Smythe and Gorrie
[2018] FCCA 76
•19 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SMYTHE & GORRIE | [2018] FCCA 76 |
| Catchwords: FAMILY LAW – Parenting – high conflict – weight to be placed on Expert Report. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS SMYTHE |
| Respondent: | MR GORRIE |
| File Number: | WOC 1261 of 2015 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 11-12 May; 9 June; 3 August; 23 August and 4 December 2017 |
| Date of Last Submission: | 4 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 19 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell |
| Solicitors for the Applicant: | Nikolovski Lawyers |
| Counsel for the Respondent: | Ms Gillies SC |
| Solicitors for the Respondent: | Hansons Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Cook and then Mr Reeves |
| Solicitors for the Independent Children's Lawyer: | Illawarra Family Lawyers |
ORDERS
PARENTING
That the Father have sole parental responsibility for the children of the marriage namely X born (omitted) 2006 and Y born (omitted) 2009.
That the children live with the Father at all times they are not otherwise living with the Mother.
That the children live with the Mother at all times as agreed between the parents but otherwise as follows;
(a)During School Terms;
(i)Each alternate Friday from after school or 3pm until before school or 9am on the first school day of the following week, with the pattern of care to recommence the first Friday after the commencement of each school term.
(b)During School Term Holidays for Terms 1, 2 and 3;
(i)For one half of the Terms 1, 2 & 3 school holiday periods from after school or 3pm on the last day of the school term until 7pm on the middle day of the holiday period.
(ii)In the event that a term holiday period consists of an even number of days, the last day of the first half of the holiday period shall constitute the middle day.
(iii)That the time in Order 3a be suspended during each school holiday period.
(c)Christmas Holidays;
(i)In each odd numbered year from after school or 3pm on the last day of the school year until 7pm on the middle day of that holiday period (inclusive of Christmas and New Years).
(ii)In each even numbered year from 7pm on the middle day of the holiday period until before school or 9am on the first day of the first school term.
(iii)In the event that a Christmas holiday period consists of an even number of days, the last day of the first half of the holiday period shall constitute the middle day.
(d)For Mother’s Day in the event that the children are not otherwise living with the Mother on that weekend from 7pm Saturday until 9am or before school on the following Monday.
(e)For the Easter Long Weekend;
(i)In each odd numbered year the entire Easter Long Weekend (including Good Friday, Easter Saturday, Easter Sunday, Easter Monday and any adjoining public holidays)
(ii)That the time in Order 3a be suspended during this weekend and recommence as though the cycle was not otherwise suspended.
(iii)That in the event that the Easter Long Weekend occurs during a school holiday period Order 3e shall take precedence over Order 3b.
That changeover take place as follows;
(a)That at the commencement of the children’s time with the mother, the mother or her nominee shall collect the children from their school on school days, and the father or his nominee shall deliver the children to the mother’s home on non-school days. In the event that the mother is unable to collect the children from the school at 3pm on school days for any reason, the father shall facilitate the mother or her nominee collecting the children from his home at a later time on that day.
(b)That at the completion of their time with the mother, the mother or her nominee shall deliver the children to their school on school days, and the father or his nominee shall collect the children from the mother’s home on non-school days. In the event that the mother is unable to deliver the children to their school by 9am on school days, the father or his nominee shall collect the children from the mother’s home at 7pm on the evening prior.
That each parent be at liberty to contact the children via telephone or other electronic means such as Skype at any reasonable time when the children are in the other parent’s care and such parent shall facilitate such contact by making the children available to speak with that parent.
That the children be at liberty to contact the other parent or any member of either parent’s family at any time the children make a request.
Pursuant to s. 68B and s. 67ZC, the Mother and Father are hereby each restrained by injunction from:
(a)abusing, insulting or denigrating the children, or any of the other parties, or a member of their family or household to or in the presence of the children, and from permitting another person to do so;
(b)discussing any allegation made or evidence given in these proceedings to or in the presence of the children and from permitting another person to do so;
(c)exposing the children to any form of domestic violence including verbal violence or using abusive language to, within, or in the hearing of the children;
(d)physically disciplining or striking the children.
The Mother is restrained from obtaining referrals for the children or making any appointments for the children to attend upon a psychologist, counsellor or family therapist without the written consent of the father in advance of and prior to any referral being obtained and if that consent is obtained the parents are to firstly agree on the person who ought be appointed and if they cannot agree then the Father will attend upon the child’s GP to obtain the referral and will otherwise be guided by the GP’s recommendation.
That the parents will keep the other informed of the following, as soon as reasonably practicable;
(a)Appointments regarding the children and attendances upon Doctors or any treating professional
(b)Any medications which are prescribed for the children at any time
(c)Any diagnosis regarding the children as to any health issues as soon as possible
(d)Any hospitalisations as soon as it is reasonably practicable to do so
(e)All referrals to specialists
That each parent inform the other parent of all school correspondence, reports or other related documents within 48 hours of the information becoming available. Any costs associated with photographs will be borne by the receiving parent.
That prior to taking the children interstate or overseas each party must inform the other party of the itinerary no less than 30 days prior to the travel date. Periods of travel are to only occur during the scheduled periods of time that the children are with each respective parent unless otherwise agreed between the parents.
If either party wishes to seek to apply for a visa or further passport for the children, both parents must do all acts and attend all duties and sign all forms required to facilitate such purpose within 14 days of a request to do so.
That at all times the children are not otherwise travelling with their passports the Father is to retain those passports.
IT IS NOTED that publication of this judgment under the pseudonym Smythe & Gorrie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1261 of 2015
| MS SMYTHE |
Applicant
And
| MR GORRIE |
Respondent
REASONS FOR JUDGMENT
Introduction
X, who is 11 years old, and his sister Y, who is 8 years old, are, regrettably, innocent victims of the insidious, toxic conflict that their parents are involved in. These children are caught in a metaphorical no-man’s-land, in the crossfire of their mother and father’s mistrust and dislike of each other. The children’s parents have taken positions in trenches, firing away at each other in a deadly war of words and actions, seemingly oblivious to the reality that X and Y are caught in the crossfire. These Reasons for Judgment explain the Orders that the Court has made in this unfortunate case. Separate Reasons for Judgment will relate to the financial aspects of the case.
Background
The Applicant in this case is the children’s mother. She is 42 years old, lives in the (omitted) region of New South Wales and describes herself as a (occupation omitted). The Respondent is the children’s father. He is also 42 years old, describes himself as an (occupation omitted) and lives in a township on the (omitted) of Sydney.
The parents commenced cohabitation in (omitted) 2003, married in 2005, initially separated in February 2014, reconciled, but then separated finally in April 2015. They were living in the (omitted) at the time. The Father subsequently moved to his current address where he lives with his new partner, Ms M, who is a (occupation omitted) in the (employer omitted). The Mother has also re-partnered, to Mr R, though it is unclear as to whether they physically cohabitate for more than a few days each week.
The breakdown in the parental relationship was an acrimonious one. The post-separation period, including the litigation, was even more acrimonious. After separation the Father started spending time with the children each alternate weekend, as well as one afternoon or evening during the week. His weekend time soon extended to include Sunday nights.
The first orders were not made until 2 March 2016, when the parents consented to orders that the children live with the Mother, and spend time with the Father for two weekends out of three, from Friday afternoon until Monday morning, as well as half of each school holiday period.
After these orders, the Father relocated to his current address. On 18 May 2016, the parties entered into further interim consent orders, again providing for the children to live with their mother but spend time with their father from after school on Friday until Sunday evening for two out of three weekends, as well as half the school holidays. This change no doubt reflected the increased travel time between the homes where the parents lived. The orders made on 18 May 2016 continue to reflect the current parenting arrangement.
Between the date of separation and 2 March 2016 when the first consent orders were entered into, the parents had considerable difficulty in reaching agreement about the Father’s time with the children. The Father, who was living in the (omitted) region at the time, wanted significantly more time. Initially, the Mother agreed but then she resisted on the basis that it was not in the best interests for the children and, specifically, they were not coping with the arrangement.
The lack of trust between the parents, their complete inadequacy in terms of communication and their inability to reach a constructive agreement about the children without exacerbating the conflict between them was palpably obvious during this period. The children suffered, especially X. This was apparent from problems he experienced at school, as well as his behaviour towards his own mother. He attended various counsellors.
The parental dysfunction seems to have culminated in an incident in January 2016 when the Mother decided to keep the children with her until school started, notwithstanding an earlier agreement that the children would be with the Father during this period.
When the children commenced school at the end of January 2016, the Father unilaterally collected them, retained them and enrolled them in a school close to his home whilst trying to facilitate contact between the Mother and the children. On 8 February 2016 the Father returned the children to their former school in the (omitted). The first interim orders were entered into shortly thereafter.
A common theme of the evidence raised in the Mother’s case, the Father’s case and the Independent Children’s Lawyer’s case is that whilst the Mother and Father seem to be able to operate quite well in their individual capacity as parents for X and Y, they are singularly unable to co-parent effectively. Their inability to communicate constructively, their palpable mistrust of each other and their incapacity to reach agreement about any issue relating to the children without exacerbating the conflict between them, is common ground.
The ironic curiosity in this case is that X and Y’s mother and father are actually quite good parents in their own right but putting them together is, for the children, like exposing them to a dangerous chemical reaction that emits toxic gases which will poison the children, potentially scarring them for life. The Court is comfortably satisfied that both parents, who are clearly intelligent and articulate, had all of this explained to them by the competent solicitors and barristers who represented them.
