SDS and ACS - [2006] FMCAfam 678

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SDS & ACS

[2006] FMCAfam 678

FAMILY LAW – Parenting – rebutted presumption of shared parental responsibility – father converted to Jehovah Witness faith – best interests of the children.

Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65DAA

Paisio (1979) FLC 90-659
Adelaide Company of Jehovah Witnesses Incorporated v The Commonwealth (1943) 67 CLR 116

Applicant:

SDS

Respondent:

ACS

File number:

PAM 896 of 2006

Judgment of:

Henderson FM

Hearing date:

4 December 2006

Date of last submission:

4 December 2006

Delivered at:

Parramatta

Delivered on:

22 December 2006

REPRESENTATION

Counsel for the Applicant:

Mr Shaw

Solicitors for the Applicant:

Warren F Ball & Co

Counsel for the Respondent:

Mr Thistleton

Solicitors for the Respondent:

Craig William Saunders

ORDERS

All previous parenting orders in relation to the children Jack and Jill are discharged.
The children live with their father from after school Thursday until the commencement of school the following Monday morning each alternate week commencing the first Thursday following the date of these orders.
Otherwise the children live with their mother.
Order 2 is suspended for all school holiday periods.
The children spend one half of each school holiday period with their father being the first half in each school term school holiday period save as follows:
(a)In the event the Easter period, defined as 9am Good Friday to 6pm Easter Sunday, falls within the children’s school holidays, the children to spend half the Easter holidays which includes Easter with their mother and half of the Easter holidays that excludes Easter with their father.
(b)In the event Easter does not fall within the school holiday period the children to spend the entirety of the Easter period with their mother.
(c)In the event the father’s time with the children is shortened by them spending the entirety of the Easter period with their mother outside school holidays the father to have one additional weekend with the children, being from after school Friday to the commencement of school Monday morning, in the second term of each school holiday period by agreement, but failing agreement being on the fifth weekend of the school term.
(d)The children to spend the first half of every Christmas school holidays with their mother and the second half with their father, with such Christmas school holiday period to be counted from 9am on the first day of the school holidays until 6pm on the Sunday prior to the children returning to school.
The father’s time with the children to commence the second weekend after the children return to school in first term and the first weekend after the children return to school in each other school term.
The children to spend the day and night of their birthday with their mother and the father’s time with the children is suspended for that time each year.
The mother have sole parental responsibility for making all decisions concerning the children’s:
(a)education
(b)any school they attend from time to time
(c)attendance by each of the children each year of one extra-curricular activity involving a weekend game and weekday training
(d)attendance at social events including but not limited to concerts , musicals, live shows, movies and birthday parties
(e)All medical decisions including operations, treatment, hospitalisation blood transfusions and the like.
Otherwise the parents have joint parental responsibility for all remaining issues concerning the care of their children.
In the event the father will not take the children to training or to any scheduled weekend game concerning the children’s extra-curricular activity, the father’s time with the children to be suspended for;
(a)30 minutes prior to a training session and recommence 10 minutes after the cessation of the training session and;
(b)for 60 minutes before a game is to commence and recommence 15 minutes after the game has ceased; and
(c)the mother to collect the children prior to their training or game from the father and the father to collect the children at the cessation of training or matches from the mother.
In the event the father will not take a child to a birthday party when they are to spend time with him, the father’s time with that child will be suspended 30 minutes before the birthday party is due to commence and will recommence 15 minutes after the party has ceased with the mother to collect the child from the father and take the child to the party and the father to collect the child at the cessation of the birthday party at the venue of the party.
The father will permit the children to telephone the mother once each second day they are in his care, and the mother will permit the children to telephone the father once each second day they are in her care.
The father is injuncted and restrained from permitting either child to Witness with him or any of his family members until the child reaches 16 years of age.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 897 of 2006

