SJG and KLS
[2007] FMCAfam 303
•17 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SJG & KLS | [2007] FMCAfam 303 |
| FAMILY LAW – Parenting – competing applications as to with whom 8 year old boy should live – close relationship with each parent – child may have ADHD – need for routine and stability – parties separated when child 7 months – has always lived with mother – parties live 2–3 hours from each other – family consultant recommends change in living arrangements – determined to make orders on interim basis only. |
| Family Law Act 1975 |
| H & W (1995) FLC 92-598 R and R; Children’s Wishes (2000) FLC 93-000 |
| Applicant: | SJG |
| Respondent: | KLS |
| File Number: | SYM 4765 of 2006 |
| Judgment of: | Sexton FM |
| Hearing dates: | 23 & 24 April 2007 |
| Date of Last Submission: | 24 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms D Harris |
| Solicitors for the Applicant: | Willis Bowring Solicitors |
| Counsel for the Respondent: | Ms E Boyle |
| Solicitors for the Respondent: | Tonkin Drysdale Solicitors |
| Solicitor for the Independent Children’s Lawyer | Loders Lawyers |
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
All previous parenting orders be discharged.
The parents have equal shared parental responsibility for the child Alex born 22 April 1999.
Alex live with the mother.
Alex spend time/communicate with the father as follows:
(a)In each four week cycle, for three in every four weekends during school terms from 5.00p.m Friday until 5.00p.m. Sunday, extending to 5.00p.m. Monday if a public holiday, commencing on the first weekend of the school term;
(b)For one half of the short school holiday periods, precise times as agreed and failing agreement for the second half of the holidays commencing at 9.00a.m. on the second Saturday and concluding at 5.00p.m. on the last Saturday;
(c)On the Father’s Day weekend which shall be substituted for another weekend in that four week cycle if not a weekend Alex is due to spend time with the father;
(d)On all long weekends which shall be substituted for another weekend in that four week cycle if not a weekend Alex is due to spend time with the father;
(e)On Saturday immediately following Alex’s birthday each year from 9.00a.m. Saturday until 5.00p.m. Sunday if Alex’s birthday does not fall on a weekend when he is spending time with the father;
(f)For the first half of the Christmas school holidays from 9.00a.m. on the day after school breaks up until 5.00p.m. on the day which represents the mid-point of the holidays;
(g)By telephone at any time initiated or requested by Alex and on Tuesday and Thursday evenings between 7.00p.m. and 7.30p.m when the father will telephone Alex;
(h)In each or any school term in 2007, on the giving of 21 days notice to the mother, for a period of one school week in the Central Coast area, immediately prior to, or immediately following a weekend Alex spends with the father, when the father will stay in the Central Coast area and Alex will attend a Central Coast school [“the Central Coast school”] each day noting that the father’s partner or the father’s mother are at liberty to accompany the father for that school week;
(i)At such other times as agreed between the parties.
For the purposes of the time Alex spends with the father, changeover shall take place at McDonalds, Thornleigh, unless the parties otherwise agree.
The time Alex spends with the father shall be suspended as follows:
(a)At Christmas from 5.00p.m. Christmas Eve until 9.00a.m. Boxing Day; and
(b)On Mother’s Day from 9.00a.m. Mother’s Day until the end of that weekend in the event that Alex is not otherwise with the mother.
Neither party shall denigrate or criticise the other in the presence or hearing of Alex and shall ensure to the best of their ability that no third party shall say anything negative about the other party in the presence or hearing of Alex.
In relation to school:
(a)Each party be restrained from moving Alex from the Central Coast school without the prior written consent of the other party;
(b)The mother ensure Alex attends the Central Coast school each day arriving at least 10 minutes before school starts;
(c)In the event Alex is too ill to attend school the mother provide the school with a medical certificate no later than the following day, with a copy to be forwarded to the father within 48 hours of Alex’s illness;
(d)The Independent Children’s Lawyer forward a copy of these Orders to the Principal of the Central Coast school within 7 days and explain their contents;
(e)The parties arrange and attend a meeting with the Principal or Deputy Principal of the Central Coast school at least once each school term to discuss Alex’s behaviour and academic progress and to obtain a short written report in relation to Alex’s progress, including his attendance record during that period;
(f)The mother forward a copy of the reports referred to in Order 8(e) herein to the Independent Children’s Lawyer and the father within 7 days of its receipt;
(g)The mother forward a copy of Alex’s formal school reports to the Independent Children’s Lawyer forthwith upon receipt, and ensure the father receives a copy.
