STILES & BARRETT

FEDERAL CIRCUIT COURT OF AUSTRALIA

STILES & BARRETT

[2015] FCCA 2398

Catchwords:
FAMILY LAW – 12 year old child in father’s care – father enrolled child at high school without the mother’s consent – whether the child should remain at the school – dispute over possibility of child boarding at school – dispute as to whether she should be returned to the mother’s care – spend time arrangements.

Legislation:

Family Law Act 1975, ss.60, 61, 65

Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006

Applicant:

MR STILES

Respondent:

MS BARRETT

File Number:

MLC 154 of 2007

Judgment of:

Judge Harland

Hearing dates:

4 & 5 June 2015

Date of Last Submission:

5 June 2015

Delivered at:

Melbourne

Delivered on:

3 September 2015

REPRESENTATION

Counsel for the Applicant:

Ms Williams

Solicitors for the Applicant:

Taussig Cherrie Fildes Lawyers

Counsel for the Respondent:

In person

Counsel for the Independent Children's Lawyer:

Ms Dowler

Solicitors for the Independent Children's Lawyer:

Ebejer and Associates

ORDERS

That the parents have equal shared parental responsibility for the children X born (omitted) 2001 (“X”), Y born (omitted) 2002 (“Y”) and Z born (omitted) 2004 (“Z”).
That the children X and Z live with the mother.
That the child Y live with the father.
That the father spend time with children X and Z as follows:
(a)For half of the Victorian private school term holidays, such time shall commence on the first Saturday and conclude on the middle Saturday at such time to be agreed between the parties.
(b)During school term commencing 6.00pm Friday until 5.00pm Sunday in week one and each alternate weekend thereafter, with all changeovers to occur at the mother’s residence.
That during school term the mother spend time with the child Y commencing 6.00pm Friday until 5.00pm Sunday in week two and each alternate weekend thereafter, with all changeovers to occur at the mother’s residence.
That each party forthwith advise the other and keep the other advised of their current residential address and emergency contact number.
That in the event either parent is unable to spend substantial time with the children during periods when the children live or spend time with them, that parent shall contact the other parent at the first instance to care for their children in their absence.
That the father may communicate with the children at times when they are living with the mother by telephone, email and webcam at all reasonable times and the mother shall facilitate that communication.
That the mother may communicate with the children at times when they are living with the father by telephone, email and webcam at all reasonable times and the father shall facilitate that communication.
Each parent shall:
(a)Notify the other as soon as is practicable of any major illness or accident suffered by the child whilst the children or any of them is in their respective care;
(b)Keep the other informed as to any medical or health issues and appointments pertaining to the children or any of them;
(c)Keep the other informed of their current residential address, landline and mobile telephone numbers and notify the other forthwith of any change thereto;
(d)Do all things necessary to authorise any school the children may attend from time to time to provide each parent with all school notices, reports and applications for school photographs at the requesting parent’s expense.
If the father has not already done so, the father shall forthwith authorise (omitted) College (“(omitted)”) to communicate with the mother and shall ensure the mother is listed as the other parent and emergency contact for Y.
That the parents maintain Y’s enrolment at (omitted) College provided that the father pays for the school fees.
That the Independent Children’s Lawyer be discharged 30 days after these orders.

IT IS NOTED that publication of this judgment under the pseudonym Stiles & Barrett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 154 of 2007

MR STILES

Applicant

And

MS BARRETT

Respondent

REASONS FOR JUDGMENT

X is 13 years old, Y is 12 and Z is 10. Their parents cannot agree on the living and schooling arrangements.
Y is profoundly deaf and has recently been diagnosed with a degenerative eye disease.
Currently Y lives with the father in Melbourne and attends (omitted) College (“(omitted)”). That was not with the mother’s consent. The proceedings began with the father’s unilateral actions in this regard. The effect of this decision was to separate the siblings who up until the beginning of this year had always lived together and for majority of the time, lived in the mother’s care while spending substantial and significant time with the father.
The issues I am asked to determine are as follows:
a)whether or not Y should remain at (omitted);
b)if Y remains at (omitted), should she board rather than live with the father;
c)if Y returns to the mother’s care what school she should attend;
d)what schools the other children should attend;
e)what spend time arrangements should be in place.
It is clear that the mother feels betrayed by the father’s actions and feels that he has undermined her as a parent and has damaged her relationship with Y as well as damaging the relationships of the siblings. The mother has found these events very distressing.
The parties separated in January 2006. They entered into consent orders on 14 December 2007 with the mother and children to move to Queensland.
In May 2010 the father was made bankrupt. There is a significant controversy between the parties with respect to child support. Those child support issues are not before the Court and the Court does not have the jurisdiction to address them but it is clear that the child support dispute has contributed to the high levels of conflict between the parties.
In January 2012 the mother and children returned to Victoria and since then, have at times been living in (omitted). The father started seeing the children 4 nights a fortnight. This increased to 5 nights a fortnight in September 2013. The father has a farm in (omitted), near (omitted). Generally, the father spends time with the children at his farm but he lives in Melbourne with his partner Ms C and her daughter A.
In May 2013 the parties attended mediation in an attempt to negotiate new parenting arrangements.
When the mother and children returned to (omitted), the children started school at (omitted) Primary School. The school has a deaf facility.

