Shill & Covel
[2022] FedCFamC1F 1030
Federal Circuit and Family Court of Australia
(DIVISION 1)
Shill & Covel [2022] FedCFamC1F 1030
File number(s): SYC 7141 of 2014 Judgment of: ALDRIDGE J Date of judgment: 20 December 2022 Catchwords: FAMILY LAW – PARENTING – Where these proceedings commenced shortly after the child’s birth – Where the primary issues in dispute were parental responsibility and whether there should be an increase in time the child spends the father – Subsidiary issues included schooling and extracurricular activities – Where the parties have significant communication issues and have difficulty in reaching agreements – Where the father filed false contravention applications – Findings as to credit – Child’s views – Change of circumstances – Making an order that would least likely lead to further proceedings – Where the parties agreed on some orders on a final basis – Order for the mother to have sole parental responsibility in respect to education and religion – Order for increased time with the father – Orders providing a mechanism for choosing extracurricular activities. Legislation: Family Law Act 1975 (Cth) s 60CC
Evidence Act 1995 (NSW) s 128
Division: Division 1 First Instance Number of paragraphs: 162 Date of hearing: 19–21, 28 September 2022 Place: Sydney Counsel for the Applicant: Mr Bunning Solicitor for the Applicant: Pearson Emerson Family Lawyers Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: Nicole Evans Lawyers ORDERS
SYC 7141 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS COVEL
Applicant
AND: MR SHILL
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
20 DECEMBER 2022
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The mother have sole parental responsibility for the child, B born 2014 (“B”) with respect to education and religion.
3.The mother consult the father and keep the father advised in writing and where possible genuinely give consideration to the views of the father in relation to all decisions concerning education and religion.
4.Subject to the other orders herein, the parties shall have equal shared parental responsibility in relation to all other matters for B.
5.B live with the mother.
6.Unless otherwise agreed between the parties in writing, B shall spend time with the father as follows:
During the school term
(a)From the date of these orders until the commencement of Term 1, 2023, as follows:
(i)In Week 1: From after school on Thursday (or 3.00 pm in the event B does not attend school that day) to 6.00 pm on Thursday and
(ii)In Week 2: From after school on Thursday (or 3.00 pm in the event B does not attend school that day) to 4.00 pm on Sunday.
(b)During Term 1, 2023 and Term 2, 2023, as follows:
(i)In Week 1: From after school on Thursday (or 3.00 pm in the event B does not attend school that day) to before school on Friday (or 9.00 am in the event B does not attend school that day) and
(ii)In Week 2: From after school on Thursday (or 3.00 pm in the event B does not attend school that day) to 4.00 pm Sunday
(c)From the commencement of Term 3, 2023, as follows:
(i)In Week 1: From after school on Thursday (or 3.00 pm in the event B does not attend school that day) to before school on Friday (or 9.00 am in the event B does not attend school that day) and
(ii)In Week 2: From after school on Thursday (or 3.00 pm in the event B does not attend school that day) to before school on Monday (or 9.00 am in the event B does not attend school that day).
(d)For the avoidance of doubt, the arrangements pursuant to Orders 6(a), 6(b) and 6(c) above shall occur during school term time, starting at the commencement of school on the Monday of the first week of school and shall conclude at the end on the last day of school each term, and Week 1 for the purposes of these orders shall be the first week of school in each term.
School holidays
(e)During the school holidays following Terms 1, 2 and 3, from 9.00 am on the second Saturday after B’s school for the term until 4.00 pm on the following Saturday;
(f)During the December 2022/January 2023 Christmas school holiday period commencing after school on 16 December 2022 as follows:
(i)From 10.00 am on 18 December 2022 to 10.00 am on 24 December 2022;
(ii)From 10.00 am on 31 December 2022 to 10.00 am on 8 January 2023; and
(iii)From 6.00 pm on 16 January 2023 to 10.00 am on 20 January 2023.
(iv)The child spend all other time in the 2022/2023 Christmas holidays with the mother.
(g)For the Christmas school holiday periods from 25 December 2023 onwards:
(i)In weeks 3, 4, and 6 of the Christmas school holidays, with such time to commence at 9.00 am on the Saturday and conclude at 4.00 pm on the following Saturday, subject to Order 6(g)(ii) below;
(ii)B is to be returned to the mother’s home at 4.00 pm two (2) days prior to the commencement of school terms.
7.Notwithstanding any order to the contrary, B shall live with the mother as follows:
(a)On Mother’s Day from 9.00 am to 4.00 pm;
(b)On the mother’s birthday from 9.00 am to 6.00 pm, or if the mother’s birthday falls on a school day, from after school until 7.00 pm on that day;
(c)In the event that B is not in the mother’s care on his birthday on 9 April and in the absence of agreement between the parties, from 3.00 pm to 6.00 pm if his birthday falls on a school day or from 9.00 am to 1.00 pm on non-school days;
(d)From 9.00 am on Christmas Eve to 12.00 pm on Christmas Day 2023 and continuing.
8.Notwithstanding any order to the contrary, B shall spend time with the father as follows:
(a)On Father’s Day from 9.00 am to 4.00 pm;
(b)On T’s birthday from 9.00 am to 1.00 pm, unless that day falls on a school day, in which case, from after school to 6.00 pm;
(c)On the father’s birthday from 9.00 am to 6.00 pm, unless that day falls on a school day, in which case, from after school to 7.00 pm;
(d)In the event that B is not in the father’s care on his birthday on 9 April and in the absence of agreement between the parties, from 3.00 pm to 6.00 pm if his birthday falls on a school day or from 9.00 am to 1.00 pm on non-school days;
(e)From 12.00 pm on Christmas Day until 6.00 pm on Boxing Day in 2023 and continuing.
9.Unless otherwise agreed between the parties, from time to time, changeover shall occur:
(a)At B’s school, if time concludes or commences directly before school or after school;
(b)The mother’s home at the commencement of B’s time with the father;
(c)The father’s home at the commencement of B’s time with the mother.
Travel
10.The parties shall do all acts and things and sign all documents necessary to ensure B always has a valid passport including:
(a)Within fourteen (14) days of being served with a completed passport application by the mother, the father do all things and sign all documents necessary for B to obtain a new passport including completing, signing and returning to the mother, a new passport application or renewal form;
(b)The mother will forthwith submit the passport application for renewal;
(c)Each party will pay half of the costs associated with B’s passport application or its renewal.
11.Unless otherwise agreed, the passport will be held by the mother. Should the father be required to use the passport to travel with B, it is to be returned to the mother within seven (7) days of returning from travel.
12.Unless otherwise agreed, each party shall be permitted to travel overseas with B during the time they ordinarily spend with him, subject to Order 13 below.
13.The party intending to travel overseas with B is to notify the other party at least twenty eight (28) days prior to the proposed departure date and to provide the other party with an itinerary, a copy of B’s return airline ticket and a contact telephone number.
14.The mother is permitted to remove the child from the Commonwealth of Australia for a holiday between 20 January 2023 and 5 February 2023.
