Tealle and Tealle

[2013] FCCA 1190

FEDERAL CIRCUIT COURT OF AUSTRALIA

TEALLE & TEALLE [2013] FCCA 1190

Catchwords:
FAMILY LAW – Children – Parenting Orders – best interests of the children – parental responsibility – equal shared parental responsibility – whether mother should have sole parental responsibility for the children – whether children should spend equal time with each parent – children are two girls aged 7 years and 4 years.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA

Cases cited:
Langan & Thurston [2010] FMCAfam 781
SZNCR v Minister for Immigration & Anor [2009] FMCA 338
Tealle & Tealle [2011] FMCAfam 495

Applicant: MS TEALLE

Respondent: MR TEALLE

File Number: SYC 3974 of 2010

Judgment of: Judge Scarlett

Hearing dates: 14 - 16 August 2013

Date of Last Submission: 16 August 2013

Delivered at: Sydney

Delivered on: 23 August 2013

REPRESENTATION

Counsel for the Applicant: Mr Johnston

Solicitors for the Applicant: John R. Quinn & Co

Counsel for the Respondent: Mr Karp

Solicitors for the Respondent: Legal Aid NSW

ORDERS

1. All previous parenting Orders are discharged.

2. The children X born (omitted) 2006 and Y born (omitted) 2008 are to live with the Applicant Mother.

3. The Mother and the Father are to have equal shared parental responsibility for the children X and Y.

4. The parties are to do all things and sign all documents necessary to enrol the child Y at (omitted) Public School to commence school at the beginning of Term 1 in 2014.

5. The children X and Y are to spend time with the Father as follows:  

   (a)During the school term:

   (i)Each alternate weekend from immediately after school on Friday afternoon until the commencement of school on the Tuesday morning; and

   (ii)In the other week of each fortnight from immediately after school on Tuesday afternoon until the commencement of school on Wednesday morning;

   (b)During the school holidays:

   (i)Until 1 January 2014 for one block of four (4) days in each school holiday period;

   (ii)Until 1 January 2015 for one block of five (5) days in each school holiday period;

   (iii)Until 1 January 2016 for one block of seven (7) days in each of the Autumn, Winter and Spring school holiday periods being the first half in 2016 and all even-numbered years thereafter and the second half in 2017 and all odd-numbered years thereafter and for two blocks of seven (7) days in the January school holidays being the first and third weeks in January 2015; and

   (iv)As and from 1 January 2017 for one week in each of the Autumn, Winter and Spring school holiday periods being the second half in 2017 and all odd-numbered years thereafter and the first half in 2018 and all even-numbered years thereafter and for two weeks in the January school holidays commencing on 2 January in each year;

   (c)From 9:00 am to 6:00 pm on Father’s Day in each year if that day should fall on a day when the children would not otherwise be spending time with the Father;

   (d)From 5:00 pm on Christmas Eve until 5:00 pm on Christmas Day in 2013 and each alternate year thereafter;

   (e)From 5:00 pm on Christmas Day until 5:00 pm on Boxing Day in 2014 and each alternate year thereafter;

   (f)From immediately after school until 6:00 pm on each of the children’s birthdays if that day should fall on a school day and for a period of not less than four (4) hours if that day should fall on a day when the children do not have to attend school;

   (g)From immediately after school until 6:00 pm on the father’s birthday if that day should fall on a school day and for a period of not less than four (4) hours if that day should fall on a day when the children do not have to attend school; and

   (h)At such other times as the parties may agree.

6. Notwithstanding the provisions of Order (5) above, the children will spend time with the Mother:

   (a)For all of Mother’s Day in each year;

   (b)For all of the mother’s birthday in each year; and

   (c)For a period of not less than two (2) hours on each of the children’s birthdays if those days should fall on a day when the children would not normally be living with the mother.

7. For the purposes of changeover between parents to facilitate the above Orders:

   (a)Changeover will take place at the children’s school whenever the Father’s time with the children commences immediately after school or concludes at the beginning of school; and

   (b)At all other times, the Father will collect the children from (religion omitted) Church at (omitted) and return the children to the care of the mother at (religion omitted) Church at (omitted) or such other place as the parties shall agree.