SDS

Applicant

And

ACS

Respondent

REASONS FOR JUDGMENT

Introduction

This matter was heard by me on 4 December 2006.
The applications are competing applications for parenting orders in respect of the parties two children, Jack [not his real name], aged 11 and Jill [not her real name], aged 10.
The initial application filed by the husband sought an equal shared parenting arrangement for the children. That application was amended at the hearing and the husband now seeks an order that the children live with him from after school Wednesday each alternate week to the commencement of school the following Monday morning and for one half of school holiday periods.
The wife’s response sought that the husband have time with the children each alternate weekend and every Friday night, however during the course of the hearing her application changed such that she was content for the children to spend time with their father each alternate week from after school Thursday to the commencement of school the following Monday morning, half school holidays and the like.
In reality there is only one night a fortnight that the parents disagree in so far as the time the children spend with each of their parents.
However the more significant issues in this matter concern the wife seeking sole parental responsibility and the time the children should spend with each parent at Christmas, Easter and on their birthdays. These matters arise for the mother due to the husband’s commitment as a Jehovah Witness.

The evidence

The wife was the applicant and I read the following:-
a)Her application filed 24 February 2006
b)Her affidavit in support filed 24 February 2006
c)Her updating affidavit filed 30 November 2006.
The wife tendered one exhibit (Wife’s Exhibit 1) which was Jack’s school diary for this year.
For the respondent husband I read the following:-
a.His response filed 4 May 2006.
b.His affidavit filed 24 March 2006
c.His affidavit filed 29 November 2006
The husband tendered no exhibits.
A family report was prepared by Dr Christine Robinson and that was marked Court Exhibit 1.
Both the husband and wife were examined and cross examined. Dr Robinson was not cross examined.

Short chronology

In 968 the wife is born, and is aged 38.
In1968 the husband is born and is aged 38.
On 14 May 1992 the parties commenced cohabitation.
On 14 November 1992, the parties marry in the Western Suburbs.
In 1995 their son Jack is born. He is 11 years old.
In 1996, their daughter Jill is born. She is 10 years old.
On 3 January 2005 the parties separate.
In January 2005 the husband undergoes a psychotic episode and is admitted into a Psychiatric Hospital where he is detained to late January 2005.
Just prior to separation the husband adopts the Jehovah Witness faith which is the faith of his parents and brothers.
In October 2005, the husband commences to work with his brother, fitting tyres to cars.
On 24 February 2006, the wife commences parenting and property proceedings.
On 6 June 2006, the parties agree to the appointment of Dr Robinson in relation to the parenting issues and the parties agree in relation to all property matters.
Since separation the husband has been spending each Wednesday afternoon from 5.30pm to 8.30pm, each second Friday afternoon from 5.30pm to 10.30pm and each alternate weekend from 5.30pm Friday until 6.00pm Sunday with the children. The husband has spent time with the children in the school holidays
The wife raises some concerns in relation to the time the children spend with the husband and the difficulties that his Jehovah Witness faith causes her in parenting the children in a co-operative manner.
The wife seeks that I make an order that she have sole parental responsibility for the children’s education, enrolment in extra curricular activities and in relation to their medical treatment and health. She further seeks certain injunctive orders that the husband not take the children witnessing until the age of 16 years.
The mother seeks additionally that for Christmas, Easter and the children’s birthday, the children otherwise be in her care so that she can in accordance with the tenants of the faith the children were baptized in, being the Catholic faith, celebrate those events with the children and any time lost by the husband should be made up during the year.
It became clear from reading the affidavits and hearing the parties give evidence in examination and cross examination that the real area of difficulty for these parties is that the husband is a committed and practising Jehovah Witness.
I find the husband sincerely practices and believes in all tenants of the faith and endeavours to lead his life and encourage the children to lead their life within the tenets of his faith. This finding was arrived at from my observations of the husband, his evidence and is confirmed by Dr Robinson.
The mother and the children were baptized as Catholics; the children have each taken Holy Communion and have attended Catholic Schools since they commenced school. In the last six months or so the children and the mother have begun to more readily attend mass. Thus the children are exposed to the Catholic faith in the mother’s and the maternal families’ home and the Jehovah Witness faith in their father’s and the paternal families’ home.
In matters of religious faith and parenting the law is clear from decisions such as Pasio 1979 FLC 90-659 and Adelaide Company of the Jehovah Witness Incorporated v Commonwealth of Australia (1943) 67 CLR 116. In quoting from this decision:
“s.116 of the Constitution means that an Australian court cannot commence with any premise that it is a matter of public policy one religion is to be preferred to another or that a religious upbringing is to be preferred to another religious upbringing”.
The decision I make today is based solely upon the principles enunciated in Part VII of the Family Law Act 1975 that is that I must make an order ultimately in a child’s best interest, having regard to the matters set out in Part VII to which I will refer to later. I wish to confirm at the commencement of this judgment that none of the findings I make are intended to, nor do they in any way demean, diminish or show a preference for either of the strongly and sincerely held religious beliefs of the wife and the husband.
What is important is the effect upon the children and their welfare of the practice by each of their parents of their particular religious belief. This is the only focus the religious beliefs of the parents have upon my decision.
The hearing was conducted in a courteous, respectful and polite manner. Neither Counsel for the wife or husband sought to belittle, denigrate or minimise either parent’s religious belief and each the wife and husband have shown respect to the other as parents of these children. Although the issues before the court are of narrow compass they are very important compass for both the husband and wife and ultimately the children.