The father’s case

The parties started discussing the choice of high schools for Y. A significant issue for Y’s schooling is the availability of deaf facilities.
The father detailed at some length his version of the discussions which led to Y attending (omitted) College.
The father says that Y does not deal with change easily so he decided he wanted to raise the issue of her attending (omitted) College with the mother long in advance. He says this took place in July 2013. He says that Y was enthusiastic about (omitted) College and the deaf facility there.
The mother signed the Declaration of Parents form for (omitted) College on 2 September 2013 and it is annexed to the father’s affidavit sworn 27 May 2015. The father took Y to (omitted) to sit a scholarship exam on 24 March 2014. They looked around the campus afterwards and Y told the father that she was really keen to go to (omitted). The father says he was shocked to receive an email from the mother when he arrived home stating that she no longer supported Y attending (omitted).
Y was offered a place at (omitted) from year 7 in 2015 on 4 April 2014. Y attended (omitted) for a general abilities testing on 22 July 2014.
The father then compares at some length in his affidavit the resources and technology at (omitted) and at (omitted) Grammar School.
By the time of the hearing, (omitted) Grammar School was no longer an option for Y.
The father says in his affidavit that it was at the end of 2014 that the mother was getting angry with Y when she said she wanted to go to (omitted) rather than (omitted) Grammar School. It does the father no credit at all that he pushed on with these plans knowing that the mother objected rather than trying to sort it out with the mother or making an application to the Court. He acted unilaterally.
He did not commence the proceedings until 22 January 2015. There is no way that the proceedings could have been resolved prior to Y starting school; the father having left the application so late when he was on notice of the problem for at least six months before.
When the matter came before the Court on 10 February 2015, the parties agreed on interim arrangements. Y was to continue to live with the father and see the mother every third weekend and for the other children, they would see the father every third weekend. The father’s affidavit on this point is significant for what it does not say which is that the father unilaterally had Y live with him and attend (omitted) prior to the matter being in court.
The father says that when Y started living with him he noticed that there seemed to be something more to Y’s apparent clumsiness than a lack of coordination and thought that there was something wrong with her peripheral vision. He took Y to a consulting specialist. Y was then referred to Dr S who on 23 April 2015 made a preliminary diagnosis of Ushers Syndrome Type 1.
The father says he told the mother about the appointment but cannot recall how much notice he gave her. He says that Y asked him not to tell the mother about the diagnosis until she had had time to digest it.
The father says the mother was not accepting of the diagnosis and that she text messaged Y saying it was all sorted out. The mother wanted Y to return to (omitted).
The parents also disagree about the necessity for genetic testing. The father says Dr S advised that genetic testing could assist in predicting the extent of Y’s loss of vision and the rate of progression and the whole family should be tested as it is a genetic condition. The Court has little information about this issue. It is a matter that the parents should decide on together.
It is clear from reading the father’s affidavit that part of his criticism is the mother’s involvement in the discussions but it is clear that the father has done exactly the same and as a result Y has felt enormous pressure being in the middle of her parents’ conflict. It is clear that the conflict has primarily focused on Y rather than the other two children. Given the challenges Y has, this is not surprising and would add to Y’s feelings of pressure and responsibility.
The father describes all three children as being very bright. He describes both X and Z as being anxious. The father says that at times Z regresses in his speech and will not go to the toilet when playing with friends as he is worried he won’t be valued as a friend if he does. The father says he raised it with the family consultant and that the children saw a family counsellor who gave Z some strategies which helped him. He took them to the counsellor last year in August or September 2014. He says he raised it with the mother but she said it did not happen in her care. He says it worked very well for Z but he has regressed a little because the father says “he’s got a bit mixed up in all this caper”. It is not surprising that Z is showing signs of stress and anxiety given the separation from his sister and the tension between his parents. The father needs to take responsibility for this as his unilateral actions in the face of the mother’s opposition has dramatically increased the tensions between the parents which has impacted on all three children.

