Spiteri and Walker (No 2)

[2017] FamCA 912

FAMILY COURT OF AUSTRALIA

SPITERI & WALKER (NO. 2) [2017] FamCA 912

FAMILY LAW – CHILDREN – Parental responsibility – Where the parents correctly identify they are unable to share parental responsibility equally or at all – Where both parents have capacity to meet the children’s needs – Where the father is able to shield the children from the parental conflict by not criticising the mother to them or showing disrespect for her – Where the mother is less attuned to the independent relationship each child has with the father – Where the mother has caused loss to the children of activities with the father and extended family – Where the mother has been restrained from filing any contravention applications without the prior leave of a judge of the Family Court of Australia – Ordered the father have sole parental responsibility for long term issues – Where no order is made as to whom the elder child should live or spend time with due to the child’s age – Ordered the younger child continue to live with the mother and spend time with the father

Family Law Act 1975 (Cth) ss 60CC, 64B

APPLICANT: Ms Spiteri

RESPONDENT: Mr Walker

FILE NUMBER: PAC 5808 of 2017

DATE DELIVERED: 13 November 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Cleary J

HEARING DATE: 31 July;1- 3 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Daniel

SOLICITOR FOR THE APPLICANT: Matthews Folbigg Pty Ltd

COUNSEL FOR THE RESPONDENT:	Mr Guterres
SOLICITOR FOR THE RESPONDENT:	G & D Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

Orders

1. That all prior parenting orders made in this Court and in the Federal Circuit Court in relation to:

   C born … 2000 (“C”); and

   D born … 2006 (“D”);

   together known as “the children”, are discharged.

Parental Responsibility

1. That the father have sole parental responsibility for long term decisions involving the care, welfare and development of the children, including but not limited to:

   2.1The school which D will attend for her secondary education;

   2.2The participation of the children, or either of them, in the sport of scuba diving and in other water based activities;

   2.3Specialist medical treatment for the children, or either of them;

   2.4Any future extra-curricular activity in which D is to be enrolled NOTING that the father agrees to her participation in football;

   2.5Obtaining passports for the children, or either of them, pursuant to the Australian Passports Act 2005; and

   2.6Overseas travel with the children, or either of them.

2. Each of the parents has parental responsibility for the day to day care of D when she is living with him or her.

Residence and Time

1. Unless otherwise agreed between the parties in writing D shall live and spend time with the parents as follows:

   4.1During term time D shall live with the mother and spend time with the father from after school Friday to commencement of school Tuesday each alternate weekend.

   4.2During school holiday periods D shall live with each of her parents alternately from after school Friday (or 5.00 pm on a non-school day) until before school the following Friday (or 5.00 pm on that day if a non-school day).

2. Notwithstanding any other order D shall spend time with each parent as follows:

   5.1The father:

   (i)The weekend upon which Father’s Day falls for the whole weekend from the conclusion of school on Friday until the commencement of school on Monday; and

   (ii)During the Christmas period each year from 3.00 pm on 31 December until 10.00 am on 2 January each year.

   5.2The mother:

   (i)The weekend upon which Mother’s Day falls for the whole weekend from the conclusion of school on Friday until the commencement of school on Monday; and

   (ii)During the Christmas period each year from 3.00 pm on 24 December until 10.00 am on 26 December each year.

Changeovers

1. Changeovers shall take place from school and for changeovers when D is not at school (for example due to illness) or is not required to be at school (for example on public holidays and during school holidays) the collecting parent shall attend at the home of the delivering parent at the time stated in these orders and the delivering parent shall ensure that the child is present and ready for collection.

Communication

1. That each of the parents shall within 7 days of the date of these orders provide to the solicitor for the other parent a mobile telephone number suitable to receive text communications relating to urgent issues involving the welfare of the children and thereafter any proposed change of mobile telephone number shall be advised directly by each parent to the other.

Doctor for children

1. The father shall advise the mother by text to the telephone number supplied pursuant to Order 7 the name and address of the medical practice nominated by him for attendance by the children, or either of them, including the name of the general practitioner of choice at that practice.

2. Other than in a genuine medical emergency each parent shall cause the children to attend the medical practice nominated by the father pursuant to Order 8.

3. In the event the children or either of them are hospitalised the parent with whom the child is living at the time of accident/illness leading to hospitalisation shall advise the other parent immediately on the telephone number provided pursuant to Order 7.