The parties’ evidence

The wife gave her evidence in a clear and concise way. The wife impresses as a rather black or white person, that is, it is either my way or no way. That by no means demeans or diminishes the wife; it is her parenting style and her personality style.
This effect was commented in Dr Robinson’s report at page 19 where she describes the mother:-
“SDS is a committed parent who cares for her children. However she has views which were concerningly polarised- her marriage was idealised but, because of her ex-husband’s conversion to a religion she has no regard for, she had ended it without any apparent effort to reconcile how their differences could be compatible with a family life”.
The wife herself said on many occasions in cross examination,

“I know I have to be careful, I do not want to lose my children”.
It is regrettable that the wife believes that she will lose her children merely because they may grow up to have a different religious faith than herself.
I accept the husband’s assertion in his affidavit and in his evidence which is confirmed by Dr Robinson and the wife herself in the witness box, that the wife ended the relationship when the husband told her he had to convert to the Jehovah Witness faith because that was the true religion for him and very important to him. That cut and dried style of personality can at times make it difficult, particularly for children to be able to express their views to a parent when they know that parent deeply disagrees with that view.
However the wife acknowledges that the children are very attached to their father, have a close relationship with him and enjoy spending time with him.
Both the wife and husband confirmed that in the marriage and as parents the husband was the fun parent; he did the fun activities with the children and the wife was the parent who ensured they did their homework, went to bed at the correct time, ate proper meals and behaved in an appropriate manner. That style of parenting has continued since separation and with the overlay of the substantial difference in each parents religious beliefs and practices confusion, hurt and anger have been occasioned
Dr Robinson said at page 19 of her report that the wife will “need to find a way of tolerating the Jehovah Witness religion or she will end up losing her children because of her own inflexibility, not necessarily because of Jehovah Witness dogma”. On a positive note SDS is attending counselling and said to Dr Robinson and to the Court that she needs to find ways of listening to and talking to her children about matters and thoughts, that she does not agree with.
The wife said in her evidence that since she has been seeing a counsellor; she has become aware that her inflexible and somewhat intolerable attitude to important matters for others, particularly her children that differ from her own, is causing difficulty and tension in her relationship particularly with Jack. The wife said she had found counselling helpful and that she intended to continue with the counselling. This is a significant move forward for the wife to assist her to better manage what is a difficult situation for her.
At page 19 of he report Dr Robinson says of the husband -
“He presented as a caring and committed father who is probably in an enmeshed relationship with Jack. As he is also a very committed Jehovah Witness, his emotional attachment to the children and the religious dogma leave him no choice but to ensure the children are “in the truth”…that is within the Jehovah Witness faith…I have concerns about his capacity to be aware of how the children could operate outside of his set of belief: thus he was unable to think about Jill wanting to be at parties with her friends and could imagine that she would not ask him to go as she knows parties are “wrong”…His concrete thinking did not seem to encompass the idea that there could be any “truth”… other than what he understands it to be”
As an example of the strength and nature of the husband’s beliefs he gave evidence that he had spoken to the children about the Tsunami and earthquakes and told them that according to the tenants of belief that this was a sign from God of evil on earth as were wars and corruption. I find these beliefs are sincerely and truly held although not widely held in the community.
Similarly in cross examination when asked why Jack was not playing Rugby, the husband said “he doesn’t want to play Rugby, he knows it’s more important to be with me on Saturday and he plays soccer on Sunday at the hall, he loves it, has fun”. The husband could not concede this may have been Jack expressing what he understood his father’s needs to be rather than Jack’s own needs.
Thus both these parents who are loving, caring and committed parents have difficulty in understanding the functioning of their children outside their own set of beliefs and value systems. The husband’s difficulty is, further compounded by his attachment to the Jehovah Witness faith and that he wishes his children to be in truth. The wife has a greater capacity to be more flexible in terms of explaining the world to her children if for no other reason than that the Catholic faith is less inflexible than the Jehovah Witness faith would appear to be as described by the husband. Further the wife has recognised there are significant issues for her children and is seeking professional help to assist herself and assist her with her children.
There is no doubt these children have been caught up in the conflict, not only in relation to their parents separation, the husband’s acute psychotic illness when he was not available to them for some time, but also in relation to the obvious differences in the parents house hold regarding religious values and religious faith and consequent behaviour resulting from those beliefs.
Neither the wife nor husband has handled those issues particularly well in the past. I have concerns that the husband will not be able to handle them in any different fashion in the future than he has in the past because of his sincere and strongly held beliefs. The capacity or the ability to assist these children to move between the household will fall, fairly or otherwise at the feet of the mother, who has taken the first crucial steps by seeking counselling herself. I am confident the wife has the capacity to assist the children move between her and their father’s households and the changing rules because she has on every occasion acknowledged the strength of the relationship the children have with their father and the importance of their father in their life.