15.B’s time with the father as prescribed by these orders shall be suspended between 20 January 2023 and 5 February 2023, noting that B shall return to school on 7 February 2023.
16.For the purpose of Order 14, the mother will provide the father written notice in the form of a travel itinerary no later than 13 January 2022 including but not limited to:
(a)location or locations the mother and the child will be travelling to;
(b)the dates on which the child will arrive and depart each location; and
(c)copies of certificates of travel insurance for the child.
Communication
17.The parties shall communicate in relation to B’s wellbeing via the 2Houses app (except in an emergency when it can be via text message or telephone call) with such communication limited to information only, or such other electronic means of communication as reasonably agreed between the parties.
18.Neither party shall communicate or pass information to the other through B.
19.Both parties are to facilitate B communicating with the other party at all reasonable times as B requests.
20.Each party shall facilitate FaceTime calls between B and the other party as desired by B.
Extracurricular activities
21.The father is to enrol B in up to two winter extracurricular activities each year and will pay any cost related to the chosen winter activities and for the purpose of this order, “winter extracurricular activity” means an activity during Term 2 and/or Term 3 each year.
22.The mother is to enrol B in up to two summer extracurricular activities each year and will pay any cost related to the chosen summer activities and for the purpose of this order, “summer extracurricular activity” means an activity during Term 1 and/or Term 4 each year.
23.Both parties shall facilitate B attending all sports or extracurricular activities during the time in which they ordinarily spend time with B irrespective of which parent organised the activity.
24.Both parties shall be permitted by these orders to liaise directly with B’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about B’s progress.
25.Each party is at liberty to attend at B’s school or sporting organisation for the purposes of any function or activity normally attended by parents on the basis that the parties shall notify the other prior to attendance in the event they intend to attend any activity which falls within the other party’s time with B.
26.B is at liberty to request any items of his or that he uses to be taken between both parties’ houses and both parties will facilitate such a request.
Health
27.In the event B is unwell, or there are decisions to be made for B’s health and wellbeing, the following shall occur:
(a)B shall be treated by Suburb Q Doctors, or another doctor surgery (“the medical practice”) as agreed in writing between the parties;
(b)In the event that B attends on the medical practice, both parties shall be informed of the outcome and recommendations made by the doctor who sees B, and shall do all acts and things to ensure that the doctor’s advice is followed.
28.In the event of childhood illness or emergency, the party with whom B is with shall contact the other party by telephone immediately to inform them, providing full access to all information including medical records, as well as details of where B is being treated so that the other party may attend forthwith.
29.The mother and father will notify the other in advance of all medical appointments made concerning B and both parents will ensure that B attends all medical appointments.
30.These orders shall be taken as an authority for all the child’s treating medical practitioner(s) or allied health worker(s) to authorise such professional to provide information to the mother and father, at the requesting parent’s expense about the chid, including, but not limited to:
(a)Referrals;
(b)Treatments;
(c)Medication; and
(d)Any other information regarding medical history.
Miscellaneous
31.Neither party is to set up a social media account for or on behalf of B unless requested by B and agreed in writing with the other party.
32.Each party shall keep the other informed of their current address, mobile and landline telephone numbers and any available email address and also advise the other party of any change thereto within seven (7) days of such change.
33.Both parties are hereby restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party or allowing any third party to do so when in B’s presence or within his hearing.
34.If the parent with whom B is spending time receives any invitation for the child for an activity or party during the time B will be with the other parent, that parent will communicate via the 2Houes app with the other with the details or invitation details, so that that parent may respond.
35.The parties will rotate hosting a birthday party with B’s friends each year.
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 Shill & Covel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
Introduction
These proceedings concern the appropriate parenting arrangements for B, who was born 2014 and has been the subject of litigation between Mr Shill (“the father”) and Ms Covel (“the mother”) since 14 November 2014.
Pursuant to consent interim orders made by a senior judicial registrar on 1 December 2021, following a settlement conference, B currently lives with the mother and spends three nights per fortnight and one afternoon in the alternate week during the school term with the father, along with one half of the school holidays.
Both parties agree that B should spend more time with the father, but are unable to agree on what that time should be.
The mother proposes that the increase be slight, increasing to four days per fortnight. The mother also seeks an order for sole parental responsibility.
The father, on the other hand, largely along the lines of the recommendation of the single expert psychiatrist, Dr R, seeks orders that will see his time with B gradually increase to five nights per fortnight and then to six nights per fortnights in the next 12 months. The father proposes that there be equal shared parental responsibility, but accepting that it is more than likely that he and the mother will have great difficulty agreeing on anything, he proposed orders for the selection of the child’s school and prescription as to the child’s sport and other extracurricular activities.
Thus the primary issues to be considered are whether there should be equal shared parental responsibility or sole parental responsibility and whether there should be an increase in time that B spends with the father to four days or, on the other hand, five to six days. Subsidiary issues also arise as to schooling and extracurricular activities.
It is useful to set out a brief chronology, although in the course of doing so, I shall dwell on some incidences which have a particular significance for the outcome of these proceedings.
Background
The parties’ commenced cohabitation in late 2011, and as I have said, B was born 2014. Shortly after, the parties separated in either June or July 2014.
The first proceedings were commenced in the Family Court of Australia (as it was then known) on 14 November 2014. In the course of the proceedings that have continued steadily since that time, the parties’ have had the benefit of five expert reports. The two most recent reports, that is the Family Reports of Dr R which are relevant to this hearing, were released on 15 October 2019 and 24 September 2022.
The father commenced a relationship with Ms P in 2015, which continues. In late 2019, T, the son of the father and Ms P was born.
In late 2015, the parties’ agreed that the mother could move to reside with B in the J Region for a period of three months. Over the objection of the father, she remained living there for a number of years. This required the father to travel to the J Region to spend time with B.
An application for final parenting orders was listed for hearing on 20 November 2017, but the parties were able to agree to on a form of orders which saw B living with the mother and spending three nights per fortnight with the father during school terms as well as half of the school holidays.
On 4 April, 1 August, 2 August and 17 August 2018, the father filed contravention applications. At about the same period, without the knowledge or consent of the father, the mother arranged for the child to receive therapy from Dr O, who is a psychologist.
The father’s false contravention application
In late 2018, B started to tell his mother that he was being left alone in the morning when he stayed with the father. At first, the mother thought that this was a misunderstanding on B’s part, who was then four, but he kept repeating the complaint.
The mother raised her concern with the father by email in late 2018 and by text message a few days later, 2018 but, she did not receive a response.
The mother then decided to make some observations herself. At approximately 5.30 am on a date in late 2018 she saw the father leave the apartment. She said she could have some view into the apartment and could not see Ms P at any time. On two occasions she pressed the intercom for the apartment but received no answer. According to the mother, B later said that he could hear the buzzer, but could not reach the button to answer it. The mother saw the father return to the apartment at about 8.15 am.
This led to the mother filing an Initiating Application on 2 October 2018 seeking to vary the existing orders. The mother suspended the overnight time that B was spending with the father and proposed instead time only during the day. That offer was refused.