Schools

1. The father (or the solicitor for the father on his behalf) shall provide a copy of these orders to the principal of the school attended by each child.

2. C shall continue to attend N School in Suburb O and D shall continue to attend P School unless otherwise agreed in writing by the parties.

3. The father shall authorise the school/s which the children attend to provide to the mother copies of all documents relating to the welfare and progress of the children at school NOTING that it will then be a matter for the school/s as to documents provided.

4. The father shall before the commencement of Term 3 in 2018:

   (a)Advise the mother in writing of the secondary school in which he proposes to enrol D;

   (b)       Invite any response within a nominated period of time;

   (c)Consider any views of the mother, contrary or otherwise, if provided within the nominated time; then enrol D at school; and

   (d)       Advise the mother of the decision taken.

5. At the time of enrolment of D in her secondary school the father shall:

   (a)       Provide to the principal a copy of these orders; and

   (b)Include the name and known contact details of the mother in the Enrolment Application.

6. Subject to any restriction imposed by the school each parent is entitled to attend events at school to which parents are invited at the school/s attended by the children.

Passports

1. The father may apply for and execute an application for an Australian travel document (Passport) for the children or either of them without obtaining the prior consent and signature of the mother to the application/s.

2. The father shall retain custody of any passport for D which he obtains during her infancy other than during any period of travel with the mother outside the Commonwealth of Australia to which the father has agreed in writing in advance of that travel.

Explanation of orders

1. The father shall arrange for the children to attend on Family Consultant Ms Q in order for these orders to be explained and for any questions raised by the children about the orders to be answered.

NOTATION

(A)The order made by Her Honour Justice Rees on 16 March 2017 is a final order and continues to operate:

“(1)That [Ms Spiteri] be restrained from filing any application alleging contravention of an order of the Family Court of Australia without the leave of a judge of the Family Court of Australia first obtained.”

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spiteri & Walker (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC5808/2008

Ms Spiteri

Applicant

And

Mr Walker

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are competing applications in respect of two children; C, a boy who was aged sixteen and D, a girl of 10 years at the date of trial.

2. There had also been a dispute over a small pool of property which was resolved by agreement on the morning of the first day of trial and orders made by consent accordingly.

The Parties

1. The applicant is the mother Ms Spiteri aged 35. She lives in an outer suburb of Sydney in the home of her mother. The younger child lives with her there. The older child spends alternate weeks between the homes of each parent.

2. The mother is a student in the third year of a degree. She is not in paid employment. Her income consists of Austudy and Family Tax Benefit payments.

3. The respondent is the father Mr Walker aged 41. He also lives in an outer suburb of Sydney. He lives in the home of the paternal grandfather and is his carer.

4. The father has worked as a tradesman. He has operated his own company. He presently receives Workers Compensation payments arising from an accident.

The Current Applications

1. By her Minute of Order annexed to a Case Outline document filed 25 July 2017 the mother proposes orders summarised as follows:

   a)Sole parental responsibility for the mother  for both children, with advice by the mother to father of decision making;

   b)No order relating to residence/time for C with each of his parents;

   c)That D live with the mother;

   d)That D spend time with the father each alternate weekend Friday to Sunday and at special times;

   e)Specific issues about:

   i)Restraints on scuba diving;

   ii)Obtaining passports;

   iii)Non-denigration; and

   iv)Other matters.

2. By his Minute of Order annexed to a Case Outline document filed in Court on 31 July 2017 the father proposes orders summarised as follows:

   a)Sole parental responsibility for him for both children;

   b)Equal time for both children with each parent (subject to the older child’s wishes) in both term times and during holidays; and provision for special times;

   c)Provision of authority for release to mother of relevant information from third parties;

   d)Specific issues about:

   i)Scuba diving and other activities;

   ii)Non-denigration;

   iii)The children to be placed on watchlist.

Short History of Relevant Events

1. The parties began living together in 2000 having met two years before.

2. The first child, C, was born in 2000.

3. In 2004 the parties married.

4. In 2006 the second child, D, was born.

5. On 2 December 2008 the parties separated.

6. On 4 December 2008 the mother filed an application for final orders in the Federal Circuit Court.

7. On 8 December 2008 the mother’s application for leave to withdraw that application was granted and all applications were removed from the pending cases list.

8. The children lived with the father for two to three months and spent time with the mother at weekends by agreement. Subsequently they lived with each parent in various arrangements.

