Skye and Skye

[2011] FamCA 530

FAMILY COURT OF AUSTRALIA

SKYE & SKYE [2011] FamCA 530

FAMILY LAW – CHILDREN – Parental responsibility – Whether the parties are to have equal shared parental responsibility in respect of the children’s health – An equal shared parental responsibility order is not in the interests of the children – The mother is to have sole parental responsibility of the children – Whether an order should be made for the mother to inform the father of the children’s residential address – Court determined there is no need for the father to know the children’s residential address for it to be in their best interests.

Family Law Act 1975 s 60CA , s 60 CC, s 61DA, s 61DA(2),

APPLICANT: Mr Skye

RESPONDENT: Ms Skye

INDEPENDENT CHILDREN’S LAWYER: Mr P. Dooley

FILE NUMBER: BRC 13775 of 2007

DATE DELIVERED: 9 May 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 9 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: -

COUNSEL FOR THE RESPONDENT: Ms Lyons

SOLICITOR FOR THE RESPONDENT: Emerson Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Zande

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dooley Family Law

Orders

1. That the mother shall have sole parental responsibility for the major long term issues of the children B, born … 1997, and C, born … 2000, (“the children”) including but not limited to:

   (a)       the children’s education (both current and future); and

   (b)       the children’s religious and cultural upbringing; and

   (c)       the children’s health; and

   (d)       the children’s overseas travel.

2. That in the exercise of sole parental responsibility as conferred upon the mother pursuant to paragraph 1 hereof, the following shall apply:

   (a)When a decision as to a major long term issue in the children’s lives is to be made by the mother she shall inform the father in writing of the nature of that decision prior to the making of that decision;

   (b)The mother shall inform the father in writing as to the manner in which she proposes making the decision;

   (c)The mother shall invite input of the father, in writing, including as to any proposal the father makes in respect of the making of the decision;

   (d)The mother shall give genuine consideration to the input she has received from the father before making the decision;

   (e)The mother shall inform the father in writing after such genuine consideration as to the decision she has made.

IT IS FURTHER ORDERED, BY CONSENT

1. That the children live with the mother.

2. That the children spend time and communicate with the father as agreed.

3. The children shall communicate with their father on the telephone or email at such times as either of the children reasonably requests and the mother shall facilitate such contact.

4. That at the end of each time the children spends with them each parent shall deliver and return the children’s clothing, school supplies and belongings and the children’s clothing shall be returned in a clean condition.

5. The parties shall keep the other parent informed of the names and address of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;

6. That the parties shall ensure that the other is notified immediately and personally by telephone, email or sms of any serious illness, injury, medical or like emergency suffered by either of the children, including the name, address and telephone number of the relevant hospital or medical practitioner providing assistance to any of the children.

7. These orders shall be sufficient authority for each party to obtain from the children’s school any information or documentation regarding the children’s progress at school and including school reports, newsletters and school photographs upon the request (and at the cost) of that party.

8. That the mother is authorised to provide to the children’s schools or treating health practitioners copies of any Orders or written agreements between the parties which relate to the care of the children.

9. This Order authorises the mother to obtain a passport for the children and renew any passport for them from time to time without obtaining the father’s written consent.

10. That the children are permitted to leave the Commonwealth of Australia with the mother for a holiday, not exceeding eight (8) weeks and not permanent residency overseas.

11. The mother shall keep the children’s passports in her possession.

12. Neither party shall approach or attend at each others residence unless otherwise agreed to in writing by the parties.

13. That the parties shall not, and each is restrained from:-

    (a)denigrating the other party in the presence of the children or either of them or allowing any other person to do so;

    (b)denigrating the other party’s partner, family or friends in the presence of the children or either of them or allowing any other person to do so.

14. Each party shall do their utmost to remain child focused and facilitate the relationships between the children and their parent and any other person (including any grandparent or other relative of the child).