The mother’s case

The mother relied on two affidavits; one filed on 27 May 2015 and the second filed on 1 June 2015.
The mother talks about what she refers to as a binding child support agreement entered into by the parties on 12 December 2007. The mother says the father owes arrears of child support in the amount of $135,655 and says she is concerned about the father’s ability to pay the children’s private school fees. Given the issues the mother raises in this respect, it is somewhat surprising that the issue of child support was not properly joined to the proceedings so that the issue of school fees could also be dealt with, as well as potentially the child support arrears or enforcement issues if any were in fact to arise.
The mother returned to (omitted) as she was offered a job (occupation omitted) at (employer omitted).
The mother says she and the father had discussions about the choice of high school for both X and Y throughout 2013 as X was due to commence Year 7 in 2014 and Y in 2015. She says it was her preference for X to attend (omitted) Grammar School in (omitted) and X was successful in applying for a partial scholarship. She says the father did not support this, feeling that X is bright so she would be able to achieve academically at a public school. The mother says the father refused to assist with the school fees.
The mother says she did sign the Declaration of Parents form in 2013 but that she and the father had also signed forms for (omitted) Grammar School and (omitted) Grammar School when the children were born.
The mother also agrees that (omitted) College has good facilities for Y but that Y’s education is not the only issue which needs to be considered. She says she cannot afford to move to Melbourne if she does not agree to the siblings being split. She is also concerned that they cannot afford the school fees for (omitted). The mother is concerned that she will not be able to continue to pay for X and Z school fees without the father’s assistance. The mother expresses her strong preference for Y to attend the same school as X. By the time of the hearing this was no longer possible as it was confirmed that Y did not have a place at (omitted) Grammar School.
The mother has shown considerable dedication in providing the best support possible for Y. She completed a (qualifications omitted), language intervention and hearing impairment, specialising in hearing impaired education. She says she is well able to support and to provide for Y’s needs. She said she formed the view that (omitted) Grammar was a good choice of school for Y and felt it was important that Y and X attend the same school as X is or has been an important support role model for Y. The mother sets out the discussions and visits that she and Y had at the school.
The mother says that on 22 October 2014 she received a letter from the father’s then solicitor confirming that they had made tentative appointments for the preparation of the private family report which the father had agreed they would do at the expense of the father. The interviews were made with Ms B for 12 November 2014. The interviews did not go ahead and the father’s lawyers advised that they had instructions to file an application with the Court for Y to be enrolled at (omitted).
The mother complains that the father was saying he was going to do this in October 2014 but that he did not file the application until 22 January 2015 - a week before school was due to start. The father provides no explanation for this and it reflects poorly on him as it could be inferred this was really designed to try and achieve a fait accompli. The mother certainly feels that it was deliberate on the father’s part to ambush her. It also meant that the mother had continued with the enrolment for Y at (omitted) Grammar School including purchasing the school uniform. This aspect reflects poorly on both parents because they clearly knew that they were not in agreement about which school Y was going to go to but instead of either resolving it or taking timely court action they continued on the individual course without consulting the other.
The father breached current orders by refusing to return Y to the mother’s care at the end of school holidays. The mother made it clear that she did not consent to Y staying with the father and starting at (omitted). What is most concerning about the father’s actions is the involvement of Y in the deception. Y was well aware that the mother did not agree with these actions yet the father had Y involved in purchasing the school uniform without telling the mother. The mother complains that (omitted) has facilitated the father’s breach of orders and says that their own website specifically asks the enrolling parent to provide a copy of any court orders and provides for both parents to sign the enrolment application. She says the school refused to provide her with a copy of the enrolment form as she was not a signatory.
The mother learnt Auslan and is able to communicate with Y if her cochlear implant is not working. She says the father has not learnt Auslan despite telling the family report writer in 2007 that he would. The parents disagree about how much Y uses Auslan. (omitted) notes at page 60 of the father’s trial affidavit that Y's Auslan is at the beginner level.
The mother says that she is the one who has always dealt with Y’s medical issues. Hearing fatigue is common for deaf children and it requires a high level of support and adherence to retain. The mother complains that the father has not provided any information as to how he will support this with his work commitments and travel commitments.
The mother complains that the father has been overbearing and bullying towards her since she returned to Victoria and has refused to recognise her role as the primary carer for the children since their birth. She gives a text message the father sent on 8 March 2015 as an example. She says it was a long weekend and she had asked if Y could stay until the Monday. She says the father refused and said “I am coming after X next. As with Y, you will do all the damage yourself, so it will be easy to me. And the sweetest thing is, then you will be paying me maintenance. Can’t wait.”
The mother says Y’s diagnosis of Ushers Syndrome Type 1 was a shock to the whole family but that she now understands that this genetic condition caused Y’s deafness from birth and will also cause her progressive sight impairment. The mother says she contacted the father seeking information about the test results. The father sent a text in response on 27 April 2015 saying:
“Why the sudden interest in Y’s welfare. No mileage in this for you. No point talking to any optometrist. Better spending the time prising your head out of your arse and start preparing an answer to the question: how could a part time incapable Disney dad work out his daughter is slowly but surely going blind but super ‘my kids are my life’ mum is busy trying to prove Y’s sight is getting better. Look up Ushers Syndrome Type I.”
The mother understandably found the text upsetting and distressing and says she had taken Y to the optometrist for eye tests every year and it had not been picked up. The mother says she contacted (omitted) Deaf Blind Services to find out what services are available for Y and provided that information to the father who was very critical of them.
The mother then outlines the considerable support she has accessed for Y over the years and the supports that Y has in (omitted). She says that she and the father have a very different philosophical approach to these issues. She says she would have enabled her siblings to be an integral part of the news of Y’s new diagnosis and would have arranged immediate family involvement with an intervention service such as (omitted). She says that the father took a completely different approach which included withholding information from her and from Y’s siblings. She says the father takes a medical approach with the view that Y needs to be fixed and that her approach has always been different and that she does not see Y as someone who needs to be fixed.

