Traynor & Casey
[2022] FedCFamC2F 1317
Federal Circuit and Family Court of Australia
(DIVISION 2)
Traynor & Casey [2022] FedCFamC2F 1317
File number(s): PAC 3259 of 2021 Judgment of: JUDGE OBRADOVIC Date of judgment: 6 October 2022 Catchwords: FAMILY LAW – Final Parenting – children living separated since 2018 – one child has mild intellectual disability – one child exploring gender and sexuality – whether parents are meeting children’s needs – high parental conflict – whether parents should share parental responsibility – where the children should live – whether the children should live together – time with parent with whom children not primarily residing. Legislation: Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA Cases cited: Banks & Banks [2015] FamCAFC 36
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 88 Date of hearing: 12 and 13 September 2022 Place: Parramatta Counsel for the Applicant: Mr Givney Solicitors for the Applicant: John & Co Lawyers Counsel for the Respondent: Ms Hamilton Solicitors for the Respondent: T & S Law Firm Counsel for the Independent Children’s Lawyer: Ms Conti-Mills Solicitors for the Independent Children’s Lawyer: Harb Lawyers ORDERS
PAC 3259 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TRAYNOR
Applicant
AND: MR CASEY
Respondent
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
6 October 2022
THE COURT ORDERS THAT:
Live with and Parental Responsibility
1.All previous parenting Orders are discharged.
2.The parents shall have equal shared parental responsibility for the children X born in 2009 (“X”) and Y born in 2010 (“Y”).
3.X shall live with the Father.
4.Y shall live with the Mother.
Spend time
5.X shall spend time with the Mother as agreed between the parents and failing agreement as follows:
(a)For five (5) nights per fortnight from after school or 3pm Wednesday to before school or 9am Monday, with such time to commence on Wednesday 12 October 2022;
(b)For one half of all gazetted school holidays, and failing agreement in the first half in odd numbered years and in the second half in even numbered years, with such time being spent with Y;
(c)From 9am to 5pm on Mother’s Day unless already spending time with the Mother;
(d)From 9am to 5pm on the Mother’s birthday unless already spending time with the Mother and if it falls on a school day then from after school or 3pm to 7pm;
6.Y shall spend time with the Father as agreed between the parents and failing agreement as follows:
(a)For five (5) nights per fortnight from after school or 3pm Friday to before school or 9am Wednesday, with such time to commence on Friday 21 October 2022;
(b)For one half of all gazetted school holidays, and failing agreement in the second half in odd numbered years and in the first half in even numbered years, with such time being spent with X;
(c)From 9am to 5pm on Father’s day unless already spending time with the Father; and
(d)From 9am to 5pm on the Father’s birthday unless already spending time with the Father and if it falls on a school day then from after school or 3pm to 7pm.
7.Notwithstanding any other Order, the children shall spend time with the Mother:
(a)From 9am Christmas Eve until 5pm Boxing Day each year; and
(b)From 9am Easter Friday until 5pm Easter Sunday unless already spending time with the Mother.
8.Notwithstanding any other Order, the children shall spend time with the Father for the festival of Eid al-Fitr and Eid al-Adha from 9am the day preceding each festival until 5pm on the second day thereafter.
9.For the purposes of calculating the half-way point of school holidays, it shall be the Saturday that falls in the middle of the holiday period.
Changeover
10.For the purposes of changeover if it is not at the children’s school(s), unless otherwise agreed by the parents, it shall be effected by the parents or their respective nominee(s) delivering the children at a location that is the half-way point between their respective residences.
Communication with the Children
11.The children shall be at liberty to Facetime/telephone either of their parents in accordance with their wishes and the parents shall use their best endeavours to facilitate such communication.
Information Sharing
12.Each parent is to provide to the other in writing particulars as to their mobile telephone number and email address at all times, and advise the other parent of any changes to those particulars within 48 hours of such change.
13.In the event any or either of the children suffer an illness or medical emergency that requires medical attention whilst in either parent’s care, that parent will as soon as possible:
(a)Advise the other parent of the nature of the child’s condition including any diagnosis, treatment and prognosis;
(b)Advise the other parent of the full name and contact details for any health care practitioner or facility the child may attend upon assessment or treatment;
(c)Authorise the health care practitioner or facility to contact the other parent in relation to the child’s diagnosis, treatment and prognosis and provide to the practitioner or facility with the other parent’s contact telephone number and email address to facilitate the same.