9. In February 2011 C moved to stay with his father.

10. In March 2011 the mother raised allegations with police of possibly sexual abuse of the child by the father.[1]  The allegation was that the natural father had “digitally penetrated the child’s vagina whilst bathing her” and that the first disclosure by the child was made to the maternal grandmother in early January.

    [1] Exhibit 8

11. On her own evidence in these proceedings there was no disclosure to the maternal grandmother, rather there was an observation of the child and an interpretation of the child sitting in the bath and asking for “the squirting game” which she was used to playing with the father.

12. On 21 March 2011 the mother initiated proceedings in this Court which were included in, then delisted from, the Magellan protocol.

13. The allegations were not substantiated by JIRT. The mother has accepted that they were not and does not assert that there is a risk to D in the father’s care.

14. An Apprehended Violence Order (“AVO”) was taken out by the mother for her protection in June 2012. The order was later annulled in the Local Court.

15. In June 2012 a Single Expert Report by a Child and Family Psychiatrist was released.

April 2013 Final Orders by Consent

1. In April 2013 the parties reached final consent orders which can be summarised as follows:

   a)That the parties have equal shared parental responsibility for the children;

   b)That the older child C spend week about time with each parent with changeovers on Friday and continuing on through holiday periods;

   c)That D live with the mother, spend time with the father from after school Friday to commencement of school Tuesday in each alternate week to coincide with time spent by C with the father during that period.

2. On 22 July 2013 the application for an AVO for the protection of the mother from the father was made although later annulled in the Local Court.

3. Thereafter the mother filed numerous Contravention Applications. Indeed 12 days after the Consent Orders had been made, the mother had written to the father’s solicitor advising him that she was intending to file a contravention because of the father’s failure to return to her certain items of school uniform.[2]

   [2] Exhibit 3

4. On 20 December 2013 three allegations in respect of Contravention Applications brought by the mother were established.

5. On 2 April 2014 the mother brought her third application for final orders.

6. On 19 May 2014 a judge of the Federal Circuit Court made orders as follows:

   a)Father restrained from allowing the children to participate in scuba diving;

   b)Both parties to authorise the father to receive information about the children’s scholastic progress;

   c)Adjourn to an interim hearing and directions.

7. The mother filed further Contravention Applications.

8. On 5 August 2014 an Independent Children’s Lawyer (“ICL”) was appointed.

9. On 3 October 2014 the ICL was discharged. The parties were directed to a Child Inclusive Conference. In December 2014 that Memorandum was released.

10. On 23 February 2015 the father filed an Amended Response proposing sole parental responsibility for the children.

11. On 24 February 2015 a judge of the Federal Circuit Court made further interim orders as follows:

    a)Neither child permitted to participate in scuba diving unless the parties agree;

    b)Other orders about exposure to certain ratings of media;

    c)The children not to participate in snorkelling;

    d)The children not to be brought into contact with unidentified adults on social media; and

    e)Other matters.

Transfer to Family Court

1. In April 2015 the proceedings were transferred to this Court.

2. On 23 June 2015 the mother filed an Amended Initiating Application proposing that she have sole parental responsibility, that C continue to spend time with the father but D have supervised time only.

3. On 30 September 2015 the parties’ Divorce became absolute.

4. On 27 October 2015 the Mother filed an Application in a Case.

5. In November 2015 the parties were directed to a Child Responsive Conference.

6. In early 2016 the father was injured at work. He has been left with restrictions on his ability to use his left hand.

7. On 4 March 2016 a Memorandum from the Child Responsive Conference was provided to the Court.

8. On 2 June 2016 interim orders were made by a judge of this Court providing for the father to be at liberty to make arrangements for testing to establish whether there was any impediment to the children’s fitness to participate in scuba diving. There were detailed orders restraining the mother from hindering the testing and permitting the father to remove the children from school, nominating the doctor who would undertake the tests.

9. Despite the time and effort which went into making provision for this resolution to the issue of participation in scuba diving the conflict was amplified. More Contravention Applications were filed and both parties amended their respective applications.

10. There has been continuing hostile conflict between the parties revealed by the number of Court applications but most significantly by an unwillingness to communicate with each other which has generated a culture of complaint.

11. On 22 March 2017 a judge of this Court made an order restraining the mother from filing Contravention applications without prior leave of the Court

Trial – August 2017 

1. Consistent with everything that had gone before, each party put forward fresh orders as part of their Case Outline documents provided to the Court and each other at or just before the commencement of this hearing.

