, the mother and the ICL relied upon both Mr M’s first and second reports.
The other evidence relied upon by the parties and referenced in these proceedings include:
(1)Child Inclusive Memorandum dated 2 July 2019;
(2)Section 69ZW Response of DHHS filed 2 July 2019; and
(3)Family Report of Dr N filed 12 May 2014.
On 10 March 2021 the ICL filed a Case Outline.
Both the father and the mother and the paternal and maternal grandmothers’ were cross-examined. Mr M was also cross-examined by both the parties and the ICL.
The father was a good witness with a good recall of the details of what is now a lengthy post separation history. He made appropriate concessions and it was clear from his evidence that he had reflected upon what Mr M had said in relation to the needs of the children and the complexity of the issues they face. He readily conceded that he was not a perfect parent and that there were things he could have done differently when the parties first separated and that he would now do differently. He was also able to acknowledge positive aspects of the mother's parenting. The father's mother was also briefly cross-examined. The import of her evidence being that she would be able to assist the father if required. I accept her evidence.
The mother on the other hand was not a good witness. The issue with her evidence was not necessarily that she was not telling the truth but what her evidence demonstrated about her lack of insight and what that said about her parenting capacity. In particular her ability to promote the children’s relationship with the father. The mother found it extremely difficult to make concessions even when confronted with evidence contradicting her version of events or conclusions. The mother repeatedly hid behind what she said were the children’s wishes and it was her evidence that being the children’s “primary” carer she was best placed to know and respect their wishes. It was of particular concern that the mother continued to focus on the alleged physical abuse of the children by the father saying when challenged about these allegations that “just because there is no evidence doesn’t mean it didn’t happen.”
Although the mother when asked in cross-examination whether she could say anything positive about the children’s relationship with the father referred to him taking them bike riding and to the cricket, her negative view of the father and his role in the children’s lives was otherwise abundantly clear. When the maternal grandmother was asked a similar question and she, unlike the mother, did not attempt to hide her negative view of the father and readily acknowledged that she had nothing positive to say about him.
Ultimately in so far as there is any dispute between the evidence of the father and the mother, the mother’s evidence being so tainted by her negative view of the father, I prefer the father’s evidence.
Mr M was cross-examined by both parties and the ICL. His evidence was measured and cogent and was consistent with his two reports. I found Mr M’s evidence of great assistance both in identifying the issues and in my determination of the matters in dispute.
LEGAL PRINCIPLES
The objects, principles and the matters the Court must consider when ascertaining a child’s best interests and making parenting orders are set out in Part VII of the Family Law Act 1975 (Cth) ('the Act"). When the Court is asked to make parenting orders the paramount consideration is the best interests of the child the subject of the proceedings (s 60CA of the Act). In doing so the Court is not bound by the parties’ respective proposals U v U (2002) 211 CLR 238.
The objects of the Act, so as to ensure that the best interests of the child are met, are set out in s 60B(1) of the Act as follows:
(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.
The principles underlying those objects, unless it would be contrary to the child's best interests, are as follows (s 60B(2) of the Act):
(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).
In determining what orders will be in the child's best interests the Court must consider the matters in ss 60CC(2) and (3) of the Act. When considering the matters in s 60CC(2) of the Act, the Court must place greater weight on the need to protect the child from physical or psychological harm, and from being subjected or exposed to abuse, neglect or family violence (s 60CC(2A)). The Court is not otherwise to consider the primary and additional consideration in any particular order or give any particular consideration any greater weight than any other consideration and the weight placed upon the various considerations will depend upon the particular circumstances of each case.
In Donnell & Dovey (2010) FLC 93-428 the Full Court of the Family Court of Australia (“the Full Court”) (at [103]) described the s 60CC considerations as:
…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ observed as follows:
76. It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in Original)
Unless there are reasonable grounds to believe that a parent has abused the child the subject of the proceedings or another child of that parent's household at the time or engaged in family violence, the Court must apply the statutory presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child. That presumption can be rebutted by evidence that satisfies the Court that it would not be in the child's best interests for the parents to share parental responsibility. If the presumption does apply or the Court is otherwise satisfied that it is in the child's best interests and makes an order for equal shared parental responsibility, then it must consider whether it is in the child's best interests and reasonably practical to spend equal time with each parent or, if not equal time, whether it is in the child's best interests and reasonably practical for the child to spend substantial time with each parent.