The mother says that X has been a particular support for Y. The mother says she understands that Y enjoys (omitted) but feels that it is much more important that Y has her daily support and support of her siblings and family friends. She says there was a strong support base in (omitted).
X has her heart set on attending (omitted) Grammar for Year 9 in 2016. X is aware that she will need to achieve a better scholarship than she currently has in order to attend. The mother says she has been realistic with X about the prospects of being able to go to (omitted) Grammar. If she is successful she will board at the (omitted) campus in Year 9. If X is able to achieve a scholarship of 75% or more she will be able to attend (omitted) Grammar. She currently has scholarship of 30%.
She says even if X was at boarding school she will still be an integral member of the mother’s household and she will be managed from the mother’s household as a family.
The mother opposes the father’s proposal that the children travel by bus between (omitted) and Melbourne for visits.
The mother says the father’s actions have caused a rift in the family between the siblings. She has said she has overheard comments the children make to each other including Y telling the others “I don’t have to do anything here because it is not my house.” And X saying to Y “mum won’t buy you clothes because you live with dad” and “that’s not yours anymore because you don’t live here.”
The mother says the father did not inform her about the appointment of the two eye tests or the appointment with Dr S. She also does not believe that Y would have asked the father not to tell the mother about the diagnosis as she has been so involved in Y’s health matters.
The mother denies questioning the diagnosis with the father and saying she would straighten it out. She says she tried to get the name of the specialist from the father.
The mother says the father has excluded her from decision-making with respect to Y’s performance at (omitted). She says she was not invited to the meeting the father attended with the head of the Junior School and Y's Home Group Teacher.
The mother says she has made enquiries about genetic testing and it will not be predictive of the progression of Y’s loss of sight.
In the mother’s updated trial affidavit she says that she has decided she can no longer afford to pay the school fees at (omitted) Grammar School and has made enquiries at (omitted) College in (omitted). The mother was also representing herself at the hearing because of costs. The mother started a new job at the beginning of the year and says she lived from week to week off her pay packet and that the father’s child support payments are unreliable. She again complains about the child support agreement and the arrears. She also says that since filing her first trial affidavit she received a response from (omitted) Grammar School advising that they would be unlikely to be able to offer Y a place in term three. The mother now seeks the immediate return of Y to her care and that all three children attend (omitted) College in (omitted).
The mother only had time to make brief enquiries about (omitted) College. She says the fees are modest. She proposes that Y starts at (omitted) School at the beginning of term three and that X finish her school year at (omitted) Grammar School, provided the father pays the remainder of the fees to the end of the year and that X commence at (omitted) School in 2016 and Z be enrolled there for Year 7 in 2017.
The mother says that the father, Y and she attended an appointment with specialist Dr R. He confirmed the diagnosis of Ushers Syndrome and said at this stage it was mild. She says the father discussed genetic testing at length and seemed dissatisfied with his advice. The mother says that after listening to Dr R she found that the father had catastrophized Y’s condition which possibly caused Y significant unnecessary distress. She said it was an example of the father’s focus on trying to fix Y instead of supporting her.
The father says he is not a good student of Auslan. He says Y enjoys the fact that he is not very good at it and that Y does not like Auslan. He says that Y assures him it is not necessary for him to learn it. It is not up to Y. This is a decision a parent should make. The father’s attitude about this is somewhat concerning. It is also reflective of the fact that it has been the mother who has been primarily responsible for catering for Y’s needs. The father comes across as arrogant and inflexible about these issues. His evidence was rather self-serving.
The father says the siblings’ relationship has improved since they have been separated. I do not accept that. He also acknowledges that the siblings miss one another.
The father says Y quickly settled in at (omitted) College and has made four good friends there including another deaf student C.
The father grew up in (omitted) so he knows of (omitted) College which he says is a great school if you’re Catholic. The father says his view is that (omitted) Grammar School is as good as (omitted) Grammar but that X has her heart set on going there and would be crushed if she can’t. He says he will do what he can to help X, yet there are doubts that he can fund it without the mother’s help if X did not obtain a 75% scholarship. He says that (omitted) Grammar School greatly appreciate X and at that school she has friends and is doing very well there. He says that X has an ongoing place at (omitted) Grammar and does not see why she could not continue to go there if she is not successful in obtaining the necessary scholarship to go to (omitted) Grammar. He says that X has a scholarship that will ensure her secondary school and he believes that Z will also be able to go there.
The father says that Y has not talked much about her recent diagnosis of Ushers Syndrome.
The ICL asked the father what could be done to build bridges with the mother so that they can both support Y and both attend specialist appointment and have a united front to Y. He said he would like to think that it could happen and says he has tried to extend an olive branch that had not been very well received. That totally ignores the unilateral action that he took. The father seems to downplay this but the first step would be for him to acknowledge that he did the wrong thing and that he has caused the mother significant hurt. I have the impression that the father does not like direct conflict but is also inflexible and firm in his views.
It is clear from his evidence that the father did a lot of research about schools for Y. This includes telephone calls, emails and face to face meetings. He met with the head of the deaf facility at (omitted) High School for several hours. One of the advantages that (omitted) has as he sees is that the teacher and students use an FM system which Y can access with her Roger Pen. This enhances Y’s ability to fully participate in class. A Roger Pen is a wireless microphone.