The dilemma that the children faced was made very clear to them as a result of the Expert Report of Dr B dated 22 December 2016. The Court had certainly made preliminary observations and comments during the case management stage of this case. None of this changed anything. Even though both parents must have been told about the deficiencies in their parental virtues, they nonetheless persisted in what became a six-day legal battle to show that the other parent lacked even more virtue as such.
There is no easy answer in this case. All that is clear, however, is that something must be done. The current situation as regards these children is plainly unacceptable. Something must be done. There must be a change in their lives that provides a reasonable prospect for the end of the parental conflict or at least a significant reduction in the ferocity of the same. If there is no change for X and Y, it is this Court’s view that their prognosis is a poor one. Their parents have demonstrated absolutely no capacity for self-reflection, insight or change.
There was also a dispute between the parents about financial matters. This will be dealt with in separate Reasons for Judgment.
The Competing Proposals
The Mother’s proposal was that she have sole parental responsibility, that the children live with her and spend time with the Father for two weekends out of three on a rotating pattern from after school or 3 pm on Friday until 6.30 pm on Sunday. The Father would also spend about half of the school holidays with the children. The detailed orders proposed by the Mother are reproduced in the first schedule to these reasons.
The Father’s proposal was that he have sole parental responsibility and the children live with him when they are not living with their mother. He proposed that the children live with their mother during school terms each alternate Friday from after school or 3 pm until before school or 9 am on the following Monday. In addition, he proposed that the Mother have about half the school holidays. The Father proposed an alternative arrangement, should the Court decide that the children continue to live with the Mother. On that scenario, there would be an order for equal shared parental responsibility and the children would live with their mother when not living with him. The children would live with their father for three weekends out of four on a rotating pattern from 5 pm on Friday until before school or 9 am on the following Monday. In addition, he would have about half the school holidays. The detailed order proposed by the Father is reproduced in the second schedule to these reasons.
X and Y had the benefit of Miss Collis as their Independent Children’s Lawyer. The Independent Children’s Lawyer’s proposal was that the Mother have sole parental responsibility for the children, that the children live with her and spend time with their father for three weekends out of four, on a rotating pattern, from after school on Friday to before school on Monday. In addition, the Father would have the benefit of about half the school holidays.
The Hearing, and Evidence
The Applicant Mother was represented by her solicitor and Ms Gillies of Counsel, who was appointed Senior Counsel before the last day of the hearing. The Father was represented by his solicitor, and Mr Stefan Schonell of Counsel.
The Independent Children’s Lawyer, Ms Collis, instructed Counsel at the hearing. It was initially Mr Cook, but then Mr Reeves. The matter was heard over six days. The material relied on by the parties is set out below.
The Applicant relied on the following:
a)Amended Initiating Application, filed 9 May 2017;
b)Affidavit of Ms Smythe sworn and filed on 28 April 2017;
c)Family Report prepared by Dr B dated 22 December 2016; and
d)Child Inclusive Conference Memorandum prepared by Ms K dated 12 May 2016.
The Respondent relied on the following:
a)Affidavit of Mr Gorrie sworn and filed 28.4.17;
b)Affidavit of Ms M sworn 28.4.17; and
c)Family Report prepared by Dr B dated 22 December 2016.
In the Independent Children’s Lawyer’s case, the evidence was the Report of Dr B.
The following documents were tendered in evidence (in both the parenting and property cases):
| Date | Exhibit No. | Tendered by (eg. A/W, R/H) | Description of Exhibit/MFI |
| 11.5.17 | A1 | AM | (omitted) Bank cheque butt dated 10/6/2004 for $134,000 |
| R1 | RF | Paypal statements | |
| R2 | RF | Email corro between parties dated 5 July 2016 | |
| R3 | RF | Email corro between parties dated 31 August 2015 | |
| R4 | RF | Copy of spreadsheet | |
| 12.5.17 | R5 | RF | Email corro between parties dated 24 January 2016 |
| R6 | RF | Email corro between parties dated 17 February 2016 | |
| R7 | RF | Letter from Verekers dated 30 July 2017 to Mr Gorrie | |
| R8 | RF | Email corro between parties dated 24 December 2016 | |
| R9 | RF | Email corro between parties dated 5 February 2016 | |
| R10 | RF | Copy of text messages dated 26 August 2015 | |
| R11 | RF | Autism Australia docs | |
| R12 | RF | Email corro between parties dated 2 May 2017 | |
| R13 | RF | Email corro between parties dated 9 September 2016 re (employer omitted) family day | |
| R14 | RF | Letter from Mr M to Dr P dated 14 September 2016 | |
| R15 | RF | Email corro between parties dated 6 June 2016 | |
| R16 | RF | Email corro between parties dated 9 December 2016 | |
| R17 | RF | (omitted) Bank statements | |
| R18 | RF | Text messages between parties 17 May 2015 | |
| R19 | RF | Bank statement in relation to (omitted) | |
| 9.6.17 | A2 | AM | Letter dated 10 June 2004 to wife from Williamson Isabella Lawyers |
| A3 | AM | Email from Father to Mother dated 22 July 2015 | |
| A4 | AM | Bundle of Transfer and mortgage documents | |
| A5 | AM | Contract of sale for business of (omitted business). | |
| 3.8.17 | A6 | AM | Loan Agreement – Mr Gorrie and Ms D |
| A7 | AM | Enrolment form | |
| A8 | AM | Green tag in (omitted) Primary School doc | |
| A9 | AM | Text messages | |
| Court A | All | Agreed trial plan | |
| A10 | AM | Emails dated 1 June 2017 | |
| A11 | AM | Tax statements | |
| 23.8.17 | R20 | RF | Letter from (omitted) dated 16 May 2003 |
| R21 | RF | (omitted) Bank (account) Statement – tag 5 | |
| R22 | RF | Workplace Flexibility Agreement | |
| R23 | RF | Transfer documents | |
| R24 | RF | Text messages transcript dated 17 May 2015 | |
| R25 | RF | Superannuation documents for Mr Gorrie | |
| R26 | RF | Letter | |
| R27 | RF | Text messages transcript between parties dated 28 May 2015 | |
| R28 | RF | Text messages between parties dated 19 Oct 2015 – tag 12 | |
| R29 | RF | Letter | |
| R30 | RF | (omitted) Bank statements from 27 June 2016 to 26 August 2016 | |
| R31 | RF | (omitted) Bank statements from 30 March 2017 to 30 May 2017 | |
| ICL1 | RF | Dr B's Report | |
| A12 | RF | Bundle of text messages | |
| R32 | RF | Dr B’s notes | |
| R33 | RF | Ms A notes re X | |
| A13 | RF | Emails from Father to Dr B |
The Cases Summarised
This summary is an overview of the issues raised but does no justice to the complexity of the case. The Mother’s case was that the children should not be exposed to the very significant change that was inherent in the Father’s main proposal. It would involve a significant change to their physical and emotional arrangements, especially in the context where she has been the person who has primarily cared for them during their lives, both before and after separation. She raised concerns not so much about the Father’s physical capacity to meet the needs of the children but his emotional capacity to do so. She did not put into contention the meaningful relationship that exists between the children and the Father. She did not attempt to minimise the nature of the parental conflict and the level of distrust and communication difficulties that existed between them. However, it was her case that, in effect, the Father was the greater contributor to this problem than she was. Her case was that the children, and indeed herself, needed to be protected from what she considered to be the Father’s controlling and manipulative behaviour that included abusive and condescending attitudes, words and actions. She submitted that he lacked parental insight, had demonstrated a very poor attitude towards his responsibilities as a father and, advanced in any event a proposal that was not reasonably practicable. She had concerns about his willingness and ability to foster the children’s ongoing relationship with him.
The Father’s case involved many aspects of the Mother’s case but focused primarily on what he considered to be her unwillingness to facilitate and encourage the children’s relationship with him, which thus manifested a significant lack of insight on her part, an inability to meet the emotional needs of the children, as well as irresponsible attitudes towards parenting. He too did not try to minimise the nature and extent of the conflict between them and the communication difficulties they experienced. It was his case, however, that the Mother was primarily responsible for this. He denied being abusive in any way with the Mother in his communications with her. His case acknowledged that his proposal involved a quite significant change for the children but, he submitted, the short-term disadvantages would be greatly exceeded by the long-term stability and peace that his household could offer.
The Independent Children’s Lawyer submitted that the degree of change in the children’s lives inherent in the Father’s proposal was not justified in the circumstances of the case. The Independent Children’s Lawyer had concerns about how the children would cope with such a change and the potential loss of their relationship with their mother. The Independent Children’s Lawyer’s case acknowledged the communication, trust and conflict issues. Some concerns were expressed about the expert evidence of Dr B favouring the Father’s proposal. The Independent Children’s Lawyer’s Counsel acknowledged, in closing submissions, that it was a difficult, finely balanced case where the Court, in reality, could not make a bad decision as both parents were individually capable, as such, on their own. The obvious difficulty was co-parenting.
The Applicable law
The applicable law is, of course, Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) 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.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) 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
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child, the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Outline of These Reasons for Judgment
Some preliminary observations will be made about the evidence of the witnesses in this case, including as to credibility. There will then be a detailed consideration of the expert evidence of Dr B. His evidence was the only independent and expert evidence led in the case and, given the unreliability of the evidence of the parents in so many respects, thus becomes quite important evidence. The evidence of the parties will then be considered by reference to the considerations set out in s.60CC of the Act.