Husband’s belief and impact on children’s best interest

Schooling

The wife intends for the children to attend Catholic High Schools. There was some force in the wife’s concern that until the husband converted to a Jehovah Witness in 2005 these children had always been brought up in the Catholic faith and attended local Catholic school.
The wife is concerned as to Jack’s behaviour at school and particularly this year. Jack has been put on a diary system at school to monitor between the wife and the school worrying aspects of his behaviour.
On reading Wife’s Exhibit 1, Jack’s diary, it is clear that the last two weeks of second term and for the majority of third term, Jack’s behaviour has significantly deteriorated. There were a few occasions in March and April where his behaviour was not good, both the weeks following the weekends he spent with his father on 17-19 March 2006 and 13-15 April 2006,. However on the whole his progress was acceptable.
His behaviour in the last two terms of school this year would have been of concern to any parent. He has been calling out in class; he has been rude, fighting in the playground, disobedient and not wanting to participate in activities and having difficulties associating with friends. These are all matters the wife is very aware of and is doing the best she can to assist her son including having her own counselling.

In stark contrast is the husband’s evidence, both in his affidavit and oral evidence, he says that his son is progressing well and that he could see little problems with his son. That is clearly not the objective proven evidence before the court. His son has had a struggle at school this year in fitting in, accepting discipline and authority and forming good friendships. I was most concerned with the husband’s comment that his son was doing really well in the face of this very concerning evidence.
It was of concern that the husband indicated that Jill was progressing well at school. Jill has some significant learning difficulties and developmental delays which the wife is addressing solely by way of tutoring. The husband has taken no part in any of those activities.
The husband had an outstandingly passive attitude to the children’s schooling. He has not attended a parent teacher night and has not had any contact with the children’s school. He has not availed himself of any opportunities to be involved in this most important aspect of his children’s lives and sought to lay blame for this inactivity at the feet at the wife or the school. He does not see that he has any role in positively informing himself about his children’s progress at school.
The husband said he was aware Jack had been in trouble at school because his son had told him and therefore he did not need to go and speak to the school and confer with anybody else because his son would tell him the truth. I found that a very immature attitude to take concerning a child’s schooling. The husband has taken no positive steps to introduce him to the children’s school, their teachers or to assist the wife in ensuring that the children maximise their potential by maximising their time and attention at school. The husband said something like “well I know he misbehaves at school, but its not as bad as some kids, he hasn’t been expelled”. That is not an appropriate attitude to take for a responsible parent who wants the best for their child.
This attitude may have come about for several reasons. The husband maybe satisfied that the wife does, as she always has, a very good job in ensuring the children attend school, do their homework and behave appropriately. It may be that this is not as important for him as ensuring the children are in truth with the Jehovah Witness faith. I do not know. Clearly the husband has left the totality of the children’s education to the mother.