8. The Father will deliver the children to and collect the children from any of their sporting events or extra-curricular activities as agreed between the parties when the children are spending time with the Father and each party will be at liberty to attend all sporting events, school events to which parents are normally invited and extra-curricular events which the children attend from time to time.

9. The Father is to have telephone communication with each of the children at all reasonable times.

10. Each parent must do all things necessary to cause each of the children to telephone the other parent on at least two (2) occasions each week when the children are spending holiday time with that parent.

11. The Father and the Mother are at liberty to forward SMS messages, letters, email and any other items to the children when they are in the care of the other parent and the other parent must promptly provide such message, letter, email or other item to the children when received.

12. The Father and the Mother are at liberty to make all necessary arrangements with the school or schools attended by the children to obtain copies of all school reports, circulars, newsletters, information about school photographs and other items normally provided by the school to parents of children attending the school.

13. The Father and the Mother are to provide each other with a telephone number and email address during periods when the children live with or spend time with the other parent.

14. The parties must advise each other of any change to their address, landline telephone number and mobile telephone number within forty-eight (48) hours of any such change.

15. The Mother must provide to the Father details of the names, addresses and telephone numbers of the children’s treating doctors and dentists within seven (7) days of the date of these Orders and keep the Father informed of any change to those details.

16. Each party must advise the other as soon as reasonably practicable of:

    (a)Any serious illness or injury sustained by either of the children;

    (b)Any illness or injury requiring either child being treated at or admitted to a hospital; or

    (c)Any medical condition relating to either child requiring consultation with or treatment by a specialist medical practitioner.

17. Neither party is to denigrate or criticise the other in the presence or hearing of either of the children or permit any third person to do so.

18. Each party is restrained from physically disciplining the children.

19. The parties are to do all things necessary to permit the children or either of them to have such ongoing treatment by Dr B, Clinical Psychologist, as she recommends and pay the cost of such treatment in equal shares.

20. Within twenty-eight (28) days of the date of this Order the Father must do all acts and things and execute all documents necessary to prepare and lodge with the Australian Taxation Office his income tax returns for the following financial years:

    (a)The financial year ending 30 June 2010;

    (b)The financial year ending 30 June 2011; and

    (c)The financial year ending 30 June 2012.

21. The Father must do all acts and things and execute all documents necessary to prepare and lodge with the Australian Taxation Office his income tax return for the financial year ending 30 June 2013 by 31 October 2013.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3974 of 2010

MS TEALLE

Applicant

And

MR TEALLE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application for parenting orders by the Mother of two girls, X, aged seven, and Y, who is aged four years and nine months. She seeks orders that the girls should spend time with their father on alternate weekends during the school term, from Friday afternoon until Sunday afternoon, and for steadily increasing blocks of time during the school holidays.

2. The Father seeks significantly more time with the girls, being an equal shared time arrangement in blocks of five days and two days each fortnight. He also seeks one week during each of the shorter school holidays and a week about arrangement during the Christmas/January school holidays.

3. The variation between the orders sought by the parents is even more marked, because the current arrangement is that the children spend a total of four nights each fortnight with their father. The Mother’s proposal would effectively halve the Father’s time with the children, whilst the Father seeks a significant increase in time, from four nights a fortnight up to seven.

4. Another issue between the parents is in the area of parental responsibility. The Mother seeks that she should have sole parental responsibility for the children, whilst the Father seeks equal shared parental responsibility.

Background

1. The parties commenced living together in (omitted) 2003 and were married on (omitted) 2005. They separated on 4^th January 2010.

2. There are two children of the marriage. X was born on (omitted) 2006. She has recently turned seven. Y was born on (omitted) 2008. She is aged four years and nine months.

3. X attends (omitted) Public School. Y is too young to attend school at this stage but she will commence school at the beginning of Term 1 at the end of January 2014.

4. The Mother left the former matrimonial home with the children on 4^th January 2010. Initially, they lived with the Mother’s parents, but in May 2010 they obtained rental accommodation in (omitted). In July 2011 they moved to (omitted), where they continue to reside.

5. In December 2010 the older girl, X, commenced staying with her father overnight on one occasion each week. In January 2011 Y commenced staying overnight with her father as well.

6. On 20^th May 2011, after an interim hearing on 17^th May, the Court made interim parenting orders (Tealle & Tealle[1]). Those Orders provided that the children would live with their mother and spend time with their father on Tuesday night each week and each alternate weekend, from Saturday morning until Sunday afternoon.