Preliminary Observations about the Evidence of the Witnesses
The Court acknowledges that when assessing the credibility of the evidence given by parents in parenting proceedings, it may be easy to lapse into the error of finding that a parent’s evidence is untruthful, or unreliable, merely because the evidence that they give simply confirmed that they suffer from deficiencies of insight and parental attitudes. These are two completely different issues. The Court may well be frustrated, indeed intensely frustrated at times (especially from a child’s perspective), about what parents have done or failed to do. That does not mean that the parent is a poor historian or has advertently or inadvertently misled the Court in their evidence.
Having duly made allowance for this, the Court found that the Mother was frequently unresponsive in cross-examination when confronted with a number of examples of things that she did which she should not have or which she did not do when she should have. It took Counsel much more time than was necessary to gain the Mother’s acknowledgement of this. Many of the matters the Counsel took the Mother to in cross-examination (e.g. the trip to (country omitted), the doctor’s advice that the children have blood tests etc.) simply illustrated to the Court that the Mother was as much a contributor to the failures of effective communication and shared decision-making about the children as was the father. Her unresponsiveness when faced with what, from the Court’s perspective, was quite obvious from the documents, detracted from her credibility. In financial matters, the Court is still not entirely clear about what the Mother’s precise income is, and what the sources thereof are, and moreover the Court is still not clear about the precise nature of her relationship with her partner, Mr R. One of the most important issues from the Mother’s perspective, in this case, was her allegation about the Father’s controlling behaviour. The Court is left in no doubt that the Mother experienced the Father as such, but, as will be seen in the Court’s findings below, that does not necessarily mean the Father’s behaviour in any objective sense was controlling. Overall, the Court accepts the Mother’s evidence, but by no means unequivocally so. There is a niggling doubt in the Court’s mind that she has not been full and frank in her disclosure about both parenting and financial matters.
The same observations extend to the Father. His lack of insight as a parent, and deficits in parental attitudes, permeated his evidence - just like the Mother’s did. He was sometimes unresponsive too. Just like the Mother, he was hesitant, and reluctant to even grudgingly acknowledge something positive that the Mother may have done. His assertions about financial contributions were dubious at times (e.g. in quantifying the value of her contribution, as opposed to his, at cohabitation, in accounting for the use of moneys, in explaining the circumstances of the disposition of the personal fitness business etc.).
Indeed, the Court concludes that he is a very poor historian when it comes to financial matters and adopted a somewhat cavalier approach, the Court will find, about the vendor finance given on disposition of the sale of the (omitted) business. Putting aside financial matters, however, the Court likewise finds that the Father’s evidence should be accepted by the Court, but again not unequivocally. There was a distinct impression that he had not made complete disclosure about both financial and parenting matters.
Ms M, the Father’s partner, gave evidence. Apart from Dr B, the Court-appointed Expert, she was the most impressive lay witness. There were a number of inconsistencies between her evidence and that of the Father. The Court has no hesitation in preferring her evidence over that of the Father. The matters in question, however, are all minor issues (e.g did they share a bedroom together when they travelled, who drops her son A to school, when an appointment with the doctor at (omitted) was made etc.). Of all the adults in this case, she seemed to have the deepest insight and understanding about the needs of the children.
Mr R, the Mother’s partner, gave evidence. He observed the first five day’s evidence and did not provide an affidavit until August 2017, before the last day of the hearing. He did not impress the Court as having significant insight or understanding about the impact on the children of the parental conflict. He was clearly aligned with the Mother but there is no reason not to otherwise accept his evidence, except in relation to the precise nature of his relationship with the Mother. The Court suspects that their relationship is more complex than what each presented to the Court. Dr B was the only other witness to give evidence. This will be discussed below.
The Evidence of the Single Joint Expert, Dr B
Dr B is a Forensic Psychologist, who is also Associate Professor (Clinical Psychology) at the University of (omitted). His curriculum vitae sets out his extensive experience and professional qualifications. His report is dated 22 December 2016, was received by the Court on 6 January 2017 and released on 16 January 2017. Given that the hearing commenced on 11 May 2017, the parents had almost five months to consider its contents and, in particular, to reflect on Dr B’s comments about them and their style of parenting and interaction with each other, even if one of the parents did not necessarily agree with his recommendations.
Dr B’s report sets out the sources of all information that he used in preparing the report. It is clear, for example, that at the time of the report, he had all the relevant evidence from the Court file, including subpoenaed documents. He had interviewed all the relevant persons involved in the children’s life at the time. He had conducted psychometric assessments. By the time he gave evidence on 23 August 2017 (day 5), he had also read all the latest affidavits filed on behalf of the parties. Dr B’s conclusions are lengthy, but need to be reproduced in these reasons for judgment. The conclusion commences at line 8 on page 40 and concludes at line 5 on page 43:
Conclusions
The author acknowledges that this is a difficult case for his Honour to adjudicate, given that both parents evidence adequate parental capacity and that neither demonstrate significantly deleterious behaviours that might place the children in immediate risk. The risk of harm that the children face relates to the ongoing conflict between Mr Gorrie and Ms Smythe, with research observing that children’s emotional and behavioural well being is negatively impacted by ongoing post-divorce conflict (Ferraro et al., 2016), with conflict predictive of both internalising and externalising disorders (Cummings & Davies, 2002). Indeed, the DSM-IV has created a new condition, “Child Affected by Parental Relationship Distress” (DSM-IV, 2013) in response to this oft-observed phenomenon. From the accounts of both parents and the children’s teachers, X is already evidencing signs of distress through his behaviour, while Y experiences somatic complaints which are also likely associated with the conflict. School reports from subpoenaed material suggest that, for X at least, this distress was evidenced as early as April, 2015, while both ongoing school records, and those of Mr A (Psychologist, (omitted)) articulate X’s distress as being directly related to the interactions between his parents.
Ideally, parents are able to place the needs of the children ahead of their mutual antipathy and co-parent effectively. When this is not the case, psychotherapeutic interventions, such as Multi-Modal Family Intervention (Frielander & Gans Walters, 2010) may be employed to assist alignment of parenting goals in the service of meeting the children’s psychological and emotional needs. However, such interventions assume a degree of insight into the need for change. Neither Mr Gorrie nor Ms Smythe evidenced readiness to accept treatment or similar interventions in the author’s assessments, as demonstrated by their Treatment Rejection scores on the PAI.
Between the parents, Mr Gorrie has demonstrated the greatest capacity to incorporate the children’s needs into his personal circumstances. This was demonstrated across a number of situations. For example, at the point of greatest conflict, when Mr Gorrie took the children from (omitted) Primary School in January 2016 following Ms Smythe denying his agreed access, Mr Gorrie still enabled telephone contact between the children and their mother, as agreed by Ms Smythe in her affidavit dated 24/02/16. Consistently, Mr Gorrie supported an ongoing relationship between the children and Ms Smythe, identifying her as ‘a good mother’ (page 25, paragraph 1, lines 4-7 and paragraph 3, lines 28-31), indicating inclusive plans for Ms Smythe in any future parenting relationship (page 25, paragraph 3, lines 5-7 and page 35, paragraph 3, lines 26-33), and through the provision of documentary evidence of attempts to involve Ms Smythe in the lives of the children (additional material provided to the author).
In contrast, Ms Smythe has articulated her view that contact between the children and their father should be limited, advising the author that irrespective of where Mr Gorrie lived, she would not want contact to exceed 2 days per fortnight (page 20, paragraph 2, lines 7-12). Ms Smythe has repeatedly contravened extant orders, with Mr Gorrie's Contravention Affidavits including documentary evidence (see for example Orders dated 15/06/16 and Mr Gorrie's Affidavit dated 22/06/16), as well as obstructing attempts at flexibility in matters that might benefit the children (see Mr Gorrie's Affidavit dated 26/10/16). This was demonstrated directly to the author in relation to Ms Smythe alleging that she could not drop the children at Mr Gorrie’s home on her way back from (omitted) (en route) so that Y could attend a conference, due to her anxiety regarding travelling to new areas. This was contradicted in her Affidavit (10/05/16) where she offered to drive to Mr Gorrie’s home to collect the children (see also Mr Gorrie's Affidavit dated 26/10/16). Ms Smythe has stated that she wants Orders that leave no room for negotiation (page 22, paragraph 1, lines 1-5).
It is probable that both parents have involved the children in matters pertaining to the Court (see for example Child Inclusive Conference dated 12/05/16) and that both have lobbied for external support (see for example interview with (omitted) Primary School teachers). However, a consistent theme that emerged during the assessment was Ms Smythe’s inability to separate her identity as a person from that of her role as a parent. Ms Smythe said to the author that she “needs the children” (page 21, paragraph 4, lines 23-26: ‘Ms Smythe stated that she struggles to be by herself when the children go to their father. She believes that she used to be ‘just a mum’, but that now she is forced to be two different people – a mother and just Ms Smythe. She admitted that she gets sad when the children are away, stating that she “needs them”’). The notes of her Psychologist, Ms C, recorded Ms Smythe as saying that she is distressed by any lengthy separation from her children, while Ms Smythe stated in interview with the author that she viewed as “hurtful” comments from X that he might want to see more of his father (page 20, paragraph 6, lines 33-34).