In relation to Alex’s behavioural issues:
(a)The father forthwith arrange an appointment with Dr Ruth Selig for Alex;
(b)Each party attend the appointment with Alex;
(c)Each party attend all subsequent appointments with Dr Selig for Alex as recommended by Dr Selig;
(d)The parties jointly make arrangements either through the Central Coast school or through Dr Selig for Alex to be educationally assessed by an appropriate specialist, and the assessment report to be completed no later than 19th October 2007.
The mother and the father keep each other and the Independent Children’s Lawyer advised of any change in residential address and/or contact details and in the event that the mother proposes leaving the Central Coast area, the matter be forthwith re-listed.
Each party be restrained from enrolling Alex in an extra curricular activity without the prior written consent of the other.
The Independent Children’s Lawyer ensure all reports and assessments relating to Alex required in accordance with these Orders are made available to the court no later than 7 days prior to the adjourned date.
Each party have liberty to apply at 7 days notice.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
THE COURT FURTHER ORDERS THAT:
The father meet half the costs of the Independent Children’s Lawyer as agreed within a period of two calendar months.
The matter be listed for mention before me on 23 October 2007 at 9.30a.m.
The matter be listed for further hearing before me on 26 and
27 November 2007 at 10.00a.m.
Each party file and serve any affidavits on which they intend to rely at hearing by no later than 4.00p.m on 9 November 2007.
No further affidavits to be filed after 9 November 2007 without leave of this Court.
No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which the party will rely at hearing; and
(b)The Orders sought at hearing.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 4765 of 2006
| SJG |
Applicant
And
| KLS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for Alex [not his real name], aged 8 years. After a short relationship, the parties separated in 1999 when Alex was only a few months old. The mother was 17 years of age when Alex was born. The father was 24. Parenting orders were first made in November 2000 when Alex was 18 months. Since he was a baby, Alex has lived with the mother and spent substantial time with the father.
Alex has a strong and loving relationship with each party, with his maternal grandmother and his paternal grandparents. Each party criticises the other in relation to communication difficulties between them, and the father says he has had ongoing concerns about the mother’s parenting capacity for many years. Nevertheless, until these proceedings started, the parties appear to have managed a reasonably stable co-parenting regime. The father commenced these proceedings in early 2006 when the mother wanted to relocate to Melbourne.
At present, in accordance with interim orders of January 2007, Alex lives with the mother and spends time with the father on 3 weekends out of every 4, alternate weekends from Friday evening until Sunday evening and the other weekend from Saturday morning until Sunday evening. Alex has equal time with each party in school holidays. The mother wants the present arrangements to continue with a slight increase in Alex’s time with the father. The father wants Alex to live with him during school weeks, to move to a public school in South Sydney [“the South Sydney school”], and to spend all weekends and the majority of school holidays with the mother. In the event the mother moves from the Central Coast area to Sydney, the father seeks orders that Alex spend equal time with each parent during school terms and during school holiday periods. The Independent Children’s Lawyer supports the father’s position.
The father lives in south western Sydney with his de facto partner of 12 months who owns the townhouse in which they live and works full time as an account manager. The father’s mother lives nearby and has been involved in Alex’s care throughout his life as the father lived with her after separation for many years. The father works as an electrician full time, usually from 7 a.m. until 3 p.m. although he enjoys some flexibility. The mother moved from Sydney to the Central Coast in April 2005 and lives with her mother in long-term rental accommodation. The mother is an Assistant Manager at a Central Coast hotel, working up to 45 hours a week, although has taken a temporary break from work. She has considerable flexibility as to days and hours of work. Her mother has played a significant role in Alex’s care.
