Tordai and Pletcher

FEDERAL CIRCUIT COURT OF AUSTRALIA

TORDAI & PLETCHER

[2017] FCCA 3070

Catchwords:
FAMILY LAW – Parenting dispute – all matters agreed save religion – mother immersed in recently adopted (religion omitted) beliefs – father strongly opposing children being exposed to mother’s religion – parents agreeing equal time – whether prohibition on mother’s religion appropriate and/or practicable in any event – reluctance of court to make orders requiring constant supervision – parents to have joint parental responsibility.

Patrick Stevedores Operations No 2 Pty Ltd and Others v Maritime Union of Australia and Others (1998) 153 ALR

Applicant:

MS TORDAITORDAI

Respondent:

MR PLETCHER

File Number:

DGC 2514 of 2016

Judgment of:

Judge Burchardt

Hearing dates:

22 & 23 November 2017

Date of Last Submission:

23 November 2017

Delivered at:

Dandenong

Delivered on:

20 December 2017

REPRESENTATION

Counsel for the Applicant:

Ms Elleray

Solicitors for the Applicant:

Nevett Ford

Counsel for the Respondent:

Mr Combes

Solicitors for the Respondent:

Kelly & Associates Family Lawyers

ORDERS

The injunction ordered in Order 2 of the Orders made on 26 October 2016 be discharged.
The Applicant and Respondent have equal shared parental responsibility for the children of the relationship [X] born (omitted) 2009 and [Y] born (omitted) 2014 (“the children”).
The children live with the Father and Mother as follows:
(a)On a week about basis with changeover to occur at school each Monday;
(b)For one half of the long summer school holidays by agreement and, failing agreement, on a week about basis commencing at the conclusion of school and concluding at 3.30 pm 14 days later and alternating for the duration of the holidays with the Father to have the first week and the Mother the third week in even numbered years and the Mother to have the first week and the Father the third week in odd numbered years;
(c)Such further times as the parties may agree, from time to time.
Notwithstanding any other Orders herein, and regardless of whose care the children are in at the time, the children spend time with the parties as follows:
(a)With the Father:-
(i)On each of the children’s birthdays and the Father’s birthday by agreement and, failing agreement:-
(A). In even numbered years if the birthday occurs on school day from the conclusion of school or 3.30pm the day before to the commencement of school or 9.00am on the child’s birthday;
(B)In even numbered years if the birthday occurs on a non school day from 3.30pm the day before to 2.00pm on the child’s birthday;
(C)In odd numbered years if the birthday occurs on school day from the conclusion of school or 3.30pm on the child’s birthday to the commencement of school or 9.00am the day after the child’s birthday;
(D)In odd numbered years if the birthday occurs on a non school day from 2.00pm on the child’s birthday to the commencement of school or 9.00am the day after the child’s birthday.
(ii)On Father’s Day from 6.00pm the day before to the commencement of school the following day.
(iii)In even numbered years from 3.30pm on 24 December to 3.30pm on 25 December.
(iv)In odd numbered years from 3.30pm on 25 December to 3.30pm on 26 December.
(b)With the Mother:-
(i)On each of the children’s birthdays and the Mother’s birthday by agreement and, failing agreement:-
(A). In odd numbered years if the birthday occurs on school day from the conclusion of school or 3.30pm the day before to the commencement of school on the child’s birthday;
(B)In odd numbered years if the birthday occurs on a non school day from 3.30pm the day before to 2.00pm on the child’s birthday;
(C)In even numbered years if the birthday occurs on school day from the conclusion of school or 3.30pm on the child’s birthday to the commencement of school or 9.00am the day after the child’s birthday;
(D)In even numbered years if the birthday occurs on a non school day from 2.00pm on the child’s birthday to the commencement of school or 9.00am the day after the child’s birthday.
(ii)On Mother’s Day from 6.00pm the day before to the commencement of school the following day.
(iii)In even numbered years from 3.30pm on 24 December to 3.30pm on 25 December.
(c)In odd numbered years from 3.30pm on 25 December to 3.30pm on 26 December.
All changeovers take place at the children’s school, or day care where applicable and, for the purposes of changeover of time which does not occur at the children’s school or day care, the Applicant shall collect the children from outside the Respondent’s residence, as may be from time to time, at the commencement of his scheduled time at 9.00am with the children in accordance with the Orders herein.
Each party shall keep the other informed of their current residential address, email address and contact telephone numbers and advise the other of any change in these details in writing as soon as practicable and no later than seven days of such change taking place.
Each party shall notify the other of any significant illness or medical condition suffered by either of the children within 24 hours, or as soon as practicable in the case of an emergency, and each party shall be at liberty to attend at any hospital in which either of the children may be admitted and at all necessary medical or dental appointments.
Each party shall provide all necessary authorisations to the children’s treating medical practitioners to allow both parties to have direct access to the child’s medical records.
Each party shall make available to the other details of medication which may be prescribed for the children from time to time so as to enable the other party to administer such medication to the children as prescribed or required.
Neither party shall denigrate the other, or members of the other’s family, in the presence or hearing of the children and each shall do all acts and things to reasonably prevent any other person from doing so.
Neither party enrol the children in any activity which impinges on the other parent’s time with the children without the consent of the other parent.
In the event that the Mother and Father are unable to personally care for the children outside of school or day care hours for a period in excess of 3 hours then the Father be given the first option to care for the children during such periods.
The children shall continue to attend (school omitted) for the duration of their primary education and shall attend a secondary school as agreed and failing agreement, the parties shall attend upon an agreed child focused mediator to assist the parties to determine the children’s secondary school by 30 January 2010.
The parents facilitate the children, or either of them, communicating with the other parent via any form of communication no more than3 times per week when the children or either of them are in the other parents care.
In the event either child wishes to communicate with the parent, that parent shall facilitate said communication.
Either party may travel overseas during any time that the children are in their care provided that a travel itinerary for any such travel as provided no less than 90 days prior to the intended travel said itinerary to include departure times, modes of transport with relevant times and contact details including telephone numbers.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2514 of 2016