Schooling
14.Within 28 days, the parents shall do all things as are necessary for the children to be enrolled in an agreed high school for the year commencing 2023, and for that purpose:
(a)By 4pm on 14 October 2022, the Mother shall provide to the Father via email a list of private high schools she agrees the children be enrolled in. IT IS NOTED that the mother has agreed to the children attending B School at Suburb C or a Catholic high school at Suburb D;
(b)In the event that no private high school agreed upon by the parents is able to accept the children’s enrolment, then the Mother shall within 7 days of receipt of advice of non-enrolment from the private school, provide to the Father via email a list of public high schools (including at least four (4) co-educational schools) she agrees the children be enrolled in, with a view to agreeing a private high school for the 2024 school year;
(c)When the parents have reached agreement as to school, they shall do all things to effect the enrolment. IT IS NOTED that the Father has offered to pay all private school fees in the event the children attend a private school.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Traynor & Casey has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are parenting proceedings concerning two children, X (“X”) born in 2009 and Y (“Y”) born in 2010 (collectively the “children”). The children’s mother, Ms Traynor (“mother”), is the applicant and the children’s father, Mr Casey (“father”) is the respondent in the proceedings (collectively the “parents”).
The children have been living separately since November 2018.
Between November 2018 and March 2020, the children did not see each other at all, a situation which was difficult for both of them. Their parents, despite knowing that the children missed each other terribly during this period, did nothing to ensure that the situation was remedied until March 2020. After almost a year and a half of the children not seeing each other (and the parent with whom they did not live), the parents agreed that the children would spend every weekend together and alternate weekends with the parent with whom they did not live. This has, to a large extent, been the situation since March 2020.
As at the date of the hearing, and after nearly 4 years of the children living separated, the Court is to determine where each of X and Y are to live and what time they spend not only with each other, but with their parents.
The matter was originally listed for hearing in June 2022 (within approximately 12 months of commencement), however, due to unforeseen circumstances associated with the COVID-19 pandemic it could not proceed as listed. The proceedings are in the Evatt List, and consequently, have received much intervention and assistance through the protocols relating to that particular Court list. Having been placed in the Evatt List, the matter screened as “high risk” although by the time of final hearing in September 2022, neither party raised any issue of risk as a relevant matter. Indeed, through the hard work of the parties and their lawyers and the Independent Children’s Lawyer (“ICL”), the issues were significantly narrowed, but remained incapable of resolution by the parties.
The competing applications at final hearing were for Y and X to live with the mother, and spend significant and substantial time with the father, thus resulting in the children living together for 14/14 nights each fortnight, being the mother’s case. Alternatively, for X to remain living with the father and Y to remain living with the mother with 5/14 nights for each child in the other parent’s household, thus resulting in the children living together for 10/14 nights, being the father’s and the ICL’s case.
The distance between the parties’ households is about an hour’s drive in Sydney’s traffic. There is some consideration required by the parents of the practicalities of where the children go to school, whether it be the same school and where the school(s) they attend is (are) located. X’s educational needs were a matter that was recognised in the Family Report as causing significant conflict between the parties, although as the hearing transpired it appears that Y’s schooling is also an issue (albeit not to the same extent).
The parties and the ICL were all in disagreement about parental responsibility, there being three different applications before the Court; the father submitting that the parents should have equal shared parental responsibility for both children, the ICL submitting that the parent with whom the child lives should have sole parental responsibility for that child, and the mother submitting that she should have sole parental responsibility for both children, albeit in submissions it was conceded that an order for equal shared parental responsibility except in respect of education, may be supported by the evidence.
While the Court is not bound by any of the proposals, it is noteworthy that the parents and the ICL all agree that Y should remain living with the mother.
Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in these children’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1 at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the children of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child”.[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the particular child.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 (“McCall”) at [121]
[3] McCall at [122]
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[4]
[4] MRR v GR [2010] HCA 4 at [15]
While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in the reasons. The reason for this is not only that discussion does not mean consideration[5] but also because the issues to be determined by the Court were significantly narrowed at the conclusion of the evidence and before submissions. Likewise, not all of the evidence at trial has been discussed in the reasons, and only the relevant factual findings are referred to.
[5] Banks & Banks [2015] FamCAFC 36
Relevant Factual Matters
The mother was born in Country E in 1981, and she is currently 41 years of age.