Although the ICL expressed some reservations about the ability of these parties to consult and make decisions with respect to the children’s welfare, the father and the mother both sought an order providing for them to have equal shared parental responsibility. Having regard to my observations of the mother’s evidence and the evidence of Mr M, I also have some reservations about the ability of the father and the mother to consult in order to make major decisions about the children. However, they have shared responsibility for making these decisions for many years and in circumstances where there are, in any event, unlikely to be many decisions about which they will be required to consult with one another I am satisfied that I should make the order they both seek.
It was also proposed by the ICL and the father that both parties should continue to attend upon Ms AA for family counselling to resolve any parenting issues that might arise. Although the mother agreed with this proposal in principle she was concerned about the cost based upon on how often the parties might be required to attend counselling. I propose to make orders in the terms proposed by the ICL. There is no evidence to suggest that either party or for that matter Ms AA would engage in counselling unnecessarily.
PROPOSALS
Although the parties were able to agree on a number of matters and I will make orders by consent reflecting their agreement they could not agree upon which parent the children should primarily live with or what schools they should attend. During final addresses there was also reference to a dispute with respect to child support, in particular the payment of school expenses. I will address that issue later in these reasons.
At the commencement of the case the father proposed that the children live with him and spend time with the mother during school term from after school on Friday until the commencement of school on Wednesday each alternate week and for half of the school holidays. Although during the hearing the father said he would agree to the children spending seven days with him and seven days with the mother, the mother did not agree and in any event it was Mr M’s evidence that this would not be in the children’s best interests. On that basis the father sought orders in terms of his amended application which proposes that the children spend substantial time with both parents. His proposal was supported by the ICL.
At the commencement of the final hearing the mother’s proposal was that the children live with her and that their time with the father be reduced from the current 8/6 regime to each alternate week from after school on Friday until the commencement of school on Monday. By the conclusion of the hearing the mother had amended her proposal and sought orders, in accordance with the current regime, that the children spend time with the father from Thursday after school until the commencement of school Monday in week one and on Wednesday after school until the commencement of school Friday in week two.
Having regard to all of the evidence and given that both parties were proposing that the children spend time with the other parent and notwithstanding the mother’s allegations of the father’s mistreatment of the children, their fear of him and her lack of commitment to the children’s relationship with their father, I am satisfied that the children will benefit from having a meaningful relationship with both the father and mother. The crux of the case however being not so much that they would benefit from that relationship but as described by Mr M “which parent is best able to support and encourage a relationship with the other parent.”
ALLEGATIONS OF PHYSICAL ABUSE
Although the allegations of abuse were not substantiated, in circumstances where the mother has continued to rely upon them in support of her case they must be addressed. In the s 69ZW report dated 2 July 2019 DHHS referred to there having been “fourteen reports, one section 38 consultation and one investigation made to Child Protection between 2013 and 2019”. The issues reported included “alleged inappropriate discipline by the father towards the children, medical neglect, the children being exposed to historical family violence perpetrated by the father towards the Mother and the Mother not wanting the Father to have any contact with the children.” Not only were the allegations not substantiated, most of the notifications DHHS received were closed at the Intake Phase.
DHHS concluded at the conclusion of the s 69ZW report as follows:
An investigation into the alleged inappropriate discipline determined the Father was playing with the children and would stop playing the games immediately now that he was aware the children did not like them. The ongoing conflict and acrimony between the parents is likely having an emotional impact on the children. Whilst there does not appear to be evidence to support significant harm as a result of this, in the longer term, without support and education for the parents, it is likely that the children will be at risk of emotional harm and cumulative harm. Engagement with the psychologist and school provides the children with emotional support and a sense of stability.
It is noted the importance for Y and X to have a meaningful relationship with both parents for their wellbeing, safety and development needs to be met.
In her trial Affidavit the mother deposed with respect to the various notifications to DHHS as follows:
… no reports to DHHS or the police have been made in nearly two years by myself, although the Applicant did make a more recent family violence report to Victoria Police. I now encourage the children to also speak to their teachers at school on matters what are upsetting them, in order to further support their emotional wellbeing.
At paragraph 16 of her trial Affidavit the mother purporting to respond to the father’s Affidavit deposed as follows:
In response to Paragraph 33, after Ms F finished with her one-on-one sessions with each of the children and then spoke to me independently also, she did in fact disclose to me that X informed her that the Applicant had hit him across the head with such force that he fell to the ground. X never disclosed this to me prior to him seeing Ms F. Ms F later informed me that she was also in contact with DHHS.