This led to the father filing a contravention application on 20 November 2018 in relation to the mother’s suspension of time.
All of the contraventions came before Loughnan J on 27 November 2018. All of the contraventions, save for the one filed by father on 20 November 2018, were dismissed. His Honour found that the mother had contravened the orders by withholding the child and listed the matter for sentencing on 19 December 2018. In coming to that conclusion, Loughnan J accepted the evidence of the father and Ms P contained in affidavits made by each of them and upon which they were cross-examined that Ms P had been present at the apartment with B on the morning of 28 September 2018 and that he had never been left alone.
In late 2018, a gym complied with a subpoena and produced records that demonstrated that both the father and Ms P were at that gym at the time the mother asserted that B had been left home alone. This led to the mother filing an Application in a Case to set aside the finding of contravention on the basis that it had been obtained fraudulently.
Undeterred, the father filed a further contravention application on 18 December 2018 and an Amended Response to the Initiating Application on 20 December 2018.
However, on 21 December 2018, by consent, the finding of contravention that had been made earlier was set aside. Also by consent, the father’s further contravention proceedings were withdrawn and the father agreed to pay the mother $10,000 in costs within 28 days.
Both Ms P and the father were cross-examined before me on this matter. Each sought and was granted a certificate under s 128 of the Evidence Act 1995 (NSW). Each admitted that the evidence that they had given on oath to Loughnan J, both in affidavit and in person was entirely false and that B had indeed been left alone on a number of occasions while they were both at the gym.
There are a number of things to be drawn from this.
First, it demonstrates particularly poor parenting on behalf of the father and Ms P who left a four year old child unattended in the early hours of the morning for several hours who was forced to make his own breakfast. I accept that this was four years ago and there is no suggestion that B has been left alone since. No particular concerns were raised about the care currently provided by the father and Ms P.
Secondly, whatever may have been the position prior to this, this was a devastating breach of trust by the father and Ms P. Not only did the mother raise genuine concerns about B’s welfare, which were entirely ignored, the father and Ms P did not rest there. They went on the front foot and sought orders for contravention and a change of residence on evidence that they knew to be entirely false. Quite rightly, the mother was entitled to be and was, sceptical about anything that the father and Ms P might say thereafter. How this could be thought to be in the best interests of B is beyond me.
On reading of the mother’s correspondence, particularly on the 2Houses app (through which the parties communicate) and indeed some of her behaviour, is obsessive, overly detailed and hypervigilant. That to my mind is largely explained by this deceitful betrayal of trust. As will be detailed elsewhere, that was compounded by the father’s frequent disregard and failure to respond to genuine and appropriate requests by the mother.
Thirdly, as accepted by his counsel, the episode greatly undermines the creditworthiness of the father’s evidence. It is true that there are few, if any, events that fall to be determined by the question of credit. Nevertheless, the father still asks me to accept that he genuinely believes that the parties can make equal shared parenting work, that he can see that he can change his behaviour, and that his change in mind in relation to schools (to be discussed shortly), was genuinely felt and was not opportunistic. I treat those comments with a considerable degree of scepticism.
On 13 November 2019, the father filed an Application in a Case seeking an increase in time. That was resolved by orders made by a senior registrar on 10 December 2019.
The trip to S Town
In mid-2020, B was due to be returned to his mother’s care at 4.00 pm. B had been spending time with his father at S Town, where Ms P’s parents live. The mother received a text message from the father saying that their plane had been delayed, that they would be arriving in Sydney about 4.00 pm and that he would deliver B to the mother at her home as soon as they returned.
The mother, for reasons that are not clear, but she says, to due to B’s anxiety about not wanting to be away with his father, offered to collect B from the airport and asked for the flight number. The mother then sent the father several texts culminating in an allegation that there were in fact no delayed flights from S Town whatsoever and that the relevant flight was landing at 4.35 pm. Again, she received no reply.
The mother, of course, went to the airport where B and the father arrived on the 4.35 pm flight. Before B was able to return home with his mother, B was forced to change out of his clothes in a public restroom and change into the clothes he had worn at the commencement of the spend-time period. This had become a practice of the father, presumably because no clothes used in his home would go home with B. Again, that hardly seems like child focused parenting.
The father agreed in cross-examination that he always required B to change into the clothes in which he was delivered, prior to his return to the mother, regardless of their suitability. For example, one afternoon, B was forced to change back into a school uniform on a Sunday afternoon. The father tried to explain this as not wanting there to be a mix up about clothing, which indeed could be a fertile area for disagreement amongst the parties. He did agree, however, that it was very poor parenting on his part.
For the mother’s part, there was no risk to the child by him being returned somewhat later than the orders provided to her house by the father, whether the flight from S Town was delayed or not. There was no need for her to go to the airport.
The incident does not show either parent in a good light, but I again note the lack of trust the father was prepared to continue engender by not frankly giving the mother the correct information.
Late 2021/Early 2022
The father insisted that B’s time with the mother in late 2021 needed to be curtailed so that they could both catch a flight to S Town to have lunch with Ms P’s family. The mother reasonably agreed. The father did not catch that flight and subsequently went to S Town later in the afternoon.
In late 2021, as agreed, the father collected B from the mother’s home at 9.30 am. Later that morning, the mother tested positive to COVID-19. The mother managed to contact the father to tell him that she had tested positive for COVID-19, that B should no longer fly, that he needed to isolate and that he would need to be returned. Quite why B would need to be returned to the mother in these circumstances is not clear to me. Any risk was to members of the father’s household and not to B.
The mother reported the matter to the police who investigated it and informed the mother that B and the father were in S Town and were isolating. The mother did not accept that to be the case. The following day, she received evidence of a negative COVID-19 test for B. She did not accept that to be accurate because “they were a cut and paste of a text message” (Mother’s affidavit filed on 10 May 2022, paragraph 282).
B was returned to the mother in early 2022. It appears that Ms P had tested positive two days earlier. B tested positive to a PCR test four days after being returned to the mother and was required to isolate until 12.00 pm six days later unless he no longer had symptoms 72 hours prior to that. The mother went to obtain a medical report from a doctor, which also recommended that B isolate with the mother for those six days. The mother sent the medical certificate to the father.
A few days after testing, in 2022, the father collected B. According to the mother, B was still unwell and said that he did not want to go.
The mother again involved the police who later told her “[w]e spoke to [the father] […]. He had [B] with him. [The father] said [B] had returned a negative RAT” (Mother’s affidavit filed on 10 May 2022, paragraph 292). The mother then drove to where the father and B were, where she stepped into the public foyer, removed B and took him home. On returning home, the mother conducted a RAT test which she says returned a positive result.
At 2.00 pm later that day, the police arrived at the mother’s home to conduct a welfare check at the request of the father. The mother then sent the father a number of messages about B’s symptoms easing and what arrangements for time should be made. She received no reply other than the father replying some two days later, in 2022, saying that the matter was in the hands of his lawyers.