The father was born in Country F in 1983, and he is currently 39 years of age.
The mother’s husband, Mr G (“Mr G”), was born in 1995, and he is currently 27 years of age.
The parents met in or around 2006 and began cohabitation in 2007. The parents took part in an Islamic marriage ceremony but the marriage has never been registered. Their relationship was a tumultuous one, with a number of separations occurring before the final separation in May 2017.
The father has three children from a previous relationship, H, J and K. At the time the parties commenced living together, the father’s three children were very young and the two boys were living with the father. In the early years of the parties’ relationship, the father was involved in parenting proceedings regarding his three children. Further to orders made, the father has had sole parental responsibility for H, J and K, and those three children at all relevant times have lived in the father’s home.
The parties have two children together:
(c)X, who was born in 2009 and is about to turn 13 years of age; and
(d)Y, who was born in 2010 and is about to turn 12 years of age.
The mother says that she was “mostly” employed during the relationship up until the birth of X in 2009. Similarly, the father was also employed during the relationship, although the parties are in disagreement about the exact hours of work undertaken by the father. The mother says that he would usually commence work at 5am and would return between the hours of 6pm and 12 midnight. The father says that he worked between the hours of 7am to 4pm. Nothing turns on the parents’ hours of work during the relationship.
The parties first separated in or about 2007. However, it appears on the evidence that the exact duration and circumstances of that separation is not agreed. The mother says that they resumed their relationship after she returned home some two weeks later whereas the father says that they resumed their relationship in or about January 2009.
In or about 2012, the mother left the family home with X and Y. They lived in leased premises in Suburb L. On the mother’s evidence, the parties reconciled in or about April 2013 and the mother and the children returned to the father’s home.
In about March 2013, the mother attempted to move with the children to Perth, Western Australia. On the father’s evidence, the father made an urgent application to the Court seeking orders restraining the children from departing the state of New South Wales, which orders were made. The mother and the children remained in New South Wales.
In or about 18 December 2013, the mother says that she dropped the children off at preschool and advised the centre to contact the father and advise him “he could come and pick up the children and the car”. The mother went to a women’s refuge and was informed that they would be able to assist her in raising the children “alone”. The mother then picked up the children from the father about a week later and returned to the women’s refuge. The mother and the children lived in multiple refuges for about four months before returning to the father’s home in April 2014.
It seems that between April 2014 and May 2017, the parties resumed living together. Things seem to have broken down again in or about 20 May 2017, when the mother picked up the children from school and went to stay in a women’s refuge.
Whilst the father does not provide written evidence about each separation and what exactly occurred he does say that: “Our relationship continued to deteriorate [from 2007], with further intermittent separations, up until our final separation in 2017”.
The father says that whenever separation occurred, the children remained in his primary care and he started working less hours during these periods. However, he says that when the children spent time with the mother that she would rarely answer the father and at times he would have no contact with the children.
The parties are at significant disagreement as to where the children lived between May 2017 and December 2018.
The father’s evidence is that about two weeks after separation the mother returned home from the women’s refuge and left the children with the father. According to the father, the children remained living with him thereafter and started spending regular time with the mother each fortnight from around March 2018. According to his evidence, the children remained living together with the father until November 2018.
The mother’s evidence is that after separation in May 2017 both children lived with her. According to the mother however, sometime after May 2017 (but the mother is silent as to when) X refused to return to the mother’s care after spending time with the father. X has remained living with the father ever since. The mother says that the parties agreed for X to remain living with the father and for the children to see each other every weekend. Between January and November 2018, Y also lived with the father. The mother explains that she was undertaking a traineeship, that her hours of work were unpredictable and that she could not afford childcare.
It is therefore agreed between the parents, that X has with the father since before January 2018, and that both children lived with the father between January and November 2018.
The mother and Mr G commenced their relationship in 2018, and were married in 2019. Mr G has a daughter from an earlier relationship, M who was born in 2018.
In or about November 2018, the parties had a disagreement about the children’s spend time arrangements during the Christmas school holidays. Following this disagreement, the mother removed Y from the father’s care and Y has remained living with the mother since this time.
The children did not spend time with each other from November 2018 until March 2020. Also during this period, X did not spend any time with the mother nor did Y spend time with the father.