In his Affidavit filed 18 December 2020 the father deposed as follows:
33.In her affidavit the mother deposes that when Ms F had her first session with the children, they made disclosures of a range of physical abuse including that I “had hit X across the head with such force that the child fell to the ground”
34.However, this contradicts what Ms F has told me in writing shown to me at the time of swearing this affidavit and labelled “S16” is a letter I received from Ms F dated 21 September, 2018. She wrote this letter to me after I wrote to her seeking the reasons why she was seeing the children.
35.With respect to the allegations against me, Ms F wrote “It has been reported that the boys have had concerns regarding some of the play behaviour at their dad’s place. This has been discussed with them and they have been advised to talk to Dad if they are worried about any of the play and to express their likes and dislikes to him.”
36. Ms F also states:
X and Y have exhibited some aggressive behaviour towards each other in sessions and have been reported to have hit their mother at home. Sessions have focused on engaging the children in therapy and to offer parenting suggestions to their mother regarding managing the boy’s behaviour.
This alleged incident is described in the s 69ZW report as follows:
Child Protection received a report in relation to 10 year old Y and seven year old X who reside in the primary car of their Mother eight days a fortnight and then reside with the Father for six days as per Family Court Orders in place. The reported concerns pertain to Y and X disclosing their Father has hit them with no information as to this with an open of closed hand, the timeline, the context or if there were injuries caused. It was also reported that the Father folded the children into a ball which hurt their backs and held them upside down by their feet.
Follow up occurred with the police Sexual Offences and Child Abuse Team (SOCIT) determined that protective intervention was not warranted, with no role for Child Protections identified. Follow up occurred with the psychologist linked with the children. It was confirmed there was no information to indicate the children were at risk of significant harm when in the care of the Father and that support with the psychologist would continue.
It is somewhat surprising in these circumstances given the issues in the case and the fact that the mother’s own case was that the children should spend time with the father that she would choose to cross-examine the father about the alleged abuse and in particular this incident. She also referred in her final address, albeit in my view mistakenly, to Mr M’s evidence as to the possibility of the children’s rejection of the father being a consequence of his maltreatment of them.
In his first report Mr M referred to:
...the gratuitous use of protective services and police in matter that area an appalling and unnecessary drain on these important services. I simply draw attention to the inescapable factual observations that notwithstanding the involvement of DHHS, child protection and police, that no substantive finding of any significance has been found in relation to either parent, leading to an irresistible conclusion that both parents have been prepared to utilise services intended for the most severe and needy case in their campaign of denigration, attack and devaluation of the other.
The mother also deposed in answer to the criticism of the number of reports she had made to DHHS and the Police, that although she had not made any reports for nearly two years, the father had contacted the Police on 25 August 2019 she says “to attend our home because Y simply did not want to attend a football match”. The father deposed that for the past four years he had enrolled the children in a junior football team largely made up of children who attend the same school as the children. He also gave detailed evidence in relation to having called the Police when Y did not arrive to play in a preliminary final. He said as follows:
…My understanding was Y [sic] was to play in a preliminary final about 300 metres down the road from your residence and I know Y [sic] was excited. I’ve got to say, openly and freely, I was hugely excited because I had been there for every game that he played that year and I saw a boy grow in front of me and he did so well and so to see him play in that preliminary final with his mates and his best at the time, you know, it was really fantastic to see that growth in him. So on that Sunday morning, I was waiting in the carpark. I saw your aunty, Ms S, was waiting in the carpark as well. So I just had the expectations. I saw her, I knew there was somewhat of an agreement – at least with Y [sic] – that he was going to be playing that Sunday morning and the time just marched on. Got closer to game time, closer to game time. I sent a whole bunch of text messages saying, “Okay. The game is about to start. Where is he?” I had all of his footy gear: his boots and jumpers and all that stuff. Waiting for him to turn up so I could just change him and he could run onto the ground. They had organised a huge banner for all the boys to run through and Y [sic] had some posters they had put up in the change rooms with his name and photo and everything up there. So it was a bit of a special moment for – would have been a special moment for him. For all of us. Anyhow, got, I think, five minutes before game time – or two or three minutes – club manager came up to me and said, “What’s going on? Where is he? Because if he doesn’t turn up, we’re at a chance of forfeiting the preliminary final and all the boys lose out.” And this was a ragtag team made up of a whole bunch of different schools in the area and they had bonded amazingly well.
….