Medical treatment

I was concerned as to the conflict inherent in the children’s best interest and the husband’s attitude towards medical treatment. The husband said in cross examination that he could not agree to the children having a blood transfusion. He said he understood if an order was made there was little he could do because he had no power but he could never agree with a blood transfusion. In relation to the issue of blood transfusions the husband’s evidence was this;
“God says not to take blood from any person, its in the bible, I would not do it, it is not a law of our faith”
The husband was asked about his religious beliefs and the tenants of his faith and he said;
“Jehovah Witness must obey Gods law and not mans law. When mans law is inconsistent, you obey Gods law. Jehovah is still the supreme god”.
Despite Mr Thistleton’s submissions that in an emergency a medical practitioner can treat a minor in the absence of the parent’s consent under the NSW Care and Protection of Children Act I have real concerns that there is a potentially life threatening conflict on this issue and other issue of medical treatment which I would be derelict in not addressing and resolving if the law permits me to do so

Sport

A further difficulty with the children’s best interest and their father’s belief is in the area of extra curricular and social activity on the weekends and during the week.
It is crucial in the development of children and particularly as they reach prepubescent adolescent age, that they are involved in weekend sport, to benefit from not only the physical activity but also the commitment to train and be part of a team. Both children are apparently good at sport and enjoy sport. However because of the husband’s religious beliefs and his absolute determination that every moment he has the children they spend with him and in his faith, the children have acquiesced to his strongly held views and have told him that they do not care if they do not attend sport. I do not accept that they are statements of what the children actually think but rather statements of what the children know will please their father, he is a caring father, they love him and they wish to please him.
Jill missed her netball semi-finals and Jack only played half his Rugby games and missed training. The husband had no insight into how his children felt concerning missing these activities. It is of a concern that the children are unable to explore other options in their life, than the Jehovah Witness option the father offers them. Jill ought to be able to play netball, she is a good player, and she missed out on her semi finals because she was with her father this year. I accept the wife’s evidence that Jill wants to play netball and that Jack wants to play either Rugby and or Soccer with boys of his own age.
The wife painted a very believable and at times poignant picture of her son Jack in relation to sport .Jack missed training every second Friday when he is with his father and missed games every second weekend. The boys in his team became very intolerant of Jack and teased him which caused Jack distressed which distress comes through in his school diary.
In relation to the children’s sporting commitments the husband is very much egocentric, centred on his needs and what he believes the children need to be in the faith. The husband was pressed as to the children missing out on Saturday sport. He replied:
“Jack really enjoys playing soccer on Sunday afternoon with the other dads and kids at the Hall. He has a ball. He doesn’t miss out al all”.
Two issues emerge from this evidence. The first is that Jill is not even mentioned by her father as playing any sporting activity at the Hall on Sunday so she does miss out.
Secondly I have no doubt Jack enjoys soccer at the Hall on Sunday.

I put to the husband that playing soccer on Sunday at the Hall was very different from playing soccer on a Saturday in a competition with boys of your own age and skill level in a team environment. The husband agreed that could be right but could not see that Jack was in any way missing out by not doing Saturday morning sport. Nor could the husband see that Jack had been embarrassed by leaving training early or not attending a game. The husband agreed that Jack wants to play soccer. Jack will play soccer and Jill will play netball next year. The husband agreed in cross examination that he was inflexible with the children spending time with him when it clashed with their activities.