The father made numerous attempts to spend time with Y and for the children to see each other between November 2018 and March 2020. The mother agreed in cross-examination that she denied Y the opportunity of spending time with the father during this period, and conceded that her actions in doing so showed a disregard for Y’s connection with her father. The mother did however, approach N Counsellors in early 2020 with a view to the children seeing each other and seeing each of the parents.
On 4 March 2020, the parties attended mediation and entered into a parenting plan. The children thereafter spent time together each weekend alternating between the parents’ homes, such that each child spent time with the parent with whom they did not live each alternate weekend. This arrangement remained in place until May 2021 when there was a disagreement about Eid al-Fitr and Mother’s Day.
The mother commenced parenting proceedings on 15 June 2021.
On 22 November 2021, an incident occurred where Y was wounded by the mother’s dog and required six stiches. The mother notified the father of the incident, and advised him that she would be taking steps to rehome the dog. She then changed her mind, but did not tell the father of the reasons for her change of decision. Similarly and more importantly, the mother did not advise the father prior to taking Y to Country E in 2019 nor did she advise him at the time in 2019, when Y broke her arm. The mother conceded during cross-examination that in future she will communicate with the father about such important matters.
Interim parenting orders were made by consent on 22 December 2021, for Y to live with the mother and for X to live with the father, and for the children to spend each weekend together by spending time with the parent with whom they did not live.
The mother presently lives with her husband Mr G and Y in rented accommodation in Suburb O. Y attends Suburb O Primary School. Y has had a number of school changes while she has lived with the mother, including between the time of the mother’s affidavit sworn in April 2022 and the final hearing in September 2022. Four year old M (Mr G’s daughter from a previous relationship), also lives with the mother, Mr G and Y on a part-time basis being three weekends out of every four.
The mother’s household is a busy and loving household, although the mother and Mr G have had some arguments in front of both Y and X which have had a negative impact on the children. The mother and Mr G have attended counselling in order to assist them understand each other better and communicate more effectively.
The mother and Mr G both work in a family business, which the mother says provides her with flexibility around work hours.
In 2013, the father changed his name from Mr Akram to Mr Casey.
The father is self-employed.
The father lives in a home he owns in Suburb C, and he has an investment property at Suburb P. Living with the father are X, the father’s mother, H, J and K. The father’s other children are 20, 19, and 18 years old respectively. Two of them are in the midst of tertiary studies, while the middle child works with the father. The father’s nephew has also lived in the same household, although he no longer does so. The father’s household is a busy and loving household.
From time to time, the father requires assistance with understanding the English language, although during the hearing he appeared to understand all except some complex expressions. The paternal grandmother speaks only Arabic.
While allegations of family violence have been made by each of the parents, neither parent relies on those allegations as a relevant matter to the establishment of any risk in the other parent’s household. The allegations have not been traversed in these reasons for judgment nor have any findings been made as to such allegations.
Relevant Considerations
The children are very close and despite the years of not living in the same home, share a loving bond.
X has a very close and loving relationship with the father, his other siblings and the paternal grandmother. X also has a very close and loving relationship with the mother.
X has a mild intellectual disability. The father supports his learning through regular speech therapy, occupational therapy and private tuition at home. X, although a year or so older than Y, is in the same school year as his sister. The children will both be starting high school in 2023.
The parents agree that both X and Y are well-behaved, well-adjusted children, who are doing as best they can at school.
Y has a very close and loving relationship with the mother and Mr G. She has a close and loving relationship with the father and her other siblings, particularly her older sister and she has a very close and loving relationship with the paternal grandmother.
Y is exploring her gender and sexuality. It is the mother’s evidence that when she was about 8 years old, Y started talking about her gender. There is no evidence as to how these discussions came about or what precipitated them. Y has very recently told her mother and step-father that she wants to be called “Q”. The father learnt about this during the mother’s oral evidence at hearing. Y is also known by the surname “R” which is a name that forms part of her step-father’s surname. Her name however remains Y Akram and no application for change of name has been brought by either parent.
The mother’s evidence about Y’s reluctance to have the father involved or informed about important matters is most concerning. It is concerning because objectively there is little to no reason for Y to show such reluctance. It is concerning because the mother seems to support such negative views of the father and that he would not be accepting of Y.