15. The mother shall not relocate the residence of the children outside of a 100km radius from her present address without the prior written consent of the Father or Orders of the Court.

16. That the children and the father attend upon Mr Phillip D or other therapist recommended by the Independent Children’s Lawyer for at least six (6) sessions of non reportable therapeutic counselling with a view to restoring the relationship between the boys and their father and that for the purposes of this Order

    (a)The mother or her representative present the children to Mr D or other therapist at such times appointed for such therapeutic counselling;

    (b)The parties do all such things as reasonably required of them by Mr D or other therapist recommended by the Independent Children’s Lawyer.

    (c)That after six (6) sessions the parties shall follow the written recommendations of Mr D or other therapist.

    (d)That the costs of this process be shared equally by the parties with the mother to use her best endeavours to arrange a mental health plan for the children if possible.

17. That the mother do all things reasonably required of her to facilitate the children meeting with Ms E, Family Consultant, for the purpose of explaining the effect of the Orders and any matter considered relevant by Ms E.

18. That both parties follow and carry out the ongoing directions of their treating medical practitioners for any ongoing physical and mental health issues.

19. That the parties shall follow the advice of Mr D or other therapist recommended by the Independent Children’s Lawyer as per Order 18 above in relation to undergoing a psychiatric assessment and follow any recommendation of that assessment.

20. That leave is granted to the Independent Children’s Lawyer to provide Mr D, or other therapist engaged pursuant to these Orders, with a copy of the following:

    (a)       Family Report of Mr F dated 8 January 2007;

    (b)       Family Report of Mr F dated 27 August 2007;

    (c)Affidavit of Family Consultant Ms E filed 19 August 2010;

    (d)Affidavit of Family Consultant Ms E filed 20 April 2011;

    (e)       Affidavit of Dr G filed 18 August 2010; and

    (f)       Any other relevant reports and correspondence in this matter.

21. That the Independent Children’s Lawyer is discharged as from the 9^th day of August 2011.

IT IS NOTED that publication of this judgment under the pseudonym Skye & Skye has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 13775 of 2007

Mr Skye

Applicant

And

Ms Skye

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter that was listed for trial commencing before me today the parents of the children, B, born in 1997, now aged 13, and C, born in 2008, now aged 10, are in dispute about many aspects of the parenting of these two boys.  Fortunately, and to their immense credit, the parents have, with the assistance of legal representatives for the mother, and an independent children's lawyer and his counsel, been able today to reach agreement with respect to most of the matters that remained in dispute at the commencement of these proceedings today. 

2. The terms of that agreement have been reduced to writing and handed to me this afternoon with submissions being made by the father in person, counsel for the ICL and counsel for the mother, that I should make these orders with the consent of the parties to govern their parenting arrangements in respect of these two boys into the foreseeable future.  As to the terms of the orders that are agreed upon, I am satisfied that those orders as agreed between the parties are, on the evidence that I have read, in the best interests of these two boys.  Notwithstanding their having reached agreement in respect of most matters in dispute, the parties nevertheless remained in dispute as to two matters.

3. Accordingly, I am asked, at this end of the day, to make a determination in respect of those two matters as to what I consider is in the best interests of the boys and to, thereafter, make orders reflective of that determination.  The parties have agreed to an order being made that the mother has sole parental responsibility for the major long-terms issues in respect to the children, B and C, including but not limited to the children’s education, both current and future, the children’s religious and cultural upbringing and the children’s overseas travel.  One of the two points upon which they have not been able to agree is with respect to parental responsibility for the major long-term issues in respect of the children’s health. I am asked to determine that issue. 

4. The father asks me to make an order that the parties have equal shared parental responsibility in respect of the children’s health.  The mother asks that I make an order that, like the other matters, she has sole parental responsibility in respect of the children’s health. 

