TEAGUE and SHAWCROSS
[2014] FCWA 10
•17 FEBRUARY 2014
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: TEAGUE and SHAWCROSS [2014] FCWA 10
CORAM: WALTERS J
HEARD: 14-20 JANUARY 2014
DELIVERED : 17 FEBRUARY 2014
FILE NO/S: PTW 6915 of 2006
BETWEEN: TEAGUE
Applicant Wife
AND
SHAWCROSS
Respondent Husband
Catchwords:
FAMILY LAW – PARENTING – Where child has spent equal time with parents for 7 years – Where child is about to commence secondary school – Where parents live in suburbs far removed from each other – Where child does not want shared care arrangement to continue – Where both parents acknowledge that shared care arrangement cannot continue – Orders made for child to live with mother and spend substantial and significant time with father
Legislation:
Family Court Act 1997(WA), Pt v, ss 66, s 66A, 66C70A, 70DA, s 89, s 89AA
Family Law Act 1975 (Cth), Pt VII, s 61DA, s 64B, s 65DAA
Category: Not Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
Respondent: Ms R Reader
Solicitors:
Applicant:
Respondent: Reader Lawyers & Mediators
Case(s) referred to in judgment(s):
Champness & Hanson (2009) FamCAFC 96
Collu & Rinaldo [2010] FamCAFC 53
Goode (2006) FLC 93-286
Hungerford & Tank [2007] FamCA 637
Jets & Maker (No 2) [2011] FMCAfam 1473
M & S (2006) FamCA 1408
Marsden & Winch (No 3) [2007] FamCA 1364
McCall & Clark (2009) FLC 93-405
McLeay (1996) FLC 92-667
Mills & Watson (2008) 39 Fam LR 52
MRR v GR (2010) FLC 93-424
Pender & Haywood [2007] FamCA 1526
Re F – Litigants in Person Guidelines [2001] FLC 93-072
Saxena (2006) FLC 93-268
Sealey & Archer [2008] FamCAFC 142
Taylor & Barker (2007) FamCA 1246
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction and background
1This case is about the living arrangements for a 13-year-old girl. Her name is [M]. Her parents separated at least seven or eight years ago. For the vast majority of that period, M has lived in a shared care arrangement, spending alternate weeks with each parent. Initially, M's parents lived close to each other, but that is no longer the case. They now live in suburbs of Perth that are far removed from each other. For the last two years, M's parents persevered with the shared care arrangement. They did so because they did not want to remove M from the Primary School that she had been attending. She is now due to commence her secondary education, and both parents recognise that the shared care arrangement can no longer continue. M, too, recognises that the shared care arrangement cannot continue. Indeed, she wants it to end.
2M's mother proposes that M should live with her and her husband in their home in [Suburb B] and attend [High School D]. M's older brother, who is 17, lives primarily with M's mother and stepfather.
3M's father proposes that M should live with him and his partner in their rented accommodation in Suburb C and attend [High School A].
4M's parents have (in the main) managed the week about arrangement reasonably well, but they have struggled to communicate constructively and effectively. Ultimately, their inability to communicate, and to cooperate with each other without recriminations or rancour, has been to the detriment of their children – although more so for M's older brother than for M herself.
5After a trial which occupied approximately four days, I concluded that M should live with her mother and spend time with her father. I made orders to that effect. The orders were in a form to which the parties agreed, but they were not made by consent. I indicated that reasons would be provided at a later time. These are my reasons.
Overview
6In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have referred to the parties as the mother and the father (and I mean them no disrespect by doing so) – because it is less confusing than referring to them as the applicant and the respondent; and
c)I have not drawn a distinction between proceedings or events in the Magistrates Court, 150 Terrace Road, Perth and proceedings or events in the Family Court of Western Australia (given that the two Courts operate "in tandem" and exercise similar jurisdiction).
7Although the law now refers to a child “spending time” with a person with whom the child does not live, I shall use the obsolete term “contact” from time to time in these Reasons. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
8The mother was born in 1962. It follows that she is now or is soon to turn 52. The father was born in 1971. He is currently 42. They commenced cohabitation in early 1996. According to the mother, they separated in 2002 – if not earlier. According to the father, they separated on about March 2006. They never married.
9There are two children of the parties' relationship: [D] (who was born [in] 1996) and M (who was born [in] 2000). D is now 17. M is 13.
10The mother has two daughters from a previous relationship: [T] (who is now approximately 30) and [H] (who is now approximately 27). T and H are both married, and live independently. T lives in Melbourne. She is a [nurse]. H lives in Perth. She is a [physiotherapist].
11The mother works as an aged carer, on a part-time basis. Much of her work is voluntary, but she earns approximately $100 per week.
12The father is a project analyst. He earns approximately $85,000 per annum.
13Both the mother and the father have repartnered. The mother commenced a relationship with [Mr P] in or about 2004 or 2005. They married [in] 2011. The mother and Mr P had known each other when they were young adults, but each had formed relationships with other parties after that time.
14Mr P has two daughters from a previous relationship. They are aged approximately 16 and 18, and live with their mother.
15Mr P is a process technician. He works for [Company A] on a rotating roster. He earns approximately $110,000 per annum.
16The father commenced a relationship with [Ms N] in or about December 2011. They moved in together in December 2012. I am not aware of Ms N’s age or relationship history. She lived interstate for 13 years before moving back to Perth at the end of 2010. She is the State Manager for an international firm and appears to have a successful business career. I assume (from the father's evidence, and from her affidavit sworn 4 December 2013) that Ms N has no children.
Relevant procedural and other history
17The mother filed an application for final orders on 19 December 2006. She filed an application in a case on the same day. In broad terms, the mother sought orders to the effect that D and M live with her and spend time with the father. She proposed that the parties have equal shared parental responsibility for the children.
18The father filed an application for final orders, and an application in a case, on the following day – 20 December 2006. He also proposed that the parties have equal shared parental responsibility for the children, but, significantly, he sought orders to the effect that D live principally with him (pursuant to a 9 nights/5 nights per fortnight arrangement) and that M live principally with the mother (pursuant to a 9 nights/5 nights per fortnight arrangement). He sought orders to the effect that the school holidays be shared equally between the parties.
19Procedural orders were made on 21 December 2006 to the effect that the mother's application was to be treated as the primary application initiating proceedings, with the father's application to be treated as a response to the mother's application. Consent orders were made on the same day (21 December 2006) providing for the children to live with the parties on an equal shared care basis. The children were to live with each parent alternately for five consecutive days.
20At that time, both parties were represented by legal practitioners.
21The parties attended an alternative dispute resolution conference organised through Legal Aid Western Australia on 22 January 2007. Agreement was reached at the conference, and a minute of agreed orders was signed. Orders were made in the terms of the minute on 25 January 2007 ("the 2007 orders"). The orders were made by a Registrar in Chambers.
22The 2007 orders provide for the orders that had been made by consent on 21 December 2006 to be discharged. They also provide for the parties to have equal shared parental responsibility for the children and for the children to live equally between the parties on a week about basis, with handover to take place each Monday afternoon. School holidays were also to be shared equally between the parties.
23The 2007 orders otherwise speak for themselves. Of importance, however, is paragraph 16, which is as follows:
The proceedings otherwise stand adjourned generally with liberty to both parties to relist the matter on 7 days written notice to the other party.
24At the time of the 2007 orders, the parties were living in Suburb A, in close proximity to each other.
25Pursuant to paragraph 16 of the 2007 orders, the mother wrote to the Court on 13 October 2011 proposing a variation to those orders: see exhibit M1. Among other things, the mother wrote that –
a)she had moved from Suburb A to Suburb B;
b)she proposed that M live with her with effect from 1 January 2012; and
c)D wished to stay at his current school (being [High School E]) and she therefore proposed that he live with the father during the school week, but that D be free to stay with her whenever he chose.
26On or about 6 November 2011, D commenced living with the mother on a full-time basis.
27The proceedings were listed for a special appointment on 17 November 2011. Procedural orders were made on that day – providing, among other things, for the parties to file amended/updated documents. The parties were also ordered to attend a mediation conference.
28On 30 November 2011, the mother filed a case information affidavit and (seemingly in error) a Form 1A response. In the case information affidavit, she proposed that M live with her and commence the 2012 academic year at a new school in Suburb B. She proposed that M have contact with the father on weekends in accordance with her wishes. The mother also recorded that D had been living with her since 6 November 2011. In the response itself, she sought orders to the effect that both D and M live with her and spend time with the father.
29On 16 December 2011, the father filed (also, seemingly in error) an amended Form 1 initiating application, together with a case information affidavit. He sought orders to the effect that D and M live with him and spend time with the mother. In his case information affidavit, he wrote at [11]:
[The current housing arrangements in place for the children are] shared care arrangement 50/50. However, since turning 14 and due to his wishes at any given time, [D] has been less consistent in where he stays, both with his mother and father.
30The father added at [16]:
... in regards to [D] the arrangements have become increasingly flexible. He is currently having an extended stay with his mother due to disciplinary issues at my house.
31In his case information affidavit, the father accused the mother of –
a)having perpetrated family violence;
b)taking little or no action in relation to D's "drug-taking and antisocial behaviour"; and
c)effectively undermining the best efforts of teachers, school administrators and the father "... resulting in D's under-achievement to this point".
32On 8 February 2012, the father wrote a letter to the Court: see exhibit M2. In it, he wrote:
Notwithstanding the matter of our daughter's education [is] before the court and not resolved, the mother without my knowledge or consent changed the enrolment of the child from [Primary School A], where she has attended since 2006, and has enrolled her at [Primary School B].