The father said when cross-examined by the mother that he did not tell her before taking Z to a counsellor because the mother had previously told him that Z did not have the issues the father observed so he thought she would not approve or agree. This is typical of his attitude. He then said he remembered that X had been seeing a counsellor without his knowledge so he did not think that would be an issue. If this is the case then both parents need to step up.
After the diagnosis of Ushers Syndrome the father says he was concerned about how Y was coping with the new diagnosis and was concerned that she wasn’t talking about it. He says he arranged for the school counsellor to start meeting with her, not for the purpose of talking about it specifically but so that Y could build up a rapport with her and have someone to talk to. He then received a recommendation about a counsellor, Ms P who has counselled children with Ushers and the school arranged that. He conceded that the mother was not told about this but then blamed the mother saying that the school was frustrated at not being able to communicate with her and that it was all organised as part of the student welfare system at the school. Again this says a lot about the father’s dismissive attitude towards the mother and ignores his unilateral actions.
The father says he cannot live full-time at the farm he has at (omitted) because his partner Ms C has a business based in Melbourne and her daughter goes to school in Melbourne. He says it also saves him time when he has to catch an aeroplane. He says that by the time the mother and children returned to (omitted), he had already been in a relationship with Ms C for 3 years and was settled there.
The father says that he had begun a couple of courses in Auslan but had not been able to commit to them. He says Y has taught him a bit and he has an app on his phone.
The father says that he did not tell the mother about the appointment with the optometrist as he was just exploring a hunch.
The mother agreed that if X attends the (omitted) campus at (omitted) Grammar School in year 9 she will be restricted to home visits once a term as the year 9 course emphasises students learning resilience and self-reliance.
The mother says that X would still be living with her in terms of being part of her household and the mother having a full awareness of what was going on at (omitted) because of an order that she live with the mother.
The mother says that if (omitted) College is found to be the best place for Y and if there is an order that Y boards at (omitted), then the mother would feel that she has “absolutely equal access to Y”. The mother says she feels that she is currently prevented from speaking to Y freely because she is living in an environment which is hostile to her and there is a lot of secrecy about appointments.
The mother asked the father about the text message he sent to her where he said “I’m coming after X next. As with Y, you will do all the damage yourself…” He said it was “an unfortunate text” which he sent in a moment of despair and that he has no intention of taking X and Z away from the mother. He refers to the damage as being threatening to take X’s horse away if she does not ride it as he says X is feeling competing pressures about getting her school work done and riding her horse. He says that Y feels that the mother betrayed her trust. He gave the example of Y telling her mother that she did not like a T-shirt her grandmother bought and that after telling the mother that in confidence she was attacked by her grandmother for being ungrateful.
The father says that Y asked him not to tell the mother about her Ushers diagnosis until she was ready to tell her herself because if she told her mother she would tell everybody. This is a very significant issue that should not have been left to Y to decide. This is an example of the father inappropriately empowering Y.
The other complaint made was that Y felt betrayed by the family consultant. That of course is not the responsibility of the mother and must have been a misunderstanding by Y as the family consultant would not have told her that what she told him would be confidential as that defeats the whole purpose of the family report.
Is very clear that the mother feels very strongly that even if X attends boarding school if there is an order that X lives with her mother, that that means that she will be informed of what’s going on for X and that X will still be part of her household. I formed the impression that this view is also coloured by her feeling that she has been cut out of Y’s life and important decisions concerning her welfare and feels sidelined by (omitted) College. This is not helped by the fact that she has never attended (omitted) College. She says she has been unable to because of her work commitments but given the strength of feeling about this issue, one would expect that would been important to have made that a priority.
It is clear that for the mother this has called into question her feelings of worth as a mother and being valued as a mother. That is a powerful thing for her.
One issue that concerns the mother is the affordability of the (omitted) school fees. She has doubts about whether the father can afford it and says she cannot afford to contribute to them. The father says he will ensure they are paid. Given the child support issues between the parties, it is something the mother is legitimately concerned about.
The mother was quite rigid in her views. She says she knows Y will be unhappy if she is taken out of (omitted). She sees the damage as being done to Y the day her father overheld her. She cannot separate her own hurt from the children’s needs and does not seem able to see things from another perspective. The mother told the family consultant that she couldn’t look at Y. The mother says that was important to “the level of absolute deep angst, fear and hurt that I felt that it happened to her and that she would lie and keep that secret, that she was leaving home and not say goodbye. It was hurtful”. She also said she made that comment immediately after it had happened. I accept that.
There was an incident over a weekend when the mother was driving with Y in the car. She had tears rolling down her face. She said it was because she was a mother who had just had her child removed and it was better that she explain it than not to explain it. The mother could not accept that Y might have felt caught in the middle by that and that it may have made Y feel guilty. She said she thought it was important that adults demonstrate to children that they are really sad and how they are feeling. This is concerning because it really is putting an adult burden on the children and particularly Y. The mother then said she made it clear to Y that it wasn’t her fault. I suspect that at best the mother has given Y mixed messages. She said it is Y’s responsibility that she left without saying goodbye and that she needs to be aware that there are consequences. She then said that there are no consequences from her.
The mother told the ICL she has been advised to see someone to talk about those feelings and would like to but has not had the time. I think it is important for the mother’s benefit, and by extension, that the mother does talk to a counsellor. The mother refers to Y being stolen from her.