MS TORDAI

Applicant

And

MR PLETCHER

Respondent

REASONS FOR JUDGMENT

Introductory

This is a parenting dispute in which the parties, to their credit, managed to resolve almost all aspects of parenting orders for their two children by consent. [X], born (omitted) 2009, and [Y], born (omitted) 2014, will live with their parents in a week-about arrangement. This speaks very well the measure of cooperation and trust that the parents have in one another.
Most unfortunately there is one issue that divides them, although it manifests itself in several ways. Put shortly, the respondent father seeks that the mother be prohibited from bringing the children into contact with her newly adopted religion, which he thinks is a cult.
For the reasons that follow, I tend to think that the father's description of the religion is correct, but I do not think it is appropriate to prevent the children from having any contact with it.

The Specific Areas of Disagreement

On 26 October 2016, I made an order that the mother be restrained by injunction from taking the children to the (religious building) at (address omitted) or any other place where she attends to worship or study, unless agreed in writing with the father. The father seeks that that injunction continue indefinitely and the mother seeks its removal.
The parties have agreed there be equal shared parental responsibility for the children, save that the father seeks that "matters pertaining to the children's medical needs and religious upbringing … shall be the sole responsibility of the father" and the mother seeks that this caveat not be made. Further and finally, the father seeks that:
The mother, her servants and/or agents are prohibited from engaging in any spiritual and/or self-development programs of and associated with (omitted), whether in the Commonwealth of Australia or elsewhere with the children.
As is obvious, the father seeks to excise the children from the mother's religion effectively altogether.