Again, the above incident highlights the great difficulties in communication between the parties and the evident distrust of each other, particular in relation to the father by the mother. Again this is evident from the 2Houses app messages which are extensive (Exhibit 1, p.90–p.104). Both parties unnecessarily involved the police.
2Houses app messages
Both parties relied on messages from the 2Houses app. This is a phone application used by the parties for communicating with each other. It works by way of threads relating to a particular subject matter. Under each thread, messages appear chronologically. Thus, messages about a particular subject matter are usually conveniently grouped together. The app also shows when a message has been read by the other party.
The threads relied upon by the father
The father relied on a number threads to demonstrate a number of different matters. First, he relied on a number of threads that demonstrated that the parties could indeed speak to each other civilly and promptly organise matters such as Christmas presents, treatment for nits, parent teacher interviews, change of weekends and so on. Those threads, which appeared principally at pages 1–37 of the father’s tender bundle (Exhibit 1), do so.
The father also seeks to rely on messages that suggest that the mother is obsessive and seeks to intrude on his time with B.
For example, in the thread headed “Next Friday” the mother sent a message in mid-2022 raising Christmas in July next Friday at school (Exhibit 1, p.36). The mother said that B had asked her to go with him, even though that is time when B would usually be spending time with the father and wanted to know whether she could book the tickets. The mother chased that message up with further messages over the next four days. It appears that the father had not read any of the earlier messages but he replied to the third message in mid-2022 simply saying “Hi [Ms Covel], as per previous years I will be taking [B] to the school disco in my time with him. His tickets have already been booked. Thanks” (Exhibit 1, p.36). No explanation was given as to why the father did not respond earlier.
It was perhaps an optimistic request by the mother and it cannot be said the father’s refusal was unreasonable, but the message hardly shows good communication and easy decision making.
The father also relied on messages apparently to demonstrate that the mother was a busybody attempting to interfere in his life as opposed to just B’s life.
For example, in a thread titled “Covid LGA” the mother pointed out in mid-2021 that the father was within a local government area (“LGA”) which was subject to extra COVID-19 restrictions (Exhibit 1, p.81). The message did not refer just to B, but to the father attending work outside of his LGA. A subsequent message did raise issues as whether B was abiding by the rules that applied in that LGA when he was staying with the father. That seems to be not such an unreasonable request. Nonetheless, there was no basis for the mother involving both Crime Stoppers and the police.
The thread about extracurricular activities
As already mentioned, the parties have had great difficulties agreeing on, organising and facilitating B’s extracurricular activities. In fact, things became so difficult that court orders have had to be made regulating who can choose which extracurricular activities B attends. For example, although by consent, the last such order was made by a senior judicial registrar on 1 December 2021 fixing the extracurricular activities for 2022. They provided that the mother enrol B in Sport 1 and Sport 2, and the father enrol B in Sport 3 and Sport 4. Each party was to endeavour to enrol him on days that fall within the parties’ own time, and if not during their time, to facilitate such sports during their time with B. This order did not solve the parties’ problems.
For a recent example, the thread “B Term Three” is relied on by both the father and the mother. The thread commenced in mid-2022 when the mother wrote to the father advising that B’s choice of activities for the next term was Sport 1 on Monday, Sport 3 on Tuesday, Wednesday and Saturday, Sport 2 on Thursday (to be confirmed) and Sport 5 on Saturday/Sunday. The evidence is that B is a boy who enjoys his sport.
The mother asked for the father’s thoughts and input and asked if he would cover the costs of the extra Sport 3 session. The father did not reply or read the message. The mother followed up just over a week later raising the question of Sport 6 with the current Sport 3 team. A further message was sent, which again was not read, referring to Sport 6 on Wednesday and Saturday after Sport 3 finished and that B was keen to continue with Sport 2. The mother asked if the father would be contributing to the costs. Not having had any response whatsoever, the mother then sent the following message eleven days later:
[Hi Mr Shill], I’ve signed [B] up for [Sport 6] at his request. It will commence when [Sport 3] finishes.
For summer, he’s asked to do [Sport 7] at [Suburb U] with his cousins and school friends. My brother is arranging registration.
He’s also keen to do [Sport 8] lessons/squad in Term Four, and I’m looking for private lessons prior.
[Sport 2] is full at present. [Sport 1] he’s asked to take one term off then restart.
Can you please confirm or provide feedback.
Will you be contributing to any of these costs please?
(Exhibit 1, p.159)
The father’s response, received two days later, was dismissive and said merely:
Hi,
Please send through the details of the weekend sport regarding the season details when you get them.
I will send through the details of our sports once we confirm them.
Thanks
(Exhibit 1, p.160)
On the same day, the mother responded with what she had already organised in some detail and raised what she understood B’s wishes to be, bearing in mind, the parties were already three weeks into Term 3. The mother followed that up by two further messages two and four days later. The last message read “I’ve been very open and consultative in trying to plan long term. You’re simply saying you’ll choose your sports then let me know when booked in and confirmed? I’m sorry but we need to work together” (Exhibit 1, p.161). The father responded the next day, essentially saying that when he sorts out B’s sports, he will let the mother know.
The mother then raised the difficulty of dividing up sports by terms and by the time B spends with each parent, and that it simply does not work as that is not the way the chosen sports and training operate. The mother suggested that the schedule she had planned was chosen by B. The father’s response the next day was:
Please refer to my above responses, I have already answered all your questions. As per above, feel free to book [B] into any sports he likes and I fully support those. As per above, I will let you know our sport details once they are confirmed. Thanks.
(Exhibit 1, p.163)
It eventually emerged ten days later that the father’s sports that he had selected for B were Sport 9 and Sport 8 as a family.
Quite how this demonstrates effective parenting and communication is beyond me.
Insofar as the father might suggest that the mother was being unreasonable and obsessive in her demands, I accept that she was persistent and to some degree not acting consistently with the orders. However, there is a difficulty with the order which I have already identified, namely that sports do not fall neatly into terms or the days B is with each parent. The point that can be drawn from this is that the father was dismissive of the mother, responded only when he had to and provided very scant information. It reinforces my view that the parties will not improve their communication as time moves on and that difficulties like this are likely to continue.
The threads relied on by the mother
A minor, but telling example of the difficulties, as I see them, is the Sport 9 conversation which started in early 2022:
Subject: [Sport 9 equipment]
February 19, 2022 09:44
[Ms Covel] said: Hey [Mr Shill], [B] has asked to bring his [equipment] to our house so he can use it. No need for both of us to spend over $500 each on one, plus it’s better he learns on the same [equipment].
Can you pls confirm that I can collect it. He can take it to your house when he goes there.
Thanks.
February 21, 2022 12:07
[Ms Covel] Said: [Hi Mr Shill], following this up as [B] wants to [play Sport 9] with me while it’s still warm. I don’t see the point in buying a second [piece of equipment] if he has one. Thanks.
February 24, 2022 16:51
[Ms Covel] said: Hi [Mr Shill], can we collect the [equipment] (and [Sport 3] gear) on Sunday? [B] has asked for it.