2. In my view the parties have failed to make their own consent orders work. The mother refuses to make contact with the father directly and has blocked him from sending text messages to her. She is dismissive at this point of him as a responsible parent. The father has given up on communicating with the mother. The one thing the parties agree on is that they cannot share parental responsibility and that one parent must carry all of the responsibility for making decisions about the children.

3. The mother has chosen to communicate with the father by sending numerous letters to his solicitor and has done so over the past four years since the 2013 consent orders have been in place.

4. The mother, although a third year law student, denied that she had realised that this would incur costs for the father, a matter that she raised unprompted in her own evidence.

5. The most contentious issue between them is the scuba diving. The mother takes the view that although scuba diving might be an enriching experience, in her view the medical risk outweighs the enrichment value. She has worked very hard to convince the children, both C and D, that it is too dangerous and that they should not participate because of their history of asthma.

6. The medical testing cleared the way for both children to participate but the mother is unpersuaded. As a throwaway remark the mother referred to having told D “how stupid and dangerous it [scuba diving] was”. D now believes she might die if she goes scuba diving. Again on her own evidence the mother reported that D had said to her “I won’t do it, I promise”.

7. I conclude that the mother was obstructive about the medical testing for the children. When the testing did take place and Dr B reported that D was at no greater risk than any other child in participating, the mother rejected that conclusion as inadequate. She did not accept that proper medical consideration had been given to the matter.

8. The mother is a protective mother but she has put her head down in an attempt to avoid any engagement with the father on this and other issues. Her behaviour has rebounded, to their disadvantage, on the children in relation to scuba diving, and in relation to C being able to go out in a dinghy. Rather than being sensibly discussed, the issue of activities for the children has become a rich source of drama.

Scuba Diving – C

1. The unchallenged evidence of the father is that he got C involved in scuba diving in 2011 when the boy was aged between 10 and 11 years.

2. By November 2011 C had obtained his first diving certificate [Junior Open Water Diver].

3. Diving is a paternal family activity. The father, both his parents, his brother, his sister and her husband all dive. The father has now qualified as a diving instructor.

1. For the father water based activities are the most suitable. He suffers from a heart condition which causes his heart rate to accelerate if he dehydrates. He cannot dehydrate in water so it is a safe sport for him.

2. The activity is also especially suitable for C who suffers from Sever’s disease. He is unable to participate in any weight bearing activity or sport. Running and extended periods of standing cause pain to his feet.

3. C embraces the sport and is qualified for his Master Diving rating.

4. However for reasons relating to conflict between his parents C has been unable to go scuba diving since February 2015. His father is restrained from allowing it.

5. This in my view has been a harsh outcome for C as a maturing teenager. He has been deprived of a sport he loves and benefits from.[3]  He gave up his casual job in the scuba shop because it was upsetting to work there when he could not dive himself. He has reportedly put on weight from inactivity. He has argued with his father and threatened to go off diving alone but ultimately has obeyed his father.

   [3] Single Expert Report of Dr S dated 8/06/2012

6. C is now 17.

7. For two and a half years he has not been diving because his mother is opposed to it on the alleged basis of risk to his health. There is a wealth of medical evidence clearing him to dive. He has been tested, assessed and approved to dive.[4]

   [4] Affidavit of the father filed 9/02/2017, pars 102-111 and Annexures Y-AF

8. All of that was done to address the mother’s concerns stated to the Court. It is doubtful in my view that those stated concerns were genuine given C’s history in the sport.

9. C started diving in 2011. He continued to dive and obtain qualifications for between three to four years until an application was made to include him in a restraint on D diving.

10. The parents had equal shared responsibility during this period.

11. The mother had C living with her week about from April 2013. She knew that he loved the sport and had experienced no health problems from participation in it, quite the reverse. The mother also knew that the father was an experienced diver.

12. Most importantly she had no reason to doubt the father’s level of care and guidance because they had agreed to share parental responsibility.

13. Yet in October 2014 the mother applied to this Court to prevent C (in addition to D) from scuba diving.

14. There was a submission on behalf of the father that the mother may have amended her application to include both children for tactical reasons in these proceedings. There is some substance in that submission.

15. On 12 April 2013 the parties had consented to final parenting orders. There was no reference at all to restraints on scuba diving in those orders.