Alex has exhibited behavioural problems since he was a toddler, demonstrated particularly when in the care of the mother. Alex has also shown anti-social behaviours at school and has been tentatively diagnosed with borderline Attention Deficit Hyperactivity Disorder. One of the central issues in this case concerns the way each party manages Alex’s behavioural difficulties and whether Alex’s welfare would be better served in his father’s care during the school week. Dr Ruth Selig, consultant child and family psychiatrist, assessed Alex in May 2006, when he had just turned 7 as probably on the ADHD spectrum.
Alex is in Year 2 at the Central Coast school. His report at the end of 2006[1] says he missed 26 school days in 2006 and was late on another 20 days. However, the report says Alex’s work is improving and his behaviour has been less disruptive. Although the mother confirms Alex’s behaviour has improved, in March this year he was given an in-school suspension for 2 days as a result of Alex and another two boys holding another boy on the ground and kicking him.
[1] Exhibit 2.
Dr Janina Szyndler, clinical psychologist, prepared two family reports, the first in December 2006 and the second in March 2007. In her first report, Dr Szyndler recommends Alex remain living with the mother, while spending significant time with the father. In February 2007, Dr Szyndler interviewed the father’s partner and the father’s mother and observed Alex with each of them. She was not asked to interview the mother’s mother. She read some of the affidavit material and subpoenaed documents. In her second report, she recommends Alex live with the father and move to a school near the father’s home in South Sydney, ideally at the beginning of a school year. In her view, the father provides a more structured environment than the mother which will benefit Alex’s development and the father is generally better able to manage Alex’s behavioural problems. She says:
On balance, it is probable that the father is still, in the long term, more able to provide Alex with a more stable and settled home environment than the mother can. The father appears to have support from his partner, Ms Miller [not her real name] and his mother both of whom appear committed to Alex’s well being and have a good relationship with Alex. This stability will be important for Alex’s long term development, particularly taking into account his past behavioural problems.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in s.60CC(2) and the 13 additional considerations set out in s.60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. The primary considerations are consistent with the first two objects of the Act set out in s.60B to which I must have careful regard.
The primary considerations
The benefit to the child of having a meaningful relationship with both the child’s parents
Each party acknowledges and supports Alex’s relationship with the other party. Despite their short-term relationship and separation when Alex was only a few months of age, the mother has ensured Alex has developed a strong and loving relationship with the father and with the father’s mother. Alex has always spent significant time with his father who spent several years after separation living with his parents. In April 2005, the mother moved to the Central Coast to be near her own mother and her large extended family which made arrangements more difficult. However, taking into account the geographical distance between them, the parties have done their best to maximise the time Alex spends in Sydney with the father. Despite some complaints with each other outlined later in these Reasons, I am satisfied each party will ensure Alex continues to enjoy a close and loving relationship with the other.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
This factor is not an issue in this case.
The additional considerations
The child’s expressed views and the weight those views should be given
Dr Ruth Selig, consultant in child and family psychiatry, says in her report of May 2006:
When given the opportunity to take anyone he wants to a desert island he [Alex] said all his family and his friends and on a rocket ship he would take first his mum, then his dad.
The Independent Children’s Lawyer reports Alex telling her he wants to live with his Dad. The father reports Alex saying “Daddy, why can’t I live with you all the time?” “How many sleeps until I come back to your place?” Alex tells Dr Szyndler “my mum’s the boring parent, my dad’s the exciting one.”
The Full Court in H & W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
“including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
It is not in issue that Alex loves both his parents and I take this into account. However, I am not satisfied he has the maturity to appreciate the implications of a change in residence or school.
The nature of the relationships between the child and each parent and the child and other persons
The parties agree that Alex has a strong and positive bond with each of them, with each grandmother and that he has a good relationship with the father’s partner, Ms Miller. Dr Szyndler’s observations confirm the strength of these relationships. It is common ground Alex also enjoys close relationships with his aunts, uncles and cousins on both sides of his family and with Ms Miller’s nephews.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent; the attitude to the child and to the responsibilities of parenthood demonstrated by each parent
The mother says to Dr Szyndler about the father:
I can’t fault him at all with Alex, now that Alex is older. Alex loves his dad and I am happy with the arrangements.