Birthdays, Easter, Christmas and social activities

There was some force in the wife’s concern that until the husband converted to a Jehovah Witness in 2005, these children had always been brought up in the Catholic faith, attended local Catholic schools and celebrated Catholic religious festivals.
I agree with the wife that for Christmas, Easter and the children’s birthdays, the children should be with her. They are not significant days for the husband and his time with the children can be enjoyed around those significant Christian days. These days are significant days for the children and had been significant days for the family until January 2005 when the husband made his conversion.
Of real concern and poignancy was the husband not agreeing to the children being with their mother on Easter Sunday, a day which he says is “just another day for him”, when she had purchased special tickets to the Veronica’s concert. I found that attitude of the husband cold, callus, uncaring and demonstrating his lack of capacity to put the children’s needs over his own religious beliefs. The mother certainly made out her case that the husband was most unreasonable on that occasion.
The husband does not believe in celebrating birthdays and that to attend a birthday party is wrong. The husband said that the basis for not celebrating Easter Sunday is because the bible does not say that we should celebrate Jesus’ death. Further the reason birthdays are not celebrated is because those within the faith are not of this world and thus birth into this world is not meaningful.
The husband could not concede that his children may have wanted to attend a birthday party and in deference to him, told him they did not mind missing out .I do not accept the children “do not mind missing out”. That cannot be the reality for these children and this evidence is similar to the father’s evidence in regard to Jill missing out on her net ball semi final when he said “ it didn’t matter to Jill whether it was a semi final or not. When sporting fixtures clash with my time the children prefer to spend time with me”.
I accept that is the husband’s position, I do not accept it is the children’s position. It is an example of the husband’s needs overbearing on the children. The wife said that when Jack was told that he couldn’t go to the Veronica’s concert despite asking his father he said to her “that sux”, this being one of Jack’s expressions.
I found the wife to be a very honest witness and she answered questions truthfully. I found the father to be a very honest witness and neither of these parents sought to hide their own view, their attitude or their behaviour.
It was sad when the husband said he had always thought he was a Jehovah Witness but knew his wife’s position on that religion. The wife had told him that if he converted, the marriage would be over. The husband said that he went for ten years in the marriage, pushing aside his strongly held belief for the sake of his wife, his love for her and his children and that when he could no longer push those strongly held beliefs aside, true to her word, his marriage was over. Not surprisingly he suffered a psychotic episode which has now passed and there is no evidence of thought disorder in his effect now.

Husband’s accommodation

From cross examination of the husband it became clear that he lives in a one bedroom flat on the same property as his parents and that all three of them sleep together in the one bed. The husband may believe that is appropriate and the wife makes no complaint, but it is inappropriate.
The husband should at minimum obtain a fold out bed for his daughter so that she can sleep in some degree of comfort. This is yet another example of his lack of ability to look at matters in a child focussed way. The husband says he has about $70,000.00 saved up and will buy a property at the end of these proceedings. I fail to understand why he would wait until these proceedings are over to obtain appropriate accommodation for his children especially when he was seeking a shared care regime. The husband has simply failed to provide suitable accommodation for them. The wife provides this accommodation by renting an appropriate home at a cost to her. The husband chose the cheap and easy option being a flat at his parent’s home.
The husband now plays a level of child support of $245.00 per month which would go some way to providing for the children although it is an inadequate amount. The husband is self employed. However prior to November 2006, he was paying $26.00 per week Child Support, choosing to pay himself $200.00 per week in wages and of course saving all his money towards purchasing a home that he is yet to purchase. I find on this issue the husband has failed to discharge his parental obligation to financially support his children to the best of his ability.

Witnessing

The husband said the children loved witnessing, they loved being with him. Dr Robinson’s report on this issue was very interesting. Dr Robinson at page 18 said:
“It is not surprising he (Jack) likes Witnessing - he is the focus of attention and would be rewarded by his father’s and grandfather’s approval”.
However Jill was not included as enjoying it to the same extent .Witnessing is not an appropriate activity for young children to be engaged in when their mother does not agree with the tenants of the faith. I congratulate the husband for agreeing not to take the children witnessing until they are age 16. The wife was comforted by this undertaking.