Child support

The Court’s jurisdiction with respect to child support has not been enlivened. It is unfortunate as it is clearly a significant source of tension between the parties and is the subject of some misapprehension. It is also unfortunate because one of the issues between the parents is the payment of private school fees and the parents’ ability to afford those fees. This is an issue that I am unable to determine.
The mother says the father has significant child support arrears. She says they entered into a binding child support agreement. This is not correct. The parties entered into a child support agreement on 12 December 2007. This was before the 2008 child support reforms which introduced binding and limited child support agreements. The mother annexes the agreement to her trial affidavit. The transitional provisions in the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 provides for the child support Registrar to review child support agreements made before the legislative reforms to determine whether or not the agreement should be transitioned to a binding child support agreement or be terminated. There is no evidence about the determination by the child support Registrar. The mother asked the father several questions about child support and the father was vague in his responses. It appears that the child support agency might be taking enforcement action and that will be dealt with in a different forum.

The children’s schools

The choice of schools for all three children loomed large in this case. X attends (omitted) Grammar School. Z has a place there when he attends high school. X does not have a place there. (omitted) Grammar School confirmed this shortly before the hearing.
If X is successful in achieving a 75% scholarship at (omitted) Grammar school, she will attend that school as a boarder in Year 9. If she is not successful it was the intention of the parents, until shortly before the final hearing that X would remain at (omitted) Grammar School.
The mother filed a further affidavit a few days before the hearing stating that she is no longer able to pay for the children’s school fees and proposes that all three children attend (omitted) College in (omitted). This is a significant change to her proposals. She has made some superficial enquiries with the school. She has not visited the school but is familiar with it from living in the area. The father has only been able to make a limited enquiry with the school. The father opposes the children going to that school. He says that neither he nor the mother are religious and none of the family are Catholic. The mother has discussed this with the children. She should not have done so. The mother has not investigated how much religious instruction there is at that school. She does not know if there are places there for the children.
The mother is also concerned that the father has not been punished for breaching the orders and that as a consequence he will feel that he does not have to abide by them in the future. Whilst her view is understandable there are a couple of points to make. The mother did not bring a contravention application. This is not a criticism of her but those proceedings focus on consequences for breach of orders. The conduct of the father concerns me and it shows a concerning attitude about his views of his responsibilities as a parent but the Family Law Act1975 (Cth) is very clear. The paramount consideration for this Court is the best interests of X, Y and Z.
The sense that some of this is about tit for tat actions is clear from several of the father’s answers to questions but also from the mother’s. The order she seeks suspending the father’s time for 6 weeks is also consistent with this. Although she said it was so Y could readjust emotionally to being in her care, she also said it was what was fair.
The mother does not agree with the recommendation in the family report that if Y is returned to her care the previous arrangement where the children were spending 5 nights a fortnight during school terms with the father should be reinstated. She says the children have several things they need to be involved with and need to be home to do homework.

The family report

Dr L prepared the family report and was cross-examined.
He describes the father as being “direct and purposive” and that his focus on Y receiving the best opportunities was fairly one-dimensional, focusing exclusively on educational opportunities and ignoring a relationship with her mother and siblings. He found that the mother is actively involved in their education and care and wider social and familial networks.
He found that the father had a lack of insight into the damage that the ongoing conflict was having and that he was too focused on narrow aspects of the children’s development rather than their overall development.
Dr L found that the mother focused on the best interests of the children and that she was quite emotional, feeling that Y had been stolen from her and she used that word. She said a main reason to change her mind about (omitted) College was separating Y from her siblings. The mother said that the damage has already been done and that the father has caused a rift in the family and she said of Y “she is my kid but I can’t even look at her… I don’t know what it will take but it will take a lot fix it.”
The mother proposes that if Y is to remain at (omitted) that she attend (omitted) as a border because she does not want it to be like Y has been stolen. He found that the mother was committed and child focussed and that she took a holistic view of the welfare of all three children. At paragraph 5.7 is criticism of both parents in that they underestimate the value of the children’s relationships with the other parent.