The mother’s complaints are firstly that the father does not discuss openly with her his perceived concerns about her management of Alex and secondly did not tell her when he moved in with Ms Miller, his de facto partner. There is no dispute the mother found out about the father’s new living arrangements from Alex. The father concedes he should have consulted the mother in relation to this issue and I find the mother’s complaint justified.
The father has a number of complaints:
a)He says the mother has not consulted him about significant issues concerning Alex’s welfare. For example the mother did not tell him Alex was leaving a Sydney school [“the Sydney school”] in April 2005 and moving to the Central Coast until it was too late to change her plans. He says “I didn’t have much choice.” The mother did not consult him before enrolling Alex in boxing;
b)He says the mother has made arrangements for Alex during times he should be spending with Alex, so he must change his arrangements or disappoint Alex;
c)He says the mother has made telephone communication difficult and does not encourage Alex to call him; and
d)He says the mother does not always do what she says she will, for example taking Alex to an eye specialist.
However, the father acknowledges that the mother has at times actively promoted Alex’s relationship with him, for example arranging for Alex to call him after his birthday party; withdrawing him from rugby league when he asked her to; allowing Alex to bring items special to him on contact weekends.
I agree with the mother’s counsel’s submission that the father was at times too quick to accept the truth of some of Alex’s remarks without checking with the mother, for example when Alex told him he was home alone but his grandmother was in the house.
I find the parties would benefit by speaking to each other more openly about any concerns they have with each other, but otherwise I am not satisfied these issues are significant.
The capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs
As already noted, the most significant issues in this case concern each party’s capacity to manage Alex’s poor behaviour and his school needs. I agree with Dr Szyndler that this issue has profound implications for Alex’s academic and personal development in the long term.
As a toddler, the mother says Alex was at times very difficult to manage, behaving rudely and aggressively towards her. The mother says she used to call the father to ask him to speak to Alex about his behaviour. The father says he became concerned about Alex associating his calls with discipline so asked the mother to stop this practice.
Alex started school at the Sydney school in February 2004. He was aged 4 years and 9 months. Each party acknowledges Alex’s disruptive and anti-social behaviour in his first year of school. Alex often fought with other children and did not cope well with his school work. His report from the Sydney school in October 2004 states[2]:
Alex hits other children and throws items around the room. At times he refuses to participate in class work and activities. He has a negative attitude to school work. He reacts in a negative manner when he is unable to do what he wants…Alex is unable to control his temper.
[2] Exhibit 4.
The mother is critical of the Sydney school and the way they managed Alex’s problems. She says this was a factor in her decision to move to the Central Coast in 2005. She is disappointed the Principal of the Sydney school did not advise her to repeat Alex in Kindergarten because of his age. This would have avoided the adjustment difficulties he faced when he repeated Kindergarten from Term 3 in Year 1. On the other hand, the father says the Sydney school raised concerns about the mother’s standard of care of Alex. They arranged counselling for the parties at the school. The father says the mother attended very few of the counselling sessions.
Alex continued to receive poor school reports at the Central Coast school in 2005[3]. His end of year report describes his learning as “very poor” and “outside play usually in fights with other ‘naughty’ children” “in class… constantly talks to children close to him. Will find something to flick at them etc” “needs to be constantly supervised and put on task to complete work and to allow other children to complete their work without him annoying them.” His teacher makes the general comment “Alex will require additional support to develop positive behaviours and experience success at school. Has repeated Year 1 but little improvement in behaviour.” The school counsellor reports in mid 2005 “His skills are closer to a mid-kindergarten level than to the average for Year 1 and they are not commensurate with Alex’s ability which was found to fall in the average range. Alex’s non-compliant, distractible and immature behaviour is also unusual for a child in his second year at school.”
[3] Exhibit 5.