Added to this is Ms Smythe’s discomfort in other’s being introduced into the children’s lives. During interview, Ms Smythe identified as the potential influence of Mr Gorrie’s mother as a trigger for her instigating litigation (page 19, paragraph 2, lines 11-13) and described Ms M (Mr Gorrie’s fiancé) as being “over bonded” with the children (page 20, paragraph 5, lines 25-28). Finally, during the Child Inclusive Conference, X disclosed to Consultant Ms K that his mother was “most angry” and that she wanted reduced contact with his father (12/05/16). Mr Gorrie has observed, since his affidavit of 11/05/16, and consistently since, that Ms Smythe seeks to remove him from the children’s lives, and there is significant evidence that this proposition has some verisimilitude.
The personal history obtained from Ms Smythe may serve to elucidate how she has arrived at this position. Ms Smythe articulated a childhood where her father showed no affection or bond, while her mother ‘self-sacrificed’ for the children. Ms Smythe recalled sleeping in her mother’s bed until removed by her father (as has X). She further articulated that her goal in life was to be a mother, that her relationships prior to Mr Gorrie ended due to her partner’s lack of commitment, and that Mr Gorrie’s shared vision of a family brought them together. Ms Smythe’s experiences would suggest that her ‘sense of self’ is inextricably aligned with her role as mother and that any obstruction to this anathema. It is not that Ms Smythe is a bad mother: it is that being a mother is her existence.
The author makes these observations in an effort to explain to His Honour how an otherwise very functional parent might engage in such a conflictual situation, which is causing harm to her children. According to the author’s assessments, neither parent, Ms Smythe included, have a diagnosable mental health condition. Yet despite continual assertions from the children that they want more time with their father, (see Consultant Ms K’s report 12/05/16), and Ms Smythe’s own acknowledgement of the same in interview, she remains resistant. X, according to Ms Smythe’s reports, is evidencing significant psychological and behavioural difficulties, in part supported by school reports. While neither X nor Y see themselves as in need, and Mr Gorrie does not perceive a problem for either child, Ms Smythe has consistently described X as experiencing behaviours consistent with anxiety, ADHD and Autism. However, while she connects these difficulties to issues associated with the conflict between her and Mr Gorrie, she sees no solution other than to minimise Mr Gorrie’s contact with the children.
The children, on the other hand, have consistently advocated for an increase in time with their father. At the Child Inclusive Conference, X sought ‘equal time’, while Y observed that she ‘liked Sydney’. Mr M, in his recent counselling of X (08/08/16) observed that X wanted more time with his father and the obstruction of which caused his anger. In the interviews with the author, Y volunteered that she was looking forward to spending time with her father over Christmas and that she wanted more time with her father. Indeed, Y said to the author that she “likes daddy more than mummy” (page 30, lines 1-2). X, through interview, demonstrated deep attachment with his father. He identified shared interests, describing his father as “awesome” (page 32, paragraph 1, line 2), and clearly articulating that he wanted to spend 60% of his time with his father. In short, there was clear evidence from both the authors’ interviews and those of others that the children seek more time with their father.
What also emerged from the assessment is that Ms Smythe is experiencing difficulties effectively parenting X. X’s physical assault upon his mother and the reports of Ms P indicating her struggles with his management attest to this. Further, the observation of Ms L that Y struggles to separate from Ms Smythe for fear that her mother may be distressed, and the observations of both the teachers and the children of Ms Smythe’s emotionality and anxiety, support the conclusion that Ms Smythe has difficulties managing the ambiguity of ‘shared care’. In contrast, neither child could identify fear or worry in their father. They described his parenting as setting limits and response to conflict as measured. Moreover, there was ample evidence, from both the author’s and other’s assessments, of a strong attachment with Ms M and with their step-brother Sam. The author’s observations of the Gorrie home environment confirmed this.
The author concludes that the children are experiencing significant distress as a result of the ongoing conflict associated with the parenting arrangements, and that in accordance with the literature, this distress has the likely potential of conveying long-term psychological and emotional harm upon the children. While neither parent is in and of himself or herself deficient in parenting skills, a co-parenting solution that relies upon mutual negotiation is unlikely to alleviate the children’s distress. The evidence would suggest that the father demonstrates the greatest insight into the needs of the children and has the best likelihood of facilitating relationships with both parents, and that his partner, Ms M, will support such behaviours. The author recommends that full Parental Responsibility be conferred to the father and that the children reside predominantly with the father. While this will entail a change of school for the children, and not-with-standing the teachers concerns about a change of school, the evidence is that X has effectively changed school in the past, that both the teachers and the mother supported the potential change to (omitted) Public School for the (omitted) Class, and that the father recognises X’s additional needs and has the resources to meet these in a private school environment. It is further recommended that the mother have contact with the children every second weekend, half school holidays, and alternating years special occasions. Further, it is recommended that the Orders include “as otherwise negotiated” to enable the father to enhance the mother’s access, as he has indicated as his intent.
The author acknowledges that this recommendation will be distressing for the mother, who genuinely cares for her children and with whom the children have a significant bond, but notes that the most likely best outcome for the children will be navigated by the father, including a maintenance of the relationship with the mother. In the event that the Court decides not to change the residential arrangements for the children (and thus their educational placement), it is recommended that the father have access 3 of every 4 weekends, including Sunday nights, plus ½ school holidays and alternate year special events. However, in the author’s opinion, this solution will perpetuate the ‘handover’ distress that the children experience. The author is of the firm opinion that any reduction of the father’s contact with the children is in opposition to the children’s wishes and needs.
As will be seen from the discussion of the cross-examination of Dr B, the most controversial aspect of his conclusions is that the Father had demonstrated the greatest capacity to incorporate the children’s needs into his personal circumstances and was more likely to support the children’s ongoing relationship with their mother if they were in his care.
Dr B had been instructed to respond to specific questions and he deals with this commencing from line 7 at page 43 through to line 43 on page 45;
Responses to Specific Questions
a.The benefit to the children of having a meaningful relationship with either parent or any other persons: The children have a clear attachment with both parents, and with Ms M and her son, A. In particular, X has a close connection with his father and shares many interests. The children will benefit from maintaining a relationship with each of these individuals.
b.The nature of the parents’ relationship and the impact of this relationship on the children: The parents’ relationship may be described as highly conflictual, although both Mr Gorrie and Ms M have evidenced attempts to normalise the relationship. The children are experiencing psychological distress as a result of this conflict.
c.Whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence: No
d.Any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views: Both the children expressed a desire to have increased access to their father. While Y’s views are limited by her age and level of maturity, X demonstrated an acute understanding of both process and affect, to the point of advocating for his sister. X consistently expressed a desire to spend more time with his father and identified his mother’s obstruction of such as a source of his anger (and behavioural disorder). In fact, X expressed a desire to have proportionately more time with his father than his mother. The author assessed both X’s intelligence and maturity as higher than his age cohort and is of the view that considerable weight should be assigned to his wishes.
e.The relationship between the children and each other and with each of their parents and any other relevant person: The children have a strong attachment with both parents. Further, while Y states that her relationship with X is strained, the weight that might be assigned to this observation is attenuated by her age. X, on the other hand, demonstrated specific regard to Y’s needs, evidencing a strong attachment to his sister. The siblings should not be separated. Further to this, both X and Y demonstrated an attachment to the father’s fiancé and to his fiancé’s son, with Y also identifying an attachment to the father’s fiancé’s granddaughter.
f.The willingness and ability of each of the children’s parents to facilitate and encourage a close continuing relationship between the children and the other parent: The father has demonstrated both a capacity and a willingness to support and encourage the children’s relationship with the mother. However, the mother has clearly and transparently articulated her view that the relationship between the children and their father ought be minimised.
g.The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living: The children have been living predominantly with the mother alone. X in particular has demonstrated behavioural reactions to limited contact with his father, and any enhancement of that separation is likely to escalate his behavioural response. Should the children be relocated to the father’s home, it is expected that Y will initially worry about her mother, however it is the author’s opinion that she will quickly accommodate, given her accommodation of the father’s relatively new relationship with his fiancé.
h.The capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs: Both parents display adequate parenting capacity. Further, the father’s fiancé demonstrates personal and professional resources to add value to the children’s lives. In the author’s opinion, the father demonstrates an enhanced capacity, by virtue of his fiscal status, to meet any additional needs of X, including educational.
i.The attitudes to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents (and any other relevant person): Both parents evidenced clear positive regard for the children and to their role as parents. However, the father demonstrated an enhanced ability to place the children’s needs before his own. In addition, the father’s fiancé demonstrated both a willingness and capacity to provide positive and appropriate parental support to the children.
j.The effect on the children of spending equal time, or substantial and significant time, with each parent having regard to the parent’s current and future capacity to:
a.Implement such an arrangement
b.Communicate with each other and resolve difficulties that might arise
The author is of the opinion that a shared parenting arrangement is not viable in the current circumstances, and this was endorsed by both parents. Given their reticence and inability to cooperate, coupled with the geographic constraints of their living situations, equal time is not in the best interests of the children. While, not with standing the geography, the father appears to have the capacity to implement such an arrangement, the mother does not and her inability is likely to have an ongoing deleterious effect upon the children’s well being. Further to this, there is ample evidence of the parents’ difficulties with simple communication.