   [1] [2011] FMCAfam 495

7. The Father’s time with the children has since been extended, so that the weekend starts on the Friday afternoon.

8. The Mother reported that both children have displayed symptoms of emotional distress since their parents’ separation. Y began having recurrent nightmares from January 2011, which led to her being referred to a psychologist, Ms S, who diagnosed her as having Adjustment Disorder with Mixed Disturbance of Emotions and Conduct.

9. The older child, X, was reported as having abdominal pains. The Mother took her to a Consultant Paediatric Physician, Dr C, who could find no physical cause but diagnosed the abdominal pains as anxiety-related.

10. X was referred to Ms S, the psychologist, who diagnosed her as having an Adjustment Disorder with Anxiety.

11. After an incident between the parties, the Mother sought an Apprehended Violence Order against the Father. An Interim Order was made on 20^th March 2012. The Father defended the proceedings, and on 8^th June 2012 the Application for an Apprehended Violence Order was dismissed.

12. On 29^th May 2012 the parties entered into Consent Orders to resolve the property proceedings between them. Those orders provided that the parties’ then solicitors were to distribute the proceeds of sale of the former matrimonial home in this way:

    1.1    to retain $26,000 pending the determination of Capital Gains Tax applicable to the sale of the (omitted) property;

    1.2    to pay the sum of $33,331 to the husband in respect of the agreed tax liability and accounting fees;

    1.3    to pay the sum of $221,513 to the wife;

    1.4    to pay the balance to the husband after first accounting to the Child Support Agency for the arrears notice of Child Support served on the husband’s solicitors.

13. The purpose of Order 1.1 was explained in Order 2:

    That in respect of the fund of $26,000 referred to in Order 1.1 above that upon the issue of the Capital Gains Tax notice the said solicitors shall distribute the sum in payment of the Capital Gains Tax assessment and any surplus shall be paid as to 70% thereof to the wife and 30% to the husband.

14. The parties also entered into further parenting orders the same day, providing that:

    a)The parties were restrained from causing the children to attend upon any psychologist or counsellor without prior agreement or order of the Court;

    b)The parties were to cause the children to attend on the Emotional Health Centre at (omitted) and pay the costs equally;

    c)The Mother was not required to attend any joint session with the father at the Emotional Health Centre.

15. As it turned out, the Mother was informed that the children needed treatment from a psychologist. The Mother found out that Dr B, Clinical Psychologist, was available to see the children and on 3^rd September 2012 the earlier orders were varied so as to provide that the children could attend upon Dr B.

16. The Father notified the Mother on 11^th June 2013 that he was moving to (omitted).      

Orders Sought

1. The Mother seeks orders as set out in her Amended Application filed on 9^th May 2013. The effect of the orders that she seeks is that:

   a)The children are to live with her;

   b)She should have sole parental responsibility for the children;

   c)The children would spend time with their father during the school term on each alternate weekend commencing from after school on the Friday and concluding at 4:30 pm on the Sunday;

   d)The children would spend time with their father during the school holidays as follows:

   i)For one four night block until 1 January 2014;

   ii)For one five night block until 1 January 2015;

   iii)For one six day block until 1 January 2016;

   iv)From 1 January 2017, for one seven day block during all school holidays, including the Christmas school holidays;

   e)At Christmas, on Father’s Day, on the children’s birthdays and on the Father’s birthday.

2. The Mother also sought an additional order, which was set out in her Case Outline:

   An order that the parties do all acts and things to permit the children to have such ongoing treatment by Dr B as she recommends (or by such other psychologist as Dr B may advise) and that the cost of such treatment be paid equally by the parties.

3. The Father sought orders as set out in his Amended Response filed on 12^th August 2013. The effect of the orders that he seeks is that:

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

   b)The children would live in an equal time arrangement with the parents during the school term, on a two nights, five nights basis; and

   c)The children would spend alternating weeks of the school holidays with each parent.