February 28, 2022 2022 20:44
[Ms Covel] said: Can you pls provide [B’s] [sports gear] this Thursday at pick up? It’s really tiring to have to keep asking. He’s also asked for his [equipment].
March 01, 2022 12:00
[Ms Covel] said: Hi [Mr Shill], I can see you’ve not checked this. Can you please confirm.
March 01, 2022 13:10
[Mr Shill] said: Hi [Ms Covel], we have our family [equipment] that we use for our family. If you want to go [playing Sport 9] with [B] you are free to buy or hire your own [equipment]. Thanks
(Exhibit 2, p.27)
In his oral evidence, the father reiterated that the equipment was the family’s and therefore had to stay at his house. The interests of B do not seem to be at the forefront.
The mother also included several threads in her tender bundle that dealt with extracurricular activities. The difficulties continue. The threads raise exactly the same difficulties as the thread I have set out in detail above and I do not need to do so again.
The difficulty is that extracurricular activities are for the benefit of B and not the parents. If a particular activity is in his interests then proper and effective parenting would see both parents working together to make it happen for B’ benefit. The parties simply cannot do this. The prime example is the father enrolling B in Sport 6 at Suburb V and mother at the same time, enrolling B in Sport 6 in Suburb Z. The parties were unable to resolve their differences and the father simply suggested that B play for both teams. How he was supposed to participate in effective training in those seems not to have been an issue.
Whilst each party seeks to blame the other for the difficulties about extracurricular activities, the point to be drawn from all this correspondence is that the parties have inordinate difficulties in working together for B’s benefit. It is a significant factor to be taken into account in determining whether there should be equal shared parental responsibility or sole parental responsibility and points strongly against the former.
Schools and religion
In early 2020, without consulting the mother, the father signed enrolment forms nominating B to attend ‘ethics classes’ instead of religious classes at school. In early 2020, the mother asked the father to consider a transfer to religious studies. He refused, leading to two years of further correspondence on the subject.
The parties’ have fundamentally different attitudes towards schooling and religion. The mother, who was raised as a Christian, attends ceremonies with B and wishes him to attend religious studies at school and to attend a private Christian boys high school, her preference being W School or X School.
For his part, the father opposes any religious upbringing whatsoever. The father’s preference is for B to attend ethics classes at school, not religious studies and proposes that B attend a local co-educational public high school.
Each of these positions is a perfectly valid position which each parent is entitled to hold. The resolution of these difficulties seems unreachable, at least as far as the parties are concerned. The parties have unilaterally, at different times, enrolled B in ethics classes or religious studies. There has been endless and inconclusive emails between the parties, with each asserting their position as to their choice of high school.
The father has to his credit, indicated that he does not oppose B attending ceremonies and religious studies or the like during the time he spends with his mother. The objection as to the schooling by the father extends not only to the fundamental difference about the nature of the school that B should attend, but also the cost. Until the hearing commenced, the father firmly asserted that he did not have the means to support private school fees at either X School or W School. The evidence did not disclose the fees payable at either of the schools but the clear tenor of the evidence is that W School is a much more expensive school than X School.
During the course of the hearing, the father proposed an order that B attend X School and that he pay half of the school fees. The mother did not accept that position and insisted that she would prefer B to go to W School. These new stances, predictably, led to the following submissions.
The mother submitted that the father’s change of heart was opportunistic and designed only to head off an impasse about schooling that could affect the issue as to whether there be an order for equal shared parental responsibility. If a decision was left to the court about the high school, then there would be at least one less significant long term decision left to be made by the parties. The mother also said that, as the father indicated he would not be prepared to pay any school fees for W School, this really was a case of him insisting that he has to have his way.
On the other hand, the father criticised the mother for being difficult, unyielding and changing the goal posts. The latter is not quite fair as the mother has been raising her preference for W School for some time.
Notwithstanding that, there is force in each of the criticisms raised by the parties. Here, I do not see it as my task to attempt to work out who is to blame for this impasse. Again, this points to the difficulties associated with equal shared parental responsibility.
The father asked that I make the following order as to schools:
9.That the Mother and the Father will do all acts, things and sign all documents necessary to enrol the child in [X School] (commencing 2025) and will each pay 50% of any enrolment, tuition and school fees. For the purpose of this order ‘school fees’ means the yearly cost of the child’s attendance at [X School] and uniform costs. Further and in the alternative, the Mother and the Father will do all acts, things and sign all documents necessary to enrol the child in a public high school in the [Suburb Y] catchment area.
(Father’s Further Amended Minute of Order dated 28 October 2022)
The evidence before me is that the parties’ combined income is of the order of $198,000; although, the father said that his financial position is likely to improve as he increases his business, and it may be that he will earn more than he currently does, which is $78,000 per annum. This, the father said, had only recently occurred enabling him to pay school fees at X School.
Neither of the parties bothered to inform me of the school fees at either of the schools being discussed, and in their absence, I would not make an order requiring the child to be enrolled at a private school. I would need to be satisfied that the parties’ could comfortably afford such a school and that they would be able to afford to do so for the duration of B’s attendance at high school. That is not the case here and I am not prepared to make a positive order that he attend X School.
Such an order is also fraught with the difficulty that if the financial positions of the parties change, they remain nonetheless bound by an order which they may not be able to afford. Ordinarily, parents would be able to sort that out amongst themselves, however, they have no such hope here. I therefore will not make the order in the terms sought by the father. However, given the apparent indication by both sides that they can afford to send B to X School, I would not foreclose on that possibility by making an order that the child attend a public school either. That is something that will stand or fall on parental responsibility.
In mid-2022, B was not well. He had been sick with the flu and had not been at school all week. In accordance with the orders, the father collected B from the mother at about 3.00 pm. There was no doubt that B was still unwell. The father and Ms P had planned to travel to S Town on the following day so that they, B and T could spend time with Ms P’s parents and so that her parents could care for both children whilst the father and Ms P both attended a wedding.
Later that evening, the father raised the question of travel with B and he said that he would rather stay in Sydney, so according to the father, he sent a number of messages to the mother on the 2Houses app asking when B could be returned to her. The father said he did not get a reply. The mother said she did not get the messages.
In any event, on the following morning, according to the father, B said he felt better so everyone travelled S Town. Later that day, at 2.54 pm, the mother sent a message via the 2Houses app, asking whether B had gone to school, or whether he took the day off to travel. She added, “which is something you should seek my consent for” (Mother’s affidavit filed on 9 September 2022, Annexure “A”, p.2). The father’s view was that he did not need that consent. Again, according to the father, the phone reception is difficult at Ms P’s parent’s property and there were difficulties in getting messages through.
It is difficult to work out how it came about, but B became involved in the messaging and was asked to confirm whether messages that were received had in fact been sent. Although each the mother and the father blamed the other, who was correct is difficult to ascertain. In any event, the involvement of B in the parent’s dispute was most regrettable.