33Primary School B. is close to the mother's home in Suburb B.
34At the same time, the father presented for filing a Form 2 application in a case in which he sought orders preventing the mother from changing M's enrolment at Primary School A. The Form 2 application was filed on 10 February 2012.
35The father's assertion (in exhibit M2, and in his affidavit sworn 8 February 2012) that the mother had changed M's enrolment from Primary School A without his knowledge or consent was disingenuous. The mother had written to the father on 24 June 2011 informing him of her move from Suburb A to Suburb B and asking him if he would agree to M living with her and changing schools to a school in the Suburb B area. She proposed that D continue to live with the father and for her and Mr P to see him "every weekend or every second weekend as [D] wishes". The father did not respond to the mother’s letter of 24 June 2011; nor did the father respond to subsequent communications from the mother seeking to engage him in constructive discussion regarding the proposed changes to M’s living and schooling arrangements.
36In September 2011, the mother, having heard nothing from the father, gave notice to Primary School A that M would be leaving at the end of the year. She also proceeded to enrol M at Primary School B.
37The mother made no secret of her proposals for M's education, and M was aware of the plans. Indeed, the father conceded during cross-examination that he was aware that the mother had enrolled M at Primary School B (although he asserted that he was unaware that "enrolling M at a new school 'unenrols' her at her old school").
38On 7 December 2011, M was awarded a certificate farewelling her from Primary School A: exhibit M3. The certificate reads:
Farewell from Suburb A
Awarded to
[[M]]
Our best wishes and good luck in your new school.We hope you have enjoyed your time at Primary School A.
39In spite of his suggestion to the contrary, I have no doubt that the father was well aware – on or shortly after 7 December 2011 – that M had been awarded the certificate.
40Shortly after the awarding of the certificate to M, the mother wrote a note to the father: see annexure B to the mother’s affidavit sworn 6 March 2012. The note contains the following:
Just letting you know that M’s school fees, books etc have been paid for 2012 at her new school. [Primary School A] awarded her with a "leaving" certificate so they are aware that she's not returning. I'll organise [D’s] book list and arrange so that we both pay half for his books etc for [High School E]. I'm not agreeing to your change of orders as it's all about you not what the kids want ...
41During the course of her evidence, the mother suggested that the above note had been provided to the father earlier than December 2011, but it seems clear that it was written after 7 December 2011 (being the date upon which the certificate was awarded to M).
42Ultimately, and because of the father's failure or refusal to discuss her proposals for M, the mother approached this Court for assistance (as outlined above). After she did so, the parties were required to discuss relevant issues at family dispute resolution. The father failed or refused to attend: see annexure C to the mother's affidavit sworn 6 March 2012. The father later changed his mind about attending family dispute resolution, but the initial appointment was lost.
43It is not to the mother's credit that she changed M's school while proceedings were on foot, but I accept that she had done her best to engage the father in discussions regarding her proposals for M and that she believed she was acting in M's best interests by carrying through with the arrangements she had put in place during the second half of 2011. I am satisfied that the father was well aware of those arrangements as or very shortly after they occurred, and reject his evidence to the effect that he was not.
44After the making of procedural orders on 12 March 2012, the proceedings came back before the Court on 15 March 2012. Orders were made on that day to the following effect:
a)The 2007 orders were suspended as they relate to D, who was to live with the parties in accordance with his wishes.
b)The parties were required to cause M to be re-enrolled at Primary School A with effect from 19 March 2012.
c)Both parties were restrained by injunction from enrolling M in "or permitting her to attend" any other school from 19 March 2012, unless with the written consent of the other party.
45Other orders were on 15 March 2012 (including an order for the preparation of a family report), but they are not presently relevant.
46On 27 April 2012, the parties attended a case assessment conference. The conference was conducted by a family consultant, Ms Jenny Bergman, who interviewed the parties separately.
47It is clear from the conference memorandum (comprising part of exhibit J1) that the main issues in dispute between the parties at that stage were the following:
a)Should M move schools in 2013? If so, to what school?
b)Should M live primarily with the mother, or should the week about arrangement stay in place?
48The mother informed Ms Bergman that she was content for D to continue living with the parties in accordance with his wishes. Although the father was not happy with such an arrangement, he recognised that it would be "extremely difficult" to enforce a different arrangement given D's age (D was then 15).
49In the conference memorandum, Ms Bergman suggested that the week about arrangements "had been working reasonably well for the previous five years, until the mother moved from [Suburb A] to [Suburb B]". It is clear from the evidence presented at trial, however, that the week about arrangement had not been working "reasonably well" – except, perhaps, in the formal sense of M spending alternating weeks in each parent's household. The reality is that the parties' relationship had been dysfunctional for an extended period of time and that they were unable to communicate effectively. The father's failure or refusal to communicate constructively (or at all) with the mother in relation to her proposals for M as set out in the letter from June 2011 is powerful evidence of the parties' dysfunctional relationship.
50The conference memorandum records that the parties agreed that M should be interviewed to obtain her views on moving schools and her living arrangements with each parent.
51Ms Bergman subsequently interviewed the parties and M on 7 June 2012. A family report was then prepared. The date of the report is 18 June 2012 ("the first family report"). I have discussed the first family report below.
52On 20 July 2012, consent orders were made to the effect that M be permitted "to attend her sister's wedding as a flower girl on 20 October 2012". Further consent orders were made as to the following effect:
a)Both parties have liberty to take the child to visit [High School B], [High School C], Perth Modern, Methodist Ladies' College and St Mary's.
a)If the parties choose, they may enrol M for high school at one of the schools referred to in the preceding order, or High School D without determining which high school M will in fact attend.
53Ms Bergman conducted a child dispute conference on 7 December 2012. According to the conference memorandum (also comprising part of exhibit J1), the parties agreed that M should remain at Primary School A for the remainder of her primary schooling – in other words, until the end of the 2013 school year. The mother told Ms Bergman that she would have preferred for M to begin living with her immediately, but she accepted that it would be in M's best interests to remain at Primary School A for 2013.
54The conference memorandum reveals that the mother's proposals were to the effect that M should live with her and spend alternate weekends with the father. The mother also proposed that M should attend High School D or High School C. The father proposed that M should live with him and spend alternate weekends with the mother, and that she should attend either Methodist Ladies College or High School E.
55Ms Bergman wrote that "the acrimony in the relationship is high and the parties find it difficult to communicate which interferes with their ability to mediate".
56On 9 January 2013, the proceedings were programmed for trial. At that stage, it was assumed that the trial would occur in mid-2013.
57Further procedural orders were made on 5 June 2013, and the matter was eventually listed for trial on 19 September 2013.
58On 17 September 2013, orders were made vacating the trial date and relisting the proceedings on 18 November 2013. An updated report was ordered. The report was to deal primarily with M's wishes as to her living arrangements and the school that she is to attend.
59The updated family report (also prepared by Ms Bergman) is dated 4 October 2013 ("the second family report"). I have discussed the second family report below.
60The proceedings came before me on 18 November 2013. It was then listed for trial on 14 January 2014.
61The trial commenced on 14 January 2014. It ran for approximately four days, concluding on 17 January 2014. The mother was unrepresented. Ms Reader appeared for the father. She had received instructions to act for him shortly before trial.
62On 20 January 2014, and after reviewing the evidence over the weekend of 18/19 January 2014, I made final orders and indicated that I would provide reasons for my decision in due course. Given that the commencement of the 2014 school year was imminent, it was clear that the parties should be informed of the result of the trial as soon as possible. In broad terms, I ordered that the parties retain equal shared parental responsibility for D and M and that M live with the mother. I ordered that D live with and spend time with the parties in accordance with his wishes.
63The orders made on 20 January 2014 are reproduced later in these Reasons. Although the orders are not consent orders, the parties agreed to their form and, for example, to the contact arrangements that should adhere upon M commencing to live with the mother on a full-time basis.
64The parties had agreed upon the arrangements that should adhere for D prior to the trial. It follows that the orders, as they relate to D, were effectively made by consent.
The first family report
65The first family report is dated 18 June 2012.
66After summarising the history of the parties' relationship, referring to the events leading up to the making of the 2007 orders and describing the background to the proceedings which had commenced in late 2011, Ms Bergman dealt with her interview with M (who was then just under 12 years old).
67I do not propose to reproduce the first family report in these Reasons. It speaks for itself. The following passages, however, are of significance:
[21][M] did not want to comment on whose house she would prefer to stay in during the week while she went to school, so different questions were asked of her. When asked what it was she liked about living at each of her parent's homes she remarked "Mum's is more organised it's more a home, Dad's place is more like a place to stay. Dad's house is messy. I love Dad but I'm not as comfortable. I have more friends in Suburb B and more activities". [M] remarked "I don't want to upset Dad, I would be afraid of making Dad upset, he gets angry".
...
[27]The mother said that she has a very poor relationship with the father. She explained that they do not talk and only communicate through text messages and emails. She said "I don't get along with [the father] at all". She held the view that the father rarely acknowledges her at handovers, and shares no information with her regarding [M's] health, schooling progress or general well‑being. She said he talks in riddles and plays games, she held the view that it was difficult to get a straight answer from the father, and that he doesn't like being told what to do. She thought he was obstructive, indecisive and difficult to negotiate with.
...