16. Twelve months later the mother filed a fresh Initiating Application for final orders and applied for an order restraining the father from allowing D (only) to participate in scuba diving. That order was made pending further order.

17. In October 2014 the mother amended her application to extend the restraint on scuba diving to include C.

18. On 24 February 2015 that order was made pending further order.

19. If it is the case that the mother had long held concerns about risk to C’s health from scuba diving she did not reveal them to the father or the Court for more than three years after he began the activity and during which he dived very regularly.

20. It is likely, as was submitted, that the mother saw the illogicality of seeking an order about D not scuba diving because [allegedly] she suffers from asthma which disqualifies her when the mother also alleged that C had suffered from asthma.

21. I am confirmed in this view by the fact that the mother declined to attend the medical testing of C and was not reassured by medical reports, from experts in the field, who cleared him.

22. If I am correct about the motivation of the mother it reveals an impaired capacity to meet the needs of her teenage son.

Scuba Diving – D

1. D began to participate in water sports by snorkelling. Photographs annexed to the affidavit of the father shows five year old D snorkelling[5] and using a small tank.

   [5] Affidavit of the father filed 9/02/2017, Annexure W

2. While C was doing his diving lessons the father took D snorkelling.

3. In 2013 she completed an air snorkelling program.

4. There is no challenge to the father’s description of D as a competent swimmer.

5. D had what the father describes as “a few episodes of mild asthma when she was younger.”[6]

   [6] Affidavit of the father filed 9/02/2017, par 120

6. In April 2014 the mother made her application for a restraint on the father allowing D to participate in scuba diving.

7. The father arranged to take D to the J Hospital on 5 June 2014 for a Bronchial Provocation Test. He obtained a referral from D’s general practitioner.

8. The mother contacted the hospital and expressed her opposition to the testing. The hospital declined to do the test without the mother’s consent.

9. The solicitor for the mother asked her to reconsider.[7]  She did not.

   [7] Affidavit of the father filed 9/02/2017, Annexure AK

10. The father then took D to Dr B, a paediatric respiratory and sleep physician to investigate her asthma. There is no challenge on behalf of the mother to his expertise.

11. Dr B gave his opinion that there was no sign of asthma when D was examined. He would have done lung function testing but did not due to legal advice against it from the hospital in the context of parental dispute.[8]

    [8] Affidavit of the father filed 9/02/2017, Annexure AL

12. The father saw other doctors; obtained a Statement of Health for Recreational Diving for D.

13. One doctor referred the child back to Dr B. The mother was invited to attend the appointment. She responded that she did not consent to the appointment.

14. On 24 February 2015 a restraint on scuba diving and snorkelling was ordered.

15. In short, the mother refused to participate in medical examination and testing of the child but did not withdraw her objection to participation in the activity of scuba diving. Her conduct and attitude is inconsistent in my view with genuine concerns about risk. The mother thwarted the process.

16. In June 2016 a judge of this Court set up a process for medical assessment such that if in the opinion of Dr B the children were not precluded from scuba diving the father could allow participation.

17. The father set up the testing for 1 November 2016. The mother was advised six weeks in advance. C was sick on that day and unable to attend. D was tested.

18. The conclusion was “I don’t think she is at any greater risk of any other child of her age”.

19. The father then attended on Dr T for completion of a form “Statement of Health for Recreational Diving”. Dr T gave his medical approval.

20. The father arranged for D to start a dive course (four days).

21. The mother then approached Dr T herself and gave him information which caused him to withdraw his earlier authorisation.

22. The father then returned to Dr T provided to him the medical information being Dr B’s report and the Bronchial Provocation Test results. Dr T reviewed his position reverting to approval of D as “fit for training with scuba equipment”.

23. The mother posted on Facebook an attack on the dive operators who had started to teach D[9] accusing them of negligence.

    [9] Affidavit of the father filed 9/02/2017, Annexure AW

24. Subsequently D herself began to be unwilling to learn. I conclude that the mother has intentionally discouraged the child.

25. I conclude that the mother is determined to prevail on this issue.

26. It is a limit on her capacity to meet the needs of her daughter that she has been unable to set aside her fears or hostility, whichever is the case, to enable D to participate with her father, brother and extended paternal family in a water sport which has special significance.