…I was concerned that he wasn’t – he hadn’t turned up. So I rang up the police because I know we can’t speak and you weren’t answering my text messages. Because of that lack of communication, I asked the police if they could give you a call and they told me later on that they called you but you didn’t answer, and they said, “Okay. We’re just going to go past and see if anyone is home.” I never asked them to do that. I never asked for a – a welfare check. All I asked them to do was ring you up and say, “Where is he? Is he playing or is he not playing?”, so I can tell the team manager and he can put some contingencies into play. Eventually, they did - - -
When the mother was cross-examined about this incident she said as follows:
I don’t know how long he has been playing for. In my time Y [sic] doesn’t go to football. I think only on one occasion he has been over how many years, and he doesn’t go to training, so – because he can’t go to training. We live too far.
The mother said further as follows:
I don’t – it was – it was a football match. I didn’t know if it was a final or not. I – all I knew, it was a football match. However, in all of my time with the children I think only bar once, because they asked to go, the children have never played for Team U in my time. I’m the primary carer and they have never attended training in my time, and I’m the primary carer. And from my understanding in their dad’s time they’ve never attended training either. So they only play football – I – I’m not sure. I – I assume they play only every second weekend.
The mother’s evidence in relation to this incident was disingenuous and her attempts to deflect responsibility for her behaviour on this occasion is a clear demonstration of her attitude to the father and her view of the importance to the children of their relationship with the father.
Having heard the evidence of both the father and the mother I prefer the father’s evidence with respect to this incident, why he contacted the Police and what the Police said to him and did in response to him having contacted them on this occasion in August 2019. And although I generally agree with Mr M’s assessment of the parties I am satisfied that it is the mother and not the father who has gratuitously misused Protective Services and the Police and not the father.
In all of the circumstances and accepting the father’s evidence with respect to the children’s behaviour when in his care I am not satisfied that he poses any risk of physical abuse to the children or that they are as the mother says “frightened of him”. However I do have significant reservations about the risk to the children of psychological abuse particularly by the mother which I will address in more detail later in these reasons.
ADDITIONAL CONSIDERATIONS
The Children’s Wishes
The additional considerations which stand out in this case include the question of what if any weight the Court should place on the children’s wishes.
From the mother’s perspective this case is about the children’s wishes and in particular what she says is their wish to live with her and attend schools close to her home. Mr M in his second report reported the children as “stating clearly that they want to reside with their mother” and referred in his second report in particular to Y’s negativity about his current school and his desire to attend a school near his mother’s home. The mother told Mr M that she is advocating for the children and will act in accordance with their wishes. This is consistent with the way in which she put her case during the hearing before me. However, I accept as Mr M said in cross-examination that although the children’s wishes are relevant that “… too much weight is placed on the children’s shoulders to –to – because they feel as though they have to make a decision and they’re responsible for their parents and their parents happiness”. He also said that although Y spoke negatively about his current school that it was “clear and obvious from his own words that he has really enjoyed it” and that he can’t live with those conflicting views. Although the children’s wishes are relevant those wishes need to be considered in the context of the particular circumstances of this case.
Mr M in his second report described the children as follows:
46.The presentation of Y and X was genuinely concerning. Both boys presented with extraordinary levels of anxiety and agitation. X was barely able to articulate any concerns, and was almost mute. Y conveyed anguish and despair, a sense of profound hopelessness, and a deep embroilment in his parent’s conflict, such that he is splitting the world into being all good, that is with him and all bad that is against him
Mr M described Y in his second report as follows:
33.What seemed abundantly clear was that Y has now very significantly split the world into good and bad, along the lines of his mother and his father, and that the psychological middle ground between them is uncertain and anxiety provoking. The issue of schooling has become the battleground of this dispute; Y has staunchly aligned himself to his mother, and in so doing, conveyed a justification for not wanting to attend Suburb B High School that conveyed a sense of being contrived. ….
He told me that he hated attending Suburb B High School, that he was frustrated with his father, and then effusively conveyed the enormity of his stress, his distress, and the depth of his unhappiness. He launched into a negative tirade of criticism, communicating very negatively about his father, culminating in his wish to never see his father again.
…
36.Of particular concern is that Y has evolved his concerns around secondary schooling to reflect an all-consuming negativity about his father. Not only did he tell me that he no longer want to live with his father, but that his preference was never to see his father again.
Mr M, again referring to the impact of the parents’ conflict upon the children, said in his second report as follows:
48.It is my experience commonplace that children who experience such high levels of conflict amidst their parents, and especially so when or other parent shows personality vulnerability, that the child is confronted with either a significant split, that is, a division of intolerable realities, that sees them either experience very high levels of anxiety, present very differently in each house such that they split their psychological and emotional experience, and behave very differently in each house, or those who find that the psychological middle space between their parents to be so disturbing, that they split one parent off and reject that parent in favour of the other parent and that parent’s reality.