5. It was indicated to me, both through the draft minute that was handed up to me and submissions made by the mother, that she would be prepared in the course of exercising sole parental responsibility to meet an obligation to provide information to the father on an ongoing basis in respect of the major long-term issues in which decisions have to be made, informing him of such decisions being required to be made, informing him of the manner in which she proposes making the decision, seeking his feedback and input in respect to the decision-making process.  The mother still wants, at the end of the day, nevertheless, to have sole responsibility for the making of the decisions.   

6. Counsel for the Independent Children's Lawyer informed me that the Independent Children's Lawyer effectively supports the father’s position in respect of seeking an equal shared parental responsibility order in that regard.    

7. I turn to the provisions of the Family Law Act, firstly, before I discuss matters that influence me in making my decision. Of course, in making a parenting order I am enjoined by section 60CA to regard the best interests of the child as the paramount consideration. Section 60CC then tells me, when I am determining what is in the child’s best interests, what matters I must consider and they are set out by way of the primary considerations provided for in subsection (2) of the same section and then the many faceted additional considerations provided for in subsection (3) of the same section.

8. It is noteworthy that the last of those many faceted considerations included in subsection (m) of (3) is “any other fact or circumstance that the Court considers relevant”, thus making it an inquiry or a consideration of fairly broad ambit under the umbrella of the best interests of the child being the paramount consideration. 

9. Section 61DA of the Act tells us that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  Of course, that presumption is effectively statutorily rebutted, in that subsection (2) of section 61DA of the Act says that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with the parents of the child is engaged in abuse of the child or another child who at the time was a member of the parent’s family or that other person’s family or family violence. 

10. That would normally require an inquiry into whether or not there has been abuse of the child or another child established or, indeed, family violence established and, upon such a determination that same has been established, the presumption is rebutted.  Nevertheless, once the presumption is rebutted the Court must go on to consider whether an order conferring equal shared parental responsibility is still in the child or the children’s best interests.

11. In this particular case, I do not consider that I need to enter into an inquiry as to whether or not there has been abuse of a child or family violence as it seems to me that the parties themselves, in the first instance, have, by agreement between them, determined that the presumption in favour of equal shared parental responsibility does not apply in that they have determined as between themselves and the Independent Children's Lawyer that in respect of the majority of major long-term issues in these children’s lives sole parental responsibility ought to be conferred upon the mother.  And that is what they are asking me to do.  So clearly, they are all in agreement that the presumption in favour of equal shared parental responsibility is overridden by other factors in this particular case. 

12. I do not consider, in the circumstances where they have agreed to that, that the presumption then still applies in favour of equal shared parental responsibility relating to only one aspect of parenting, namely the joint decision making that goes with the parental responsibility in respect of the management of the health of the children of the couple.  If I am wrong about that, and the presumption nevertheless was  to apply, I still do not consider that I need to consider and determine whether or not there has been abuse or family violence because I have otherwise determined, having regard to the evidence that I have seen and the submissions I have heard, that it is not in the children’s best interests in this case to confer equal shared parental responsibility on the parties in respect of the limited matters relating to the health of the two boys. 

13. Indeed, I was referred by the mother’s counsel to a passage in the family report of Ms E that was filed on 20 April 2011, namely paragraph 119 which is extremely relevant and bears reading, in my view.   Indeed, Ms E said:

    [Mr and Ms Skye] have amply demonstrated their inability to work together.  They lack trust in each other.  They are unable to directly communicate.  The example of choosing [B’s] high school demonstrated their inability to make joint decisions. 

    Indeed, I have read all of the two reports of Ms E, namely the first one which was filed on 19 August 2010, which was, as far as family reports go, an extraordinarily comprehensive one of some 33 pages and 245 paragraphs and the second one that I just referred to that was filed on 20 April 2011 which, although not quite as long, namely 15 pages, was still relatively comprehensive in its form having regard to the fact that it was an updating report. 