[32]When asked about his relationship with the mother, the father replied "I try from time to time but it's so difficult. It's a maniacal situation, one day she's up and the next day she's unapproachable. Her parenting is not taken seriously; it's a trophy cabinet thing for her". He thought that the mother rarely communicated with him on important matters regarding [M's] health, and schooling. The father went on to say that he was disappointed that a more thorough assessment of the parties' parenting styles was not being conducted, and that a better assessment on who was the better parent of the two was not being done. He said "I should have put more ice cream on the table", which he appeared to mean, he should have bribed [[M]] prior to the interview with more things to make her like his style of parenting more. He went on to say that he was convinced that the mother deliberately gave the child things, and had fewer rules to make [M] want to live with her.
68Under the heading Summary/Recommendation, Ms Bergman wrote (emphasis added):
[34][M] presented as a shy, reserved and nervous child, who was very concerned about the impact her answers would have on her parents, and clearly did not want to offend anyone with them. She expressed a love for both parents, and a relief that they were not in the room with her during the interview. She was well aware of the acrimony that existed in her parents' relationship, evidenced by her reported at admissions of overhearing disputes about who was paying for what, her mother calling her father names at handovers, and her father telling her that her mother gives her things in order to encourage her to live with the mother. She also wanted her parents to know that she feels caught in the middle of their arguments, and realises that their problems revolve around her. It would be naive to think that this level of acrimony does not have an impact on her well-being.
[35][M] has managed a 50/50 shared care arrangement since early 2007 when her parents implemented it during a dispute resolution process. Not only is a 50/50 shared care arrangement not always appropriate for a child whose parents are in continual conflict, it is usually not recommended for families who live vast distances apart. Since 2011, [M] has had to endure both. [M] at the age of 11 years and 10 months has herself realised that the situation cannot continue and [the family consultant] shares her view.
[36]While it appears that [M] and her parents have conceded that the current arrangements will stay in place for 2013, it is highly recommended that things change for [M]'s high school years, and that she predominantly live with one parent during the week.
[37]It appears that it is [M]'s preference to live with her mother, although she was reluctant to say as much. Likely contributing factors may include: [M], as a young person rather than lady identifying more closely with her mother, and [M's] statement that her mother's house felt more like a home as opposed to her father's house feeling more like a place to stay. She remarked during the interview that she felt more comfortable at her mother's. She did not like being on her own while her father worked, and additionally expressed a view that she had more friends in the [Suburb B] area, and more activities that kept her occupied. She showed an interest in going to [[High School D]], but showed no real interest in going to school in the [Suburb A] area. That may be a reflection on the father not knowing himself where he wants to send [M] or it may be the reflection of a genuine preference. It does not appear that it is because the mother gives her things, and has less rules, that encourages [M] to enjoy spending time with her mother, as is the father's view. It is for these reasons that it is recommended that [M] live with her mother during the week for the duration of her high school education.
The second family report
69The second family report is dated 4 October 2013. At that time, M was just over 13 years of age).
70Once again, I do not propose to reproduce the contents of the second family report in these Reasons. The following passages, however, are of significance:
[5]In relation to her father, M said her relationship with him was "fine, no changes, we're good. He doesn't have as much money as he used to have. I'm not saying he was rich or anything but now he worries about it more. I really needed a new pair of jazz shoes for my concert and he said 'oh more money'. Sometimes he gets angry, he still upsets me but he doesn't scare me as much anymore".
[7]When discussing her views regarding which school she would like to attend next year [[M]] said "If I'm at Mum's I will probably go to [[High School D]], I'm enrolled there and I like it. ..." When [M] was asked about her schooling preference if she were to live predominantly with her father, she said "I'm still not sure, I want to go to [High School A] with my friends, but I'm not enrolled into any school. Dad said [Ms N] might be able to get me into [Methodist Ladies College] I wouldn't mind if I went there, but I can't get into [High School E] because we are not in the right area, I don't want to go there anyway". [The family consultant] reminded her that her father told [the family consultant] that [High School A] was not an option for her, but [M] responded by saying "I don't know why the judge has to know about which school I want to go to anyway, can't he just make a decision about who I'm going to live with then I will work it out with my parents? I know where I will be going if I live with Mum anyway".
[8]... [M] stated that she had a sense of being split down the middle when thinking about her parents' proposals, she said "it's half/half, I've got friends at Dad's, but with Mum I have all the girls stuff and it's more home like, Dad's is more educational if you know what I mean, there are benefits for both, I would think it was okay whatever the judge said".
...
[11]When asked if there was something she thought the judge should know or if there was anything else she wished to discuss she said "can you please tell the judge to get my parents to communicate better. I really want braces and I'm really trying to get them. Mum said Dad won't pay anything toward them, and Dad says, 'I pay your mother child support for those sorts of things', it's something I really want to happen".
71Under the heading Summary, Ms Bergman wrote:
[13][M] appears to have matured over the past 15 months and presented as more confident and self-assured. The parents are to be commended on raising such a polite and engaging child. The report that they no longer denigrate each other in front of her is likely to have had a positive impact on her emotional well-being, and it was pleasing to hear her say it was no longer occurring.
[14]When [M] was first interviewed at 11 years and 10 months it seemed to [the family consultant] that while she did not categorically state that she wanted to live predominantly with her mother during her high school years, she did show a preference for doing so, by describing a preferred lifestyle and sense of belonging at her mother's home, however at 13 years and 1 month, [M's] peers presented as more influential and important in her life. During adolescence, children are exploring their independence and developing a sense of self. They use their peers to be both connected and independent, as they break away from their parents' images of them and develop identities of their own.
[15][M's] connection with her friends in Suburb A appears to have cemented over the past year and it is likely that this has had some influence on her and on her views on where she might like to live next year. The preference to live with her mother did not present as strong as it did 15 months ago. ...
[16]In regards to her preferred schooling options, [M] said that she would like to attend [[High School D]] if she lives with her mother and High School A if she lives with her father, but thought that the decision was best left to her and her parents.
Ms Bergman's oral evidence
72In her oral evidence (which was brief), Ms Bergman said that the mother's proposals regarding M's schooling were "always clear". The father's proposals, on the other hand, were "never clear".
73Ms Bergman's evidence in this regard is of importance, given the manner in which the father conducted his case. He placed considerable emphasis on the need for M to achieve her "potential" and had argued, in effect, that the question of M's living arrangements should be determined by focusing on the school that she should attend. In other words, until a relatively late stage of the proceedings, the father's case appeared to be that M should live with him because his proposals regarding her future schooling were superior to the mother's proposals. It was not until shortly before the trial that the father clearly proposed that M should attend High School A. That is not to say that the father had not hinted or implied that High School A might be an appropriate school for M to attend, but his comments did not amount to a clear proposal.
Mr P
74Mr P swore an affidavit on 19 June 2013 and was cross-examined during the trial. He presented as a sensible, caring and down-to-earth man. He made appropriate concessions and gave credit where it was due. I accept that there were some minor inaccuracies or exaggerations in his affidavit but, in my opinion, he was a witness of truth.
75In his affidavit, Mr P described two troubling incidents involving the father. The first occurred shortly after Mr P and the mother commenced a relationship. The father followed the mother to Mr P's house, knocked repeatedly at the door and shouted out for the mother. After knocking on windows, he eventually entered the house (without Mr P's permission), came into the lounge room and insisted that the mother speak with him.
76The second incident was some weeks later. According to Mr P, H provided information that the father "was hanging around the house being a nuisance and scaring her and the two younger children". Mr P’s description of what then happened is as follows (see Mr P’s affidavit at [2]):
... [As] I arrived at [the mother's home at [Property A]] a little while after [the mother] did that there was a commotion outside the front door of the house, [H] was crying and so was [the mother] as [the father] was "unconscious" on the front porch, there was a bottle of whiskey and a few cans of whiskey and cola with a bottle of prescription pills scattered on the front porch, there was also an extension cord hanging from the rafters of the carport. ... I alled an ambulance as I gave [the father] first aid, put him in the coma position, checked his vital signs as I was at the time working at a mine site and was the team leader of the Emergency Response Team. ... I monitored his vital [signs] until the ambulance arrived. ... [The father] was then transported to [hospital].
77It appears that the father was discharged from hospital after a short time and it is unlikely that his actions amounted to a genuine suicide attempt. Still, his behaviour was obviously upsetting for H and the mother.
78Mr P was not cross-examined on his description of either of the two events.
79It is clear that Mr P has a close and positive relationship with M. M is happy and content when living with the mother and Mr P: see Mr P’s affidavit at [6].
Ms N
80Ms N swore an affidavit on 4 December 2013. She was not cross‑examined.
81Overall, Ms N presents a positive picture of M's relationship with the father and describes some of their activities. Like Mr P, she appears to have a close and positive relationship with M.
82I accept that M is involved in a wide range of activities during her time with the father and that M enjoys those activities.
83According to Ms N, M has often mentioned to her that she would like to attend High School A, because of its "strong music and arts programs" and because "some six of her closest friends" will be attending the school: see Ms N's affidavit at [22]. M's views in that regard are consistent with those she expressed in the second family report. It is clear, however, that M's preference for High School A (as expressed in the family report) was conditional upon a decision being made to the effect that she is to live with the father. It is also clear that, as late as September or October 2013, M was uncertain as to which school she would be attending if she were to live with the father, and that High School A did not appear to be an option.