The Law

The objects and principles of Part VII of the Family Law Act 1975 are set out in s.60B. That section says as follows:
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.
That section goes on further to set out in detail the principles which underlie the objects and they are as follows:
2.(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).
The first task is to determine whether there will be equal shared parental responsibility under s.65DA of the Family Law Act. The first task is to consider under s.65DA whether the presumption of equal shared parental responsibility is rebutted. That section says:
“When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
If I so found that was the case I would then need to consider under s.65DAA whether the child spending equal time with each of the parents would be in the child’s best interests, provided same was practicable or whether spending substantial and significant time with the other parent provided same was in the child’s best interest and was reasonably practicable.
The factors operating on my determination of what order I make that is in the child’s best interest is set out under s.60CC (2) (3) and (4) of the Act and must be considered in relation to the presumption of equal shared parental responsibility and spending equal or substantial time with a parent.
In any order I make, I must have the children’s best interest as the paramount consideration. To determine what is in the children’s best interests I must asses the factors under section 60CC (2), (3) & (4) of the Act.
Section 60CC (2) sets out the primary considerations which are :
(a)the benefit of the child in having a meaningful relationship with both the child’s parents and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Both children will benefit from and have benefited from having a meaningful relationship with each of their parents. Whether I make the orders urged upon me by the husband or the wife I do not see there will be any major impediment to them maintaining their meaningful relationship with their mother and their father.
There is no physical harm to these children from either parent. There is no psychological harm as such to the children from either parent other than the impact of the different religious beliefs of the mother and the father on the children. There are no issues of mental health and poor behaviour which would cause me concern in this matter.
The additional considerations I must have regard to are set out in s.60CC (3).
Section 60CC(3)(a) – views expressed by the children: The children did express some views to the report writer: equal time, more time with dad. I have concerns about the weight I can attach to those views having regard to the findings I have made that the husband’s enmeshment in his faith and Jack’s enmeshment with his father’s views lead me to the conclusion that these expressed views are not the children’s views. Rather that are the views the children believe their father would want them to express. Therefore I will place little weight on the children’s expressed views in this matter.
Section 60CC(3)(b) – the nature of the relationship of the children with their parents and other persons: The children have an excellent relationship with their mother and their father. Jack’s relationship with his mother is some what strained at the present. The wife has recognised this and is attending counselling to assist her. There are many reasons for this strain including that his mother has not handled the difficulties she experiences with the father’s religious belief and her own very inflexible attitude to listening to Jack expressing views different to hers. It maybe that Jack misses his father and craves his attention. It maybe Jack is angry that he has to share his father with his father religious beliefs .It may be his increased hormonal activity. It may be that the father’s inflexible attitude and difficulty he has looking at matters from the children’s perspective for example the Veronica’s concert have exacerbated Jack’s attitude and Jack may blame the mother for this and other matters rather than his father. However, given there is only one night difference in the orders each seek I do not see any significant deterioration Jack’s relationship with his mother from either care regime.
Both parents have a good relationship with Jill.
Section 60CC(3)(c) – the willingness and ability of the parents to foster a relationship in the children with the other parent: Both the wife and husband, under difficult circumstances, have promoted the children’s relationship with each of them and they will continue to do so in the future.
Section 60CC(3)(d) – the likely effect on the children of a change to their present care arrangements: There will be minimum change in these children's circumstances whether I make the order sought by the husband or the wife.
Section 60CC(3)(e) – whether there is a practical difficulty and expense of maintaining a relationship: There is no practical difficulty or expense of the children spending time with either parent.
Section 60CC(3)(f) – the capacity of the parents to provide for the emotional, intellectual needs of the child: I find that the wife is the parent that can provide for the children’s intellectual needs to a much higher degree than the husband. He shows little interest in that regard and has left that task to her.
In relation to the children’s emotional needs, the children are attached to their father, they have fun with him, and they enjoy their time with him. However, the father’s enmeshment in the Jehovah’s Witness faith and the inflexibility of that faith has caused these children to come into conflict with their mother, into conflict at their school and the religion of that school, and has at times have caused them to be somewhat socially apart from their peers both by way of not attending birthday parties and not engaging in extra-curricular sporting activities. The wife shows to a higher degree than the husband an ability to put the children’s needs before her own. It is the husband’s strongly held and sincere belief in the Jehovah’s Witness faith which does not permit him to fulfil this responsibility to the same degree as the mother rather than any inherent incapacity.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the parents: The parents religious beliefs have been fully ventilated in the judgement as has the effect on the children of the practice of those beliefs by the parents.
Section 60CC(3)(i): – attitude to the child and responsibilities of parenthood: The husband has shown a somewhat derelict responsibility in relation to payment of proper maintenance and proper conditions for sleeping arrangements for the children when they are with him. The wife shows no such dereliction in her duties and she is well able to put the children’s needs above her own and places her responsibility as a parent at the pinnacle. The husband’s responsibilities as a parent is very much line ball with his responsibility as a practising Jehovah Witness.
Section 60CC (4) – whether the parents have failed to fulfil his or her responsibility to participate in making decisions about major long term issues: The husband has failed to involve himself in the children’s education, or extra-curricular activities, or their social activities such as sport. The husband has shown up until November, scant regard for the proper financial support of the children and he chose to save the money rather than pay the money to the mother. The wife has carried out her parental responsibilities to a high degree.
Addressing the presumption of equal shared parental responsibility. I find the evidence leads me to the view that this presumption in this matter ought to be rebutted.
I have real concerns that the husband would put his religious belief ahead of medical advice concerning the health of his children. In such important matters as medical treatment and where there already exists a potentially serious life threatening conflict I must give sole responsibility to the wife as this is in the children’s best interest.