After a series of unpleasant messages, the mother sent a message on the following day which included an offer to fly up to S Town to collect B and said she could be there at 2.30 pm. There is no suggestion whatsoever that the father and Ms P are incapable of caring for a child with the flu, so it is difficult to understand the need for the mother to make such an offer.
This gives rise to the concern that the mother considers that she and she alone is properly able to care for B and that she and she alone has his best interests at heart. Such a view causes concerns as to how she would exercise sole parental responsibility. A genuine concern is that she will be dismissive of the father’s and Ms P’s attempts to care for B in their way, which may not be the mother’s way, will seek to be over controlling, and act so as to minimise their role in B’s life. That would be most unfortunate and such concerns speak against the grant of sole parental responsibility.
Needless to say, the offer for the mother to fly to S Town was not taken up and further unfortunate messages were sent. Everyone returned to Sydney a short time later, in 2022 and the mother arrived at the father’s home to collect B. A long unpleasant argument then ensued between the father, Ms P and the mother, which took place entirely in front of B. It lasted for some time. Ms P recorded 15 minutes of this argument, but that was not the whole conversation. Each of the parties and Ms P accept that the argument was unnecessary, nasty, unpleasant and should never have taken place in front of B. Predictably, each sought to cast the blame on the other party and suggested that the other was the major aggressor.
For my part, no such findings can clearly be drawn.
Whilst one explanation for this unpleasant event, which would have been avoided quite simply by one of the parents walking away at any time, is pent up frustration over the years, it still points to the continuing lack of trust between the parties and the difficulties they have with communicating. The mother continues to be overly controlling, obsessive and hypervigilant and excessive in correspondence. The father continues to be dismissive and blasé when a more simple engagement would solve problems. This is not an attempt to cast significant blame on either parent, they have different personalities and different approaches. The point is, communication and cooperative parenting is difficult. A further point to be drawn is that orders should be framed so as to minimise or eliminate if possible, changeover in person, which can be achieved at least in school time.
In late 2022, the father attended a Father’s Day celebration at B’s school. To the father’s surprise, the mother was also present. He said without challenge, B was the only child with both parents present. There is no obvious explanation as to why the mother needed to be there.
Principles to be applied
The task for the Court is to make orders that are in B’s best interests and not as a reward for what the Court might perceive to be one of the parent’s good behaviour or as punishment for a parent’s bad behaviour. In determining what is in B’s best interest, the Court has regard to the matters raised by s 60CC of the Family Law Act 1975 (Cth).
The primary considerations
B clearly has a meaningful relationship with each of his parents, he clearly benefits from such a relationship as is clear from the reports and evidence of Dr R. It is important that his relationship with both parents be supported and maintained. There is no credible evidence that suggests that B is at risk from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence in either home.
The additional considerations
B’s views
The mother’s evidence is that B has frequently and persistently said that he does not want to spend as much time with his father as the orders provide, he does not want to spend a long amount of time, he is reluctant to go and is sometimes is fearful and teary at changeover. The father disputes this, and says that B is happy when he comes to spend time with him, he enjoys his time and makes no complaints. Of course, both of these things may be correct. It is not unknown for children to say different things to different parents, particularly when comments of a particular kind receive a warm reception.
However, there is a clear history of B expressing these views independently. Dr R conducted interviews of the parties and B on 25 September 2019. B was of course, was only five years old at the time. Of his interview with B, Dr R recorded:
60. … He told me he liked his Thursdays and Fridays with his father and said that he didn’t want to have a sleep over with his Dad because his Dad had left him alone and had gone to work. He said he didn’t like that.
(Family Report dated 15 October 2019, paragraph 60)
This explains, to some extent, the reluctance of B to spend more time with the father.
After B had spent some time with the father under the observation of Dr R, Dr R again asked B his views, expecting them to have changed. Dr R recorded:
61. … I asked him again if he wanted to have a sleep over with his father and again he said he didn’t want to do that and again when I asked him why he said because his father had left him alone. However in this part of the conversation [B] also indicated that another reason why he didn’t want to have a sleepover with his father was because his mother had told him he wasn’t allowed to go and have a sleepover with his father.
(Family Report dated 15 October 2019, paragraph 61)
Dr R was quite surprised by this because he considered from his observations that there was “an extremely strong relationship” between B and his father (Family Report dated 15 October 2019, paragraph 62).
Whilst the father did, most irresponsibly, leave B alone on several occasions when he was four years old, there is no suggestion that this irresponsible behaviour has continued.
In the Family Report, Dr R described B as a “delightful young child who is somewhat more mature than I might have expected for his age. He is clearly intelligent and he has good emotional control” (Family Report dated 15 October 2019, paragraph 104). Having regard to B’s views, Dr R opined:
105.… The main concern remains whether or not the mother’s anxiety about [B] leads to [B] developing some concern or fear that the father is not appropriate. I believe that would be most easily managed by developing a transition plan so that [B] could spend some time with his father and being comforted by having positive experiences thereby. What would be of great assistance to this family is a psychologist, perhaps [Mr O] given his prior involvement, was re-engaged to help monitor the situation and provide advice as to how to ease [B’s] anxiety on transition.
(Family Report dated 15 October 2019, paragraph 105)
Dr R was of the view that B’s views should not “dominate the future resolution of this conflict” (Family Report dated 15 October 2019, paragraph 61). Thus, Dr R recommended that there be orders requiring B to live with his mother, but that there should be liberal contact with the father.
Dr R prepared a second Family Report on 24 September 2021. It is notable that the parties could not agree on the documents that Dr R was to read in preparation of his report, and ultimately court orders had to be made to resolve that issue. Interviews occurred on 14 September 2021. Dr R recorded that both parents agreed that B has a lovely warm relationship with each of them.
At paragraph 15, Dr R recorded:
15.The situation remains one in which each parent presents information that is seemingly contradicted by the other parent and it is hard to get any clarity about what is in fact the real situation. The one thing that has not changed across time has been [B’s] objection to spending additional overnight time with his father. Whilst there appears to be no difficulty in [B’s] general relationship with his father, they appear to be affectionate towards each other and they appear to like each other and they are able to communicate well when they are together, [B] nonetheless remains adamant that he does not want to spend more time with his father. I note that this opposition was initially advanced to me by [B] in 2019 and has been a constant comment in the time that he has been with [Dr O].
(Family Report dated 24 September 2021, paragraph 15)
As to B’s views, Dr R recorded:
30.… [B] tells me that he does not want to have any additional overnights with his father. Although he said he does like waking up in the morning at his father’s place, he said at night he misses his Mum and just wishes he could go in the morning to see his Dad. He was unable to provide any specific worries that he had at his Dad’s place other than simply missing his Mum. He said he has been staying overnight and has always been doing that and nothing has changed his view. He said that on that second Thursday when he spends time with his Dad he gets home at 6.00 pm and he said that was a good experience and he didn’t see any need to change that. Again when I asked if he wanted to spend overnight on that particular day he said not really.