k.The mental state of both the parents in so far as it relates to parenting issues: While neither parent evidenced pathology on psychometric assessments, there is substantial collateral information to suggest that the mother experiences debilitating anxiety, as observed by the school and the children. The effect of this anxiety is not upon her parenting capacity, but rather her co-parenting capacity.
l.Whether or not either parent has any physiological issue that may affect either parent’s capacity to care for the children or spend time with the children: No.
m.Whether or not any treatment or therapy is recommended for either parent or either of the children and if so, the nature of any treatment or therapy: No treatment is recommended for either parent that will ameliorate the current impasse with respect to co-parenting. While Multimodal Family Intervention can assist in high conflict situations, neither parent exhibits a capacity to effectively utilise such an opportunity. With respect to the children, there is sufficient data to suggest that a further assessment of ASD should be conducted for X, utilising best practice assessment techniques.
n.The extent to which each of the children’s parents have taken, or failed to take the opportunity:
a.To participate in making decisions about major long-term issues
b.To spend time with the children
c.To communicate with the children
Both parents have been independently assiduous in seeking supports for their children and engaging with them. The issues do not relate to their independent engagement with the children.
o.The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis: There is a substantial geographical barrier related to the father residing in (omitted), and the mother in (omitted). While this is not an issue outside of school hours, it does prevent shared care throughout the school week. The father is unable to relocate to (omitted) and the mother is unwilling to relocate to (omitted). This essentially means that there must be a custodial parent with respect to meeting the children’s educational needs. Hence, the maintenance of a relationship with the non-custodial parent is predicated upon the willingness and ability of the custodial parent to foster and support such a relationship. The evidence would suggest that the father is best placed to undertake this responsibility.
p.The maturity, sex. Lifestyle and background (including lifestyle, culture and tradition) of the children and of either of the children’s parents and any other characteristic of the children that are relevant: There are no cultural issues of import. The maturity of X exceeds his age relevant peers while Y is at age relevant standard. In terms of lifestyle, there are no impediments other than the father’s relationship with his fiancé, and her requirement as a member of the (employer omitted) to be located in or near (omitted).
q.Any family violence order that applies or has applied to the children or to a member of the children’s family: None to which the author is aware.
r.Any other matter the Court Expert considers relevant: The author notes that the children are currently highly functional but that the enduring distress associated with these proceedings places their mental health at risk. The author respectfully suggests that His Honour considers not including in orders any ambiguity that might perpetuate the parents’ negative discourse.
The Court notes that, even though it is no longer a specific s.60CC consideration, Dr B was asked to consider the willingness and ability of each of the children’s parents to facilitate and encourage a close continuing relationship between the children and the other parent. The Court will consider this evidence through the prism of parental insights and parental attitudes which are specific s.60CC considerations.
Dr B ultimately recommends that the Father should have sole parental responsibility and the children live predominantly with him. He recommends that the Mother spend time with the children each alternate weekend from Friday after school to before school on Monday, returning the children to school. He otherwise proposed that the children share school holidays and special occasions, and that there be additional contact at the Father’s discretion. In cross-examination, he clarified that he had no concerns about telephone communication between the children and their mother.
It must be noted that the Court is not bound by Dr B’s evidence. It is important evidence because it is both independent and expert. If the question were to be asked, “Are Dr B’s conclusions and recommendations supported by the material before him and within the confines of his professional expertise?”, the answer would be “Yes.” That does not mean that the Court needs to accept his conclusions and follow the recommendations because it could have a different interpretation of the same material. If the Court found, for example, that Dr B’s impression of the Father was in fact incorrect, the Court would have good reason not to accept his recommendation. If the Court found, for example, that the Father had not, in fact, demonstrated the greatest capacity to incorporate the children’s needs into his personal circumstances, the Court would place less weight on his report. If the Court found that, in fact, the Father could not be relied upon to facilitate and encourage the children’s ongoing relationship with their mother should they come into his care, then again the Court might place less weight on his report. If the Court found that Dr B misunderstood the evidence on which he made recommendations, the Court could nonetheless make orders consistent with his recommendations, but based on its own assessment of the evidence. But if that is not the case and, indeed, the Court accepts and agrees with Dr B’s impressions and conclusions about the evidence, then the Court would surely be reluctant to substitute its own view for that of an independent expert.
Dr B was carefully cross-examined by each Counsel. A number of matters emerged from the cross-examination, which can be summarised below:
·The parents are not capable of negotiation in relation to the children; most efforts of prior negotiations led to the exacerbation of conflict;
·Neither parent is willing to accept that they have problems with co-parenting and thus any therapeutic intervention with the purpose of enhancing this would be futile;
·The children’s preference for equal time was impractical given the geographical circumstances of the parents, but more significantly their inability to communicate;
·Dr B’s recommendations were his assessment of what was most likely to succeed in eliminating or reducing the parental conflict in this family;
·Dr B was quite strongly of the view that the Father was more likely to support the Mother’s time with the children than the reverse;
·Whilst the Father’s time with the children to date might be characterised as “fun” time, Dr B was of the view that there were clearly shared interests there, particularly with X;
·In the short term, there would be a significant impact on the children of relocating to their father’s home. Even though X is probably on the Autism Spectrum Disorder, he felt that both X and Y could cope. Indeed, on the Father’s evidence, there was the possibility of greater support for X’s special needs in a smaller school. In short, the children would cope with the change;
·Dr B was impressed by the Father’s partner, Ms M, who demonstrated the capacity to navigate stressful situations;
·On his proposal for the children to spend time with their mother, Dr B acknowledged that the children would miss their mother, but a benefit would be the reduction in parental conflict. Dr B seemed to have a commanding knowledge about the contents of Exhibit ‘A12’ - an agreed bundle of text messages between the parents that extended to nearly 170 pages. When asked to support his confidence that the Father would support the children’s relationship with their mother, he was able to specifically refer to text messages in support of that contention;
·Dr B was clearly of the view that both parents had difficulty in their parenting. His view was that the Father was marginally better than the Mother. He emphasised “neither is a saint” but was of the view that the Mother struggled more with shared parenting than the Father;
·He acknowledged that the Mother might have experienced the Father’s communication and manner as bullying and pointed out that the Father had a different cognitive style which was more black and white. Dr B acknowledged, however, that the Father was unlikely to see himself in this light;
·Dr B acknowledged that an ideal parent would be focused on the children, be emotionally and physically available, be able to respect the other parent, be flexible and not argumentative. Dr B said that, on balance, the Father came out ahead. His professional view was that the Father would be less argumentative than the Mother and more flexible than her:
·He repeated that the main driver for his recommendations was to reduce the children’s distress at being exposed at the parental conflict. He emphasised that, if nothing was done, the children would be increasingly damaged. It was necessary to alleviate this pressure on them;
·In cross-examination by Counsel for the Mother, Dr B readily acknowledged that, in some of the communications in evidence, the Father came across as persistent, angry and critical of the Mother, which could be experienced by the Mother as being controlling, bullying or manipulative. Dr B acknowledged that, in some of the communications, the Father’s persistence and sense of righteousness emerges. Equally, the Mother’s predilection to anxiety leads her to experience this as harassment when it might not objectively be so. Dr B explained, for example, that the Father’s persistence was a positive thing and was one indicator why he was confident that the Father would support the Mother’s relationship with the children;
·Dr B warned about failing to see communication between the parents in context and as part of the broader pattern of communication between them;
·It was put to Dr B by Counsel for the Mother that he had not been even handed with the Mother. For example, that he had asked questions of the Father but not of the Mother. Also that he could have pursued lines of enquiry in relation to the Mother which he did not. Dr B rejected that. The Court finds that even if there were examples of inconsistent methodology, this does not detract from Dr B’s ultimate conclusions which are, in any event, consistent with those of this Court; and
·If his recommendations were to be implemented, he saw no sense in a gradual implementation of the same. It would be better for his orders to be implemented from the commencement of the school term.
In closing submissions, the Counsel for the Independent Children’s Lawyer urged the Court to be cautious in accepting Dr B’s recommendations about the children living with their father. The Independent Children’s Lawyer was particularly concerned about the impact on the children of such a drastic change in their circumstances, despite the Expert’s opinion that the children would cope. Of greater concern, it seemed, was Dr B’s confidence that the Father was more likely to support the children’s relationship with their mother than the reverse.
Counsel suggested that this was inconsistent with the evidence that the Court heard from both parents. The children living permanently with their father was an untested arrangement. There were benefits to the children of living with him including the possible reduction in conflict between the parents, but there was also uncertainty about the Father’s capacity to support the emotional needs of the children.
The Independent Children’s Lawyer was concerned about the Father’s communication style which, Counsel described, as using repetition until the Mother acquiesced. The concern was that this communication style would apply to the children as it has applied to the Mother.
In short, Counsel for the Independent Children’s Lawyer’s submission was that the basis for Dr B’s opinion was slim at best and that the evidence in fact indicated that the Father had little capacity for cooperative and flexible parenting. Dr B’s recommendations seem to be based on a hope, rather than a reality reflected in history.
Mr Schonell, Counsel for the Mother, iterated many of the same concerns. He submitted that because so much of Dr B’s conclusions and recommendations were based on findings of the parents’ behaviour, the Court should, in fact, prefer the Mother’s evidence over that of the Father. The Court does not accept this, of course, having equal reservations about the evidence of both parents. Indeed, the Court’s impression was that for every criticism that the Father’s Counsel made of the Mother’s evidence, a similar criticism could be made of the Mother’s evidence.