Given the time frame of the initial discussions between the mother and Y about her gender identification, they must have arisen after the parties’ separation and during a great period of instability for the children. As such, these discussions occurred at a time and in the context of Y’s removal from her father’s home, her close and much loved brother and her close and much loved half-siblings and paternal grandmother. She was plucked from that large family environment into a home where for all intents and purposes she instantly became an only child. There is no evidence before the Court about the psychological impact this has had (or might have had) on the young child.
The mother has since November 2018, not informed the father about important matters concerning Y. These were noted earlier in these reasons, such as the child’s travel to Country E with the mother and the fact that the child had broken her arm. The mother did not tell the father at the time of her discussions with Y about her exploring gender identification, nor did she encourage the child to have such discussions with her father when the child resumed spending time with him in March 2020.
It seems that the mother continues to support Y in not sharing important matters with the father, for the simple reason that Y has asked her not to do so. While such a stance may be understood from the perspective of the mother wanting Y to have trust in her, it shows almost a level of immaturity in acceding to the child’s wishes when one considers the bigger picture of the child’s best interests. Y is still very young and while it is important for her wishes to be respected, the father is an important person in her life and it is imperative for the purposes of the child’s relationship with the father, that he be in a position where he is informed and as such, is able to understand what might be happening in the child’s life.
The Court accepts the father’s evidence that he is willing to listen and accommodate Y’s exploration of her gender and her sexuality. There is no evidence that the father’s religion per se, which the mother practiced while the parents were together, itself creates any particular barrier to either child expressing themselves fully and being understood in all of their individuality and splendour. Except for some comments said to have been made by the children’s older siblings, there is no evidence that the paternal family is not accepting of Y.
Open communication between parents is imperative, particularly noting the two individual children who are the subject of these particular proceedings.
The father has shown a willingness and capacity to support both children’s needs.
The children’s views
The views expressed by the children during their interviews with the family report writer include both children expressing a wish to live together. Y’s preference is that she remain living with the mother and that X live with her, while X’s preference is that Y live in the same household as him, but that he is “fine either way” in living with either of his parents.
The mother’s vulnerabilities
The mother suffers from anxiety and depression. She is prescribed medication for her diagnosed mental health conditions and appears to be compliant with that medication.
The evidence suggests that at times the mother’s decision making may have been impacted by an anxious approach. In particular her capacity to make reasoned and well thought out decisions appears to have been impacted by her mistrust of the father and her concern that he will not make the best decisions regarding the children. Her decisions are marked by an apparent confused and conflicted decision making process which has manifested itself in her only taking one child from the father’s home while leaving the other in his care, but prior to that leaving both children in the father’s care while she looked for ways to establish her own life post separation.
The mother also suffers from epilepsy. In 2020, she was hospitalised following an epileptic attack which left her very ill for a few days. Following this episode, the mother was not permitted to hold a driver’s licence for period of time, although she now holds such licence again.
Schooling and Education
In 2020, Y missed 40 days of school.[6] She has, since living with the mother, changed schools, including most recently this year. Y required literacy support, achieving only a basic level of English in 2020. The father was not notified about her academic struggles at the time.
[6] While a school report was tendered to show that Y’s absences from school were much less than 40, that school report was only for half the year.
The mother wants to enrol the children in separate high schools in 2023. She proposes that Y attend a girls’ public high school local to her home, and that X attend a boys’ public high school local to her home. In cross-examination the mother made a number of concessions about the children attending other schools, including a number of private schools suggested by the father and co-educational public high schools which are in relative proximity to both parents’ homes.
As noted earlier, X has a mild intellectual disability. The parents remain in disagreement about how best to meet his needs.
The mother is strongly of the view that she should have the ultimate say in whether, if a recommendation is made, that X attend a special unit at school, while the father is strongly opposed to that saying that he has and will continue to support X by ensuring he receives assistance from external treaters and tutors. The father says that he has had experience of special units at school, his oldest child also having special needs, and that his experience is that it was not a particularly useful way to educate that child.
The mother, despite her application for X to live with her, has “not as yet” made any enquiries about the availability of speech therapists, occupational therapists or other supports that would or could assist X with his needs, which are located within proximity of the mother’s residence. While she has enquired of the local high school about the support that the school offers to children who might have special needs, such enquiries have been only token, and the mother has no real understanding of how a special unit within a particular school might operate.