4. The proposed arrangement for equal time with each parent set out in the Amended Response is rather confusing, to say the least. The arrangement is set out in paragraphs 2(a)(i) and (ii) and paragraphs 3(a)(i) of the Amended Response as follows:

   2.  The children live with the mother as follows:

   a.  During the school terms in a two week cycle

   i    In week one from afterschool Wednesday to before school on the following Monday.

   ii   In week two from afterschool Wednesday to before school on the following Friday…

   3.  The children live with the father as follows:

   a.  During the school terms in a two week cycle

   i.   In week one from after school Monday to before school the following Wednesday and from Friday afterschool to before school on the following Wednesday of week two. 

5. After considering the father’s proposed arrangements, I have come to the conclusion that there must have been a typographical error in the drafting, because the orders do not appear to provide for the children to be in the care of either parent from the Monday afternoon in the second week of the fortnight until the following Wednesday morning.

Evidence

1. The Mother relied on her affidavits of:

   a)15^th May 2012;

   b)29^th August 2012;

   c)8^th May 2013; and

   d)9^th August 2013.

2. She also relied on the affidavit of Ms S, Clinical Psychologist, of 29^th March 2012, and reports of Dr B, Clinical Psychologist, of 31^st October and 29^th November 2012, and 21^st March 2013, all of which were annexed to her affidavit of 8^th May 2013.

3. Both Ms S and Dr B were required for cross-examination.

4. It is worth commenting that annexing Dr B’s reports to the mother’s affidavit is an unsatisfactory method of attempting to introduce an expert report into evidence, but all too common in this jurisdiction. I have previously held in Langan & Thurston[2]at [19] that:

   Expert evidence, unless it is to be admitted by consent, should be on affidavit, deposed to by the author of the document or report (see SZNCR v Minister for Immigration & Anor) [3]at [27]. The expert’s qualifications should be set out in the document and the questions put to the expert by the lawyers who commissioned the report should be included.

   [2] [2010] FMCAfam 2010

   [3] [2009] FMCA 338

5. The Mother gave oral evidence. It was clear from her evidence that she remains anxious about the Father, particularly as a result of some of the Father’s text messages to her. She also said that X suffers from separation anxiety, and is most stressed when she is about to separate from her.

6. The Mother expressed some frustration about the Father’s unwillingness or inability to respond to her questions about the younger child, Y, attending school next year. The Mother believes that Y should attend (omitted) Public School, which is the school her sister attends. The child currently attends pre-school.

7. The Mother also expressed some concern about where the Father is living, which is at (omitted). She believes that it is considerably further away from (omitted) than the Father states, raising in her mind some concerns about the children’s travel time when attending school.

8. The Father relied on his affidavit of 31^st July 2013. In that affidavit, he complained that the Mother had not told him where she and the girls were living, nor had she provided him with a landline telephone number.

9. The Father described in his affidavit that he was “currently renting” a four bedroom house in (omitted), which he shares with two other people. In cross-examination, he conceded that they were in fact the tenants of the property and he was boarding there. The other two people in the house, a man and woman, are a couple whom he has known for about three years.[4]

   [4] Affidavit of Mr Tealle 31.7.2013 at paragraphs [130]-[131]

10. The Father was, in cross-examination, curiously reticent about providing the names of the people with whom he shares the house, although he had set out their names in his affidavit.

11. When asked about the sum of $26,000.00 still being held in the solicitors’ trust account from the property settlement, the Father conceded that an assessment of Capital Gains Tax had not issued because he had not submitted an income tax return since 2009.

12. When asked about whether or not he agreed to the Mother’s proposal for Y to attend the same school as her sister in 2014, the Father said that he had not replied because he thought it was best to resolve the issues that he and the Mother had before the Court before making that decision. The Father did not suggest any other school for the children to attend.

1. The Father deposed in his affidavit that:

   I am well supported by family and friends and a partner. All of whom are well known to the girls and…who the girls feel comfortable with. I can rely on my network of family and friends to look after the children on the rare occasions that I may be required to work.[5]

   [5] Affidavit of Mr Tealle 31.7.2013 at [139]

2. The Father did not give the name of the partner, but in cross-examination gave her name, which it is not necessary to publish, saying that they had been seeing each other since just prior to Easter, but they were “having a break at the moment”.