In relation to Dr B’s report, Counsel urged the Court to place no weight on it at all. He urged the Court to form its own assessment of the comparative conduct of the Mother and the Father, and form its own impression of any confidence as to one’s ability to foster and encourage the other’s relationship with the children. The Court in fact has done so, and reached the same conclusion as Dr B.
Ms Gillies’ submissions in relation to Dr B’s report was that it should be accepted. The children, particularly X, had expressed views which needed to be heard and implemented consistent with Dr B’s report. Dr B was well-aware of the potential impact of a change of residence on the children and nonetheless supported it. She openly acknowledged that the conduct of both parents in the past was abominable but the change proposed by Dr B gives the children a more positive way to move forward, protected from conflict, and where their interests are prioritised.
One incontrovertible concern that Dr B had recognised was the Mother’s inability to contain her own psychological distress and her inability to adequately manage X’s behaviour, let alone her involvement of him in the proceedings. Senior Counsel submitted that there was more than adequate evidence to support Dr B’s impression of the Mother as being an active participant in a toxic parental conflict. Senior Counsel submitted that the transition of care into the Father’s household would be greatly facilitated by the involvement of Ms M, the Father’s partner, who was both insightful and child-focused. Senior Counsel submitted that Dr B was proposing a solution that would be painful to the children in the short term, but ultimately beneficial to them in the long term. She described Dr B as an impressive witness whose evidence should be accepted and whose assessment of the parents was quite consistent with the evidence before the Court. In fact, Senior Counsel was quite critical of both the Independent Children’s Lawyer, and the Mother for their very subjective assessment of the parents’ evidence, pointing to the Father’s flaws, whilst ignoring all of those of the Mother.
Meaningful Relationship
On any objective view of the evidence, the children enjoy a meaningful relationship with both their mother and father. The importance of this prospectively was self-evident to all the parties in this case. Whilst there appeared to be a subtle theme in the Mother’s case that the meaningful relationship that she has with her children will be lost if they move with their father, it never emerged as more than a subtle theme. The much-louder submission was that the Father lacked the capacity to facilitate and encourage the children’s ongoing relationship with their mother.
This will be discussed in more detail below, but the Court will find there is no merit to any such argument. When all of the evidence is reviewed in its totality, the Court has no concerns that the children’s meaningful relationship with both parents would continue on either of the scenarios proposed by the parents. Specifically, this Court does not believe that the children will lose their meaningful relationship with their mother in any prospective sense should they go to live with their father.
Protecting the Children from Harm
Dr B was quite correct in suggesting that the only risk of harm to these children is continued exposure to the parents’ conflict. It is possible, indeed, that Dr B had a more limited opportunity than this Court to observe the parents over extended periods of time in the witness box, and to step back and watch how their cases unfolded, such that he may well have failed to appreciate the full extent of the toxicity and intractability of the parental conflict. Dr B was quite right in warning of the dangers to these children of continued exposure to this conflict.
In its opening comments, the Court expressed the view that something must be done to change the current unacceptable situation in which the children find themselves. Dr B opined, and this Court completely agrees, that the parents do not have the capacity to change themselves, or their attitudes towards each other. In the Father’s case, he proposed that the change needed to protect these children from ongoing exposure to parental conflict is both a physical and emotional one. His case was implicitly, if not explicitly, based on the premise that, short of a significant change in the parental dynamics or family circumstances, nothing would change, and these children would continue to be exposed to parental conflict. It is much harder to discern what change the Mother posits will bring peace to this family. In effect, her case seems to be that maintaining the status quo, or a version of it, coupled with the cessation of this litigation by the making of orders would somehow make a difference in the lives of these children. The Court does not agree. Indeed, the Court is quite concerned that the cessation of these proceeding will not abate the parental conflict.
The Court’s focus, therefore, is finding a scenario in which it can be as satisfied as possible that the children will be protected from the parental conflict. This involves an assessment of parental capacity, insights and attitudes. It involves a prognostication of the future, based on past behaviour and events. Ultimately, as will become apparent below, when that assessment is undertaken, the Court forms a view consistent with that of Dr B, i.e., in effect, that the children will have a better chance of being protected from the parental conflict in the Father’s household.
Insofar as the Mother’s case was based on there being family violence, neglect or abuse from which the children needed to be protected, her case is not made out. Whilst the Court is prepared to accept that the Mother experienced the Father’s communication, and thus his behaviour as sometimes controlling, manipulative and unilateral, the Court doubts very much whether, even if it accepted that the Mother had an objective basis for so feeling, that it constitutes family violence for the purposes of s.4AB of the Act.
The pandemic of poor communication, lack of trust and inability to agree that exists between these parents does not, somehow, elevate it to family violence in the statutory sense. Dr B was quite correct in saying the risk to these children is from the behaviour of their parents towards each other, and not abuse, neglect or family violence as interpreted in the Act.
The Views of the Children
The best evidence about the children’s views is Dr B’s report. Anything that either parent says in their evidence about the children’s views is plainly unreliable from the Court’s perspective. It seems both children want to spend more time with their father. X’s views, in particular, appear quite firm and consistent.
This case will not be decided merely by reference to the children’s views, but it is a factor to be taken into account. The Father’s proposal is aligned consistently with the children’s views. The Mother’s proposal does not seem to take their views into account. The Court accepts that the scenario proposed by the Father goes beyond what the children, even X, have suggested.
The Nature of the Children’s Relationships
There seems no dispute between the parents that each parent has a good relationship with the children and vice versa. The Mother did not seriously put in contention what appears to be a good relationship between the children, Ms M, and her son, A. It seems as if there is a good relationship between the children and Mr R, the Mother’s partner. Whilst there is some evidence to suggest that, at times, Y’s relationship with X is strained, the Court places no weight on this in terms of its decision. No one suggested the siblings should be separated.
Dr B did raise some concern about the nature of the Mother’s relationship with the children at page 41 of his report, lines 10-19. Whilst this has already been reproduced below, it bears revisiting in the present context:
However, a consistent theme that emerged during the assessment was Ms Smythe’s inability to separate her identity as a person from that of her role as a parent. Ms Smythe said to the author that she “needs the children” (page 21, paragraph 4, lines 23-26: ‘Ms Smythe stated that she struggles to be by herself when the children go to their father. She believes that she used to be ‘just a mum’, but that now she is forced to be two different people – a mother and just Ms Smythe. She admitted that she gets sad when the children are away, stating that she “needs them”’). The notes of her Psychologist, Ms C, recorded Ms Smythe as saying that she is distressed by any lengthy separation from her children, while Ms Smythe stated in interview with the author that she viewed as “hurtful” comments from X that he might want to see more of his father (page 20, paragraph 2, lines 10-11).
There was no challenge to this part of Dr B’s report. The impression created from Dr B’s comments leads the Court to be concerned about the Mother’s over-dependence on the children. This hypothesis of over-dependence raises questions about the Mother’s ability to maintain boundaries between, for example, her needs and the children’s needs. For example, Dr B refers to subpoenaed material from the Mother’s psychologist at page 7 of his report, lines 19-22, which is only partially extracted at page 41 (above). The sentence not extracted at page 41 states:
Ms Smythe stated again she felt the cycle of a parenting plan was too long for her and the children and that it could not stay like this.
In footnote 4, on page 7, this lead Dr B to make an observation:
For present purposes, what this note suggests is that the nature of the mother’s possibly over-dependent relationship with the children means she struggles to see the difference between the children’s experience of their time with the father, and her own experience of the same.
Participation in Decision-making, Time and Communication
Both parents are hardly good role models as co-parents. They both acted unilaterally at times in making decisions about their children. Each has unilaterally ceased the other’s time with the children. This consideration is subsumed to the broader issues of dysfunction in the parental relationship. Any attempt by either parent to suggest that the other’s failures were greater than their own is wishful thinking.
The Father was cross-examined about the parenting arrangements he would put in place if his proposal was accepted by the Court. He insisted, for example, that if there was an emergency at school, he had the requisite flexibility at work to be able to attend. Whilst this is not an issue that is completely free from doubt, the Court is satisfied that the combination of the resources of the Father and his partner, Ms M, would be adequate to deal with day-to-day parenting of the children, including meeting the unexpected.
In this part of the Reasons for Judgment, the Court has been exploring the evidence insofar as it enables it to make findings about parental attitudes, insights and parental capacity. Both parents face challenges in this regard. There is much that both need to work on. There is little reassurance to the Court that these parents are emerging from the quagmire of their conflict. When all the evidence is carefully considered and weighed in the balance, the Court agrees with Dr B’s assessment that the Father comes out as slightly more insightful and slightly more attuned to the needs of the children than the Mother. His proposal offers, in effect, a circuit breaker for the children, a new start, a new home, a new school, a new community, but most importantly, a move into an environment where they will be less exposed to, and more protected from, the parental conflict that exists between their parents.
Despite this criticism, it bears remembering that both parents are good parents. They have done a good job in raising these children so far and, in their individual capacities, they are both high functioning. It is as co-parents that their relationship is problematic.