(Family Report dated 24 September 2021, paragraph 30)
As to the weight to be given to these views, Dr R opined:
40. … I believe that ultimately [B] will need to spend more time with his father, as he ages the developmental imperatives of developing a sense of identity and belonging with both sides of the family will become more important. As a consequence there will be a need for [B] to have a more involved relationship with his father and paternal family. I think there is also some logic in the father’s comments that a long gap between [B] spending time with the father overnight does have an impact upon [B’s] adjustment with his father and it’s likely that it will be necessary to have an overnight in the off week so that [B] can develop comfort in his relationship with the father.
(Family Report dated 24 September 2021, paragraph 40)
Dr R then added that:
42.… [B] is only a 7-year-old boy and he is not yet at a point where he can understand the consequences of his preference or the events that are happening around him. He spends most of his time with his Mum and he is well aware of his mother’s anxiety about him spending time with his father.
(Family Report dated 24 September 2021, paragraph 42)
By the time he gave evidence on 21 September 2022, Dr R had been provided with the affidavits relied on in the proceedings, including Case Outlines, some of the exhibits and videos. As to the behaviour of the parents, Dr R said:
[DR R]: It has been my opinion – it’s in my reports, both of my reports – that the parents have been unable to put whatever the problem is between them aside and to focus on co-parenting in an appropriate way, communicating in an appropriate way. They are both angry, passive-aggressive – whatever – with each other.
(Transcript 21 September 2022, p.162 lines 42–46)
Nonetheless, Dr R was clear that B needed spend more time with his father and said:
[DR R]: … I’m not keen on the idea of the notion that you would have 10 days without contact, or 10 nights without there being meaningful time spent in the father’s house.
(Transcript 21 September 2022, p.166 lines 15–17)
Thus it was Dr R’s recommendation that there be a gradual increase of time to six nights a fortnight. He added:
[DR R]: … So I think, you know, six nights is good. But if you want to argue about five then, you know, that’s a matter for the court to decide.
(Transcript 21 September 2022, p.180 lines 33–34)
Dr R added that quantity of time as well as quality of time is important.
The upshot of Dr R is that he discounted the weight to be given to B’s views, because:
·He is still young and lacks maturity and insight to understand the consequences of his views;
·He is still being influenced by his mother and attempting to please her;
·He reflects the concerns the mother has about the father’s care; and
·Increased time with the father will make it easier for B to feel more comfortable about spending more time with him.
I have no difficulty in accepting these opinions. B is still only eight years old. The mother clearly has an anxiety about B spending time with the father, of which B is clearly aware, and reflects that. Tellingly, at the end of the mid-2022 argument, when the mother and B were alone in the car, the mother said B asked her “why are they so mean to you?” (Transcript 19 September 2022, p.70 lines 22–27). In my view, that shows a degree of alignment with the mother, which colours B’s views.
Whilst in the care of the father, B wrote the mother a letter in early 2022 saying that he did not want to be with the father. It is difficult to see why he would do this other than to appease the mother. He raises no specific complaints about his time with the father, for example, such as being forced to do things he does not want to do.
Given this, and given B’s age and maturity, I am not satisfied that B’s views should be given determinative weight and the evidence overall establishes that B would benefit from spending more time with his father.
The extent to which each parent has taken the opportunity to participate in making decisions about major long-term issues, spend with and communicate with B
The parties frequently engage with each other on major issues regarding B, but hardly participate in major decision making about him, because quite simply, they cannot achieve any resolution. They each spend time with the child and communicate with him when they can.
The extent to which each parent has fulfilled their obligations to maintain B
The mother has largely financially supported B. She receives a minimal amount of child support from the father and he refuses to contribute to the cost of any activity that takes place in the mother’s time. Those activities are of course for B’s benefit, not the mother’s, and it is most unfortunate that the father does not see any benefit in financially assisting B’s activities. The father has also failed to pay agreed expenses, such as dental bills, despite promising to do so on a number of occasions.
The change of circumstances
It is likely, that for some time, B will feel somewhat anxious about any change in his circumstances. Both Dr R and his parents describe B as a boy who values certainty and predictability in his life. Any change will need to be managed slowly so that he has time to adapt to it. Nonetheless, it was agreed between the parties that B needs to spend more time with his father and whilst there may well be difficulties in transition, it is more likely than not that, given time, B will settle down without difficulties.
I have already discussed above the capacity of both parents to provide for the needs of B, including his emotional and intellectual needs. B seems well cared for by both parents when he is in their care. Regrettably, B continues to be exposed to the conflict between his parents. Each of them on many occasions have clearly put their own needs ahead of those of B and have not acted in a child focused way.
Whether it would be preferable to make an order that would least likely lead to the institution of further proceedings?
It would be most desirable if an order could be made that would lead to a hiatus, if not a cessation of, proceedings between the parties. I accept however, that that will be difficult to do and that any order I might make is likely to lead to further proceedings.
If an order for sole parental responsibility is made, it will remove many areas of possible dispute, although as Dr R said, that is likely to result in the other party attempting to undermine that position of responsibility.
If there is an order for equal shared parental responsibility, then it seems likely that a dispute will return to the court very much sooner than later.
Ideally, Dr R suggested that there be an “independent decision maker” (Transcript 21 September 2022, p.173 line 10). That is not possible. Dr R also suggested that there be some form of circuit breakers, for example, default orders to apply if the parties cannot agree, or the parents be given parental responsibility in different areas. Ultimately, no one proposed orders along those lines and it is difficult to see how areas of parental responsibility could be chosen in a way which was anything other than arbitrary.
Ultimately, I am quite pessimistic about the view that any orders that I might make will resolve the difficulties in this family. Nonetheless, this is a factor I have taken into account as much as I can in framing the orders that are being made.
What orders should be made?
Parental responsibility
This difficult issue involves the weighing of two competing factors, each of which carries significant weight. The first, is the importance of both parents being involved in the making of significant decisions concerning B. The second, is the complete inability of the parties to agree on anything.
Dr R strongly suggested orders for equal shared parental responsibility. He opined that it was in the best interests of B that both parents be involved in the important decision making regarding him and that he was aware that both parents were involved. That would see B develop a more balanced appreciation of the importance of both parents to him.
Dr R was particularly concerned about one parent having sole parental responsibility. The difficulty he saw was that that person would be likely to control the time, the manner in which B spend time with the other parent and act as a gatekeeper setting boundaries rather than facilitating and encouraging a relationship. Again, this would not be in the best interests of B, which are best served by him having a full relationship with both parents.
Dr R opined that the mother had adopted a gatekeeping role (Family Report dated 15 October 2019, paragraph 103). As discussed earlier, the control that the mother is likely to assert over the relationship between B and the father points against her having sole parental responsibility.
There is no basis for discounting the opinion of Dr R or the weight to be given to it.
There are difficulties however, as Dr R readily recognised, because the parties simply cannot agree on both minor and major issues.
Apart from suggesting that the parties simply needed to get on with what needed to be done and do it, Dr R also proposed that there be “circuit breakers” in the orders to resolve the almost inevitable impasses that will arise (Transcript 21 September 2022, p.168 line 32). I have already discussed two of them.