Some brief observations
84Before progressing further in these Reasons, it is pertinent to make the following observations:
a)M's description of the mother's household being "more like a home" and the father's household being "more like a place to stay" or "more educational" is telling. Having seen and heard the parties (and Mr P), I have no doubt that the mother's household is likely to be a warmer and more inviting and forgiving environment for M than the father's household. I have not ignored Ms N's evidence (which was unchallenged), but my impression of the father is that he is somewhat inflexible. He is self-assured, with (unfortunately) a noticeable sense of self-importance. He lacks empathy, and appeared incapable of giving credit to the mother where it was due. He displays an emotional coldness, which is in stark contrast to the mother's emotional warmth. I have no doubt that the father has little tolerance for criticism. At the same time, his approach to issues surrounding M's education made it clear that he regards her as having significant "potential" – which, he appears to believe, the mother does not have the capacity to nurture. I have no doubt that it would be easy for D and M to feel that they have disappointed the father.
b)In my opinion, the mother's description of the father appearing in the first family report at [27] is fair and accurate:
... [He] talks in riddles and plays games ... [It is] difficult to get a straight answer from the father and ... he doesn't like being told what to do. ... [He is] obstructive, indecisive and difficult to negotiate with.
c)The father's apparent unwillingness or inability to nail his colours to the mast (as it were) in relation to his choice of school for M – until shortly before trial – is an example of the father's behaviour as described in the previous comment.
d)When regard is had to the father's personality (as I have described in the previous paragraphs) the importance of M's comments in the first family report to the effect that she is afraid of making the father upset and that he gets angry is readily apparent. The second family report, which includes a comment by M to the effect that the father still gets angry and still upsets her "but he doesn't scare me as much anymore", does little to ameliorate the Court's concerns regarding the father's personality.
e)The evidence reveals that the father had serious differences with both T and H, and violent disagreements with D (even if the father was not necessarily the instigator). Given the father's personality, it is entirely predictable that he will clash with M, too, as she grows older and eventually seeks to challenge his authority and question his expectations. I am not confident that, faced with such a challenge, the father will not elect to "throw her out" (to use the mother's words) in a similar fashion to the manner in which he dealt with his differences with T, H and D in their mid-teenage years. I would add at this stage that I reject the father's evidence to the effect that the mother concurred with his behaviour in this regard. I am satisfied that the mother felt that she had no alternative but to accept the father's actions (as they related to T and H, in any event).
The parties' proposals
85Both parties agreed that, whatever the outcome of these proceedings, they should continue to have equal shared parental responsibility for M.
86Both parties also conceded that the shared care arrangement which has been in effect since late 2006/early 2007 can no longer continue and that M should live predominantly in one household or in the other.
87In broad terms, the mother proposed that M should –
a)live with her and her husband (and D) in their home in Suburb B;;
b)attend High School D; and
c)spend alternate weekends and half of all school holidays with the father.
88The mother said that Mr P would meet the cost of M's education at High School D.
89In broad terms, the father proposed that M should–
a)live with the father and Ms N in their home in [Suburb C];
b)attend High School A; and
c)spend two weekends out of three, and half of all school holidays, with the mother.
90It is unnecessary for me to provide further details of each party's proposals. As indicated above, I made final orders on 20 January 2014. The final orders are in an agreed form (although they are clearly not consent orders). The reality is, however, that most of the detail contained in the orders was not in dispute, and each party simply sought the reverse (as it were) of what the other party proposed – save that the father had proposed that M should spend two weekends out of three with the parent with whom she does not reside, whereas the mother had proposed that M should spend alternate weekends with that parent. As is apparent from the final orders made on 20 January 2014, the parties eventually agreed upon an alternate weekend arrangement.
Incidents/areas of dispute
91A number of incidents or areas of dispute featured in the evidence of both parties.
T and H
92As indicated above, T and H are the mother's daughters from a previous relationship. The mother said, and I accept, that T and H both "endured verbal and emotional abuse" from the father during their early teens: mother's affidavit sworn 20 June 2013 at [2]. Ultimately, the father required both girls to leave the home in which he lived with the mother (although at different times).
93The father suggested that it was the mother's decision to send T to live with her father and to exclude her from the parties' home when the arrangement with her father was unsuccessful. Similarly, the father suggested that it was friction between the mother and H that was the primary cause of H's decision to leave the parties' home and live with a friend (although H eventually returned to live with the parties, only to leave at a later stage). I do not accept the father's evidence in that regard and find that he was primarily responsible for both girls' departure from the home.
94After T was no longer living with the parties, the father impeded the mother's contact with her. The father conceded that he told the mother that he did not want T in their home. The mother said, and I accept, that she had to "sneak away" to meet T so that T could have interaction with D when he was a very young child.
95I accept that the behaviour of both girls was likely to have been trying (and perhaps very trying) at times, but the degree of the father's intolerance for that behaviour was unusual, and his treatment of H (in particular) was unduly harsh. The mother gave a number of examples of the father's somewhat repressive attitude. Thus, the father –
a)printed out information on "sea sponges" and left it on H's bedroom study desk, implying that she was "sponging" off him;
b)prepared an oppressive "tenancy agreement" for H to sign in relation to her "tenancy" of her room in a property occupied by the father and the mother in [Suburb A] (see annexure F to the mother's affidavit sworn 20 June 2013);
c)sprayed Glen 20 aerosol deodoriser and disinfectant on furniture on which H had sat, because he perceived that H had a "strong teenage girl smell" which he found unpleasant (the father suggested that the smell was due to the use or excessive use of perfumes or shampoos);
d)sought to distance D and M from H and, for example, "washed their faces with a hot flannel each time H kissed them good night";
e)required H to wash her hands before touching D or M; and
f)physically removed H's bedroom door from its hinges and "locked" it in the garage for a few days (seemingly as a form of punishment because, according to the father, H had been slamming the door) – thereby depriving H of her privacy.
96I accept the mother's evidence that she did not agree to the father's behaviour as described above. Relevantly, I do not accept the father's evidence to the effect that he "canvassed" the removal of H's bedroom door with the mother before taking that action.
97The father confirmed that he now has no relationship with T or H.
D
98The mother was cross-examined at length regarding her parenting of D.
99Mr [F] is the Deputy Principal of [Primary School A]. He has worked at the school for some 24 years.
100Although D is now 17, Ms Reader led evidence from Mr F (who had been subpoenaed by the father) regarding D's time at Primary School A. Mr F said that D was a quiet but easily led child, and that he had had to deal with him regarding disciplinary matters on several occasions. It appears that D had been influenced by another student and that together (and separately) they had misbehaved.
101Mr F said that, generally speaking, the father was stricter than the mother in relation to how he dealt with D. He described the mother as being more "giving". He added that D would sometimes pressure his mother to allow him to stay home. By and large, however, D "found the easy way out" when he was in the care of either parent.
102Mr F said that D had been bullied by another child during his time at Primary School A and that, on some occasions, his absences from school were due to the bullying.
103D presently lives with the mother and Mr P. He left school towards the end of Year 11. According to the father, D spent most of the first half of 2013 with him and most of the second half with the mother.
104Annexure B to the father's affidavit sworn 20 June 2013 comprises a statement given by D to the police when he was 12 years of age. The statement relates to an incident which occurred in the mother's home on 11 May 2009. In broad terms, after an exchange of words at the dinner table there was an altercation between D and Mr P, during which Mr P effectively "frog-marched" D into his bedroom. D's version of the events was denied by the mother and Mr P. I accept their evidence relating to it, which was generally consistent. The mother said that D was in a foul mood during dinner that night and made insulting comments to M. D then insulted the mother (calling her "a whore", or similarly offensive names). Mr P then asked D to apologise, but he refused. Mr P frog-marched D to his bedroom. D then called his father, who collected him shortly afterwards.
105The father did not advise the mother or Mr P that he had arranged for D to be interviewed by the police in relation to this incident. Indeed, the first they knew of it was when they read D's statement as an annexure to the father's affidavit. That the father failed to tell the mother of the police interview is symptomatic of the poor relationship between the parties and the dysfunctionality of the shared care arrangement.
106As matters transpired, D soon returned to live with the mother and Mr P in the usual shared care arrangement. The mother suggested that D returned to live with her within a day or two of the incident; the father suggested that D returned to live with her when his week with the father ended. Nothing turns on the discrepancy. If the incident troubled the father, then he did not make any genuine attempt to discuss it constructively with the mother or Mr P.
107For her part, the mother did not seek to avoid or minimise the incident. She conceded that she had discomfort with the manner in which Mr P dealt with D's behaviour. She also said, and I accept, that she expressed that discomfort to Mr P at the time.
108I accept that the police never approached the mother or Mr P in relation to the incident. No charges were laid.
109In November 2011, an argument occurred between D and the father: see annexure E to the mother's affidavit sworn 20 June 2013. During the argument and subsequent physical altercation, D threatened to stab the father. The father later told D that he was no longer welcome in the father's home and that he should stay with the mother.
110In June 2013, there was a further physical altercation between D and the father. Once again, the father told D that he was no longer welcome in his home.
111As indicated above, the father accused the mother of taking little or no action in relation to D's "drug-taking and antisocial behaviour"; and of effectively undermining the best efforts of teachers, school administrators and the father, "... resulting in D's under-achievement to this point". There was much cross‑examination of the mother in relation to this subject. I reject the father's accusations in this regard and find that both parties have had to deal with significant and troubling behavioural issues on D's part. Both have done their best to assist their son. He does not appear to have engaged in appreciably more drug-taking or antisocial behaviour when with the mother than with the father; nor does the father appear to have been any more successful than the mother in overcoming D's educational under-achievement. I find, however, that the mother has been more patient with D, and more supportive of him. I accept that she has "always been there" for him (as she said during her closing address), just as she has "always been there" for her three daughters. Regrettably, the same cannot be said for the father, who has – perhaps understandably – "thrown [D] out" (to use the mother's description) on occasions.