Family Violence
These Reasons for Judgment have mentioned the Mother’s allegations of family violence at several points. The Court does not accept that the conduct of the Father, particularly in his communication with the Mother, is family violence as defined in the Act. Even if it were, it would not be of a degree that would warrant the Court concluding that the children at any risk of harm from this family violence. The Court restates that it has no doubt that the Mother experienced the Father to be controlling, verbally abusive, demeaning and condescending. Indeed, often he was. The Court finds that the Mother had a tendency to exaggerate, thus rendering her evidence less reliable when it came to her allegations about the Father’s conduct. For example, at paragraph 140 of her trial affidavit, she is critical of the Father for, in effect, forcing her to agree to proposals for time during those school holidays. In cross-examination, she said that she thought he was domineering and bullying in the context of negotiating that arrangement. When presented with the relevant email correspondence (Exhibit ‘R3’), she was forced to agree that the communications in relation to the school holidays were pleasant, polite and consultative. They were far from the domineering and bullying that she was so quick to accuse him of.
The Order Least Likely to Lead to the Institution of Further Proceedings
In a high-conflict relationship such as this one where the Court is not confident that the conflict will necessarily abate by the conclusion of the proceedings, there is always the risk that the matter will come back to Court. There are a number of likely flashpoints for future litigation. There is the prospect of an appeal for which the Court can make no provision. It is possible there will be difficulties in the contact arrangements that are put in place. The children may move through developmental stages, particularly into puberty and beyond, where the parenting arrangements need to be reconsidered. There may be non-compliance with orders. The Court is conscious of all of these things. The orders to be made need to be prescriptive.
In the Mother’s case, there was a hint of concern that the Father’s partner would be redeployed within the (employer omitted), thus prompting a relocation application. That is not the evidence before the Court and thus is not a reason not to make the order that the Court otherwise believes to be in the best interests of the children.
Parental Responsibility
The evidence overwhelmingly points towards one parent having sole parental responsibility, though with an obligation to keep the other informed about decisions made in relation to the children. The communication between the parents is totally dysfunctional. Their inability to make joint agreements in the best interests of the children has already prejudiced them in terms of decisions about medical care, psychological care and schooling. It cannot possibly be in the best interests of these children for their mother and father to share parental responsibility. Regrettably for the children, the parents have demonstrated themselves incapable of doing so. The evidence that has been discussed above demonstrates this graphically.
Order in the Best Interests of the Children
This is a difficult and unfortunate case. Having considered the evidence and applied the relevant law, the Court believes that it is in the best interests of these children that they live with their father, even though that means a relocation and significant change in their lives. The Court accepts Dr B’s evidence that, on balance, the children are better off with their father, in whose household their relationship with their mother will be facilitated and encouraged and where there will be greater protection from the otherwise insidious impact of parental conflict.
The children should live with their father and, despite the time of year at which this judgment is being published (shortly before the commencement of school term 1, 2018), the change should be an immediate one.
A difficult issue is what time the children should spend with their mother. In cross-examination, the Mother said that, should the order be that the children live with their father, she would want to spend time with the children in accordance with what she had proposed for the Father if the children lived with her, i.e. on three out of four weekends from Friday after school to before school on Monday. However, the minute of order submitted on her behalf on day 6 in fact proposes two weekends out of three. Nothing turns on this.
The Independent Children’s Lawyer’s proposal was that the Father spend time with the children for three weekends out of four. The Court infers that, if the children were to live with the Father, the same proposal would pertain to her time with him.
The Father’s proposal was that the children would live with their mother each alternate Friday from after school to before school on Monday. The Court notes, however, that if the Court had ordered the children to live with the Mother, he would have sought three weekends out of four.
Dr B’s recommendation was that if the children live with their father, they should spend time with their mother each alternate weekend from after school on Friday to before school on Monday.
Whilst there are slight differences in form, all parties are in principle agreed about equality of sharing school holidays and special occasions. Thus, the focal point for the Court’s decision is what time the children should spend with their mother during the school term.
X and Y have been exposed to much parental dysfunction for too many years. Whilst they appear to have successfully navigated the travelling between the home of the Mother and the Father, both parents have observed some of the difficulties they have experienced. Indeed, as noted in these reasons, the Mother has sought to attribute some of X’s behavioural issues to the travel, something that Dr B has firmly rejected, as does this Court. Nonetheless, the Court accepts, based on its own experience, that spending up to three hours in a car after school on Friday and then before school on Monday can be a significant burden for children, let alone X and Y, given the difficult journey they have been on.
The Court would like to make a durable order. The Court believes its order will be less durable if X and Y are subject to having to travel more than each alternate weekend. The risk is that, as they grow older, they will resent the journey and thus resist spending time with their mother, notwithstanding the obvious importance of this. The risk is that, as they individuate and start to decide for themselves how they would like to spend their weekend time, the greater frequency becomes problematic.
This Court therefore believes that an order for alternate weekend time, as proposed by the Father, is, in fact, an order that is more sustainable in the long term. The Court does not accept that the quality of the children’s relationship with their mother will diminish by the contact only being each alternate weekend. Dr B certainly did not think that this would be the case.
Ironically, the Court believes that the children will actually have a better relationship with their mother if they are only seeing her once each alternate weekend. It is an arrangement that is more likely to last in the long term. Of course, there will be opportunities for communication between alternate weekends.
The parents are asked to consider what it has been like for X and Y to travel from one home to another. It is not just a physical journey. It has often been a fraught emotional journey. They have been traversing the no-man’s-land that the Court referred to in its opening comments. They were not just moving from one physical space to another. They were moving to a significantly different psychological space. It has not been easy for them. The parents should earnestly consider how they can assist their children to navigate not just the physical, but emotional distance between their homes in future.
The Court will make orders in terms of the minute proposed by the Father, including the orders for school holidays and special occasions.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 19 January 2018
Schedule 1
The Mother’s Proposed Minute of Order
That all previous parenting orders be discharged.
That the mother shall have sole parental responsibility for the children, X, born (omitted) 2006 and Y, born (omitted) 2009.
That the children live with the mother.
That the father spend time with the children as follows:-
(a)During NSW Public School terms:-
(i)For two weekends out of three on a rotating pattern as follows:-
A.On week one, from the conclusion of school or 3pm Friday until 6:30pm Sunday (2 nights);
B.On week two, from the conclusion of school or 3pm Friday until 6:30pm Sunday (2 nights);
(ii)The three week cycle will be suspended during each school holiday period at the conclusion of terms 1, 2 and 3and will recommence gain at the beginning of the school term as though the cycle was not otherwise suspended.
(iii)The three week cycle will be suspended during the Christmas school holidays, and will recommence again at the beginning of each school year from week one in the cycle to occur on the first Friday of Term 1 each year.
(iv)Such further times as may be agreed between the parents from time to time.
During the NSW public school holiday periods:
(a)During the school holiday periods at the conclusion of terms 1, 2 and 3, from the conclusion of school, or 3pm, on the last day of the school term until 5pm on the middle Saturday of that school holiday period.
(b)During the Christmas school holiday period:-
(i)In even numbered years, from the conclusion of school, or 3pm, on the last day the children are required to attend school until 7.00pm on 25 December and from 7.00pm on 8 January until 7.00pm on 22 January.
(ii)In each odd numbered year, from 7.00pm on 25 December until 7.00pm on 8 January and then from 7.00pm on 22 January until 6.00pm on the Sunday prior to the commencement of Term 1.
(c)On the following special occasions:-
(i)From the conclusion of school, or 3pm, on the Friday prior to Father’s Day until the commencement of school or 9am, the day after Father’s Day each year.
That the Father’s time with the children be suspended from the conclusion of school, or 3pm, on the Friday prior to Mother’s Day until the commencement of school or 9am, the day after Mother’s Day each year.
The parents shall make the children available between 6.30pm until 7.00pm for a phone, Skype/Facetime call or online gaming or other communication with the parent and members of that parent’s household with whom the children are not living with on that day and the other parent shall ensure that the children are provided privacy during such calls.
That the children be at liberty to contact the other parent or any member of either parent’s family at any time the children make a request to either parent and the parents shall facilitate such communication.
For the purpose of facilitating the father’s time with the children pursuant to these Orders, changeover shall take place as follows:-
(a)At the children’s school/s if the children are attending school that day; and
(b)In the event the children are not attending school, the father or his nominee shall collect the children from the mother’s residence at the commencement of his time with the children and the mother or her nominee shall collect the children from the father’s residence at the conclusion of the father’s time with the children;
(c)Such other location as may be agreed between the parents in writing from time to time.
For the purpose of communication between the parents, the parents shall communicate by email, unless in the case of an emergency in which case, communication shall be by telephone.
That each parent be restrained by injunction from:
(a)Denigrating the other parent in the presence or hearing of the children and shall immediately remove the children from the presence of any other person who does so;
(b)Denigrating any other person with whom either parent has a relationship with, including members of the other parent’s family, and shall immediately remove the children from the presence of any other person who does so.
That each parent is to provide the other parent full particulars of any medical practitioner, health service provider, or institution attended by the children, and these orders operate as the authority of both parents to enable either parent to obtain all information concerning the children.
That each parent is to provide the other parent full particulars of any school attended by the children, and these orders operate as the authority of both parents to enable either parent to obtain all information concerning the children.
That both parents are at liberty to attend all educational and sporting/extra-curricular events that the children participate in and which parents are invited to attend.