The mother says there has been marked improvement in Alex’s behaviour at the Central Coast school and this is reflected in his school report for 2006[4]. His teacher there notes his overall behaviour had improved in the second semester and “he is beginning to focus more steadily on class work. He is also better behaved in the playground.” The report still noted he was easily distracted, disrupted others and failed to complete his work satisfactorily. Alex’s class teacher told Dr Szyndler at the end of 2006 that Alex was distractible at school and needs reminding to stay on task … he can be loud, talk too much, fidget and be impulsive. However, she told Dr Szyndler that overall his behaviour in the playground and classroom had improved and at school he appears to be generally happy.
[4] Exhibit 2.
I find Alex’s school attendance record in 2006 and the mother’s cavalier attitude to Alex’s attendance particularly troubling. Alex was absent on 26 days and late on another 20 days during 2006. In cross-examination the mother says although she lives only 5 minutes away from the school “things happen” “it’s slack of me”. In relation to tutoring arranged in 2005, the mother also concedes Alex missed some classes. I have given careful consideration as to whether the mother’s irresponsible attitude to Alex’s education, alone warrants a change in Alex’s residence arrangements.
It is unfortunate that there is no evidence before me as to Alex’s progress at school in 2007, either academically or behaviourally except, as already noted, that in March he was given an in-school suspension for aggressive behaviour towards another child.
The father has never had responsibility for Alex’s schooling and I have concerns that the father says he only contacts the Central Coast school when Alex is in trouble. However, I am satisfied on balance the father is more likely to meet Alex’s needs in regard to his schooling than the mother. I find the father has shown his commitment to Alex’s education by attending the counselling sessions at the Sydney school and arranging and paying for Alex to attend special tutoring classes during 2005.[5]
[5] Exhibit 6.
In relation to Alex’s behaviour, the father says he has no problems with Alex when they are together and he has never seen him fighting with other children. The father says Alex responds well to his and Ms Miller’s approach to discipline.
The mother says Alex’s behavioural problems have settled down and are not as serious as the father makes out. The mother’s mother says Alex’s behaviour is no different from other boys his age, even though she is aware he had a “bad year” at the Sydney school in 2004.
Twelve months ago, Dr Ruth Selig, paediatrician and consultant in Child and Family Psychiatry assessed Alex as a result of his behavioural problems. The mother gave Dr Selig a history of Alex fighting with other children at pre-school and then school, becoming over-excited and being unable to keep still. However, she reported no difficulties at home and a recent improvement in his academic performance. At that time, Alex was in a school programme for behaviour management in the playground and classroom. Dr Selig says in her report[6]:
The Achenback Test filled out at school put him into the clinical range for ADHD Oppositional defiance disorder and Conduct disorder.
Alex is probably on the ADHD spectrum but is managing to control his behaviour sufficiently well at home and in the classroom for his parents to decide that they do not wish him to be treated with psycho stimulants at the present time.
[6] Exhibit 8.
Dr Selig says she gave the parents a number of behavioural methods to assist with his management including clear communication techniques, positive reinforcement of pro-social behaviour, minimising sugar and caffeine containing products and avoiding over stimulating situations. She suggested to the parties that boys like Alex work well in a very structured environment with a strict routine and programme and clear boundaries. She told the parents they needed to be able to discuss their common management of Alex’s behaviour so that they can be consistent. Dr Selig supported any application for a teacher’s aide in the classroom to assist with Alex’s behaviour.
It seems neither parent followed up on this assessment nor appreciated the importance of doing so, although the mother says she gives Alex fish oil tablets and tries to avoid him having high sugar foods. The father says Dr Selig did not speak to him alone and neither party took the trouble to obtain a copy of Dr Selig’s report until the hearing. I am not satisfied either party took advantage of Dr Selig’s assessment for Alex’s benefit.