14. After reading those two reports I am left with no uncertainty whatsoever that the relationship between these two parties is, sadly for the sake of these two boys particularly, a poisonous and non-existent one, although I should say it is hard to be non-existent if it is, indeed, a very poisonous one.  There is a relationship - I should withdraw that expression “non-existent” but highlight the fact that I do believe it is an extremely poisonous relationship and rather than saying non-existent, non-productive whatsoever insofar as jointly producing, as parents are generally required to do, results that are in the best interests of their children and in furtherance of their growth and development.

15. In all of those circumstances, I do not consider that an equal shared parental responsibility order, even one limited to the sharing of the joint parental decision making and responsibility in respect of the health issues of the boys, is in the best interests of the boys.  I do not consider that such an order would be workable.  I understand that, particularly the elder boy, B, has some serious health issues in that he has been diagnosed by a medical specialist some years ago with Asperger’s syndrome.  There appears on the material I have read to be a fair amount of conflict generated over the years in respect of (a) the diagnosis, and (b) the management of this boy’s Asperger’s syndrome. 

16. I do not consider in those circumstances and on the evidence that I have seen, having regard to the matters I have already outlined, that it is in the boy’s interests to put responsibility for the making of decisions about his treatment and the management of his health issues and those health issues relating to the younger child in both parties’ hands with an expectation that they will both be able, as the Act requires where parental responsibility is shared equally, to consult with each other on a genuine basis about the decisions that are to be made on the issues and to make a genuine effort to come to a joint decision about those issues.  It would, in my view, be fruitless to expect the parties, or to place an obligation on the parties, to comply with that statutory obligation that an equal shared parental responsibility order of any sort places upon them.

17. Such orders are, in my view, at least at this point in time, likely to be most effective where parties have demonstrated capacity to be able to communicate with each other and make sensible, sound decisions in respect of their children’s wellbeing and development.  I am certainly not satisfied on the material I have read in this case that these two can do that.  I am not in any way by this decision pointing the finger at Mr Skye and blaming him entirely for that situation.  Indeed, from what I have read I would certainly not do that in this particular case.  However, I do not consider it is in the best interests of the boys to leave them in such a hiatus that would be created by giving equal shared parental responsibility about health issues to their parents and I intend to make an order that leaves sole parental responsibility with respect to all of those matters that are outlined in the draft paragraph 1 to the mother, subject to placing obligations upon her, as I have spoken about already, which I will return to when I actually make the orders.

18. The second of the two remaining issues to be determined relates to information being provided by each parent to the other as to their current residential address.  The father seeks an order from me that each of the parties shall keep the other informed at all times of their residential address.  That was supported by the Independent Children's Lawyer but opposed by the mother.  The father, in his submissions to me in support of the order that he asks me to make, said, effectively, that he really needs to know where these children live.  He says he already knows where they currently live, although he was not told by the mother, and it seems that knowledge that he has it, causes the mother unhappiness and some degree of anxiety.  Although from what I understood of her counsel’s submission she has some doubts about the honesty of the reporting by the father to the Court of his source of information as to her current residential address because of the stated dementia of her father (which is the source that is referred to by the husband). 

1. The mother points to, on the other hand, a significant history of domestic violence, one party against the other in this case.  I must say, as I have said before, whilst I have considered the evidence of the family report writer and the psychiatrist in this case, I am not in a position to make any determination factually about the extent to which domestic violence has occurred save for reliance upon the fact that is not in dispute and that is that domestic violence orders have been made in the past by the State Magistrates’ courts on the application of the mother as against the father and also on the application of the father as against the mother.  That both of them have taken out domestic violence family protection orders against each other in the past, tells me, clearly, that there is an acceptance either by the magistrates or, indeed, even if it was by consent of each party, (I do not know the full story of how those orders were made) that domestic violence had occurred – perpetrated by each against the other, at least prior to the making of those orders.