Mr M continued as follows:
55.On this occasion, the presentation of Y in particular was enormously disturbing. His level of anxiety was enormously high, his sense of despair and desperation palpable, and his words conveyed a sense of anguish and hopelessness. He oscillated from splitting his father into being all-bad, not wanting to see him and have no relationship with him, to wishing that the problem could be resolved and the family returned to normal. There are significant clues embedded within Y’s presentation that are demanding of attention; his decision to forego his Year 6 graduation is particularly telling and a particularly sad reflection of the impact that this entire process has had upon Y. It seemed clear and apparent to me that his reason for not wanting to go was the prospect of his parents being in the same place and the need to avoid this situation given the contentious nature of his primary school attendance. He told me that his primary school was a source of all of his family’s conflict and all of his problems, that in turn clearly translated to the tyranny of distance and the imposition of travel imposed upon him and his mother. Significantly, Y identified his mother as more burdened about these than him; there can be no ignoring the enormity of the travel and the cost that this has come to family members.
56.It is the splitting that presents a concern. Again, a testing of evidence will determine which part of the split reflects what in the process; either Mr Savard has behaved in the way alleged by Ms Savard, that he has been abusive, emotionally poorly attuned, aggressive, domineering and has in fact caused to Ms Savard all of the problems that were at least articulated by Y, or conversely, the children have become embroiled in their mother's construction of reality, her psychological functioning has impinged upon their psychological functioning, and that their only solution now is to split their parents, idealise their mother and reject their father. In this regard, the matter is poised on the brink of an alienation dynamic.
In my view it is also significant that the children’s presentation has deteriorated since Mr M prepared his first report. In that report Mr M had described Y in the following terms:
36.Notwithstanding the more concrete nature of Y’s communication style, he described his parents in positive terms. In general he described his mother as the parent who did things for him, takes care of him, makes him lunch, and cares about his health. By way of contrast, he described his father as the parent that did things with him, teaches him things, takes him to sport, and he told me that he really liked seeing his father. He went on to explain that he loved his parents the same, but when asked if there was anything about his parents he didn’t like or would like to change, the most that he could elaborate was that his father froze his lunches and he didn’t like that.
Mr M also referred in his first report to X describing “his parents separately in extremely positive terms, and that like his brother, described his mother more from the perspective of the things she does for him”. I accept Mr M’s evidence that the change in the children’s presentation, particularly Y’s presentation between his first and second reports, is marked and very concerning.
Mr M, referring to the possible explanations of what he observed of the children’s behaviour, said in his second report as follows:
49.It is of course important to simultaneously consider more than one hypothesis; in such families, the behaviour of one parent can contribute actively and directly to the rejection of them by their children. In this family, the evolving rejection of Mr Savard by his children may well be as a consequence of his behaviour, his treatment of them, his negativity, his oppressive control, his maltreatment, and his lack of emotional and psychological atonement amongst other factors. These are alluded to throughout the affidavit material and have been spoken about by Ms Savard, who believes that the children are justifiably frightened of and rejecting of their father.
50.The other hypothesis of course is that the children are becoming embroiled in their mother’s emotional experience, that her psychological functioning is intruding upon their psychological functioning, that the children clearly understand the unspoken message of restraint, significantly compounded by the imposition of travel and their understanding of the burden that this creates for her, as well at some level an understanding of the prioritisation of her relationship with her parents and her need to be close to them, possibly at the cost of the children's relationship with their father.
51.Ms Savard’s concerns area clearly documented within the affidavit material, were articulated in my previous Report and reaffirmed on this occasion. A testing of evidence will be the critical lynchpin consideration, and support of her concerns in the evidence would be of compelling importance.
52.It is well beyond the scope of this report to draw conclusions or determine the facts, but I note that by way of contrast, Mr Savard maintains that the children are warm, loving and affectionate with him, that they have a strong sense of belonging to his family, that they have a solid circle of friends and good social relations and have been happy at school. He described Y, notwithstanding his now apparent statements, to have embraced Suburb B High School, that he has enjoyed his time, wants to attend, has a close and secure relationship with his father, and would from Mr Savard's perspective benefit from residing with him. I note that according to Mr Savard, the best outcome, in his opinion, is for the children to reside with him, to spend 5 nights with their mother in a 14 night cycle, and to continue to attend their current schools.