The father says he has had ongoing concerns about the mother’s capacity to care for Alex for some time. He complains she is disorganised, Alex’s room is disorganised and the mother sends him to spend time with the father in inappropriate clothing with dirty hair and nails. The father says Alex enjoys the routine and order in his household, including taking responsibility for setting the table, making his bed and keeping his room tidy. Ms Miller says she and Alex enjoy gardening, cooking and reading together, and she and the father think carefully about appropriate activities for Alex. The father and Ms Miller live in a complex with a tennis court and a swimming pool. He has his favourite things in his room. Ms Miller has a Cavalier King Charles spaniel called Harry who sleeps at the foot of Alex’s bed. Alex has his own room which he helped decorate and his own vegetable garden on which he has erected a sign “Alex’s vegetable garden”. Ms Miller says:
Alex appears very proud of his vegetable garden and shows everybody that comes over what he is growing in the backyard.
I have no doubt Alex benefits from the environment the father has created for him.
While the mother denies many of the complaints raised by the father about her organisational skills, her lack of routine and her physical care of Alex, I am persuaded at least some of his complaints are well-founded. I found the mother’s presentation as a witness at times arrogant and inappropriately dismissive. On the other hand, I found the father an open witness who genuinely has Alex’s interests at heart when making these criticisms of the mother. Nevertheless, I accept that Alex enjoys an active happy life with the mother and maternal grandmother which involves fun at the beach, a varied range of activities and plenty of interaction with his friends, cousins and the mother’s extended family. I agree with Dr Szyndler’s view however, that the mother does not provide in her household the same level of structure and routine as does the father in his household and I accept her view that the father’s approach to parenting is superior to that of the mother, particularly given Alex’s problems.
I give my findings in relation to this factor considerable weight.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision–making about his/her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child
There are a number of factors which support the father’s contention that the mother has not always provided a stable environment for Alex and has made decisions without proper regard to their impact on Alex:
a)The mother moved 7 times before relocating to the Central Coast in April 2005. Alex has attended two schools since he started school in 2004;
b)The mother admits she has associated with people of questionable character and has taken Alex to visit her brother in prison;
c)The mother has used illicit drugs and been convicted of possessing illicit drugs in the past. When Alex was 3, she left Alex unsupervised and he had access to a “bong”. The mother did not comply with an order for regular urine testing because “I was lazy, didn’t get around to it, I was embarrassed.”;
d)The mother has been convicted of driving with ‘special range PCA’ and driving whilst suspended in August 2004[7]; and
e)The mother decided to move to Melbourne in early 2006 to live with her boyfriend and sought orders to do so. Although this move did not eventuate, she ignored the potential ramifications the move would have on Alex’s close relationship with his father and on his education. She says “I don’t know why I didn’t consider the impact of the move on Alex and his learning problems.” “I know now it was a stupid idea.”
[7] Exhibit 9.
Dr Szyndler notes in her second report the possibility that Alex’s behavioural problems stem from “the unsettled home life he has had with his mother.” I find some aspects of the mother’s decision making less than ideal, including her unilateral decision to enrol Alex in boxing; I agree with Dr Szyndler a patently questionable activity given his ADHD. On the other hand, Dr Szyndler notes with approval the settled routine and appropriate social outlets and activities offered by the father in his home.
I am satisfied the father has provided financial support in accordance with legal requirements and he and his mother have provided additional financial assistance for Alex’s support at other times.
I give considerable weight to my findings under this factor.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living
This is a significant issue in this case. Alex has lived primarily with the mother his whole life and is used to her home being his primary place of residence. He is used to going to school from this home. An arrangement which involves him living with his father during the school week, the harder part of his week, is untested. This arrangement would also involve Ms Miller and the father’s mother playing a significant role in getting Alex to and from school, when Alex is used to his mother in this role most of the time.
Dr Szyndler says Alex would miss his mother and grandmother if moved to live with the father but would adjust in time. In her view, the most serious disadvantage for Alex of a move is that he would have to change schools again. She says ideally, any such change would occur at the beginning of a school year. The father says Alex has a very loving relationship with the mother and openly admits Alex would miss her. He says he and Ms Miller would attend counselling for guidance on helping Alex with the change. The mother broke down in the witness box when there was a suggestion that Alex may be removed from her primary care. In her view Alex would not cope well.