3. Both Ms S and Dr B gave oral evidence, Ms S in person, Dr B by telephone.

4. Dr B is a Clinical Psychologist with rooms in (omitted) Street, Sydney. A letter from Dr B addressed to the (then) solicitors for both parties dated 31^st October 2012 forms Annexure “A” to the Mother’s affidavit of 8^th May 2013. Annexure “B” consists of reports from Dr B dated 29^th November 2012 and 21^st March 2013 addressed to the children’s general medical practitioner, Dr H.

5. Whilst Dr B reported in her letter of 31^st October that the Father had not made contact with her at that time, it was her evidence that the Father had not only done so a short time later but she found him to be very cooperative and willing to do things to assist his daughter, X.

6. Dr B said of X in her report of 29^th November:

   My assessment indicates that X’s primary diagnosis is separation anxiety disorder that has manifested in a range of situations when she has to separate from her mother, Y. She also experiences anxiety in peer social situation(s) in which she is very reserved and takes time to adjust and join in.[6]

   [6] Affidavit of Ms Tealle 8.5.2013 Annexure “B”

7. In her later report of 21^st March 2013, Dr B said:

   …I have assisted both girls to develop skills to manage recurrent anxiety and periodic regression in the context of continuing acrimony between their parents, subsequent to their separation. Intervention has also consisted of teaching both parents consistent parenting practices to deal with defiant behaviour and anxiety. Given the ongoing conflict between the parents and both girls’ tendency to become anxious, they would benefit from continued intervention in the medium to long-term.[7]

   [7] Ibid

8. In her oral evidence, Dr B said that the Father has a different relationship with the girls than their mother, who has a softer approach. He has firmer boundaries. From her observation of their interactions, the Father has a very good relationship with X. His ability to get her settled is better than that of the mother.

9. Dr B said that she had last seen the Father on 2^nd April this year and she last saw X with her mother on 25^th April. She has had no contact with them since then.

10. In cross-examination, Dr B advocated caution, saying that she would be resistant to adding too much more in the way of overnight time between the girls and their father. She said that she would be very loath to increase the number of nights the girls spent with their father at present.

11. Dr B said she found the mother to be a very vigilant and responsive parent, but X presented more confidently in the company of her father. She was more talkative and more relaxed. Similarly, the younger child, Y, was “all over” the Father.

12. Dr B was aware that the children were spending four nights a fortnight with their father. When asked by Mr Karp about the recommendation by Dr R, the Court Expert, that the children should spend an extra night with their father, she said that in theory an additional night for a child of X’s age would be fine, but she would be cautious at this stage.

13. Dr B also noted that changeovers were a cause of anxiety for the children, and expressed the view that the fewer changeovers there were, the better.

14. Ms S, Clinical Psychologist, gave oral evidence. It was her evidence that she had not seen the children since May 2012, nor had she seen the Father at all. Her opinion, she said, was based on her assessment of the children. She was shown the Report by Dr R but disagreed with his observations.

15. Ms S had prepared four reports to Dr H which were tendered. The reports were:

    a)Report dated 7^th February 2012 relating to X;

    b)Report dated 8^th February 2012 relating to Y;

    c)Report dated 10^th May 2012 relating to X; and

    d)Report dated 10^th May 2012 relating to Y.

16. In her report of 7^th February 2012 Ms S made this diagnosis:

    X is suffering from an Adjustment Disorder with Anxiety with the major stressor being her parents’ separation and the subsequent disruption in her life. The current arrangement for seeing her parents is causing chaotic disruption and emotional distress in X’s life and needs to be reviewed as a matter of urgency. The present situation is disrupting attachment to both her parents which is extremely detrimental to her developmental needs. It is impacting negatively on X’s academic achievements and social development as well emotional development and mental health.

17. Ms S reiterated this diagnosis in her report of 10^th May 2012 and made this recommendation:

    X requires a stable, safe and nurturing environment to maintain a secure attachment to her parents…X’s attachment to her father is obviously also important and regular weekend day contact is recommended. I recommend that the overnight stays be ceased as X is clearly not coping with them. This decision could be revisited in a few years when X is older and more able to cope with the separation from her mother.

18. In her report of 8 February 2012 Ms S made this diagnosis of Y:

    Y is suffering from Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. She is also demonstrating symptoms of Separation Anxiety Disorder with clear distress shown at leaving her mother. Y is not developmentally equipped to deal with such emotional distress at this age and her behaviour is indicative of that distress.