27. If the father exercises sole parental responsibility to have D continue to learn scuba diving I am confident that the child will accept his guidance. I am supported in this view by D’s own statement to a Family Consultant who reported this,[10]

    [D] (sic) ideated that her parents were highly conflicted and she had a tendency to believe what her father said about the matters raised because he was calmer and did not speak negatively about her mother like her mother did about him.

    She saw her mother as “worrying about things”.

    [10] Child Inclusive Conference Memorandum dated 11/12/2014, final paragraph

28. This was an insightful observation by the eight year old child which accords with my own observation of the parents.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Mother

   (a)Minute of Order;

   (b)Affidavit of the mother filed 9/02/2017;

   (c)Affidavit of the maternal grandmother Ms R filed 9/02/2017;

   (d)Affidavit of the maternal grandfather Mr Spiteri filed 10/02/2017;

   The Respondent Father

   (e)Minute of Order;

   (f)Affidavit of the father filed 9/02/2017;

   Reports

   (g)Single Expert Report dated 8/06/2012;

   (h)Child Inclusive Conference Memorandum dated 11/12/2014;

   (i)Child and Parents Issues Assessment Memorandum dated 03/03/2016.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The children each have meaningful relationships with both their parents which are a benefit to them.

2. Despite significant challenges the children have continued to do quite well over the succeeding almost nine years. They profess to each love both of their parents and have spent time with each of them in varying ways.

Additional Considerations

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

Wishes

1. The children have been interviewed and observed on three occasions through Court order:

   a)Interviews for the Single Expert Report of Dr S, which took place on 8 June 2012 (the children were then aged 11 years and eight months in Year 6 (C) and five years and seven months in Kindergarten (D).

   b)With a Family Consultant on 11 December 2014 when C was 14 years and D was eight years ;

   c)A Family Consultant on 1 March 2016 when C was 15 years and six months and D nine years.

2. In ten months C will be an adult although with one further year of school to complete thereafter. D, now 11, is finishing Year 5.

3. Their wishes are captured as follows:

a)       June 2012 – Single Expert Report

C enjoyed doing things with his uncle, going fishing, playing video games. With Dad “he enjoys going to see one of Dad’s mates or going scuba diving”. He described being at his mother’s house as “good” and “fun” because “they do stuff during the week days”, whereas Dad was working during the week.

1. C described the relationship with his father as “good, great and about the same as with his mother but his mother was there more often”. He described weekends with Dad as great, scuba diving pretty much every weekend.

   He remembered life before separation as follows:[11]

   They fought a lot, Mum and Dad were always angry with each other, they both yelled, Dad would smash stuff. [C] was not really frightened. He would go away somewhere else. He didn’t like the noise. One time [C] stepped in and said to stop, Mum backed off a bit. [C] became a little tearful as he spoke on this topic.

   [11] Single Expert Report of Dr S dated 8/06/2012, par 232

2. C then went on to say that his father had changed since the marital separation, was out a lot less and when they were together, C would barely see his father but that his father did a lot more things with him, “C never expected it to improve like it has.”[12]

   [12] Single Expert Report of Dr S dated 8/06/2012, par 233

3. About his mother, C said that his mother seemed happier and there was “more time with mum around the house”.

4. In relation to decision making C said he would like to make the decision about how much time the children would spend with each parent whilst understanding that the Court would make that decision.

5. If given the chance he would not have them back together because “he doesn’t want them to fight or have dramas.”[13]  He did express a wish to have the father’s surname as his own as his younger sister did and that order was subsequently made in 2013.

   [13] Single Expert Report of Dr S dated 8/06/2012, par 237

6. D expressed a pleasure at doing things with each of her parents. She did not want to have the ability to decide how much time to spend with each of them and she would prefer her parents were back together.

7. Nothing had happened at either house which had made D feel scared or sad. This was a particular issue given the allegation raised by the mother about possible sexual misconduct by the father with D.

b)       11 December 2014 - Child Inclusive Memorandum

1. The Family Consultant refers to the parents by this time engaging “toxic conflict”. They had been repeatedly in Court since 2008. It was expressed this way,

   They are unable to communicate in any way and must do so through their legal representatives. The children presented as weary of the parental conflict but surprisingly resilient in the face of it in that they appear to have been able to maintain a relationship with both parents. The children, particularly [C] appeared to have greater wisdom than their parents in how to manage themselves amid the conflict. Both parents presented as stubborn and unlikely to compromise even over small things in order to spare the children from the children. On that occasion the mother had made dramatic claims such as [D] not having been fed by the father for 2 days and that [D] had been “caged” in her room for whole days because the father did not want to disturb his grandmother who lived in the home and had dementia.