112The mother was cross-examined about notes she had allegedly signed permitting D to be late for school on one occasion and to have an electronic cigarette that had been taken from him (or, more accurately, from his friend, to whom D had entrusted it) returned to D. The mother said that she had not signed the notes and that D had prepared and signed them without her knowledge. In my opinion, it is possible (if not probable) that the mother did sign the notes. If she did, I am satisfied that she is simply mistaken when she suggested that the signature was not her own. In any event, the notes are of little significance in the present proceedings because they do not seem to have been provided to the school: according to the father, he removed them from D's schoolbag. The mother said, and I accept, that D has written her signature on other notes he has drafted in the past.
113The mother was also cross-examined about a note she had written to the father commencing "[D] has gone over the limit with his behaviour and [I] prefer he stays with you as I'm not having him in my house with his disgusting attitude": see exhibit F2. The mother explained that she had argued with D over his demand to have his girlfriend sleep over with him at the mother's house. The argument had become acrimonious and D had sent insulting and abusive text messages to the mother. As matters transpired, however, the crisis passed and the mother did not demand that D live with the father. In my opinion, the note is no more than an example of the mother's frustrations with D's behaviour from time to time. The threat to exclude D from the house, whether justified or unjustified, was not one upon which the mother proposed to act. Her actions in this regard are in clear contradistinction to the father's actions in carrying through with his demands that D be excluded from his house.
114Other aspects of D's behaviour, and the parties' reactions to it, were explored during the trial. In my opinion, the evidence in relation to those matters did not assist me to form a conclusion as to which party's proposals might be perceived as being in M's best interests.
115D is currently involved in the criminal justice system as a result of an incident which occurred when D was staying with a friend (although he had advised the mother that he was staying with the father). According to the mother, D's friend threw a Molotov cocktail through the window of a school from which he had recently been suspended. D was present at the time. He was to have appeared in the Children's Court in late January 2014. During an earlier appearance, a work coordinator gave him various options, one of which involved D attending and completing a bricklaying course. D has done the course, and the mother is proud of his achievement in that regard. According to the mother, D is currently looking for employment.
116The father conceded that D had attended hearings or other court events at the Children's Court on four occasions, but that he had only accompanied D once. The father minimised the significance of the other occasions. In my opinion, the father could have informed himself of the relevant dates without difficulty, and could have prioritised these occasions over other commitments he may have had. The father's failure to attend each court event with his son reflects their current somewhat strained relationship.
117The father described his present relationship with D as "alright". He said that he has seen D "a few times" since D's bail conditions were modified.
118The mother said, and I accept, that although M and D have had their differences in the past, their relationship over the past five to six months has been a good one (although there have been minor disputes between them).
Father's desire for "control"
119The mother gave a number of examples of the father's controlling behaviour. For example, she said that he was secretive and that there was a lack of trust between them. She said, and I accept, that the father was not prepared to display family photographs in the homes he shared with the mother; nor would he allow the mother free access to family photographs that had been taken. Prior to separation, there was friction between the father and his mother, and the father seemed concerned that the mother might provide family photographs to his mother.
120I do not accept the father's evidence to the effect that there were "a normal amount" of family photographs in the house.
121The mother also said that the father has seen fit to distance D and M from his father (their grandfather). The father admitted that he does not promote a good relationship between his children and his father, with whom he seems to have had a falling out some years ago. Although the father minimised the degree or nature of his estrangement from his father, I accept the mother's evidence when she said that the children have told her that the father discourages them from having a relationship with their grandfather. The father acknowledged that his father has been keen to repair the relationship. For reasons that are unclear, however, the father is unwilling to enable that to occur – notwithstanding that D and M appear to want to have a positive relationship with their grandfather. For her part, the mother is happy to encourage the relationship.
122The mother said that the father is a person who is resentful, and bears grudges. Having regard to the evidence before me in the current proceedings, including as it relates to the father's behaviour towards the mother, T, H (and, to a lesser extent, D), and his fallings out with his father, his mother and his sister, [J] at different times, I concur with the mother's description in that regard.
Incident in2005
123Both parties gave extensive evidence regarding events which occurred [in] 2005. D's birthday was on the previous day.
124In broad terms, the father's evidence is that he and the mother were living together at [Property A] at that time. H, D and M were living with them. When an argument developed between the adults, he attempted to leave the house to avoid any possible escalation. He was then attacked and hit from behind by the mother who pulled him back into the lounge room. He said that the mother hit him repeatedly, in front of the children. He described the mother putting him in a headlock and striking him to the face. After freeing himself from the mother, he telephoned the police. After he had done so, he was again attacked by the mother. According to the father (father's affidavit sworn 20 June 2013, annexure A):
... [As] I walked down the hallway, [I] was confronted by [the mother] with a length of wood in her hands which she then proceeded to strike me repeatedly with. I turned my back to her and initially covered my head with my hands. I became convinced she would not stop, so I turned and wrestled the wood from her hands, pinned an arm behind her back to force her onto the floor. I asked repeatedly that if I let go, she would stop hitting me; she refused to say and still attempting (sic) to strike me. The path was clear to the front door, so I released her and immediately exited through the front door, away from the house.
125As a result of being struck with the piece of wood, the father's hand was injured, and was bleeding. He did not require medical treatment.
126Somewhat bizarrely, when the police arrived the husband asked them if he could re-enter the home so that he could take photographs of certain items in the house, because he "feared them being damaged in [his] absence": father's affidavit sworn 20 June 2013, annexure A.
127In his oral evidence, the father said that the disagreement between the parties began because H saw fit to begin playing a game with the other children while the father was having a shower. According to the father, H knew that the father wanted to play the game and when he came out of the shower he reprimanded her by saying words to the effect of: "You could have waited". As the father's disagreement with H escalated, the mother took H's side and became upset. The mother then put the father in a headlock, hit him and resisted his attempts to leave the house.
128According to the mother, the parties were separated at the time of the incident. She said, and I accept, that in or about March 2003 she moved from rented premises that she had occupied with the father (and H, D and M) and obtained rental accommodation of her own at Property A. It was not clear to the mother where the father was living after March 2003, but there can be no doubt that he spent a significant amount of time at Property A. .
129The mother's version of events as described in the previous paragraph is partially supported by the father's evidence. In his affidavit sworn 20 June 2013, he said that the parties' relationship deteriorated after an acrimonious dispute between them in late 2002. He continued at [17] and [18]
... I sought advice and given the fact I was the only signatory to the lease (and ultimately responsible for the property) along with concerns for my personal property, I instructed the real estate agent to terminate the lease. The property was vacated as of 4 March 2003.
Despite the breakdown and residing separately at first, [the mother] and I maintained a close relationship. ...
130I do not accept that the parties resumed cohabitation – to the extent suggested by the father – after March 2003. As I have indicated, however, he clearly spent a significant amount of time at Property A. (which was leased by the mother in her own name), including periods during which he cared for the children at night while the mother worked.
131The mother said that she had invited the father to come to Property A. to celebrate D's birthday (which was on the previous day). Her evidence was as follows:
a)At one point in the evening, H collected the plates that had been used by the mother, D and M. She did not collect the father's plate.
b)The father began "niggling" H, which continued until the mother "ordered" him to leave the house.
c)A scuffle then occurred, which included H.
d)As the situation deteriorated, the mother told H to take D and M to her (or to their) room.
e)During the scuffle, the father intentionally or unintentionally kicked over a coffee table, which incorporated slats for holding magazines.
f)Eventually, the mother took one of the slats from the overturned or damaged coffee table and struck the father with it once. The blow injured the father's hand, and the mother immediately dropped the slat.
132I accept the mother's description of the incident that occurred [in] 2005. I do not accept the father's evidence to the effect that the mother was the instigator of the events leading up to the mother striking him with the slat; nor do I accept that she prevented him from leaving the house, hit him repeatedly or put him in a headlock before she picked up the slat. I find that the father would not leave and that a scuffle occurred; the mother later took up the slat and hit the father with it once and once only. I find that, at some stage, the father twisted the mother's arm behind her back and forced her face to or close to the floor. I accept the mother's evidence to the effect that the children were not present during the latter part of the altercation and that they did not see the mother strike the father with the slat.
133The father's description of the incident during the course of his evidence amounted to little more than a recitation of the contents of the document comprising annexure A to his affidavit sworn 20 June 2013 ("the [Property A] statement"). He spoke without emotion and with little conviction. He was wholly unwilling to accept any responsibility whatsoever for the events of that evening, and attributed to the mother the entirety of the "blame" for the incident.
134The mother's description of the incident was far more balanced and credible. She did not hesitate to accept responsibility for her part in the dispute and made appropriate concessions against interest. She did not seek to place all the blame on the father and was clearly remorseful that she had hit him with the slat.
135The father attached to the Property A. statement parts of two letters written by the mother. She said, and I accept, that one of the extracts is from a letter written at a different time. Exhibit F1 comprises a full copy of the letter written by the wife after the events [in] 2005. In my opinion, the letter does not corroborate the father's version of the incident. Indeed, it corroborates the wife's evidence to the effect that Property A. was her home, that she was thinking of renting "a bigger house", that the family was not "whole" at that time and that the parties would "only [be seeing"] each other briefly to exchange the children". Further, the comment at the end of the letter to the effect that "[D]'s report and [M]'s Kindy book are here for you to look at – they both did really well this year" also corroborates the mother's evidence to the effect that the parties were not living together at the time of the incident. In my opinion, the father's decision to include extracts from the letter in the Property A. statement (and not attach the letter in its entirety) was disingenuous.