2. The other factual aspect of the matter that I consider relevant to the determination of this point that I am aware of is that on the orders that the parties are otherwise asking me to make by consent there is no provision for the two boys to actually spend time with the father.  That was also the case of the mother from the outset when this trial was coming on.  It was the case of the ICL that it was not in the best interests of the boys for them to be spending any actual time with their father.  The order provides for communication between the father and his boys in writing by email but it does not provide for any actual time together and it does not provide for that at any point in the future.  What the order does provide is that the father attend therapeutic counselling with his two boys with Mr D in the near future, for I think at least six sessions I read in the orders, with a view to re-establishing a meaningful relationship between the two boys and their father which would, as I am informed, it is hoped, form the foundation or the basis for the re-establishment of a regime where the boys actually do spend time with their father. 

3. Another part of the orders that initially was in dispute when it was mentioned before me this afternoon that since was resolved, was the question of whether or not the mother should be restrained from relocating the residence of the two boys beyond the 100 kilometre radius from her current residence.  During the course of some discussion about that, I was informed that the mother instructed her counsel that she was prepared to agree to such a restraint being placed upon her by consent.  Having regard to that, and having regard to the fact that the father has not seen the children but is able to communicate with them and having regard to all of the evidence about the domestic violence and the mother’s feelings of anxiety towards the husband and, indeed, as I read it, the boys’ feelings of anxiety towards their father at this stage, as reported, I do not consider this a case where, in all the circumstances presented to me, there is a need for the father to know the exact residential address of the boys. 

4. Accordingly, I will not make that order as sought by the father.  I am comforted in knowing that the mother is consenting to an order or will be consenting to an order that she is restrained from moving beyond 100 kilometres from where she currently resides.  It is with optimism and confidence towards the future that I make orders in this Court and it is with an expectation that when orders are consented to by parties in this Court that they will honour them that I make such orders and not with some concern or expectation that they are more likely to be breached than they are honoured.  Therefore, I am satisfied that the restraint that the mother says she consents to, preventing her from moving more than a 100 kilometres from her current residence, is sufficient protection of the boys’ potential rights to spend time with their father in the future if and when their relationships are so appropriately repaired after the Mr D therapy.  Such a prospect of them being able to exercise or spend time together is not going to be prejudiced because the mother will not have been able to have moved more than a 100 kilometres away from her current residence. 

5. I do not consider, therefore, that there is a need to order her to advise the father on an ongoing basis as to the exact residential address that she and the boys occupy from time to time, and I will not make that order. So I will order as per the minute of orders that has been signed by the parties and handed to me, but deleting paragraph 17.  I will add in the following which will become paragraph 2.  Paragraph 1 will read – sorry before I say paragraph 2, I will just recite paragraph 1:

   That the mother shall have sole parental responsibility for the major long-term issues of the children, [B] born … 1997 and [C] born … 2000, “the children” including but not limited to:

   (a)         the children’s education (both current and future);

   (b)         the children’s religious and cultural upbringing; and

   (c)         the children’s health; and

   (d)         the children’s overseas travel. 

   Paragraph 2 will read:

   That in the exercise of sole parental responsibility as conferred upon the mother pursuant to paragraph 1 hereof, the following shall apply:

   (i) When a decision as to a major long-term issue in the children’s lives is to be made by the mother she shall inform the father in writing of the nature of that decision prior to the making of that decision.

   (ii) The mother shall inform the father in writing as to the manner in which she proposes making the decision.

   (iii) The mother shall invite input of the father in writing including as to any proposal the father makes in respect of the making of the decision.

   (iv) The mother shall give genuine consideration to the input she has received from the father before making the decision.

   (v) The mother shall inform the father in writing, after such genuine consideration, as to the decision she has made.

6. All those orders are now made.  I will just sign this document and date it and place it with the papers. 

7. Leave is granted by consent to provide Mr D or any other therapist engaged pursuant to the orders with copies of all reports, affidavits and relevant correspondence in this matter.   The ICL is discharged as from 9 August 2011.  

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 9 May 2011.

Associate: 

Date:  11 July 2011