That each parent will ensure the other parent is kept informed of:
(a)Any serious medical problems or illnesses suffered by either child;
(b)Any medical emergencies involving either child;
(c)Any medication that has been prescribed for either child that needs to be taken during the time the child is with the other parent, with the other parent to be notified at the time of changeover;
(d)Any specialist appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor, or therapist regarding either child, with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified as soon as reasonably practicable);
(e)The outcome of any specialist appointments referred to in Order 15(d) above within 24 hours of the child’s attendance at the appointment.
(f)Any extra-curricular activities, and special events, including, but not limited to, school events and/or functions as may relate to either child;
(g)Any other matters relevant to the welfare of the children, with either parent to be notified as soon as is reasonably practicable.
(h)The residential address, email address and contact phone number of the parent and any change to these details within 7 days of such change.
In the event that either parent wishes to take the children on a family holiday then the travelling parent shall:-
(a)Provide the non-travelling parent with at least 14 days written notice of their intention to travel within Australia;
(b)Provide the non-travelling parent with at least 28 days written notice (unless in the case of an emergency in which case notice shall be as soon as possible) of their intention to travel internationally with the children;
(c)Provide a copy of return tickets, travel itinerary and contact details for the children whilst travelling no later than 14 days from the date of departure.
Both parents shall do all things and sign all documents necessary to obtain passports for the children and shall do all things necessary to renew any such passports prior to their expiry and both parents shall equally share the cost of obtaining/renewing such passports.
That the children’s passports be held in the possession of the mother during any time the children are not travelling internationally.
For the purpose of the children travelling internationally with the father, the mother shall provide the passports to the father within 48 hours of the father’s compliance with Orders 16 (b) and (c) above and the father shall return the passports to the mother within 48 hours of the children’s return to Australia.
Dated: 04 / 12 / 2017
Schedule 2
The Father’s Proposed Minute of Order
That the Father have sole parental responsibility for the children of the marriage namely X born (omitted) 2006 and Y born (omitted) 2009.
That the children live with the Father at all times they are not otherwise living with the Mother.
That the children live with the Mother at all times as agreed between the parents but otherwise as follows;
(a)During School Terms;
(i) Each alternate Friday from after school or 3pm until before school or 9am on the first school day of the following week, with the pattern of care to recommence the first Friday after the commencement of each school term.
(b)During School Term Holidays for Terms 1, 2 and 3;
(ii) For one half of the Terms 1, 2 & 3 school holiday periods from after school or 3pm on the last day of the school term until 7pm on the middle day of the holiday period.
(iii) In the event that a term holiday period consists of an even number of days, the last day of the first half of the holiday period shall constitute the middle day.
(iv) That the time in Order 3a be suspended during each school holiday period.
(c)Christmas Holidays;
(v) In each odd numbered year from after school or 3pm on the last day of the school year until 7pm on the middle day of that holiday period (inclusive of Christmas and New Years).
(vi) In each even numbered year from 7pm on the middle day of the holiday period until before school or 9am on the first day of the first school term.
(vii) In the event that a Christmas holiday period consists of an even number of days, the last day of the first half of the holiday period shall constitute the middle day.
(d)For Mother’s Day in the event that the children are not otherwise living with the Mother on that weekend from 7pm Saturday until 9am or before school on the following Monday.
(e)For the Easter Long Weekend;
(viii) In each odd numbered year the entire Easter Long Weekend (including Good Friday, Easter Saturday, Easter Sunday, Easter Monday and any adjoining public holidays)
(ix) That the time in Order 3a be suspended during this weekend and recommence as though the cycle was not otherwise suspended.
(x) That in the event that the Easter Long Weekend occurs during a school holiday period Order 3e shall take precedence over Order 3b.
That changeover take place as follows;
(a)That at the commencement of the children’s time with the mother, the mother or her nominee shall collect the children from their school on school days, and the father or his nominee shall deliver the children to the mother’s home on non-school days. In the event that the mother is unable to collect the children from the school at 3pm on school days for any reason, the father shall facilitate the mother or her nominee collecting the children from his home at a later time on that day.
(b)That at the completion of their time with the mother, the mother or her nominee shall deliver the children to their school on school days, and the father or his nominee shall collect the children from the mother’s home on non-school days. In the event that the mother is unable to deliver the children to their school by 9am on school days, the father or his nominee shall collect the children from the mother’s home at 7pm on the evening prior.
That in the event that the Court does not make an Order for the children to live with the Father, as an alternate Order he seeks the following;
That the parents have equal shared parental responsibility for the children of the marriage namely X born (omitted) 2006 and Y born (omitted) 2009.
That the children live with the Mother at all times they are not otherwise living with the Father.
That the children live with the Father at all times as agreed between the parents but otherwise as follows;
(a)During School Terms;
(xi) For three weekends out of four on a rotating pattern as follows:-
(A) On week one, from 5pm Friday until before school or 9am the following school day.
(B) On week two, from 5pm Friday until before school or 9am the following school day.
(C) On week three from 5pm Friday until before school or 9am the following school day.
(xii) The four-week cycle will be suspended during each school holiday period and will recommence again at the beginning of the school term as though the cycle was not otherwise suspended.
(xiii) The four-week cycle will be suspended during the Christmas holidays, and will recommence again at the beginning of each school year from week one in the cycle to occur on the first Friday of Term 1 each year.
(b)During School Term Holidays for Terms 1, 2 and 3;
(xiv) For one half of the Terms 1, 2 & 3 school holiday periods from 7:00pm on the middle day of the holiday period until before school or 9am on the first day of the following school term.
(xv) In the event that a term holiday period consists of an even number of days, the last day of the first half of the holiday period shall constitute the middle day.
(xvi) That the time in Order 6a be suspended during each school holiday period.
(c)Christmas Holidays;
(xvii) In each even numbered year from after school or 3pm on the last day of the school year until 7pm on the middle day of that holiday period (inclusive of Christmas and New Years)
(xviii) In each odd numbered year from 7pm on the middle day of the holiday period until before school or 9am on the first day of the first school term.
(xix) In the event that a Christmas holiday period consists of an even number of days, the last day of the first half of the holiday period shall constitute the middle day.
(d)For Father’s Day in the event that the children are not otherwise living with the Father on that weekend from 7pm Saturday until 9am or before school on the following school day.
(e)For the Easter Long Weekend;
(xx) In each even numbered year the entire Easter Long Weekend (including Good Friday, Easter Saturday, Easter Sunday, Easter Monday, and any adjoining public holidays).
(xxi) That the time in Order 3a be suspended during this weekend and recommence as though the cycle was not otherwise suspended.
(xxii) That in the event that the Easter Long Weekend occurs during a school holiday period Order 3e shall take precedence over Order 3b.
That changeover take place as follows;
(a)That at the commencement of the children’s time with the father, the mother or her nominee shall deliver the children to the father’s home on both school and non-school days. In the event that the father or his nominee is able to collect the children from their school at 3pm on a school day, the mother is to facilitate this.
(b)At the completion of the children’s time with the father, the father or his nominee shall deliver the children to their school on school days or to the mother’s home on non-school days. In the event that the father is unable to deliver the children to their school by 9am on school days, the father shall deliver the children to the mother’s home by 7pm on the evening prior, and the mother shall facilitate this.
Ancillary Orders sought:
That each parent be at liberty to contact the children via telephone or other electronic means such as Skype at any reasonable time when the children are in the other parent’s care and such parent shall facilitate such contact by making the children available to speak with that parent.
That the children be at liberty to contact the other parent or any member of either parent’s family at any time the children make a request.
Pursuant to s. 68B and s. 67ZC, the Mother and Father are hereby each restrained by injunction from:
(a)abusing, insulting or denigrating the children, or any of the other parties, or a member of their family or household to or in the presence of the children, and from permitting another person to do so;
(b)discussing any allegation made or evidence given in these proceedings to or in the presence of the children and from permitting another person to do so;
(c)exposing the children to any form of domestic violence including verbal violence or using abusive language to, within, or in the hearing of the children;
(d)physically disciplining or striking the children.
The Mother is to enrol in and participate in a Parenting Orders Program within three (3) months of the date of these Orders.
The Mother is restrained from obtaining referrals for the children or making any appointments for the children to attend upon a psychologist, counsellor or family therapist without the written consent of the father in advance of and prior to any referral being obtained and if that consent is obtained the parents are to firstly agree on the person who ought be appointed and if they cannot agree then the Father will attend upon the child’s GP to obtain the referral and will otherwise be guided by the GP’s recommendation.
That the parents will keep the other informed of the following, as soon as reasonably practicable;
(a)Appointments regarding the children and attendances upon Doctors or any treating professional
(b)Any medications which are prescribed for the children at any time
(c)Any diagnosis regarding the children as to any health issues as soon as possible
(d)Any hospitalisations as soon as it is reasonably practicable to do so
(e)All referrals to specialists
That each parent inform the other parent of all school correspondence, reports or other related documents within 48 hours of the information becoming available. Any costs associated with photographs will be borne by the receiving parent.
That prior to taking the children interstate or overseas each party must inform the other party of the itinerary no less than 30 days prior to the travel date. Periods of travel are to only occur during the scheduled periods of time that the children are with each respective parent unless otherwise agreed between the parents.
If either party wishes to seek to apply for a visa or further passport for the children both parents must do all acts and attend all duties and sign all forms required to facilitate such purpose within 14 days of a request to do so.
That at all times the children are not otherwise travelling with their passports the Father is to retain those passports.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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