He found that X and Z did not want to get drawn into discussing their views. X was very keen about trying to get a scholarship to (omitted) Grammar to attend as a border in Year 9. She expressed some concern about Y in her father’s household and the fact that the father does not know how to speak Auslan but she also acknowledged that Y wants to stay with the father.
Y expressed strongly that she wants to remain at (omitted) and wants to remain living with her father and his partner Ms C. She said that she was old enough to have a say about what she wanted. Dr L said that Y had the assumption that her view would prevail. She was defensive when he raised issues of missing her siblings and friends in (omitted) and how she would manage in the household when no one spoke Auslan.
He also formed the view that all of the children have been exposed to long term ongoing low-level conflict. Z expresses this passivity and wished that his parents could get together on things.
Dr L formed the view that some harm is being done to the children by the ongoing conflict.
He said given the mother’s commitment and involvement in the children’s care and bearing the brunt of the day-to-day care, it is not surprising that she presented as profoundly disappointed and frustrated. He expressed the view that there is a real risk that if Y is not returned to her care that there will be a “profoundly detrimental impact” on the mother’s parenting.
He said that Y is of a maturity and age where respect for her autonomy must be given significant weight even if the way she came to be enrolled at (omitted) was not in her best interests. This is an important point as I need to be concerned with what is in Y’s short-term and long-term best interests as well as the interests of her siblings and not focus on punishing the father for his actions.
He concluded that it was in the best interests of all three children that they live together with their mother and continued to spend substantial and significant time with their father. He referred to the argument about which school is most suitable for Y and said that “the research evidence is relatively clear that parental engagement is an equally important predictor of academic outcomes for students”. It is important for both parents to provide this and would probably be easier if the father learnt Auslan at least at the basic level. He also expressed the view that the longer that Y is away from the mother’s household, the greater the disruption would be. He also expressed concerns about the children forming alignments.
He also formed the view that acceding to the new status quo “born out of unilateral and secretive decision-making would set a poor precedent for future decisions about the children’s care, and model a style of parenting which almost invites the children to play their parents off against one another manipulatively.” He said both parents have spoken about a rift in the family and he could not support that continuing. He reiterated this point when being cross-examined. He says that his reasons for recommending that the siblings be reunited relates to parenting styles. He says that from a psychological perspective the children should be given an example of parental boundary setting and how parents make a decision. He feels strongly about this. This also accords how the mother feels about things.
Dr L expressed the view that it is bad for parents to hide their emotions from children and that they should be emotionally authentic.
He sees the situation of X going to boarding school next year as very different to Y’s situation because that is something she knows that her parents’ consent to. I think this is over simplistic as the father’s position is not as clear cut as that. He has not shown the same commitment to X going to that school and has not committed to contributing to the school fees.
He is not so concerned about the school issues and points out quite correctly that the mother has provided very well for Y’s needs for the past 12 years and has the tested ability to provide for the children’s practical, social and emotional needs. The father does not have the same track record.
Dr L also says that whilst the children’s views are very clear, it is his role as a psychologist to put it in the context of the family dynamic and the impact that the mode of the move has had on the family dynamic.
It is important to note that Dr L interviewed the family on 28 February 2015 when the situation was very raw for the whole family.
Ms Williams outlined the competing factors in the report when cross-examining Dr L. The first is Y’s strong views and the possibility that Y is aligning with her father. Dr L added the issue of parenting style which he said he did not make as explicit in the report.
He acknowledged that both parents have made decisions without consulting the other and there has been an inability of the parents to consult and cooperate for 8 years and that is the risk and that is where alignment can form. He says he felt this was a very real risk when he interviewed the family. He conceded that if alignment was happening then there would be the beginnings of there being some resistance by the children to seeing the other parent. There is no evidence of that.
He also said that it was one of the most difficult reports he has written. He acknowledged that Y expressed very strong views articulately and at her age and maturity her views need to be given strong weight. He does not see Y’s deafness and now the issue of her vision as meaning Y’s views should be respected as he refers to the mother’s track record of being able to very capably address Y’s needs.
It is very clear that for Dr L the most significant factor is that to allow Y to remain at (omitted) would be to accede to the family dynamic that has occurred as a result of the father’s unilateral actions. He was very fixed on that. The difficulty with this stance is that it ignores the principles the Court must apply.
I think there is a limitation in the report in that Dr L chose not to interview the father’s partner Ms C and to observe A. In my view it is important for all members of the household in which children live be involved in the family report interviews. In this case the mother alleges that the father’s household is toxic to her. It would have been helpful to the Court if that household had been explored.
He does not see the children going to boarding school as being the continuing conflict between the parents.