If Alex were to move to his father’s now, he would have to change schools again and would have to make new friends, when he has started to show signs of improvement at the Central Coast school. This may impact adversely on his positive progress. It is noteworthy that in his affidavit sworn in February 2006, when the mother was seeking orders to enable her to relocate to Melbourne the father says:
Alex has been improving since he has been on the Central Coast and since he has been having additional tutorship. I think that another move for him would be extremely detrimental for him emotionally and also in relation to his education. I feel it would set him back in his development.
Given Alex’s young age, I give the likely impact on him of a change in his living arrangements significant weight.
The practical difficulty and expense of a child spending time with and communicating with a parent
The parties live 2-3 hours apart by car, depending on the level of traffic between South Sydney and the Central Coast. This makes it impossible for each party to spend both weekend and weekday time with Alex during school terms.
If Alex were to live with the father during the week, the father proposes Alex spend each weekend with the mother and most of the holiday periods. He currently spends 3 out of 4 weekends with the father away from the mother. This involves a lot of travelling for Alex and for each parent. In my view the practical difficulties for Alex and for the parties to travel so far every weekend is likely to prove too onerous in anything but the short term.
I take this factor into account.
The orders which would minimise the risk of there being further court proceedings about the child and whether those orders would be preferable
There are no additional factors to which I give consideration under this factor.
Any other relevant fact or circumstance
Alex behaved aggressively on one occasion during the first term of 2007 when he was given an in-school suspension. As already noted, neither party nor the independent children’s lawyer adduced up to date evidence of his progress academically or in relation to his behaviour at the Central Coast school after that incident. I am not therefore able to make a finding as to the extent of Alex’s behavioural and academic problems at present. Also, I have no evidence as to whether or not he has missed days at school in 2007. These are significant omissions in the evidence before me.
Parental responsibility
Section 61C(1) provides that each parent has parental responsibility for the child but by s.61C(3) the joint parental responsibility is subject to any order the court may make. Parental responsibility relates to decision making and not to the amount of time a child will spend with each parent. Section 61DA requires the court to 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. There are no factors in this case to rebut that presumption. Appropriately in my view, the parties agree to an order for equal shared parental responsibility.
Equal or substantial and significant time with each parent
I am required to consider whether making orders that the child should spend equal time, or if not equal time, substantial and significant time with each parent would be in the best interests of the child and whether such arrangements are reasonably practicable.
In Dr Szyndler’s view, if the parties lived in close proximity to one another, it would be in Alex’s best interests to spend approximately equal time with each parent. The father proposes that if the mother moves to Sydney, Alex does spend week and week about with each parent. Although the mother says if the Court makes an order for Alex to live with the father during the week, she will move next door to the father, I do not place much weight on this remark. The mother was distressed at the time she gave this evidence. I am satisfied the mother is presently settled on the Central Coast with a responsible position at a Central Coast Hotel. She has the support of her extended family there. In the foreseeable future, I find it unlikely the mother will leave the Central Coast, but if she does, the matter will be re-listed.
In the present circumstances, the proposals put by each party as to Alex’s time with the other party are the only practical alternatives.
Conclusion
It is unfortunate that the distance between each party’s home prevents an equal or close to equal time arrangement between each parent and each parent’s extended family. Alex would then benefit from what each party has to offer, to the maximum extent possible.
As it is, the options are for Alex to stay at the Central Coast school, live with his mother, while spending most weekends and half school holidays with his father or, for Alex to move to the South Sydney school, live with the father and spend most weekends and most school holidays with his mother.
At present, the mother is available much of the time outside school hours during the week to care for Alex. She has mostly been able to organise her working hours to fit in with Alex’s school hours and or during time he is with the father. Alex has school friends and his cousins in the area with whom he plays after school. On weekends, the father is almost always available to spend the whole weekend with Alex engaging in a diverse range of activities and socialising with extended family.
On the father’s proposal, Alex would spend less time with the father, and less time with the father’s extended family, though would have the benefit of a more structured routine during the week. However, the father would not have the opportunity he enjoys now to involve Alex in the same range of interesting activities. Alex would also spend less time with the mother and his friends and cousins on the Central Coast.