19. Ms S reiterated that diagnosis in her report to Dr H of 10^th May 2012. In her conclusion and recommendations she said:

    Y’s behaviour has deteriorated and her emotional distress continued with the current parental arrangements. I reiterate my conclusion and recommendations from my previous report and state that the current arrangements are detrimental to Y’s emotional and developmental needs and must be reviewed as a matter of urgency.

20. The evidence of Ms S is supportive of the Mother’s proposal to reduce the Father’s time with the children from the current four nights per fortnight.

The Court Expert Report

1. Dr R, a Child, Adult and Family Psychiatrist, was appointed a Court Expert under Rule 15.09 and prepared a Report, which was released to the parties on 12^th August 2013.

2. For the purpose of his report, Dr R interviewed each of the parents separately and together. He interviewed the children together and then saw them in the company of each of their parents.

3. In his interview with the mother, Dr R noted that she said she would prefer that X did not stay with her father on school nights. He formed the view that her statement that X would prefer not to stay with her father on school nights was more a reflection of her belief than the child’s belief.

4. Interestingly, Dr R noted a difference between X’s behaviour when her mother was with her and when her mother left the room:

   She stopped crying and began to talk. Once I closed the office door X relaxed immediately. The contrast in her behaviour was dramatic; she was happy and playful and began to interact with Y. She said that she was having a birthday. She had gone to school that day. She began to chat which was in stark contrast to when her mother was in the room. I believe that the mother would have been quite shocked to see the difference in her behaviour.[8]

   [8] Report page 8 lines 267-273

5. Dr R saw the two children and their father together. He reported that:

   As the father was walking down the corridor the children ran to him and jumped into his arms. They were very happy and relaxed. They didn’t appear worried about their mother at that time. They came into the office. They were very inquisitive. They were very pleased to see him. Mr Tealle responded well to the children.[9]

   [9] Ibid page 13 lines 464-468

6. Dr R commented that he did not feel confident about the Mother’s ability to judge the anxiety in the children and interpret this anxiety.

7. He said of the Mother:

   She is very child focused and I believe cares a great deal about the children and the children are very close to her and both appear to be developing well in her care…The children didn’t appear to have any anxiety when they were away from the mother. However X in particular appeared to be anxious when in the presence of the mother. I formed the view that it was the anxious dynamic in the mother and child’s relationship that was contributing largely to X’s anxiety and separation issues. Both children were worried about the mother.[10]

   [10] Ibid page 16 lines 586-594

8. Dr R said of the Father:

   He I believe cares a great deal about the children. He was very child focused and caring towards them. They responded well to him. They didn’t appear to be overly anxious or worried about him. They appeared to have a very strong healthy dynamic with the father. I formed the view that the children responded well to him and that he was a capable caring parent.[11]

   [11] Report pages 17-18 lines 638-643

9. Dr R expressed the view that “the major driving force of the anxiety particularly in X was the anxious dynamic between the mother and X.[12]” He stated that he would have liked to have been able to recommend a shared arrangement:

   However the level of suspiciousness and concern between the parents is not likely at a level to allow for a successful shared arrangement. For a shared arrangement to be effective in my view there does need to be a sophisticated level of communication and agreement between parents.[13]

   [12] Ibid page 18 lines 677-678.

   [13] Ibid page 21 lines 776-770

10. Dr R recommended that the children should continue to reside with the Mother, noting that changeovers are a significant problem “potentially”. He went on to say:

    I recommend that the children have fortnightly weekend contact with the father from Thursday after school until Monday morning. I would also recommend that in the alternate week the children have an overnight from after school till before school the next day.

11. Dr R also recommended that:

    a)Neither parent denigrate the other in front of the children;

    b)Both parents continue with their respective counselling;

    c)Neither use any drugs or alcohol or any physical punishment with the children;

    d)Both parents but particularly the mother not quiz or question the children about their behaviour and the behaviour of the other parent.

12. He warned that persistent inappropriate questioning of the children by the Mother would raise serious concerns about the Mother’s ability to provide well for the children, leading the Court to consider the possibility of a change of residence to the Father “who could be the more well balanced of the two parents”.[14]

    [14] Report page 22 lines 805-806

Submissions

1. Arising from the evidence and from questions put to Counsel by the Court, Mr Johnston for the Mother submitted that in relation to Y attending (omitted) Public School in 2014, if the Mother were to be given sole parental responsibility for the children then no order would be called for.