The law

In cases about children under Part VII of the Family Law Act 1975 the court must regard the best interests of the child as the paramount consideration: s.60CA. What this actually means in an individual case is informed by a number of statutory provisions which I will briefly discuss below.
There are objects set out in s.60B that help to clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objects: s.60B(2).
The concept of best interests is explained in s.60CC. The primary considerations are set out in s.60CC(2) and include the benefit to the child of having a meaningful relationship with both parents, and protecting the child from harm arising from abuse, neglect or family violence.
There are additional considerations set out in s.60CC(3). These include: the views of the child, the nature of the child’s relationship with parents and other persons; the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent; the likely effect of change on the child; issues of practical difficulty and expense associated with contact; the parents’ capacity to provide for the child’s needs; the maturity, sex, lifestyle and background of the child and parents; special considerations if the child is of Aboriginal or Torres Strait Islander culture; attitudes to the child and to the responsibilities of parenthood; and family violence or family violence order; issues of finality; and any other fact or circumstance that the court thinks relevant.
At the core of Part VII of the Family Law Act 1975 is a presumption of equal shared parental responsibility. Thus s.61DA creates a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. This presumption may be negated in certain circumstances (s.61DA(2)), or rebutted (s.61DA(4)).
If the presumption applies, the court is required to consider certain time arrangements as between parents and children: s.65DAA. Thus the court is required to consider equal time, or substantial and significant time, but only if this would be in the best interests of the child, and is reasonably practicable: s.65DAA (1) and (2). Equal time means what it says, and substantial and significant time is explained in s.65DAA(3).
Another important concept used in s.65DAA is that of reasonable practicality. That is explained in s.65DAA(5).

The application of the law to the facts of this case

The presumption of equal shared parental responsibility applies in this case. Despite the actions of the parties in making decisions without consulting each other, and the conflict between them it is still in the children’s best interests for their parents to continue to share this responsibility. It is up to the parents to exercise it together. This means genuinely consulting with each other, listening to each other’s opinions and working together.
The children enjoy a meaningful relationship with both their parents and this will continue regardless of the orders the Court makes.
The children’s views are a significant factor in this case. Z has not expressed a view apart from wanting the conflict in his family to end. Y has expressed strong views about wanting to remain at (omitted) College and remain living with her father. X dearly hopes to get into (omitted) Grammar school which would see her at boarding school.
The mother’s sense of injustice cannot be the driver of this decision. This case would be simple if all I had to be concerned with was not allowing the father’s unilateral decision to stand but it is not. I have to apply the principles set out in Part VII of the Family Law Act 1975.
The real issue in this case is the parents’ ongoing inability to address the conflict between them and communicate effectively for the sake of the children. No orders the court makes can fix that. Only the parents can. It may be that family therapy would assist them but that will be a matter for the parents to commit to addressing. It is clear that in the past the parents have been able to agree on difficult issues. The relocation to Queensland is a prime example of that.
The ICL expressed some concern that the mother blames Y for going with her father. The Court shares that concern. This is something Y would be aware of and burdened by. The mother justifiably feels aggrieved by the father’s actions. The father’s actions cannot be justified. He has caused a lot of pain not just to the mother but to the children as well. The father needs to acknowledge this and take responsibility. He needs to take responsibility for the damage he has caused to the mother’s relationship with Y. If Y loses her place at (omitted), for whatever reason then her living arrangements should be revisited. It would be preferable for X and Z (when he is old enough) to attend (omitted) Grammar if X does not get a scholarship to attend (omitted) Grammar. If it is a matter of fees then the father should do what he can to ensure all three children attend their preferred schools.
The outcome would be different if X had a place at (omitted) Grammar school. She would be going to school with her sister, at least for a period. She would be going to a school that her brother will be going to when he is old enough. Unfortunately. the future schooling for all three children is now uncertain. In my view that does make a difference. There is no escaping from the fact that Y has special needs and has to face a future with two disabilities. She is at a school that caters very well for her deafness. She has friends there and has settled there. She will be 13 in a few months’ time. Peer relationships and school become even more important for teenagers as they start to exercise independence from their parents.
I am not going to make the injunctions the father seeks with respect to the children’s schools as the issue appears to be about the school fees. The parents will need to work this out and if it becomes clear that the parents cannot afford the school fees, they will need to consult with each other about alternative schools. The father also sought orders requiring the children to be released early from school on Fridays because of the handover. I do not think this is appropriate. That will be disruptive to the children’s schooling.
In my view, it is in the children’s best interests that they spend each weekend together, which means alternate weekends with their parents. I will also order handovers to be at the mother’s residence. This will mean the father will be travelling but he has flexibility in his working arrangements as well as property at (omitted) where he can stay.
I will not make an order requiring the father’s time to take place in the (omitted) area as that ignores the connections he has to Melbourne. He will need to ensure the children participate in their sporting and extra-curricular activities so far as possible which may well involve some juggling on his part but that is a consequence of the unilateral actions he took.
For these reasons I make the orders which appear at the beginning of this judgment.

I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate:

Date: 3 September 2015

[2015] FCCA 2398

3 September 2015

Key Legal Topics

Areas of Law

Family Law