2. The wishes expressed by the children were for C, first of all an assessment of his parents as follows:

   He’s [the father] a bit slack but she [the mother] blows things out of proportion.

3. This does seem to be a particularly accurate assessment by C which continues to be true.

4. C described his mother as a protective mother but “she assumed the worst”, he went on to say “I’ve had to tell Mum to chill out”. C stated that his father was more relaxed and did adventurous activities with them such as scuba diving which he liked and hoped he would be permitted to continue to participate in. He referred to his father always using safety equipment and insisting that the children have proper training for their activities.

5. C referred to his father as forgetting items of school uniforms at times and that he could be forgetful generally.

6. C thought both of his parents were stubborn and when it was discussed with him how the pressure of the parental conflict could be ameliorated for the children, C said with what is described as a wry smile “that all of the suggestions the Family Consultant made had been tried and had failed”. C laughed and stated “I’ve had to deal with it for years”.

7. Nevertheless C expressed his wish that he wanted to continue the current arrangement of equal time because he loved both parents and wanted to spend time with them. He indicated that “except in terms of how they related to each other both were good parents”.

8. C became teary when asked about how he would feel if the judge thought it best that he lived primarily with one parent. Appropriately he stated that he would do what the judge ordered in order to avoid the drama.

9. Both parents should, if they do nothing else, re-read this document and understand how C has had to learn how to manage his parents in order to maintain his loving relationship with them both.

10. D also indicated that she loved both parents and that she would like one to two nights more with her father. She denied her father failing to feed her and gave the impression to the reporter that she may have said something along those lines to her mother and was simply surprised when asked whether she had been locked in her room and denied that her father had done that.

11. D expressed her belief that her parents were highly conflicted and said “she had a tendency to believe what her father said about the matters raised because he was calmer and did not speak negatively about her mother like her mother did about him. She saw her mother as “worrying about things.”

12. Again, this child who was then aged eight had a clear insight into the problem being the behaviour of the parents, especially the mother, despite which D loved them both.

c)         1 March 2016 – Child and Parents Issues Assessment

1. C expressed the view that he wanted the arrangement of week about time with each parent to continue. He stated that he would like to be able to continue scuba diving which he had been doing since 2011.

2. D expressed the view that she enjoyed the current arrangements but she was committed to playing football and that she would be happy to continue spending time with the father in the current arrangement, that is, four nights per fortnight if the father would be willing to take her to the game.

3. The evidence is that the father has withdrawn from his opposition to D playing football which was based on his fear of injury and is willing to take her.

4. D told the Family Consultant that both of her parents spoke to her about the Court; her father stated they would have more money if they did not have to go to Court; and that her mother told her what the Court proceedings were about.[14]

   [14] Child and Parents Issues Assessment Memorandum dated 3/03/2016, page 3

5. I place considerable weight on what both children have said over the past five to six years; they each love both of their parents and each other; they are doing well enough at school; their main problem is their parents. During the relationship the parents fought including physically causing the children to stress. Post-separation the parents have kept the dispute alive by refusing in a childish and immature way to communicate sensibly about issues affecting the lives of the children. The children know it and have learned to live with it. Neither of the children wishes to see less of either parent than they do now and in these circumstances their wishes should certainly be honoured.

6. It may be that over the coming 14 months, especially as he moves into Year 12 at the commencement of Term 4 in 2017, that C may choose to spend more or less time with one of his parents, he will probably settle for the calmer environment of his father’s home. The mother expects that he will continue to spend week about time and he probably will subject to the comments made above.

1. C has quite unfairly been excluded from an activity that he has greatly enjoyed participating in. For his own sake and because he does so with his father, the responsibility for decision making in regard to this activity should rest with the father.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. There has been no lack of interest by either parent in decision making nor in spending time with the children.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. By one parent having the authority of long term decision making the children will be relieved of the pressure on them. This should be a benefit.

2. C will now be free to live with one parent and spend time with the other as he wishes. This will relieve him of the obligation to be fair to his parents. He is entitled to manage his two senior high school years himself.

3. D is content to go on the way she has with extended alternate weekends with the additional benefit of knowing that both parents consent to her playing football and will support her training and attendance at games.

4. D will benefit from her mother attending to homework and weekly routines.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. Both parents have the capacity to meet the children’s needs.