M's education
136I have referred elsewhere in these Reasons to the lack of clarity regarding the father's proposals in relation to M's schooling.
137Mr F described M as a very able student, who has always been diligent and participated in activities to the best of her ability. He said that she is a child who "does more than is expected of her".
138Mr F confirmed that M was often late to school by approximately five to ten minutes after the mother's relocation to Suburb B. She was punctual when she was living with the father. According to Mr F, M's teachers accepted her lateness, and there do not appear to have been any complaints about the subject. M herself, however, preferred to get to school on time and would appear upset if (for example) she was late for an early music practice. Still, Mr F said that M's punctuality was "not a problem from the school's point of view".
139In relation to M's future schooling, Mr F said that she "will be okay, no matter which school she attends" and that she is likely to succeed at high school.
140Mr F also said that M is a confident and very caring child. Although she is quiet, she is not shy.
141Mr F suggested that High School A would be a suitable school for M because it offers a specialist music program. He also said that, for that reason, High School A offers better opportunities for M's music studies than [High School F]. Given that the mother's proposal is that M should attend High School D – and not High School F – I give little weight to Mr F's views in this regard, although I accept that High School A is a specialist music school and High School D is not.
142Mr F also spoke of M having a close friend at Primary School A, and that it would be upsetting for M to have to leave her friend (as would occur if they were to attend different schools). I note, however, that M had no difficulty making friends when she attended [Primary School B] for a short time in early 2012. Indeed, she recognised herself as being popular at that school.
143I am not satisfied that High School A is a better school for M than High School D – or vice versa. In my opinion, she has the capacity to succeed academically at either school. The family reports reveal that M did not express a preference for attending High School A over High School D. Indeed, High School A did not appear to be an option available to M at that time. I am satisfied that M has the capacity to make friends at whichever school she attends.
SSAT decision dated 2 November 2012
144Annexure I to the father's affidavit sworn 20 June 2013 comprises a copy of a decision of the Social Security Appeals Tribunal dated 2 November 2012. The decision relates to a dispute regarding the time D spent with the parties after 6 November 2011, and hence the child support arrangements that should adhere during that period. The decision speaks for itself. Although the mother was cross-examined on some of the contents of the decision, its relevance to the matters in dispute in the current proceedings is difficult to understand.
145I note the following passages from the decision:
[25]The parents agreed that the usual pattern of care up to 6 November 2011 was that [D] spent a week about with each parent. They also agreed that some nights he would stay with friends and that, as he had grown older, he had more say as to where he would stay. [The father] said that when [D] was 14 years old there was a change in the court orders and a clause was removed. He said that the effect of this was that [D’s] care was not bound by any orders and that the change was made in recognition of the fact that [D] had more say in where he stayed.
...
[28][The father's] position was that the [week about arrangement] had continued apart from a short period beginning in November 2011 following an argument between him and [D]. He said that the care arrangement during 2012, although not identical, with similar to what it had been in 2011.
...
[33]It is common ground that on 24 January 2012 [the father], [D] and [M] went to [Sydney] together for a six-day holiday.
[34][The father] is recorded as having told the CSA that between Christmas and the [Sydney] trip, [D] did stay at his house but not for many nights as he spent time with his friends.
146The primary dispute between the parties was whether the week about arrangement for D resumed after the Sydney holiday, or whether it continued until later in 2012. The actual decision forming the subject of the application to the SSAT for review was a decision made on 16 March 2012 to the effect that D should be deemed to have been in the mother's care for 100 percent of the time from 6 December 2011 to that date. The father did not apply for a review of the relevant decision (dated 16 March 2012) until 14 August 2012. The hearing was conducted on 24 October 2012.
147The mother contacted the CSA on or shortly after 30 June 2012 to advise it that there had been a change of care in relation to D – to the effect that D was with the father for 35 percent of the time and with the mother for 65 percent of the time. Subsequent decisions were made by CSA officers on 11 September 2012 and 8 October 2012: see the SSAT decision at [62]. These decisions were not the subject of the SSAT's review decision (which was only reviewing the objection decision made on 16 March 2012).
148It was in the above circumstances that the SSAT asked a number of questions of the mother regarding the care arrangements for D after March and June 2012. It was in relation to the mother's comments regarding the later arrangements for D that the SSAT observed that her evidence was "at times vague and inconsistent": see the SSAT decision at [63]. The reality is, however, that the details of the arrangements for D after June 2012 were not properly the subject of the SSAT review, and the mother might fairly be excused for being confused when asked to discuss them at a hearing relating to arrangements during an earlier period. Indeed, on or about 8 October 2012 the mother advised the CSA that the father had "kicked [D] out" on 17 September 2012, and D had been living with her since that time: see the SSAT decision at [60]. It appeared, however, that D had spent at least five nights in the father's care during the period from 15 to 23 October (which was, of course, after the mother contacted the CSA 8 October 2012 to say that the father had "kicked [D] out"). On the basis of the mother's evidence regarding D's time spent with the father after June 2012, the SSAT appears to have formed the view that the mother's evidence regarding the time D spent with the father prior to June 2012 was unreliable. In my opinion, it could not properly do so. There was no formal "week about" arrangement for D after 15 March 2012 (and the orders made in this Court on that day reflect the fact that D was to live with the parties in accordance with his wishes). The "week about" arrangement continued for M only. The situation was complicated by D choosing to spend time at the homes of his friends, and he was not above telling one parent that he would be staying with the other parent when he would in fact be staying with neither.
149Overall, I have discomfort with the SSAT's decision. I had ample opportunity to see and hear both parties during the course of the trial and am satisfied that the various findings I have made, directly or indirectly, in these Reasons are sound and appropriate. I am certainly not persuaded that the SSAT decision supports a finding to the effect that the mother lacks credibility, although I agree that her evidence was occasionally vague or unclear. In my opinion, that is simply reflective of the mother's personality.
Parenting Orders – The Law
150This generic summary of the law is based on similar summaries in my decisions in Mills & Watson (2008) 39 Fam LR 52 and Jets & Maker (No 2) [2011] FMCAfam 1473.
151Applications concerning children of parents in Western Australia who are not and have never been married (or, more accurately, applications for parenting orders) are dealt with in Pt V of the Family Court Act 1997 (WA) – which I shall call the FCA. Pt VII of the Family Law Act 1975 (Cth) – which I shall call the FLA – is the comparable Commonwealth legislation.
152In this summary, and unless otherwise indicated, subsequent references will be to the provisions of the FCA.
153The Full Court carefully analysed the structure and effect of a significant portion of Pt VII of the FLA in Goode (2006) FLC 93-286. It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to FLA s 64B (FCA s 84), which includes, among other things, a list of the matters with which a parenting order may deal. For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
154Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long term issues in relation to the child”.[1] Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long term issue in relation to a child ─ although such a decision could involve a major long term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent).[2]
[1] See s84(3).
[2] See the definition of "major long term issues" in s 7A
155If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long term issue regarding a child, then the relevant decision must be made jointly. Further, an order for equal shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long term issue, and to make a genuine effort to come to a joint decision.[3] Such consultation is not required in relation to issues that are not major long term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent.[4]
[3] See s.89AC; see also Pender & Haywood [2007] FamCA 1526.
[4] See s 89AD.
156As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in s 66A:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
157The objects of Pt V, and the principles underlying it, are set out in s 66B. They are important.
158The objects of Pt V are:[5]
… to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
[5] See s 66(1).
159The principles underlying these objects are:[6]
… that (except when it is or would be contrary to a child's best interests):
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
[6] See s 66(2).
160Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
a)“maintain a connection” with and “develop a positive appreciation” of it; and
b)be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child's age and developmental level, and the child's views).[7]
[7] See s 66(3).
161Given that all the expressed objects of Pt V are directed towards ensuring that a child’s best interests are promoted, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in s 66C, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests.[8] The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
[8] If the court is considering whether to make an order with the consent of all parties, it is not required to have regard to all or any of the listed factors (although it may do so if it wishes) ─ see s 66C(6).
162The primary considerations are set out in s 66C(2). They are:
a)the benefit to the child of having a meaningful relationship with both of the his or her parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
163The additional considerations are set out in s 66C(3). They include:[9]
[9] This list is not intended to be comprehensive. It is simply a summary of the factors in s 66C(3). The actual factors set out in s 66C(3) – or, more accurately, those of them that are relevant – will be considered later in these Reasons.
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
e)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
f)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
Section 66C factors
188I turn now to consider the s 66C factors. Before doing so, however, I remind myself that I must regard M's best interests as the paramount consideration in this case. It is for the purpose of determining which proposal is in her best interests that I must consider the matters set out in s 66C.
189As foreshadowed above, I propose to deal with what are described as the "additional" considerations before dealing with the "primary" considerations.
Child's views
190I have already referred to the first family report, the second family report and Ms Bergman's evidence.
191In the first report, Ms Bergman concluded that M's preference was to live with the mother (although M was reluctant to say as much). M identified more closely with the mother, whose house felt "more like a home". The father's house was "more like a place to stay". M felt more comfortable in her mother's home.
192Importantly, M said that she did not want to upset the father. She said that she would be afraid of making the father upset because he gets angry.