What Can Be Gleaned From The Mother's Religion From The Affidavits

It should be noted that I do not intend to seek to set out each and every sliver of evidence that the parties have put on about this issue. This would be to elevate this dispute beyond its proper merits. Nonetheless, what follows is noteworthy.
The mother, who was brought up as a (ethnicity omitted) Australian, entered into her new religion shortly after separation. She has certainly immersed herself in it fully. She seems from the affidavit material to be a person given to adopting any activity to which she sets her mind with a certain gusto. In her affidavit filed 16 August 2016 she deposed at paragraphs 38 to 39:
I believe that Mr Pletcher lacks insight into what is best for the children. This is particularly so when I make a suggestion relating to the children's welfare that he does not agree with. Rather than considering my suggestions from a child-focused perspective, he simply dismisses them and turns it into a personal attack on me.
On several occasions, I have asked Mr Pletcher to allow me to take the children to (country omitted) in order to participate in a program aimed at assisting children to understand and control their emotions. I have observed similar programs in (country omitted) and believe that the children would benefit greatly from such a program. I have always offered to cover all expenses associated with such a program, including travel costs.
It should be noted that at the time this affidavit was sworn, [X] had not reached his seventh birthday and [Y] was still two.
At paragraphs 44-45, the mother deposed:
I believe that it is important for our children to learn about the religious and spiritual practices of their parents and to have an opportunity to share in these experiences.
[X] and [Y] love attending (religious building) with me. [X] has befriended other children at the (religious building) and often asks me when he can next go to the (religious building). The children feel very welcome and at home at the (religious building).
In the father's corresponding affidavit, filed 27 September 2016, the father reveals at paragraph 16 that the (religious building) is a (location omitted). He went on to depose that the mother visited (country omitted) for eight weeks from September 2015, leaving the children with him, and again for two periods of five weeks, when the children were also left with him. He asserted that the mother was estranged from her family as a result of religious practices and noted at paragraph 30 that:
[X] has been told that (omitted) are real and that he has the opportunity to learn and use this to (omitted). [X] has also been told by his mother that (omitted). He is too young to understand these teachings and all I can do is to try and explain that different people believe in different religions. She insists on preaching (religion omitted) to him without my consent.
The father went on to depose at paragraph 35:
Ms Tordai wanted to take the children to (religious building) so that she could do a (omitted). She wanted to put the children in the sleeping room whilst she attended. I found this completely unacceptable and irresponsible as the children go to bed at 7/ 7.30. When I told Ms Tordai that I did not agree with this she told our eldest son, [X], "I have no idea how I ever loved your father. He is so mean." When I confronted her about having said this, she told me "[X] is six. He is intelligent enough to hear the truth about his father" and that "I am respecting [X] by telling him this information." Despite repeated requests to leave the children out of our "issues", Ms Tordai declines to do so.
The father annexed substantial amounts of materials relating to the mother's religion as exhibit CP1. I note that inter alia there is an apparent reference to being able to survive without food. There are references to (omitted). At page 28 of the affidavit, the mother says in a post:
To my two boys - may I continue to learn and grow and break the patterns of my past and childhood so I can be a better mum to you both each day.
I declare that each day I will become more patient and remind myself that it is your inner space that I am trying to connect with not mine and that you are the teachers in my life guiding us to a better reality.
At page 29, the following post is noteworthy:
My firsthand experience of (omitted).
(omitted).
The mother went on to assert at page 30 that her new beliefs had enabled her to (omitted). She gave examples at page 31 of (omitted) (something many might have deduced in any event from the material apparently before her). She asserted that she can (omitted).
She went on to say at page 32 that (omitted).
There are various photographs of a (omitted), who one has to say does look rather somewhat self-satisfied.
In the mother's next affidavit filed 23 March 2016, she deposed at paragraph 40 that she had been estranged from her family in 2015 and blamed the husband in part for exaggerated reports of her religion to her family. At paragraph 67, she confirmed that she was in (country omitted) in October and November 2015, February 2016, May 2016 and December 2016. She went on to depose relevantly at paragraph 80 that:
The only events I propose that the children could attend are Saturday/Sunday one-hour classes that I believe have some value and would be useful to the children as social events at the centre. These classes occur once a week on a weekend for one hour and involve the children being taught about concepts such as (omitted).
At paragraph 150, the mother deposed that:
I am not asking them to go to a place of worship. I ask that they come with me where I go to see my friends and where we do (omitted) and catch-ups.
In her next affidavit filed on 20 April 2017, the mother deposed at paragraph 14:
I wish to make it clear that I am not imposing my beliefs upon the children. I have incorporated a maximum of about 30 minutes of spiritual practice in my day-to-day routine.
The next affidavit filed by the husband on 8 November 2017 relevantly annexes at CP1 a post by [X] that the father found on the fridge in the mother's house which reads:
[X]:
(omitted)
CP2 has further material from the wife, largely repetitive, as far as I can see, of the material in his first affidavit. I note that the wife, who appears in the last page numbered 42, has adopted the title of (omitted) and there is once again a beaming photograph of her (omitted).
It should be noted that this material was allegedly obtained improperly by the husband visiting the mother's home, but I note his explanation as to how he got in was entirely unexceptional.
In her final affidavit filed 8 November 2017, the mother relevantly says at paragraph 33(f) to (i):
I completely understand that he is not interested in religion but should his own anger and fears mean that my children miss out on an important part of my life? I ask him to respect me and the decisions I make without trying to tell me how bad a mother I am. There is only one time where the children were in the sleeping room at the centre. This was so the noise of the workshop didn't disturb them. Since they were born the Respondent and I would take the children to parties, events or functions and have them sleep in the pram or sometimes at odd locations. That is something many parents have to tackle and also something as at the time as single mum with no family support at all, I would make work.
People at the centre would bake cakes for the children, especially on big occasions like their birthdays, and spoil them and buy them things, and also ask about them and play with them anytime they were visiting with me to their homes or at the centre.
I have never left the children with anyone they don't know or feel uncomfortable or unknown to them. The Respondent seems to believe that there is a risk of the children being abused at the centre. I say that there is not and that they are always surrounded by supportive, trusted people there.
At subparagraph 33(o), the mother said:
What I am involved in is a culture and religion of which I am proud but at no point do I force my children into anything.
At paragraph 41, the mother set out the following about her religion:
a)(omitted)
b)(omitted)
c)(omitted)
d)(omitted)
e)(omitted)
She went on to depose to the (omitted) at paragraph 42:
(omitted)
The mother went on to say that she was initiated into (omitted) the previous December (2016). She had (omitted) and in subparagraph (c) asserted boldly:
(omitted)
The mother also filed an affidavit of a friend called Mr M, who deposed to having visited the centre and found it perfectly normal. He was not required for cross-examination.