I have had the benefit of hearing the evidence of both the father and the mother and as previously referred to, where there is a dispute between their evidence, I prefer the evidence of the father. However, it is also in my view possible, as Mr M observed, that both the father and the mother may be accurately describing the children’s behaviour and presentation when in their care. Ultimately I accept the father’s evidence, notwithstanding what the children told Mr M about wanting to live with the mother or their reasons for wanting to do so.
I am also satisfied that, as described by Mr M, the children’s schooling has become the battleground of the dispute. Mr M described the mother and the children as being entwined. I also accept Mr M’s evidence that whether it is because the mother has sat them down and told them what she wants, and there is evidence that suggests she may have done, or because the children have become embroiled in her version of reality, the children are likely to be well aware of the mother’s views about the father generally and where she wants them to live and go to school.
In cross-examination Mr M said that abiding by the children’s wishes, as the mother says she has done and the Court should do, is “fraught” as “we never abide by our children’s wishes all the time”. Notwithstanding what the children told Mr M about the travel to and from school it became clear during cross-examination that it was the mother who no longer wanted to do the driving to and from her home and the children’s school. To the extent that she said that if the children were to continue at their current schools they would have to use public transport to get there and that she would not even drive them to the local train station. I am not satisfied that there is a proper basis for the views the children have expressed and in so far as they are expressing the mother’s views, I am also not satisfied that there is proper basis for those views.
To the contrary I am satisfied that the wishes expressed by the children are part of the process described by Mr M where they live in a split world “and when it becomes impossible to cross that bridge they just live in one universe and create a world that is coherent within that universe, to accept one view - accept one parent’s reality and they then self-perpetuate that view”. On that basis although I do not propose to disregard the children’s wishes I am satisfied that the children’s wishes are not soundly based and should be afforded little weight.
Parenting Capacity
Although it is the mother’s case that she is better placed to provide physical care for the children than the father and the mother may have more flexibility with her employment and more family support I am satisfied that both the father and the mother are able to provide for the children’s physical needs as they have been doing now for some years. However, I am not satisfied that the mother is able to provide for the children’s emotional and psychological needs.
Whereas the father was able to acknowledge the importance of the mother’s role, the mother at best paid lip service to the importance of the children’s relationship with the father. I am not satisfied that she really understood the importance of that relationship or the importance of the father in the children’s lives. The mother continues to focus on her negative view of the father and her narrative of the history of their relationship and his relationship with the children post separation and seems unable to consider any other possibility, in particular that the children may have a positive relationship with the father. Even after having heard Mr M’s evidence, in her final address the mother again focused on those parts of the reports that fitted the way in which she put her case ignoring both those parts of the reports that presented a different view and Mr M’s oral evidence.
In his second report Mr M referred to the parties having referred to particular paragraphs of his first report which they perceived as supporting their respective positions. The father referring to paragraphs 62 – 65 and the mother focusing on paragraphs 47 – 60. Notwithstanding that Mr M made it clear in his second report that the most significant paragraphs of his first report were paragraphs 62 – 65, both in her trial affidavit and her final address the mother continued to focus on paragraphs 47 – 60 of the first report.
Another example was the mother’s focus both in cross examination of Mr M and in her final address the mother on the first of the possible explanations outlined by Mr M to explain the children’s behaviour i.e. that they were frightened of and rejected the father because of his treatment of them. This was significant because the evidence, including Mr M’s evidence, does not support the mother’s assertions of abuse. Mr M’s description of the mother extracting “the bits of the story that fit with how she feels and believes” is consistent with my observations of her evidence and the way in which she put her case. Although Mr M posited that it was possible that the mother genuinely believed that the children were at risk in the father’s care he also said that there did not appear to be a proper basis for that belief.
As highlighted by Mr M despite the numerous notifications to DHHS in relation to the children in the period between 2013 and 2019 the abuse alleged by the mother has not been substantiated. To the contrary DHHS identified the ongoing conflict and acrimony between the father and the mother as the most likely cause of the emotional impact on the children. At paragraph 46 of his first report Mr M said as follows:
Mr Savard and Ms Savard have a history of escalating conflict that is riddled throughout the affidavit material. It is extremely unlikely, given the history, that this will change. However it is also worth noting that both boys described their parents in unequivocally positive terms, conveyed a sense of trust and dependence upon them both, and in this regard, I draw attention to the parallels with the previous report completed by Dr N. There does seem to be a significant disconnect between that assessment, my observations, and the description of the boys as conveyed by Ms Savard about their fear and reluctance in relation to their father. I note the description of the children and their father conveyed by Ms Q, and the warmth and affection described by her of Mr Savard in relation to the boys that match the description of him in the previous assessment and coincides with my own observations. It is difficult to understand from where so many allegations of abuse emerge, or why these warranted the engagement of police and protective services. By any measure, the behaviour described in relation to both parents and allegedly conveyed by the boys, did not reach above a threshold demanding of such invasive investigation, or protection. I note the concerns harboured by DHHS that it is the behaviour of the parents that is likely to be more abusive of the children and contributing negatively to their welfare and development, and about this I would concur.