193M wanted her parents to know that she felt caught in the middle of their arguments. She thought that their problems were related to her. Clearly, the acrimony between the parties was adversely affecting M's well-being. As Ms Bergman said in the first family report at [35]:
Not only is a 50/50 shared care arrangement not always appropriate for a child whose parents are in continual conflict, it is usually not recommended for families who live vast distances apart. Since 2011, M has had to endure both. M at the age of 11 years and 10 months has herself realised that the situation cannot continue ...
194According to Ms Bergman, M appeared to have matured over the 15 months between the preparation of the first family report and the preparation of the second family report. She was resistant to any suggestion that the parent with whom she would reside should be dependent upon the school that she is to attend. She did not express an absolute preference for any school: she said that she is happy to go to High School D if she were to live predominantly with the mother and that she wanted to go to High School A if she were to live predominantly with the father.
195In the second family report at [7] and [8], M is recorded as having told Ms Bergman:
I don't know why the judge has to know about which school I want to go to any way, can't he just make a decision about who I'm going to live with then I will work it out with my parents? I know where I will be going if I live with Mum anyway.
[In relation to the parents' proposals] it's half/half, I've got friends at Dad's, but with Mum I have all the girls stuff and it's more home like, Dad's is more educational if you know what I mean, there is benefits for both, I would think it was okay whatever the judge said.
196Ms Bergman observed in the second report that M's peers presented as more influential and important in her life than they had been at the time of the first report. M's preference to live with the mother did not present as strongly as it did previously.
197Although M's preference to live with the mother may not have presented as strongly in the second report is in the first report, I am satisfied that M's preference remained to live with the mother. In my opinion, the references to the father's anger and to the mother's home as being more home-like are significant. Although M's peers presented as more important in her life, it seems that the context in which they were mentioned related primarily (although not entirely) to M's desire to attend High School A if she is to live predominantly with the father. In other words, M was explaining why she would prefer to attend High School A as opposed to one of the other schools which were currently "in the mix" in the event of a decision being made to the effect that she is to live with the father.
Nature of relationship
198M has a close and loving relationship with both her parents. She also has a close and affectionate relationship with Mr P, and with T and H. She also has a close and affectionate relationship with Ms N although, given that her relationship with Ms N is more recent than her relationship with Mr P, it is likely that the relationship with her stepfather is the stronger of the two.
199The contents of the two family reports, together with the other evidence presented during the course of the trial, lead me to conclude that M is likely to have a warmer and more easy-going relationship with the mother that she has with the father. That is not to say that the father cannot be warm and affectionate towards M, but she is clearly wary of his anger. She has significant insight for a child of her age (in that, for example, she seems to have recognised well before her parents that the shared care arrangement had become unworkable). In that context, the reference to the father's home as being "more educational", when coupled with the emphasis placed by the father on M achieving her "potential", would indicate that M is aware of the father's expectations of and hopes for her. As I have already observed, it is likely that the father will clash with M (as he did with T, H and D) as M grows older and either "tests the boundaries" or fails to meet – or perceives that she is failing to meet – the father's expectations of her.
200M has a close relationship with T and H, although she clearly sees more of the latter than the former. T lives in Melbourne. Given the father's relationship with T and H, and given his personality, it is unlikely that M would be able to maintain her very positive current relationship with her half‑sisters if she were to live with him. It is likely that she would only be able to see and communicate with T and H when she is with the mother.
201I am satisfied that M's relationship with D is closer than has been suggested by the father. The mother was not cross-examined upon the family dynamics (for want of a better description) described in her affidavit sworn 29 December 2013. I accept that M interacts positively with D and that they have done activities together, such as the outing referred to in the mother's affidavit at [8]. I also accept that M looks forward to seeing D after spending time with the father.
Facilitation and encouragement of relationship between child and parent
202I am satisfied that both parties have displayed a willingness and ability to facilitate, and to encourage, a close and continuing relationship between M and the other parent. M has lived in a shared care arrangement since late 2006/early 2007. Although each party raised complaints about the other party's flexibility and willingness to allow additional time with M when the need arose, most of those complaints were comparatively minor.
Effect of changes in child's circumstances
203It is clear from the two family reports that M desires a change in her present living arrangements. As I have explained elsewhere in these Reasons, the shared care arrangement cannot continue.
204There is no evidence that M will not cope well with the cessation of the week about arrangement. She clearly understands that that will mean living predominantly with one parent or the other.
205In my opinion, M's relationship with T and H (and, to a lesser extent, with D) will suffer if she were to live predominantly with the father. Given the father's past behaviour and his personality, it is likely that he would seek to insulate her from the possibility of her half-sisters or her brother influencing her in what the father might perceive is a negative manner.
206If M is to live predominantly with the father, then she will be the only child in the household. Given that the father and Ms N work on a full-time basis, there will inevitably be times when M will be required to fend for herself to some extent.
207If M is to live predominantly with the mother, then she will be able to spend more time with D – who also lives there (or lives there most of the time). She will also be able to spend more time with T and H. The mother's work hours are fewer than those of the father and Ms N. It is unlikely, therefore, that M will be left alone to the same extent as she would if she were to live predominantly with the father.
Practical difficulties and expenses associated with contact
208This does not appear to be a relevant consideration. Clearly, M will have to travel the same distance to spend time with the other parent whether she lives in Suburb B or in Suburb C.
209I have no doubt that M is mature enough to cope well with the contact arrangements agreed upon by the parties on 20 January 2014. That is so even if those arrangements were to be reversed (and, for example, M were to live predominantly with the father).
Capacity to provide for the child's needs
210I find that the mother is clearly capable of providing for M's needs, including her emotional and intellectual needs.
211It is clear that the father is not confident that the mother will be able to meet M's needs. Relevantly, Ms Reader submitted that the father has the capacity to enable M to reach her full "potential" as a student. She suggested that the mother is "good for fun times", but will not promote M's education. I disagree.
212I accept that the mother does not place the same emphasis on M's "potential" (as a student or in any other respect) as does the father. On the other hand, I am satisfied that the mother will support and encourage M in all her endeavours, and that she will do so in a manner that M will find comforting and non‑confronting.
213Having regard to the history of the father's relationship with T, H and D, I am not confident that he will have patience with M as she negotiates her teenage years and if, for example, she falls short of his expectations by failing to reach her full "potential" – whether academically or (for example) in the field of music. The father's attempts to discipline T, H and D appear to have been unsuccessful (or unsuccessful at times). It would be wishful thinking to assume that the father will be any better at managing difficult behaviour on M's part should it arise as she grows older.
214That is not to say, of course, that the mother's handling of disciplinary issues as they relate to T, H and D has been exemplary. It has not. But, as the mother said during her closing address, she has been a friend to and remained supportive of all her children, and "not just the easy ones". I note, in that regard, that the father now has no relationship with T or H and that D has lived primarily with the mother for the last six months.
215Thus, although the father has the capacity to meet M's intellectual needs, I am not confident that he has the capacity to meet her emotional needs as they arise. I find that the mother is more capable than the father of meeting M's emotional needs.
216Under this general heading, I would comment that the equal time arrangement put in place by the 2007 orders has been less than successful. That is not surprising, given the parties' inability to communicate with each other in relation to matters relevant to the children's welfare. Although the parties lived close to each other until the mother relocated to Suburb B, the lack of constructive communication undermined the children's well-being. The parties disagreed in relation to methods of discipline and educational issues and do not appear to have always been able to reach a reasonable compromise. The father suggested that there was "a lot of common ground" between the parties in relation to disciplinary matters, but that they differed in relation to "non-negotiables" and "making things happen". He added that the mother is "a bit freer" in her approach to disciplining the children. In my opinion, the father has minimised the differences between the parties in relation to disciplinary issues. His overt conflict with T, H and D from time to time, and his present relationship with them, indicate that those differences are greater than the husband was prepared to concede.
217A further example of the parties' inability to communicate effectively and constructively for M's benefit relates to the issue of M's braces. The following passage appears in the second family report at [11]:
When asked if there was something she thought the Judge should know or if there was anything else she wished to discuss [[M]] said: "Can you please tell the Judge to get my parents to communicate better. I really want braces and I'm really trying to get them. Mum said Dad won't pay anything toward them, and Dad says, 'I pay your mother child support for those sorts of things'; it's something I really want to happen".
218The mother raised the issue of M's braces during her cross-examination of the father. He acknowledged that there had been no or inadequate discussion in relation to the subject (in spite of M's obvious desire to have it resolved). He then said that he was prepared to pay half the cost of the braces. He acknowledged that this was the first time that he had said that he would pay half the cost.
Maturity, lifestyle and background of the child and the parties
219This does not appear to be a significant factor.
Attitude to the child and to responsibilities of parenthood
220By and large, both parties have demonstrated a good and positive attitude to the responsibilities of parenthood. The shared care arrangement put in place in late 2006/early 2007 was unsatisfactory for the reasons that I have already discussed and, ultimately, did not operate for the benefit of the children. It is not to the parties' credit that they allowed the arrangement to continue for as long as it did. I suspect that they did not disturb the arrangement because each was fearful that he or she would "lose" the children. To that extent, both parties can fairly be criticised for placing their own wishes or desires ahead of the best interests of the children.
221The parties can also be fairly criticised for their failure to communicate constructively regarding important issues, such as M's braces.
Family violence
222The mother referred to incidents of family violence which occurred during the relationship, and both parties gave descriptions of the incident that occurred [in] 2005.
223At the end of the day, any family violence that has occurred does not seem to have had a discernable impact on the ability of either party to parent M at this time. I have already discussed the relevance of the father's behaviour towards and interrelation with T, H and D.