2. However, if the parties were to have equal shared parental responsibility for the children, then an order should be made that the child should attend (omitted) Public School in 2014.

3. As to the Father’s outstanding tax returns, it was submitted that these orders should be made:

   a.  That within 28 days the father do all acts and things and execute all documents necessary to prepare and lodge with the Australian Taxation Office his income tax returns for the financial years ended 30 June 2010, 30 June 2011, 30June 2012 and 30 June 2013;and

   b.  That the father serve the mother with copies of such taxation returns at the time of lodgement; and

   c.  That the mother have liberty to apply on 7 days’ notice in the event that the father fails to comply with this order.

4. Mr Johnston submitted that the orders were necessary as the Mother has a financial interest in the Father complying with his legal obligations in respect of both the Capital Gains Tax issue and because of child support considerations.

5. Mr Karp told the Court that his client would consent to an order that both girls should attend (omitted) Public School. The Father would also consent to an order requiring him to submit his income tax returns but opposed an order requiring him to provide the mother with copies, for reasons of privacy.

6. As to the parenting issues generally, Mr Johnston submitted that the Court would have found the Mother to be an impressive witness who gave her evidence in a responsive and truthful manner.

7. By contrast, he submitted that the Father was not responsive to questions and was evasive in his answers. He also submitted that the Father was not truthful in a number of instances.

8. Further, it was submitted that the level of communication and trust between the parties is poor and neither parent trusts the other, which leads to an inference that the parties should not have equal shared parental responsibility for the children. Rather, the Mother should have sole parental responsibility.

9. Mr Johnston submitted that there is a real “shadow” over the Father’s ability to provide for the physical needs of the children, because of:

   a)His housing arrangements;

   b)The fact that he has not provided affidavits from the people with whom he shares the house;

   c)His income is so poor that he cannot afford to care for the children; and

   d)His evidence about his partner is concerning.

10. It was further submitted that there is an issue relating to the changeover location for the children. The Mother submits that the children should be returned to her at (religion omitted) Church at (omitted), which is near to where she lives. The Mother suffers from situational anxiety which is exacerbated by the Father’s communication with her and by the children also suffering anxiety. Orders ought to be made which will limit the times that the parties come into contact with each other.

11. Mr Karp submitted for the Father that the evidence showed that both parties are good parents, although the Mother has self perception that is contrary to other persons’ observations.

12. He conceded that there were problems with some aspects of the Father’s evidence, in that his financial situation is unclear. However, there is no evidence that the children are uncared for or unfed whilst in their father’s care. His current accommodation is a four bedroom house in (omitted) which is adequate for the Father’s needs when he has the children with him.

13. Importantly, it was submitted that the dynamic between the children and the Father is healthier than with the children and the Mother, which would support an increase in the children’s time with their father at least in line with that recommended by Dr R. Reducing the children’s time with the Father, as the Mother proposes, would be disadvantageous to the children.

The law to be considered in Parenting Applications

1. Section 60CA of the Family Law Act 1975 (Cth) requires the Court, when considering whether to make a parenting order, to regard the best interests of the child as the paramount consideration.

2. The Court determines what is in a child’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC of the Act. The primary considerations are found in s.60CC(2) and the additional considerations are in s.60CC(3).

3. When a Court is making a parenting order in relation to a child, it is required by s.61DA(1) of the Act to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases where there are reasonable grounds to believe that a parent or other person has engaged in abuse of the child or family violence (s.61DA(2)). The presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (s.61DA(4)).

4. If a Court doers make an order for the child’s parents to have equal shared parental responsibility, the Court is then required by s.65DAA(1) to consider whether it would be both:

   a)in the child’s best interests; and

   b)reasonably practicable

   for the child to spend equal time with each parent.

5. If the Court does not make an order for the child to spend equal time with each parent, s.65DAA(2) then requires the Court to consider whether it would be both:

   a)in the child’s best interests; and

   b)reasonably practicable

   to spend substantial and significant time with each parent.