Although Dr Szyndler recommends in her second report that Alex live with the father during the school week, she recommended only a couple of months earlier that Alex remain with the mother. She says in her first report:
At the moment there is no clear indication that Alex would benefit from moving into the care of his father during term time since this would necessitate a change of school for him. Alex has found school challenging but is now more settled and making progress.
He may benefit from an Occupation Therapy assessment to determine whether he can be given additional help to improve his organisation and coordination skills.
Dr Szyndler makes a number of remarks which demonstrate to me that the issue of where Alex primarily lives is for her, a finely balanced one. She concedes Alex needs substantial time with his mother if living with the father, but cannot see a way to make that happen in a practical sense. Dr Szyndler notes that while Ms Miller and the paternal grandmother both say they have not experienced any behavioural problems with Alex, Alex is generally very busy when with them and often has the attention of several adults. Dr Szyndler says “This is a very different environment from school which is where his problems have been primarily noted.” Whilst in her view, “appropriate management of poor concentration and impulsivity in children relies on the setting of clear boundaries and consistent parenting” she notes there is a strong family history of ADHD on the mother’s side of the family which suggests Alex’s behaviour may have a genetic component to it. In cross-examination she says there are still likely to be incidents at school even if Alex is with his father.
Dr Szyndler emphasises the importance of the parents managing Alex consistently and the importance to Alex’s development of predictability and routine so he knows what to expect. Dr Szyndler says that as Alex gets older, if he remains on the ADHD spectrum, these factors will assume even greater importance.
Ms Harris, the father’s counsel, submits the mother has demonstrated a lack of insight into Alex’s difficulties, his need for regular schooling, his need for routine and structure. Ms Boyle, the mother’s counsel submits that a move to the father will involve considerable uncertainty as Alex has never lived with the father. Ms Boyle submits the father’s criticisms of the mother are largely unfair and the mother should be given credit for ensuring Alex has a strong and positive relationship with the father. I find merit in both counsel’s submissions.
The parties impressed me as committed and loving parents with different parenting styles. The mother has had Alex’s primary care since he was born, living separately from the father for most of that period. She has ensured Alex not only knows his father and his father’s extended family, but has promoted those relationships. Alex now has the benefit of a close relationship with both his parents and both his grandmothers as well as others on both sides of his family.
I find Alex does have special needs, perhaps as a result of ADHD, and needs careful and consistent management. I am satisfied on the evidence of both Dr Selig and Dr Szyndler that a child with Alex’s behavioural problems does better in a structured environment with routine and predictability in his day to day life. I accept Dr Szyndler’s opinion that these factors favour Alex living with the father and I agree they are important factors. I also find that the mother’s attitude to Alex’s attendance at school has been detrimental to his development. However, I take into account other factors. Alex is 8 years old; he has only known living with his mother; he has attended the Central Coast school for two years and according to his 2006 end of year report, is progressing satisfactorily. He loves school and his friends at school, and enjoys the friendship of his cousins and mother’s extended family in a close beachside community. In my view, these factors favour the present arrangement continuing, at least for the remainder of this year with conditions in place to ensure Alex’s regular attendance at school and appropriate monitoring of his behavioural problems. I take into account Dr Szyndler’s view that the major disadvantage of a change in Alex’s living arrangements is that he would have to change schools and that any change should occur at the beginning of a school year.Weighing all these factors, I am not satisfied Alex’s best interests are served by moving him to another school in Sydney at present. The mother acknowledges the need to improve her discipline, particularly in relation to Alex’s attendance at school. Alex will complete his infant school years in 2007 and will start his primary school years in 2008. The court will have a better understanding of Alex’s position at the end of this year, when a final decision will be made as to where he will live long term. This final decision will be better informed by current school reports and assessments from Dr Selig and an educational specialist which I have provided for in the orders. During the adjourned period, the mother must ensure Alex is at school every day before school starts. The parties must be guided by Dr Selig in relation to his medical and behavioural management. Both parties need to communicate more effectively with each other to achieve a more consistent approach to parenting.
I am satisfied the orders set out at the commencement of these Reasons are in Alex’s bests interests on an interim basis.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Collette McFawn Date: 17 May 2007
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