I am satisfied that the likely explanation for the way in which the children are attempting to split their two worlds, and are as Mr M says “poised on the brink of an alienation dynamic”, is that they have become embroiled in the mother’s “construction of reality and the mother’s psychological functioning has impinged on their psychological functioning.”
I am satisfied having heard his evidence that the father understands the importance of the children’s relationship with the mother and that he has both the insight and the necessary commitment to support that relationship. The mother on the other hand continues to agitate her concerns and negative narrative of the father and his relationship with the children. It was clear from the mother’s questions of Mr M in cross-examination that she is either unable to reality test what she says the children have told her or if, as Mr M referred to what they are saying is being influenced by her narrative, she focuses on that evidence which supports her case ignoring the evidence that does not.
DISCUSSION
In both of his reports and his oral evidence Mr M referred to the need for the parents to support and encourage the children’s relationship with the other parent. He said in conclusion in his first report as follows:
62.When all things are considered however, I would suggest that all other matters should pale in comparison to an understanding of which parent is best able to support and encourage a relationship with the other parent.
63.A fundamental consideration of parenting assessment is an evaluation of each parent’s capacity to recognise the importance of a relationship with the other parent. Evidence of a continuous attack on the character and importance of one parent in the life of the children should in my view weigh heavily in favour of a decision in support of the other parent.
64.The practical considerations are important and the pragmatics of the children’s time with their parents cannot be ignored, but at a deeper and more emotional level, it is the ability of the parents to support and encourage relationship with the other parent and extended family that is likely to be protective, and the opposite is true.
In his second report Mr M concluded as follows:
58.Ultimately, it is my view that the decision should be made about with whom the children would reside and from there, the issue of schooling will logically follow. Mr Savard maintains that by the children’s continuing at their current school entails the least change, and that by residing with him, gives to the greatest likelihood of having a relationship with both parents; Ms Savard emphasises the children’s dependence and reliance on her, the family and social supports, the practical realties and the children’s wishes in support of her proposal.
59.It remains my view that the decisions regarding the children’s long term welfare should hinge not on which school they attend but rather of which of their parents is better able to advance their psychological health and welfare, which parent is best able to encourage and promote a relationship with both sides of the family, and which parent is best able to protect them from ongoing enrolment in the conflict.
Mr M did acknowledge the burden of the travel arrangements upon both the mother and the children however he also pointed out, in my view with some force, that a lot of children have to spend time travelling to and from school and that it is the parent’s acrimony not the travel that is the issue in this case. Having heard her evidence I am also satisfied that it is the mother who has the most issue with the travel to and from the school and that the children’s complaints are most likely a reflection of her concerns. I accept as Mr M said that the mother and the children are “very entwined” and that the mother has “superimposed her feelings and thoughts upon the children … not recognising the extent to which the strength of her emotions were influencing them”.
Mr M in cross examination agreed with the proposition put to him by counsel for the father that given the risk of ongoing psychological harm to the children in the mother’s primary care the Court would have to consider the children living primarily with the father. Although he said that in the circumstances this was an irresistible conclusion he also described this option as “neurosurgery with a chisel”. However, although the orders proposed by the father are a significant change, it is also the case that the children will continue to live in the same homes, attend the same schools and will spend substantial time with the mother. I also accept, particularly given the deterioration in the children’s attitude to the father and their expressed wish to live with the mother and attend a school near her home that living primarily with the father and continuing at their current schools could, at least in the short term, present some difficulties for them. However in circumstances where I have accepted the father’s evidence as to the children’s experience and behaviour in his care and how Y presents at school I am satisfied that they will manage the transition to the father’s primary care. I am also satisfied having heard his evidence that the father has the necessary parenting capacity to address any issues that may arise.