The third suggestion was to incorporate a default position in the orders if the parties could not agree.
The father proposed what he described as such an order which provided that B attend X School as his secondary school, unless the parties otherwise agreed.
As I indicated during the hearing and explained above, I would not make such an order.
However, for whatever reasons, the father’s proposal involved a significant compromise by him, but the mother was unable to reciprocate.
On major issues such as schooling, the prospect of agreement seems as remote as ever.
The intractable difficulties that attend the choice of and engagement of extracurricular activities continue. For example, the dual enrolment in Sport 6 and the Sport 9 debacle.
Again it is difficult to reconcile such actions by the parties with the best interests of B.
Giving full weight to the opinion of Dr R, I consider, nonetheless, the better course is that one parent have sole parental responsibility. Decisions need to be made in B’s life and the parties have demonstrated that they cannot do so together. It is the course least likely to lead to further litigation.
The child lives, and has lived, primarily with the mother. As I have said she is hypervigilant as to what she sees as a resistance on B’s part to spend time with his father and is controlling of his relationship with him (for example, see the two COVID-19 incidents discussed above). There is therefore, a real risk that the mother will continue to do so and act as a gatekeeper to restrict and control the relationship between B and the father. That risk will be ameliorated to some extent by an order requiring consultation with the father before decisions are made (an order that was proposed by the mother), orders regulating extracurricular activities to some extent and the child spending extra time with the father.
The father has made some particularly poor decisions regarding B in the past. B still remembers being left alone at home by the father when he was four. This is something that may well contribute to his expressed reluctance to spend more time with his father.
The father then brought punitive, and in the circumstances, purely vindictive contravention proceedings, which were based on a lie repeated by him, and which he induced his partner to falsely repeat.
It can easily be seen that this action destroyed any trust that the mother may have been developing for him.
Apart from his recent change of heart regarding schools, which I take into account, the father, as well as the mother, remain obstinate on other matters. Some decisions, such as the Sport 9 equipment, have obviously not been made in the best interests of B but instead made to make a point to the mother. The father frequently just does not engage with the mother, even on occasions when a response is clearly required to further the best interests of B.
Taking these matters into account and weighing them against the opinion of Dr R and the matters relied on by him, I remain of the view that the best interests of B will not be well served by equal shared parental responsibility.
The mother will have sole parental responsibility for B. As sought by her, that will be limited to education and religion. Of course, she will not, in the exercise of that responsibility, be able to bind the father as to the payment of school fees.
Interim consent orders
On the morning of the trial, the parties managed to agree on some discrete issues on a final basis. Those orders were made by consent on 19 September 2022 and covered issues like time arrangements as to special occasions, travel, facilitating B’s requests to communicate with the other parent, the parents’ ability to attend school and sporting events and B’s health amongst others.
Following judgment being reserved, the parties also agreed on interim orders regarding their time with B during the Christmas school holidays in 2022/2023. Those orders were made on 8 December 2022 and will be replicated in the final orders.
What time should B spend with the father?
Dr R was strongly of the view that B would benefit from more time with the father and suggested five or six nights a fortnight during the school term. He did not support equal time because he considered that B would benefit from having a home base.
Apart from the views of the mother, the main opposition to this course comes from B himself. B told Dr R that he was happy with the present arrangement of three nights and did not want to spend more time with the father and would not be comfortable doing so. This reflects comments he made more strongly to the mother, but not surprisingly, contrary to what the father says B tells him.
As I have said already, there is a concern in the way B has of supporting the mother. After the mid-2022 argument he asked why his father and Ms P were mean to her. It is quite likely, at the least, that B has picked up a reluctance to spend time with the father, or at least feels like he should say so.
However, whatever the cause, I accept that in any change of circumstances brought about by increased time, B will be reluctant, concerned and unhappy about taking it up. I take that into account but the aim of the increased time is to make time with the father part of a normal, frequent routine in the course of which he should come to feel more comfortable in his father’s care, which will in turn lead to a more natural and developed, meaningful relationship with his father.
I consider that the difficulties are more likely to be short term and will lead to a long-term gain. There will be a need however, to take appropriate steps.
The obvious first step is to introduce overnight time in the week that B does not spend overnight time with the father. That will increase the overnight time, but will not give a larger block of time with the father which may be too uncomfortable for B at first.
It is desirable that B be given time to settle into the arrangement before any further increase in time is made.
The overnight mid-week time will commence in the first term of school of 2023.
An extra night will commence in the third term of 2023 so that B spends every second weekend with the father from after school Thursday to before school the following Monday.
An advantage of the above is that there should be no face to face changeovers between the parties in the school term from the commencement of Term 3 in 2023. Not only will there be no opportunity for confrontation, but B may feel more comfortable not moving from the care of one parent directly to the care of the other.
These orders provide for B to spend five nights a fortnight in the school term time with the father. Dr R has a preference for six nights, but definitely five or six. He said it can be difficult choosing between them.
That is certainly so, on the application of principle.
I consider, having regard to the anxiety that B will feel with the change in living arrangements, that the above is the optimum amount of time. It will provide sufficient time for B to become more comfortable in his father’s care. It will certainly be sufficient to develop and maintain a beneficial, meaningful relationship between B and his father. If, as B grows older, he wishes to spend another night with the father, one would expect that the mother would respect that wish.
Given the time that B will spend with each parent, FaceTime will be as he desires.
Regarding Christmas arrangements, in closing submissions it was said that the mother’s family celebrate Christmas on Christmas Eve, and the father’s family on Christmas Day. Accordingly, there will be such orders made.
Extracurricular activities
It is desirable to make orders regulating extracurricular activities so as to avoid the current problems and also avoid the mother using such activities to control the time B will spend with the father.
One of the difficulties is that the activities do not really span school term times so that orders will, sadly, be necessary to ensure that where activities do run over, B will complete the term or competition. Orders will also be necessary to require each parent to take B to the necessary training and events.
This, of course, raises a difficulty. Different sports and activities run over different days so who will have to take B where, remains uncertain at present. I accept too that the father has work commitments on some days that make it difficult for him to take B.
However, a moment’s thought and a tiny piece of cooperation between the parties can solve that problem. Rather than jealousy regarding the time B is to spend with each of them as ‘their time’ not to be intruded upon by the other parent, if one parent cannot take B to a particular activity, the other parent should. This would be for the benefit of B as his activities would not be interrupted. He could then be returned to the other parent immediately afterwards.
Unfortunately this has not yet occurred.
The best compromise is to make orders for the father to meet the costs of and enrol B in up to two winter extracurricular activities each year, which would occur during Term 2 and/or Term 3 of each year and for the mother to meet the costs of and enrol B in up to two summer activities each year, during Term 1 and/or Term 4. To facilitate the activities, an order will be made requiring the party who is ordinarily spending time with B to take him to the activities, whether or not they organised them.
I certify that the preceding one hundred and sixty-two (162) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 20 December 2022
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