2. The focus of the mother on prevailing over the father on certain issues has caused her to put her time and energy into resisting his position and marshalling evidence in support of her own. In my view she has missed seeing the hurt she has caused the children. She has deprived C of involvement in water based activities and sports with his father and paternal family which are not only enjoyable but helpful for his physical health.

3. She has encouraged D to reject scuba diving but, more importantly, to doubt her father’s judgment that she can be safely involved in it.

4. The father is disinclined to worry about day to day aspects around uniforms books sports equipment. The children may appreciate his relaxed attitude. However he has overlooked the impact on the children of the reaction of the mother over such matters. The mother is organised and highly attentive to detail.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. C will become an adult in September 2018 and will thereafter be able to make his own decisions. In the short period of time remaining it is appropriate for him to be guided by his parents, not directed. I consider that the father has a better understanding of the needs of C for increasing independence and of his decision making abilities.

2. Accordingly the father should have sole parental responsibility because he will more easily relinquish it during the transition to autonomy. The main consequence is likely to be that C will resume scuba diving.

3. D has become concerned for her own safety as the result of her mother’s anxious fears about her. I am supported in this conclusion by the following. D is a sporty physically brave child who enjoys playing football. Her mother supports her in this and is pragmatic about occasional injury. However in water sports where the father is involved the mother has no confidence in his judgment and dissuaded D from participation.

Any family violence involving the child or a member of the child’s family, and 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

1. There was a provisional apprehended violence order in 2011, in the context of unsubstantiated allegations of misconduct by the father.

2. There was a second AVO in 2012, subsequently annulled by the Local Court.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. There have been many applications and court events, most recently on specific issues around participation by the children in certain activities. An order giving one parent sole parental responsibility has the best chance of obviating further applications.

Any other fact or circumstance that the court thinks is relevant

1. When C turns 18 there is a risk that disputes about arrangements for D as the only subject child, will escalate. It is important for her transition to high school to be free of parental conflict.

2. The parties have been separated for nine years and have had a fractious dysfunctional relationship as parents.

3. Between each parent and both children there are good relationships mainly because the children, especially C, have learned a way to manage their parents.

PARENTAL RESPONSIBILITY

1. Parental responsibility is defined to mean all the duties, powers, responsibility and authority which by law parents have in relation to their children. If the current order for equal shared parental responsibility is discharged the position reverts such that each parent has all the duties and responsibilities of parenthood pursuant to the legislation.[15]

   [15]Family Law Act 1975, s 61B

2. The parents agree with each other that one of them must have sole parental responsibility for the children. Each parent considers that that person should be himself or herself.

3. In my view the 2013 orders were as workable as any orders can be with the exception of orders around particular activities. The father will in future have responsibility for the long term decisions including choice of secondary school for D together with any new extra-curricular activities.

4. The evidence supports a finding that the parties have not been able to themselves afford the school fees for C at the non-government school which he is attending. The father has struggled and the mother has had the financial support first of her father and then from her mother for funding that attendance. They agree that he will complete his secondary education there.

5. It is quite inappropriate to make an order compelling the father to pay school fees for D which he clearly cannot afford to pay, especially as the mother herself is also in that financial position and the Court cannot impose the burden on the grandparents by way of Court order, no matter how willing they may be to take it on.

6. Each parent should have parental responsibility for the day to day decision making about the children and otherwise provision is made for attendance at a known general practitioner and continuation at the schools which each child currently attends.

Conclusion

1. I have concluded that the parents have correctly identified that they are unable to share parental responsibility equally or at all.

2. I have concluded that the father is able to shield the children from the parental conflict by not criticising the mother to them or showing disrespect for her. The mother has not been so restrained. She is less attuned to the independent relationship each child has with the father. In attempting to protect them from the father’s ideas and plans she has caused some loss to the children of activities with their father and extended family. More, her disrespect for the father is known too, and tolerated by the children, although they do not share her opinion of him.

3. Accordingly an order is made for the father to have sole parental responsibility for long term issues.

4. There is no order as to where C shall live. He may continue week about or move to live with one or other parent. Both parents have accepted that.

5. An order is made for D to continue spending time with each parent as she does presently.

6. Specific issues orders have been made about the children’s current schools, passports and other potentially contentious matters to minimise disputes.

7. Orders are made accordingly.

I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 13 November 2017.

Associate: 

Date:  13 November 2017