The difficulty in this case, particularly having regard to the deterioration in the children’s presentation observed by Mr M since he prepared his first report is that to do nothing will almost certainly lead to the children being further psychologically harmed by the relationship between their parents whichever schools they attend. The mother’s preferred position is that the children live with her and attend school nearby. Although by the end of the case the mother was no longer seeking to reduce the children’s time with the father that change was meaningless given the distance and travel times between her home and the schools she proposed the children’s attend and the father’s home. I am satisfied that the practical difficulties associated with the mother’s proposal would inevitably lead to the children’s time with the father being reduced. I am also not satisfied, even if the Court were to adopt the mother’s proposal, that she has either the capacity or the necessary commitment to promote the children’s relationship with the father. As evidenced by the maternal grandmother’s evidence the children would most likely be living in an environment that is hostile to the father and surrounded by adults unable to recognise his importance in the children’s lives.
In all of the circumstances I am satisfied that it is in the children’s best interests to live with the father as he proposes and live with the mother from after school on Friday until the commencement of school on Wednesday each alternate week. Although I invited the mother to make submissions as to her proposals in the event that orders were made for the children to live with the father she would not contemplate that possibility and did not do so. This was another example in my view of the mother’s psychological vulnerability and her inability to prioritise the needs of the children.
I am also satisfied, as proposed by the ICL, that the children’s face to face time with the mother should be suspended for a period of one month to give them time to adapt to the new regime. I am also satisfied that during this one month period, as suggested by Mr M during cross-examination, the children should not engage in any therapy and accept as he said that it might be better if they were to just get on with the new arrangements for their care. The mother ultimately did not oppose the father’s proposal that when the children are living with each of them the other parent be permitted to telephone the children every second day. I am satisfied that I should accede to the father’s proposal and that this should also be the arrangement during the one month period when the children are not spending face to face time with the mother.
Although the mother made it very clear during cross examination that she was not prepared to drive the children to and from school if they remained at their current schools, on the basis of the orders I propose to make she will only need to do so after school on Friday, Monday and Tuesday and before school on Monday, Tuesday and Wednesday each alternate week and I am hopeful that the travel being less of a burden, she will reconsider her position. Even if she does not and insists upon the children using public transport it will be less of a burden upon them as it is the father’s proposal that he will drive the children to and from school when they are in his care or when necessary will be assisted by his mother to do so.
The practical difference between the orders I propose to make and the existing regime is the that children will be spending nine nights per fortnight with the father rather than the mother whilst continuing at their current schools and in my view the orders should be implemented as soon as practically possible. This is of particular importance in my view given the mother’s inability to reflect upon the risk to the children of the ongoing dispute and the impact of her views of the father upon the children. I am satisfied that in these circumstances the children should spend the period of one month with the father without spending any face to face time with the mother and thereafter commence the new regime. The orders I propose to make will include the upcoming school holiday period allowing the children time to adjust to the new arrangements before they spend an extended holiday period with the mother.
The ICL proposed, and the father agreed that the children attend therapy with Ms V, a clinical psychologist. However when it became clear that Ms V was not taking on new clients it was then proposed that the children attend upon Ms Z, the cost of the treatment, being $330 per hour after the Medicare rebate, to be shared equally. Although the mother did not in principle oppose the children attending therapy with Ms Z she did submit, both in relation to the parties attending counselling with Ms AA and the therapy with Ms Z, that if it were to be once a month the cost would be manageable but that she did not “want it to be abused”. There is no evidence to suggest that either Ms AA or Ms Z would require the parties to incur the cost of unnecessary counselling or therapy and I propose to make the orders proposed by the ICL.
The father and mother had otherwise agreed upon the children’s time with them during school holidays and on special occasions and a raft of ancillary orders including changeover and non- denigration orders. Although I propose to make the orders they seek as the children will be living primarily with the father in my view when the children are spending time with the mother during the second half of the school holidays they should return to the father’s care before the commencement of school term and I propose to order accordingly.
SCHOOL FEES AND CHILD SUPPORT
Although in his Amended Initiating Application the father sought an order that he and the mother share equally the cost of the children’s school fees this is a child support issue and the father did not seek a departure from any child support assessment. While both parties produced financial statements, neither party adduced any evidence with respect to their financial circumstances albeit the mother was cross-examined about her capacity to increase her hours of employment or in support of a departure order. It is not even clear from the evidence whether a child support assessment has been issued. There was also a dispute in relation to what if any contribution the mother has been making to the school fees. Even if there is currently an assessment, child support will need to be reassessed having regard to the change in the time the children are to spend with each parent and the costs they incur as a consequence of those changes. In my view there is no evidence based upon which this matter could be determined and the proper course is for the parties to seek an assessment or an administrative departure from that assessment if there is one.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Macmillan. Associate:
Dated: 10 September 2021
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