The father has proposed a number of private schools for the children to attend. It is his strong preference that wherever the children live, they attend the same school. This is borne out of the idea that it would allow the children the maximum ability to spend as much time together as possible. While not cross-examined about it, the father does not seem to have considered the children’s individual needs in coming to the conclusion that they should go to the same high school. The Family Consultant is of the opinion, if there are arrangements in place for the children to have lots of time together, then attending the same school is not necessary as the children’s need to be together would be met by time at the parents’ respective households.
From the Court’s perspective while it might be a very positive thing for the children to go to the same school as it would allow them to have a common base and understanding of their everyday lives, it might not necessarily mean that they would spend any more time together than they otherwise would in the parents’ households, as they may end up in different classes to each other and they might also have very different friendship groups.
The question of which particular school the children attend in 2023 is a matter that the Court declines to determine. Not only is there insufficient evidence about the schools which have been discussed during the proceedings, but it appears that the cut-off time for enrolment in private schools for the 2023 school year has passed. The discussions around school arise in the context of the orders sought for parental responsibility and the opinions expressed in the Family Report about these issues. The parents have indicated a willingness to consider each other’s proposals and it appears that there is now more of an appreciation between them that they are each doing their best to meet the children’s needs. The mother has indicated an agreement in principle to the children attending B School in Suburb C or the catholic high school at Suburb D. The father has indicated a willingness to pay all private school fees.
Change in circumstances
The mother’s proposal would see a significant change for both children, while the father’s and the ICL’s proposal would see a continuation of the status quo. While the continuation of any status quo is itself not a relevant matter, the children’s living circumstances over the past number of years are a relevant matter.
The children have enjoyed relative stability since the parents entered into the parenting plan in early 2020. While it may not be ideal for them to have lived in separate households, such separation does not seem to have impacted their sibling relationship so far. What it does seem to have impacted the most is Y’s relationship with her father.
The mother’s proposal for the children to live with her, while on the one hand sensible as it would see the children living together and thus meet their expressed wishes for this to occur, also fails to fully appreciate the change that this would have on both children, but particularly X. It would really be a decision playing into Y’s hands rather than a decision that is balanced against both children’s needs.
Parental Responsibility
The mother is of the view that she and the father cannot communicate and explains in her evidence why an order for her to have sole parental responsibility for the children ought to be made. Her evidence suggests that the father is overbearing and will not listen to her point of view. Objectively what her evidence establishes is that when the parents are in disagreement about a course best suited for the children, the mother takes the view that if the father does not agree with her, she ought to be the one who makes the ultimate decision because she does not trust the father. Objectively, the evidence does not show the father making decisions regarding either child which have not been child focused or which have not been in the children’s best interest. The same cannot be said of the mother.
While it would be better for the children if the parents improved their capacity for future communication, using only applications (and text messages) is not indicative of an inability to effectively communicate. Indeed, the parents have been effectively communicating using the ‘Our Family Wizzard’ application as well as the ‘WhatsApp’ application.
Much time was taken up during cross-examination of the father about his reluctance to have X be enrolled in a special unit at his school and about his reluctance to access services through the National Disability Insurance Scheme (“NDIS”). If anything, such cross-examination established that the father had a thoughtful and reasoned approach in ensuring that X’s educational needs are met.
The mother was carefully cross-examined about her capacity to meet the children’s needs and her ability to make decisions which are in the children’s best interest. Following such cross-examination, the Court has formed the view that the mother’s decision making is tainted by her mistrust of the father and her own vulnerabilities.
In all of the circumstances, the Court is not satisfied that the presumption of equal shared parental responsibility has been rebutted on the evidence. Furthermore, the Court finds that an order for the parents to have equal shared parental responsibility is one which is in both children’s best interest. The children need to know and appreciate that they have the support of both of their parents and that both of their parents are equally as important in terms of making decisions which concern them long term.
Determination and Conclusion
Where an order for equal shared parental responsibility is made, this requires the Court to consider an order for equal time. Such order is not supported by the evidence. The special and unique circumstances of these children support an order that would see them living in two households and spending time with each of their parents on a 5 night out of 14 basis, alternating between households such that the children would be living together for 10 nights out of each 14 nights. Holidays are to be equally shared between the households.
In all of the circumstances, the Court finds that orders as sought by the father and the ICL regarding the children’s living arrangements are on balance in their best interest. While such orders might at first blush appear confusing, such confusion may be ameliorated by a well-kept colour coded mutual calendar.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
89 I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 6 October 2022
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