I have concerns that the husband would be unable to put the tenets of his Jehovah’s Witness faith aside, particularly in relation to the issue of blood transfusion if there was emergency treatment required. In those circumstances I cannot take such a risk with these children and the mother must have that responsibility solely.
Secondly, the husband has shown an almost indifference to the children’s education. He has failed to inform himself independently even when his son told him he was having trouble at school. The husband did nothing to approach the school or find out what was going on. The father said the children were doing well at school. Jill has significant learning difficulties and developmental delay which the mother is assisting with counselling and Jack has on many occasions been into trouble for poor and disruptive behaviour. In those circumstances the husband has shown through his conduct he is indifferent to their education at best and his main focus is the tenets of the Jehovah’s Witness faith. In those circumstances the wife must have sole parental responsibility in relation to the children’s education.
Thirdly, the issue of the children’s extra-curricular activities and the important activity of them being, with their peers, playing sport in a competitive environment and learning the importance of teamwork even if this occurs on the fathers’ weekend. The husband shows complete disregard for this issue. His view is the children do not want to engage in this activity and every moment he spends with them is more precious than anything they could do independent of him. That attitude cannot be in the children’s’ best interests. It is not a child focussed attitude it is very father-centric.
In these circumstances the wife will have sole parental responsibility for decisions concerning the children’s extra-curricular sporting and other activities.
The children may be enrolled in one extra curricular sporting activity each year by their mother. If the husband will not take the children to that activity then his time with them will commence after that activity has been undertaken. This order will also apply to birthday parties in that if the husband does not take the children to a birthday party then his time with them will commence after the party.
Otherwise the parties will have joint parental responsibilities for all other decisions concerning the children.
As I have not made an order for shared parental responsibility on all aspects of the children’s life I am not bound to consider the children spending equal time with each parent. Even if I were to consider such an option in this matter where neither parent sought the order I would not consider such order to be in the children’s best interests even though Dr Robinson recommended this option.
Whether I make the order sought by the husband or the wife the children will be spending significant and substantial time with each parent.

Conclusion

Weighing up the s.60CC factors having determined to rebut the presumption of joint parental responsibility and having regard to section 60B of the Act of the Act, it is clear the wife has discharged to a much higher degree her parental responsibility, has a higher capacity to put the needs of the children above her own, and with undergoing continuing counselling, has realised that an inflexible approach by her as her children grow up is not the way to maintain a proper relationship with them.
In those circumstance I will make orders in accordance with the wife’s application, she being the parent who I have found is more in tune with the children and more able to promote them as separate individuals as they grow to adulthood.
Therefore I make orders as set out in the beginning of this judgment.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Henderson FM

Associate: D. Ferreira

Date: 22 December 2006