6. All of the above matters have been considered, insofar as they are relevant.

Conclusions

1. I have considered the question of parental responsibility. The communication between the parents is not good, but they clearly have a commitment to the welfare of their children, and I am not persuaded that the Mother should have sole parental responsibility for the children, to the exclusion of the Father. It is clear from the evidence of Dr R and Dr B that the Father is a capable and loving parent, as is the Mother. There will be equal shared parental responsibility.                  

2. That said, the Father’s failure to respond to the Mother’s proposal about enrolling Y at (omitted) Public School next year is difficult to justify. The Father’s answer that he was waiting until the parenting issues between the parties were finalised does not hold water, as he had not proposed any other school for the children. Even if the children are to spend equal time with each parent, it is inconceivable that they will be attending more than one school. The Father’s failure to respond to the Mother’s proposal to enrol Y at (omitted) Public School could only increase the mother’s anxiety and distrust of the Father.

3. I intend to make an order that Y should be enrolled at (omitted) Public School to start at the beginning of Term 1 in 2014.

4. The Father must submit his income tax returns. All taxpayers have an obligation to submit their income tax returns in a timely fashion has meant that the property Orders consented to by the parties in May 2012 have not been finalised. There is a sum of $26,000.00 in a trust account waiting to be paid out and a Capital Gains Tax liability yet to be calculated. If there is any money left over, it will go to the parties.

5. I cannot see a need for the Father to provide copies of his tax returns to the mother. It is unnecessarily intrusive.

6. The Father’s income tax returns for the financial years ending 30^th June 2010, 2011 and 2012 are to be submitted within 28 days. I am prepared to allow until 31^st October for the 2013 income tax return.

7. The Father needs to be aware that his child support liability will be assessed from his income tax returns, which is another reason why he must submit his tax returns in time.

8. This is a matter where the Mother seeks to reduce the Father’s time with the children from the current four nights a fortnight to two nights. Whilst there is support from Ms S for this proposal, there is no support from the evidence of Dr B or Dr R. It is noteworthy that Ms S has not seen the children for over a year and has not seen the father at all, whilst Dr R and Dr B have both seen and spoken to the Father and the children comparatively recently.

9. In my view, both Dr B and Dr R speak of the Father’s ability as a parent and his relationship with the children in positive terms. It is in the children’s best interests to have meaningful relationship with their father as well as with their mother.

10. The children have been suffering from anxiety arising from the stresses of their parents’ poor communication. It is important to protect the child from psychological harm brought about by negative communication between their parents. The Father’s proposal for equal time with each parent involves a number of changeovers, which is a likely source of friction between the parents and anxiety for the children. Dr B expressed the view, which I accept, that the number of changeovers should be reduced to avoid this difficulty.

1. The children have been observed by Dr R and it is clear that they view their father as a loving parent with whom they enjoy spending time. They were observed by Dr B and Dr R to be relaxed and happy in his presence. Why, then, should their time with their Father be reduced?

2. The Father’s proposal for an equal time arrangement with the Mother does not appear to be realistic. Dr R advised against it, as the parties’ level of cooperation is not sufficiently high. Dr B did not support an increase in the number of overnights at this time. The fact that the Father lives at (omitted) and the Mother lives at (omitted) militates against the practicability of such an arrangement, because X goes to school and Y will go to school at (omitted), which is too far from (omitted) for half the fortnight.

3. The Father’s proposal is unrealistic in that he has not provided sufficient evidence of the other people who live in the house that he shares. They are not on affidavit, nor were they interviewed by Dr R. The Father’s relationship with the lady he described as his partner appears to be “on hold” at present, and there is no information about her.   

4. I am not satisfied that the Father’s proposal for an equal time arrangement is in the children’s best interests, and I doubt that it is reasonably practicable.

5. Dr R recommended that the children should continue to live with their mother and spend a long weekend each fortnight with their father. This appears to me to be a suitable arrangement and in the children’s best interests, although I will make the time from after school on Friday until before school on Tuesday. This will mean that the changeovers for that long weekend will be done at school, to avoid interaction between the parents.

6. Similarly, the children will spend the Tuesday night of the off week with their father, which will again involve a changeover at school. The children are currently spending each Tuesday night at their father’s place, so this will be a somewhat familiar arrangement for them.

7. An increasing amount of time with the Father in the school holidays in the next few years should be to the children’s benefit.   

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  23 August 2013