The Evidence Given At Court

The mother was cross-examined about her religious beliefs and there is simply no question that she devoutly believes everything she says. She went so far as to assert that when with her (omitted) in (country omitted), she had experienced (omitted). This was put in the first person singular and not as something she had observed. As I pointed out to counsel, she may believe it, but I do not.
The mother is also very centred on her religion and clearly believes that (omitted).
The father's steadfast opposition to his children's involvement in this cult was equally clear.
What should perhaps be noted is the relevant comments of the family report writer, Mr D (exhibit DS-1). It should be noted that Mr D interviewed the parties and the children on 30 March 2017, by which time they had been open to whatever the mother was able to expose them to for some time. At paragraph 66, the report noted:
[X] reported little about his mother's beliefs, other than they related to (religion omitted) and that she says that “she follows it and likes it.” [X] conveyed a sense of indifference. There was nothing about her involvement in this that troubled him. He denied any negative aspects.
I note that the report also noted at paragraph 70:
Mr Pletcher and Ms Tordai were exemplary in their parental approach.
At paragraph 106, Mr D said:
The determination of the fact pattern of this case is a matter for the Court. Clinically, there is little evidence to suggest that [X] and [Y] view either parent as anything other than a trusted, safe, and secure primary base in their world. This tends to infer a history of predominately positive, predictable, and attentive caregiving by both parents. I note that Mr Pletcher and Ms Tordai were exemplary in their parental manner and approach during the observation sessions with the children. I note that reports from the children's school and childcare teachers consistently depicted Mr Pletcher as a very interested, committed, and reliable parent. Teacher reports in respect of Ms Tordai, notwithstanding some unevenness, nonetheless documented positive involvement, interest and contribution in the children's education and development.

At paragraph 108, Mr D observed:
I anticipate that issues related to the children's religious upbringing, medical care and nutrition are likely to provide fertile soil for ongoing parental conflict. Indeed, Ms Tordai describes herself as having been positively transformed (physically, emotionally, and psychology) by her spirituality and involvement with the (religion omitted), and she seeks to share with the children what is now a very important part of life. Mr Pletcher does not object to the children receiving a broad religious education. Rather, his concerns pertain (a) the nature and intensity of the message to which they have been and may be exposed in the context of their mother's spirituality; and (b) their safety at (omitted). The fact that “religious and cultural upbringing” is identified by Parliament as one of the core five “major long-term issues” in respects of children's care, welfare and development in this context of shared parental responsibility speaks to its significance as part of the rich tapestry of parenting. These are complex matters, and as neither party impresses as being particularly willing to give ground, a determination may ultimately need to be made by the Court.
In respect of the parenting arrangement, having assessed the parties, I am of the view that neither would have maintained their proposals, which both involve unsupervised overnight contact, unless satisfied that the children were not thereby exposed to unacceptable risk of harm.
The report went on to recommend equal time between the parents.