224It is unnecessary to make any further findings regarding the subject of family violence.
Orders least likely to lead to the institution of further proceedings
225Clearly, it is desirable to make orders that will avoid the institution of further proceedings in relation to M. In my opinion, the orders made on 20 January 2014 are most likely to achieve that result. I am concerned, for the reasons I have already expressed, that the orders providing for M to live predominantly with the father would eventually lead to tension if not actual conflict between M and the father. Almost certainly, M would then seek to live with the mother (or would seek to spend as much time as possible with her friends – as D has done).
Other relevant facts or circumstances
226I am conscious of M's comments to the effect that she enjoyed having her friends close by while she was living with the father and that she enjoyed spending time with her friends. I accept that her friends are important to her. Taken in isolation, that is a factor that would support a conclusion to the effect that M should continue to live predominantly with the father. In my opinion, however, the other factors to which I have referred outweigh this consideration. It seems clear that M has the capacity to form friendships easily (even if she did not have that capacity a few years ago), and that she is undaunted by the prospect of attending a school at which she knows very few children.
227I have no doubt that the mother will make a significant effort to ensure that M maintains her friendship with her closest friend, [W], and with her other friends. As time passes, however, it is likely that she will form new friendships in the Suburb B/Suburb D area.
228As foreshadowed above, I turn now to consider the "primary" factors set out in s 66C. Once again, I remind myself that I must regard M's best interests as the paramount consideration in this case – and that it is for the purpose of determining which proposal is in her best interests that I must consider these matters
Meaningful relationship
229It is not in dispute that M has a close and loving relationship with both her parents. That relationship is meaningful in every sense.
230There is no evidence that M's relationship with the father is likely to be less "meaningful" if she lives predominantly with the mother. Nor is there evidence that M's relationship with the mother is likely to be less "meaningful" if she lives predominantly with the father. I accept, however, that her relationship with the parent with whom she does not reside will be different to her present relationship with that parent. The reality is, however, that neither party proposes that the current shared care arrangement should continue. Both accept that it cannot.
Protection from harm
231M is clearly aware of, and has been exposed to, the parents' conflict. Neither parent seriously suggests, however, that she is at risk of physical or psychological harm in the home of the other parent. Nor did either party seriously suggest that M is likely to be exposed to abuse, neglect or family violence in any of its forms.
232To the extent that the father's case might be interpreted as suggesting that the mother's parenting is lax or unduly permissive, or that the mother might be neglectful of M or her education, I reject such assertions. The father accused the mother of taking little or no action in relation to D's "drug-taking and antisocial behaviour" and undermining or effectively undermining the best efforts of teachers, school administrators and the father to keep D in school and to deal with his disciplinary issues. I do not accept the father's criticisms of the mother in relation to these matters. In my opinion, the father was no more successful than the mother in dealing with D's behavioural problems. To the extent that the father became involved in physical altercations with D and chose to exclude him from his home, it is arguable that the father was considerably less successful than the mother in that regard.
233I have already observed that, given the father's personality, it is entirely predictable that he will clash with M as she grows older and eventually seeks to challenge his authority and question his expectations. Faced with such a challenge, I am not confident that the father would be able to resist taking steps to exclude her from his home, in a similar fashion to the manner in which he dealt with his differences with T, H and D in their mid teenage years. Alternatively, there is a risk that the father might adopt inappropriate or overly restrictive disciplinary measures to endeavour to control M's behaviour.
Parental responsibility
234It was not in dispute that the parties should continue to have equal shared parental responsibility for M, and I am satisfied that such an arrangement will be in M's best interests.
Equal time and substantial and significant time
235Given that I have decided to make an order for equal shared parental responsibility, I am now obliged to consider whether M spending equal time with the mother and the father would be in her best interests (and related questions) and, in turn, whether M spending substantial and significant time with each parent would be in her best interests (and related questions).
236Both parties accept that it is not in M's best interests for her to spend equal time with each parent. M herself has stated very clearly that she does not want the current equal time arrangement to continue. It follows that neither party has proposed such an arrangement. In any event, the parties do not communicate well, and disputes between them appear to be frequent. I have described the parties' approach to communication elsewhere in these Reasons. Each party tends to blame the other for problems that have arisen.
237As was recognised in the first family report, the shared care arrangement to which the parties had consented in early 2007 became impracticable when the mother moved from the Suburb A area to Suburb B. In my opinion, it was dysfunctional long before that – due, in large part, to the differences in the parties' personalities and their inability to communicate constructively and effectively.
238I am satisfied that it is in M's best interests to spend substantial and significant time with each of her parents. Such an arrangement allows regular contact with both parents during school terms and holiday times. There is no reason why such an arrangement should be regarded as impracticable irrespective of the parent with whom M is to live.
Conclusion as to most satisfactory proposal
239As foreshadowed above, and –
a)bearing in mind that M's best interests remain the overriding consideration;
b)taking into account the objects and principles set out in s 66; and
c)having regard to the matters discussed in these Reasons, including the s 66C factors,
I conclude that the mother's proposals are more likely to be in M's best interests than the father's proposals and that M should live predominantly with the mother.
Final orders have been made
240I confirm that I made final orders on 20 January 2014.
241The orders made on 20 January 2014 are set out below. Although the orders were not made by consent, the parties agreed to their form and, for example, to the contact arrangements that should adhere upon M commencing to live with the mother on a full-time basis.
Orders
1.All previous parenting orders be discharged.
2.The parties have equal shared parental responsibility for the children, [D SHAWCROSS] born [in] 1996 and [M SHAWCROSS] born [in] 2000.
3.The child, D live with and spend time with the parties as per his wishes.
4.The child, M live with the mother.
5.The father spend time with M as follows:
a)during term time for each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday or 5.00 pm Monday in the event Monday is a public holiday or a non school day;
b)(i) for the first half of the school term holidays except for the April school holiday period where the party having the Easter time in accordance with paragraphs 5(d) and 6(d) will have the first half and the other party the second half;
c)(ii) for half of the December/January school holiday period after Christmas Eve, Christmas Day and Boxing Day has been removed from the calculation with such time to comprise of each party having one week on an alternating basis for the first 2 weeks of the holiday period, and thereafter each party having 2 consecutive weeks on an alternating basis for the remainder.
d)from 5.00 pm Saturday to 5.00 pm Sunday on the Father’s Day weekend;
e)for the Easter period from 5.00 pm Thursday until 5.00 pm Easter Monday in the year 2015 and each alternate year thereafter;
f)from 4.00 pm Christmas Day until 10.00 am 27 December in the year 2014 and each alternate year thereafter and from 10.00 am 24 December to 4.00 pm Christmas Day in the year 2015 and each alternate year thereafter;
g)other and alternate times as agreed from time to time in writing.
6.The father’s time with M be suspended:
a)from 5.00 pm Saturday to 5.00 pm Sunday of Mother’s Day weekend;
b)from 10.00 am 24 December to 4.00 pm Christmas Day in the year 2014 and each alternate year thereafter;
c)from 4.00 pm Christmas Day until 10.00 am 27 December in the year 2015 and each alternate year thereafter;
d)for Easter from 5.00 pm Thursday to 5.00 pm Easter Monday in the year 2014 and each alternate year thereafter;
e)other and alternate times as agreed from time to time in writing.
7.The parties spend time with M on her birthday at times agreed between them for a minimum of two hours on the day for the parent with whom M is not living or spending time with if it be a non-school day and from 5.00 pm until 8.00 pm for the party with whom she is not living on the day should her birthday fall on a school day.
8.For the purposes of determining school holiday periods these shall commence 5.00 pm on the last day of school and conclude at 5.00 pm on the Sunday before the commencement of the new term.
9.The Father’s term time with M as per Order 5(a) will commence the first weekend of each new school term.
10.Unless agreed otherwise the handovers will occur at the Hungry Jacks [Suburb E].
11.The Mother shall forthwith enrol M in High School D and thereafter the parties be restrained by injunction and an injunction is granted restraining them from changing the enrolment of M without the written consent of both parties.
12.The parties authorise each other and direct any school attended by M to provide to both parties any information they are seeking in relation to the education and well‑being of M through school reports, newsletters, parents and teachers nights and any such meeting organised with any teaching staff or Counsellor at the school.
13.The parties authorise each other to attend any special function, sporting event or assembly associated with M’s education or any extra-curricular activity in which she is enrolled.
14.The parties be restrained by injunction and an injunction is granted restraining them from enrolling M in any extra-curricular activity that will impact upon the time spent between M and the other party without consultation and the consent of the other party other than netball through High School D.
15.M communicate with the parties and they with her by phone, email, face time and/or skype as per M and the parties’ wishes.
16.The parties notify each other as soon as practicable of any medical emergency or serious health issue that befalls M while she is in their respective care including in that notice the name and contact details of any health professional treating M.
17.The parties keep each other informed of the name and contact details of any health professional treating M.
18.The parties keep each other informed as soon as practicable of any medical appointments to be attended by M and authorise each other to attend at such appointments.
19.The parties authorise any health professional treating M to provide any information the parties are seeking in relation to the diagnosis, treatment and well-being of M.
20.For the purposes of paragraph 5(b)(ii) the father will have the first week in the year 2014 and each alternate year thereafter and the mother the second week and the father will have the second week in the year 2015 and each alternate year thereafter and the mother the first week.
21.All extant applications otherwise be dismissed.
I certify that the preceding [241] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
0
6
0