Findings

It should be noted the centre to which the mother goes is one in which she plainly wishes to immerse herself both socially, culturally and religiously. I was struck by the fact that it was put by counsel on her behalf in cross-examination of the father that a "compromise position" would involve no more than two 4-hourly attendances per week. Four hours is a lot of time for religious devotion for children who are only coming up to eight and three. That would be the case in any religion.
Nonetheless, one has to accept that Mr D was right that neither parent would have agreed to this spend time regime they were proposing (which was not equal shared time on either of their part until the matter resolved at trial) without having in the ultimate confidence in the capacity of the other parent properly to care for the children.
Although it is disconcerting to see [X] making ridiculous assertions as to being a reincarnation of the (omitted) or an intention to be so, the fact is that when Mr D saw him he was not much perturbed at all and not much interested in the mother's religion.
The mother plainly wishes to change that. She impressed me as being absorbed to the point of fanaticism as a convert.
There is no gainsaying the obvious. Some of the mother's beliefs are to a rational mind ridiculous. I simply do not accept that a human being is capable of (omitted). Likewise, I do not accept that the mother is capable of (omitted) and I cannot avoid saying that some of her posts sound to me like psychobabble.
Nonetheless, none of these views are unlawful. The mother is perfectly entitled to hold them. She is, on any view of the matter, a loving and competent parent.
The difficulty with the orders that are in contention is that they simply will not work. All the indicators in this case point towards joint parental responsibility. They will have the children in their care half the time each. As Mr D recommended, they are going to have engage in counselling to enable them to deal with their differing views.
The total prohibition of attendance at the (religious building) seems to me, in the light of all the evidence, to be unsustainable as an order in the children's best interests. Contrary to the submission made by counsel for the mother, this is not a case in which it is for the court to start making decisions about people's basic entitlement to exercise their own freedom of religion. The Court is concerned first and last with the children's best interests.
It is understandable that the mother wishes to involve her children with a facet of her life which is of the greatest importance to her (it seems to me to be all-consuming) and the concern that the father has that the children will be immersed in it, is one with which she will have to learn to live. He will have the children for half the time. He will be in a position to counter any indoctrination that he may observe.
Once these orders are made, it is equally obvious that the order to enjoin the mother from exposing the children to anything to do with her religion is unsustainable. The Court does not generally make orders that require constant supervision (see Patrick Stevedores Operations No 2 Pty Ltd and Others v Maritime Union of Australia and Others (1998) 153 ALR at [77] – [78]).The Court cannot be standing round all day long with a cudgel to keep the wife away from her (religious building) and/or any other religious devotion; it is plainly unworkable.
It is easy to foresee an unending pattern of contravention applications in the event that the orders that the father seeks are made.

Conclusion

In the ultimate, each of these parents will have the children for half the time. There will be an order for joint parental responsibility. The parties will just have to work a lot harder than they have done so far to exercise it. On the one hand, the mother should realise that the father wholly detests her religion, which I have to confess, on the materials as they stand, has some rather startling features to it. She should also bear in mind that the children are young and will be spending half their lives in an environment that does not share her belief. She needs to approach this with sensitivity.
On the other hand, the father needs to appreciate that the mother's religion is not in any sense unlawful. While he may recoil from it, the mother is an excellent mother and he is entrusting the children to her for half the time. As I say, both parents will have to work through their various difficulties with each other's formal positions.
I have made the order for week-about time, because the parties have both pressed me to do so. I retain concerns as to whether this will prove workable if either parent pushes their barrow too hard. They will both do well to take a step back from the fray and put the children first. The children are not a spiritual battleground to be fought over in some further manifestation of something akin to the Thirty Years' War. They are there to be loved and nurtured. If either parent fails to do so, I would foresee that the Court is highly likely to become further involved.
Finally, I will make an order that neither parent remove the children from Australia save by giving 90 days written notice to the other. The utility of such an order should be self-evident.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 20 December 2017

[2017] FCCA 3070

20 December 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies