VIERI and VIERI
[2017] FCWA 101
•9 AUGUST 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: VIERI and VIERI [2017] FCWA 101
CORAM: DUNCANSON J
HEARD: 13, 14, 15, 16 FEBRUARY 2017, 16 MAY 2017, 7 JULY 2017
DELIVERED : 9 AUGUST 2017
FILE NO/S: PTW 5558 of 2014
BETWEEN: MS VIERI
Applicant
AND
MR VIERI
Respondent
Catchwords:
CHILDREN - Where the presumption that it is in the best interests of the children that their parents have equal shared parental responsibility does not apply - Where there has been family violence - Where the children have medical issues - Where it is in the best interests of the children for the mother to have sole responsibility for making decisions about medical issues and the parties to otherwise share parental responsibility - Children to live with mother and spend gradually increasing time with father - Where both parties are competent and caring parents - Where family therapy is recommended and ordered
PROPERTY - Where it is just and equitable to make a property settlement order - Initial contributions by the father - Where adjustment in favour of mother for s 75(2) factors is warranted - Where it is found to be just and equitable for the mother to retain the home and the father retain his superannuation benefits without a superannuation splitting order - Order for division of chattels in the absence of agreement between the parties
Legislation:
Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC, s 61DA, s 65DAA, s 75(2), s 79
Category: Reportable
Representation:
Counsel:
Applicant: Mr H Moser
Respondent: Mr S Jones
Solicitors:
Applicant: Tan & Tan
Respondent: Fiona Amaro Legal
Case(s) referred to in judgment(s):
Dickons v Dickons (2012) 50 Fam LR 244
Pierce & Pierce (1999) FLC 92-844
Stanford v Stanford (2012) 247 CLR 108
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Ms Vieri] ("the mother") and [Mr Vieri] ("the father") are unable to agree about the parenting arrangements for their children [Child A], aged 11 years, and [Child B], aged nine years.
2The parties are also unable to agree about the division of their property.
THE PARENTING ORDERS SOUGHT
3The orders sought by the mother are set out in a minute of final orders sought within her Papers for the Judicial Officer filed 7 February 2017.
4The orders sought by the father are set out in a minute of proposed orders within his Papers for the Judge filed 9 February 2017.
5There are a number of significant differences in the orders sought by the parties. The mother seeks an order that she have sole parental responsibility for the children, whereas the father proposes that the parties have equal shared parental responsibility for them.
6In her minute the mother sought an order that the children live with her and they spend time with the father for a few hours after school each Thursday and every alternate weekend from Friday to Sunday.
7The father proposes that the children live with both parties on a fortnightly cycle, in week one, with him from Thursday to Monday and in week two, with him from Wednesday to Friday, and with the mother at all other times.
8The mother proposes that in the school holidays the children spend time with the father as may be agreed between the parties. The father proposes that the children spend time with him for one half of the holidays.
9It is clear therefore that the parties are considerably far apart with respect to the children's living arrangements, with the mother proposing that the children spend far less time with the father than he seeks.
BACKGROUND
10The mother is aged 40 years. She is employed as a [retail clerk]. The father is aged 45 years. He is [an accountant].
11The parties married [in] 2001. They separated on 7 May 2014 and were divorced [in] 2016.
12Child A was born [in] 2006 and Child B was born [in] 2008. The mother and children live in the family home at [Suburb A]. The father lives at the home of his mother at [Suburb B].
13The mother is in a relationship with [Mr L].
SHORT RELEVANT HISTORY
14In about 2011 Child A was diagnosed with [a medical condition] and anxious tendencies.
15In 2012 Child B was tested for [a medical condition]. Pursuant to a second test he was diagnosed as having [a developmental condition].
16On 1 January 2014 the parties attended a family function with members of the mother's family including her brother [Mr W]. While playing, Mr W's son, [L], then aged three years, hit Child A in the mouth causing her to cry. An argument ensued between the mother and her brother. They are now estranged. The father keeps in contact with Mr W's family.
17Prior to separation the father suspected the mother was having an affair with a mutual friend, Mr L, with whom she is now in a relationship.
18The parties' relationship deteriorated in early 2014.
19This was a difficult time for both parties. The father had been unemployed and was diagnosed with anxiety.
20In February 2014 the mother told the father she was leaving him. She said he flew into a rage and screamed and yelled. The father said he was dumbfounded and was crying. The father did not want the marriage to end and said he tried to convince the mother to go to marriage counselling. On another occasion he banged the dashboard of the car when the mother was driving and got out of the car. The children witnessed this incident. The father threw photographs into the bin. He pushed the sofa lounge towards the mother. He cut his hand after damaging the phone. He shouted, screamed and swore at the mother and pushed her. She was frightened. In cross-examination the father admitted various incidents, but he also said he could not recall others or he agreed they occurred, but provided a different description of them to that of the mother. He said he was trying to rectify their relationship. He explained he suffered anxiety and had had four jobs in the previous six months. He acknowledged there were many heated arguments between the parties at this time including in the presence of the children. I find there was family violence perpetrated by the father upon the mother.
21On 2 May 2014 the mother applied for a Violence Restraining Order ("VRO") against the father. It was served upon him on 7 May 2014 and the parties separated on that day. On 12 June 2014 the parties signed a consent undertaking in relation to the VRO.
22The father moved to his parents' home in Suburb B where he now lives with his mother.
23The father deposes, and I accept, that after separation the parenting arrangements have largely been dictated by the mother.
24Initially, handovers were conducted at the maternal grandparents' home, but there were difficulties and confrontation between the father and the maternal grandfather.
25In mid-June 2014 handovers commenced at the family home.
26The father sought to spend more time with the children including overnight time during the week. The mother did not permit this but left the children overnight with her parents on weekdays and at weekends.
27The parties' relationship continued to be difficult and they have not communicated well. The mother did not keep the father informed of important issues regarding the children's health. I refer to that below.
28The ongoing difficulty also relates to the father's request for more time with the children and the mother's refusal.
29The mother deposed the father left the children in the care of third parties while he worked and when he requested further time she required him to be off work to care for them.
30The parties' applications came before the court on 10 November 2014, however no interim orders were made regarding the children's time with the father.
31For some time the children had been spending time with the father on Tuesday and Thursday afternoons and at alternate weekends. In July 2016 the mother informed the father that she had arranged a tutor for Child B on Tuesdays and the children would no longer spend time with him on Tuesday afternoons. The father objected to this. He offered to take Child B to tuition and informed the mother he would collect the children from school as usual on Tuesday 26 July 2016. He attempted to do so and was advised by the school that Child A had not attended that day and the mother had collected Child B 30 minutes early. The tutor lived a short distance from the father's home and he would have been able to take Child B to tuition.
32The father attempted to collect the children from school on subsequent Tuesdays, but the mother prevented him from doing so by either preventing collection or removing the children early.
33On 5 August 2016 the father filed an application in a case seeking the appointment of a Single Expert and interim parenting orders. The application was listed for hearing with respect to the issue of the appointing of a Single Expert only.
34The father sought to spend time with the children during the September/October 2016 school holidays. The mother allowed extra time on the public holiday weekend, but refused his request to have the children for half of the holidays. She told him she had spoken to the children and they did not want to stay at his home.
35On 27 September 2016 the mother emailed the father informing him she proposed to travel with the children [on an overseas holiday] between 7 and 17 November 2016. The father's solicitor requested an itinerary and confirmation that he would have make‑up time. The father did not consent to the trip without being provided with the required information. When asked about this, the mother said she did not give the father make-up time and she did not need to do so.
36The children's usual weekend with the father was to occur on the weekend of 4 to 6 November 2016. On 4 November 2016 the mother told the father the children were not at school as they were unwell and wanted to stay with her that weekend. The father asked for a medical certificate, but received no response. When asked if she notified the school about the children's absence, the mother said she "must have forgotten". The mother withheld the children from school on 4 November 2016 so that the father could not collect them. Child B subsequently told the father that the mother told the children, that if they went with him that weekend they would not go [on the overseas holiday]. Child B said she showed them the emails and Child A confirmed this.
37The mother said both children became anxious and upset and thought they were not going to be allowed to go. She said Child A and Child B knew what was going on that weekend. She showed them emails sent by the father and in evidence said she was "honest with them".
38The mother did not provide the father with information he asked for concerning the holiday and said she was told she did not have to. She thought she had given the father sufficient details.
39On other occasions the mother changed arrangements for the children to spend time with the father without consultation and despite requests by the father to have the children spend time with him she left the children with third parties.
40It was clear from the mother's work roster that she worked on various days during the school holidays. While she was working she placed the children in the care of her parents. The father sought to spend time with the children during the school holidays, but the mother made it a requirement that he be on annual leave. She said it was not acceptable to leave the children in the care of third parties and her parents did not count as third parties.
41Documents put to the mother establish that the father wrote to her prior to the term holidays requesting time with the children; although the mother was herself working she did not permit the children to spend the requested time with him.
42The children spent a week with the father in January 2017.
43The paternal grandfather died in late January 2017. The children did not attend his funeral [in] February 2017 despite the father's request that they do so. The mother said Child A had an important school event and made the choice not to go. She said "my child" can make the decisions where to go. The mother did not have a good relationship with the paternal grandfather.
44Currently the children spend time with the father from after school until 7.30 pm on Thursdays and alternate weekends from after school on Friday until 7.30 pm Sunday.
45In answer to questions from me, the mother said she did not think the children needed to spend any more time with the father as she and they were happy with the current arrangement and there was therefore no need for a change.
46The trial took place from 13 to 16 February 2017 on which date the decision was reserved.
47Upon an application of the father, on 16 May 2017 by consent the evidence was reopened. The father had learned that the mother had [a serious illness] and was undergoing [treatment]. He brought this matter to the attention of the court.
48In her response the mother seeks changes to the arrangements for the children's time with the father, including a suspension of time on Thursdays. She sought to have the children reviewed by the Single Expert and to obtain an updated report, and she sought permission to take the children on holiday in July 2017.
49The mother confirmed she had been diagnosed with a serious illness on 18 January 2017 and had surgery on 2 February 2017. She did not consider it necessary to disclose this to the court as she deposed she was functioning normally. She is now [serious illness] free.
50The mother deposes to difficulties with handover, in particular with the father refusing to return the children until 8.00 pm. She further deposed he had made numerous telephone calls to her home and was abusive towards her.
51The mother deposed that on 6 April 2017 the father removed Child A from school claiming she was unwell. On 7 April 2017 while in the care of the father Child B was admitted to [Hospital A] with a severe asthma attack. The mother said she was not informed. If she was not informed, it sounds somewhat "tit for tat".
52On 16 May 2017 orders were made regarding telephone communication, the children's collection time and the children's time with the father in the July school holidays on the basis that the mother would to take them on the overseas holiday. The proceedings were listed for further hearing on 7 July 2017.
53At the conclusion of the trial and of subsequent hearings counsel for the parties undertook to confer regarding many miscellaneous parenting orders, for example time on special occasions, overseas travel and family therapy. Little agreement was reached. I have received correspondence from the parties which I have taken into account as to their respective positions in relation to a particular issue. My determination of parenting orders has, however, been based upon the evidence.
The children's health
54The children had the health issues referred to above. The father deposes he was involved in dealing with Child A's difficulties in relation to the medical condition. The mother deposes she was solely responsible for managing the children's disabilities.
55The thrust of the father's complaint is that the mother has not kept him informed about the children's health despite his requests for information.
56The father caused his solicitor to write to the mother's solicitor proposing an exchange of information and a collaborative approach to the children's health issues. The father said he received no reply to the letter sent in June 2014.
57The father says it is only from subpoenaed material that he found out about referrals for Child A to attend a dietitian, a psychologist and other specialists.
58Having found out about these referrals the father alleged the mother was negligent in treating the children's medical issues. The mother denied this and in turn alleged that after separation the father was slow to involve himself in matters concerning the children.
59The father's criticisms included the matters to which I refer below.
60In October 2013 [Dr S] recommended that the mother take Child A to see [Ms M], Psychologist. She did not do so until late‑2014 when she attended two appointments and cancelled two others.
61In 2013, 2014 and 2015 Dr S referred Child A to [Ms E] a Senior Dietitian. The mother did not take Child A to Ms E. Dr S was aware of this and her notes record "Dietitian … on hold as overwhelming for [Child A]".
62In June 2014 the mother was provided with the FODMAP diet and when asked if she told the father about it, she replied "he is informed by email if there are things he needs to know about".
63Child A was referred to [Ms C], a physiotherapist at Hospital A; the mother took her to two appointments. The mother said Child A did not like Ms C. Child A attended [a physiotherapy practice] but stopped when nothing further could be done. The mother cancelled the last physiotherapy appointment after they had completed the treatment. Dr S was aware of this.
64The mother was provided with a ["medical guideline chart"] for Child A. She informed the father of this, but did not provide him with the chart for completion when Child A was in his care. When asked about this, the mother said Child A told her what happened when she got home and the mother would then complete the chart. She said "I didn't feel he need to know".
65Other referrals were made for Child A to attend upon a cardiologist and an ophthalmologist at Hospital A. Child A has not attended.
66The father asserted the mother was negligent in addressing Child A's health in not following up on referrals. Additionally, she did not keep him informed of important matters in relation thereto. The mother's response was that she told him what she considered he needed to know. The mother said she acted on medical advice and Dr S is aware of the referrals which have not been taken up.
67This confusion and difficulty has arisen largely because the mother has not kept the father fully informed of important medical matters concerning the children. The parties have not shared information in that respect and are not working together about medical matters.
68As discussed below, I do not find that the mother has been negligent with respect to Child A's medical treatment.
69The father does not attend appointments with Dr S, although the mother denied she opposed joint appointments. Currently what happens is Dr S provides two copies of her reports to the mother, who is to provide a copy to the father. She said she is not prepared to allow him to attend when he does not pay. This is inconsistent with the father's evidence which is that he has offered to pay for one half of Child A’s treatment. Ultimately this issue may be resolved in that the father said he would pay up front, if he could attend the appointments.
70In cross-examination the father was criticised for not disclosing emails he had received from Dr S about consultations. The father responded saying that the purpose of the emails was to tell him what happened at the meeting attended by the mother and this therefore concerned information the mother already knew.
71Child A was prescribed antidepressants called "Lovan" otherwise known as Prozac. The father was opposed to Child A taking these antidepressants until he knew more about them. He requested information. The mother refused his request to delay the commencement of the medication saying she was advised to do so by Dr S.
72The father subsequently conceded that there had been a positive change in Child A, although he hoped the need for the use of antidepressants could be removed in the future.
73Child A was referred to [Ms P], Psychologist and had her first appointment with Ms P in December 2015. Later that month the father made an appointment with Ms P to discuss how to support Child A.
74In 2016 the mother provided the father with more, but not all information about the children's health issues and she has not permitted him to be involved in the decision making. The father does not attend appointments with Dr S, but he and Child A together meet with Ms P. The father has attended occupational therapy appointments with Child B and the mother.
75In August 2016 the mother provided the father with a document called "FODMAP Food List" to be used as a guideline to assist Child A. The father made an appointment with the dietitian Ms E to discuss Child A's difficulties and he passed on information he received to the mother. He made an appointment for Child A to see Ms E and invited the mother to attend. The mother refused. On 21 November 2016 the mother wrote to the father informing him that he had upset Child A about her diet. The mother stated that the father did not have a thorough understanding of Child A's issues and told him not to attempt to obtain treatment for Child A without prior discussion and approval from Dr S and herself.
76Child B has attended sessions with Ms P. The father has attended upon Ms P with both Child A and Child B.
77So far as the children's current health is concerned, Ms P said the main issues for Child A are separation anxiety and a medical condition. Ms P was hopeful the separation anxiety can be addressed and cured. In relation to Child B, Ms P understood he has been diagnosed with a medical condition, she sees some developmental issues, but otherwise psychologically he is going well.
78Dr S confirmed that Child A has a medical condition. Child B [has] a medical condition.
THE PARTIES AND THE EVIDENCE
The mother
79The mother was not an impressive witness. She was patiently and thoroughly cross-examined by the father's counsel. She answered his questions in a manner which suggested that the questions were foolish and that the answer was obvious. At times she was flippant, she raised her voice and came across as aggressive and dogmatic.
80The mother spoke of the children as "my children", or "my son and daughter". At times she was evasive and untruthful, for example when asked about removing the children from school early in August 2016 and also when asked about the father's request to spend time with Child B on the day of the AFL Grand Final.
81The mother blamed others for her decisions. She said the psychologist treating the children, Ms P, told her not to make the children do anything they did not want to do. This was not Ms P's evidence.
82She said her solicitors advised her that she could change the children's living arrangements without the father's consent.
83When asked about the incident in which L hit Child A, the mother described L, then three years old, as a "brutal child" who assaulted Child A.
84The father is a [football] supporter and has football memorabilia. While Dr Watts was interviewing the mother in the presence of Child B, Child B asked the mother why she did not give the father back the football picture. The mother said no. Dr Watts described this behaviour as inflammatory rather than conciliatory. The mother said the football memorabilia was joint property. The mother was asked if the football memorabilia could be returned to the father. She said she had not given that any thought. She agreed it was important to him and possibly more important to him than to her, but she would not concede that he should have it. This was mean-spirited of the mother.
85Several items of correspondence between the mother, the father and the parties' lawyers were put to the mother in cross-examination. In response she was abrupt and impatient.
86In answering my questions the mother was courteous.
The maternal grandfather
87[The maternal grandfather] is a retired [electrician]. He denied calling the father a "lazy shit".
88The maternal grandfather last saw the father at a sports carnival and he went over to see Child B. He asked the father if his employer knew he was there, and then he told the father that he was the laziest person he knew. He did not think this was provocative. He said he was truthful and did not see an issue about the way he spoke to the father.
89The maternal grandfather was clearly aligned with the mother and had little, if anything, favourable to say about the father.
90The maternal grandfather denied talking about the father to the children and said he and the father do not acknowledge each other.
91He showed some insight when he asked if there was any reason to build bridges with the father and he said the children would be a reason for doing that.
92The maternal grandfather said handovers could take place at his home and the maternal grandmother would assist in that respect.
The father
93The father was a cooperative witness whose evidence was mostly reliable. I consider his complaints that the mother refused requests for additional time with the children and information about them to be justified.
94An aspect of the father's evidence which was less reliable was in relation to the family violence and I consider he minimised his behaviour in that respect.
95At the start of his evidence the father amended paragraph 106 of his affidavit filed 9 February 2017, which stated the mother refused to allow him to take the children to school on their first day, 1 February 2017. In fact, he took Child B to school. Counsel for the mother referred to the amendment pointing out how misleading the paragraph was in its existing form. It was clearly incorrect, but I think it likely to have been an unintended error.
96In cross-examination the father was criticised for his disclosure. For example, an email dated 29 June 2016 from a teacher regarding Child B's homework was not disclosed until 6 February 2017.
97The father showed a good understanding of Child A's medical condition, having had some experience of this himself. He demonstrated a sensitive approach to this. He explained how he and Child A have a little rhyme and this is how they deal with her [care].
98It was put to the father that it took two years for him to become involved with the children after separation and yet he complained that the mother did not keep him informed. He said, and I accept, he asked for information and did not get it.
99The father denied he was angry towards the mother and described it as frustration.
Ms W
100[Ms W] is married to the mother's brother, Mr W. Her younger children are [O] aged 11 years and L aged seven.
101Ms W’s children see Child A and Child B when they are in the care of the father, usually about once a month. She recalled the incident in 2014 when L hit Child A. Ms W reprimanded L, who was then three years of age, and told him not to hit girls. At the time Child A was seven years of age. In contrast to the mother's description, Ms W described this as a "tiff" between the children.
Ms P
102Ms P has worked as a clinical psychologist specialising in children and adolescents for 24 years. Her reports and oral evidence were of considerable assistance to me. During the period from December 2015 to date of trial, she had seen Child A on 25 occasions with a parent. She has also seen Child B.
103In relation to Child B, Ms P said she understood he had been diagnosed with a medical condition. She described him as direct, with some developmental issues and social bluntness; otherwise, psychologically he was going well.
104Ms P last saw Child A on 28 January 2017. The main issues facing Child A were her separation anxiety and a medical condition.
105Ms P wrote to [Dr W], the children's General Practitioner on 10 June 2016 providing a report of her sessions with Child A.
106She also provided a therapy report dated 11 October 2016. In that report, Ms C reported that Child A's separation anxiety was evident by the reported distress at being separated from both parents, but particularly her mother. This has manifested itself in sleeping difficulties and a reluctance to attend school, although there are no difficulties at school. Ms P describes as plausible that Child A's separation anxiety and associated fears of safety have contributed to her medical condition.
107Child A has told Ms P that at times she has been reluctant to spend time with her father on the basis that she would miss her mother. Child A is aware of her parents' dislike for each other and this exacerbates her anxiety.
108Both parents have attempted to address Child A's difficulties and both have become frustrated with the dynamic between them.
109Ms P said it would not surprise her that Child A would say different things to a different parent and in her view, it was not a good idea to leave the spend time arrangements up to Child A.
110Ms P recommended family therapy to address the parental conflict, as that conflict could have caused some recent regression for Child A with her medical condition and separation anxiety.
111I place weight on Ms P's evidence and recommendation.
Ms C
112[Ms C] is a senior paediatric physiotherapist at Hospital A. She said Child A has a medical condition. Child A was referred to Ms C by Dr S. She was initially assessed on 1 December 2015. At that meeting, she asked the mother to ensure a [medical] diary was completed. The mother presented her with a medical guideline chart which had been provided by [Dr T].
113Ms C again met the mother and Child A on 20 February 2016. She had hoped for some more information from the mother regarding Child A's [ongoing symptoms], but that was not provided.
114The mother and Child A did not attend an appointment on 9 March 2016 and asked for a discharge, with the mother wanting to follow up treatment first with a psychologist.
115Child A was very upset and cried during her first meeting with Ms C. The mother said Child A did not like her and nor did she, and they did not therefore attend a third meeting.
116Ms C confirmed that Child A was very upset, and was not surprised that she did not wish to come back. The mother had commented it was all too much at the time and that too did not surprise Ms C.
117The father was critical of the mother not following up physiotherapy appointments. This criticism was put to Dr S and I refer to her evidence below.
Ms E
118Ms E is a senior dietitian. She spoke of the "FODMAP diet". Dr S had twice referred Child A to her and recommended the use of a FODMAP diet, but Child A was not taken to see her for a dietetic appointment.
Dr S
119Dr S is a consultant paediatrician. Dr S was a most impressive witness, not only with respect to her knowledge, but also her sensitivity towards and care of Child A. Her evidence was of considerable assistance to me.
120Dr S is a very experienced practitioner who has been involved with the family since Child B's birth in 2008.
121Dr S gave a detailed explanation of [Child A's medical condition] and Child A's difficulties. She said that future management in relation to Child A is very important. She explained that if Child A experiences fear or is unsettled by reason of conflict between her parents her ongoing symptoms may be impacted. It is very important Child A is supported, so medication and cognitive behaviour therapy with Ms P is the management plan.
122Child B [falls within the range of a medical condition], but she cannot be specific as to his difficulties. He too will need ongoing supportive care.
123Dr S was cross-examined by the father's counsel primarily about Child A's attendance at school. She said her interpretation was that the medical condition, anxiety and unsettled environment all impacted on Child A's attendance at school, which was not unusual. This is consistent with Ms C's report.
124Dr S usually sees school reports which often give her an idea of the significance of the children's symptoms.
125She referred the mother to Ms E, less in relation to Child A's diet, but more to do with her growth. She was mindful of putting another obligation on the mother's shoulders.
126Medication was a priority, however, physiotherapy was not. The therapy did not benefit Child A. Similarly in relation to an ophthalmologist, she would like Child A to see an ophthalmologist at some time, but it was not a priority.
127Dr S said she wanted the family to do their best with her recommendations, but it was not uncommon that parents cannot do all the steps recommended. She said the mother had done well. Dr S has never been concerned as to medical neglect in relation to the mother. She described Child A as being in a good place, as is Child B. Had she been sufficiently concerned that there had been neglect by the mother, she would have contacted the Department for Child Protection and Family Support. She is happy with the children's progress. It was not unusual to make many referrals, but she was not concerned about the appointments not kept by the mother in this case.
128Dr S was supportive of the mother and said it would not surprise her if there was some chaos in her household as mentioned by Ms C, bearing in mind that the mother is a single parent, she has [two children with medical conditions, one of whom has] anxiety, requiring medication. The challenges of parenting are such that some chaos is not surprising.
129As to the FODMAP diet, this was part of a variety of material that is provided to patients. The referral to the dietitian is an expectation, but in Dr S's management of Child A there were other priorities. Although Dr S would have expected some positives to come from the referrals, in June 2016 she put the referrals on hold because in her assessment it was too overwhelming for Child A. Dr S found the mother's explanations to be plausible and at no point did she feel the mother's parental assistance for Child A was negligent.
130Child A's mental health was important. She had been referred to Ms M in 2013, and in 2014 went to two out of four appointments. At the time, Dr S considered the referrals necessary and said it was possible that the mother not continuing with Ms M and other professionals might have been a lost opportunity. She was however also mindful of challenges relevant to the family. Dr S said not taking up referrals is part of her assessment.
131Dr S does not take sides. She respects both parties and endeavours to remain impartial. As requested by the mother she provides information to the mother for onward transmission to the father.
THE SINGLE EXPERT
Dr Philip Watts
132Dr Watts was appointed Single Expert Witness. He is a clinical and forensic psychologist. He provided a report dated 12 December 2016 to which I refer further below. He also gave oral evidence. Dr Watts was of the view that the mother was competent as to the children's medical aspects. When it was put to him that she did not follow up with Ms M, having only two appointments with her, he described it as more trying to find the right path, rather than a missed opportunity. Dr Watts questioned the diagnosis of Child B [as falling within the range of a medical condition]. He emphasised it was important for the parents to "be on the same page medically". The mother found the father a hindrance, rather than a help, whereas the father felt left out of the process.
133Dr Watts said the children have some anxiety and it would be beneficial for them to see a collaborative approach by their parents.
THE LAW
134These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) ("the Act"). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects as set out in s 60B.
135The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
136In deciding whether to make a particular parenting order, s 60CA directs the Court to regard the best interests of the child as the paramount consideration. Section 60CC sets out those matters which the Court must consider in determining what is in the child's best interests.
Parental responsibility
137Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.
138Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue.
139Pursuant to s 65DAA of the Act, a consequence of making an order for equal shared parental responsibility is that the Court is required to consider whether or not the child spending equal time with each parent would be in the child's best interests and reasonably practicable. If so, the Court must then consider making such an order.
140If the Court decides that an order for equal time would not be in the child's best interests or would not be reasonably practicable, the Court is required to consider whether or not the child spending substantial and significant time with each parent would be in the child's best interests and reasonably practicable. If so, the Court must then consider making such an order.
141The presumption does not apply in circumstances where there is abuse or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.
PRIMARY CONSIDERATIONS
the benefit to the child of having a meaningful relationship with both of the child's parents
142Child A and Child B have a meaningful relationship with both of their parents and it is to their benefit that it continues.
the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
143The children are not at risk of harm in the care of either parent. The children have been exposed to conflict between their parents to which I refer below. There is not a need to protect them from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. The children are well cared for by both parties.
ADDITIONAL CONSIDERATIONS
any view expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
144Dr Watts reported that Child A found being with her father "a little boring" and said she enjoyed activities more with her mother. He said Child A spoke about keeping the situation the same because she "like[d] spending time with mummy more than daddy". Child B did not have a clear view about what he wanted to do with the father.
145Dr Watts described Child A as a "pleaser" and for that reason is likely to agree with her mother, whether that is what she wants or not. She said she liked spending time with the mother more than the father. In the case of Child B, Dr Watts noted quite a lot of influence. Child B spoke of his father's "lies" and of being shown an email about the overseas trip and said, that his mother kept him in case his father did not let him go.
146In evidence the mother said she lets the children decide and if they do not want to visit their father, they do not do so. She said that Ms C had told her not to make the children do anything they do not wish to do. On the contrary, Ms C said in evidence it was not a good idea to leave the arrangements up to Child A.
147The children have been influenced by the mother. She has a strong personality. The children, Child A in particular, want to please her. The mother has given the children too much choice. At this age that is not desirable. Dr Watts indicated that placed a lot of responsibility on children who have some anxiety issues. Dr Watts recommended and I agree, it would be far better that the arrangements are made and the children are advised. He explained this clearly when he discussed the need to remove the concept that the children's arrangements are a "choice".
the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child)
148The children have a close and loving relationship with both of their parents. When considering this aspect of the children I found the therapy report of Ms C to be very helpful. Ms C said despite having an apparent positive relationship with her father, Child A can be reluctant to see him on the basis that she would miss her mother. Ms C said this is not a negative comment on the nature of Child A's relationship with her father, but a reflection of her difficulties at being separated from her mother. Ms C described Child A's relationship with the mother as a close one and said she has a positive, although not so emotionally dependent, relationship with the father.
149The children have a good relationship with their maternal grandparents and paternal grandmother. They have friends at school and Ms C reported that notwithstanding Child A's anxiety she has good peer relationships. The children see their cousins when they are in the care of their father. The mother did not consider the children's cousins to be important relationships for the children.
150They have a good relationship with Mr L's children.
the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
151Since the parties separated the children have lived with the mother and she has made most of the long-term decisions for them. The father has communicated and spent time with the children to the extent to which he has been able. The father wishes to play a greater role in the children's care and to be more involved in the decision making about long-term issues.
152Both parties have maintained the children financially, although the father's contribution to medical costs and costs of extracurricular activities was an issue.
153The mother said the father had not made a contribution to these costs. The father said he was willing to do so. In relation to some medical appointments, the father said the mother had not provided him with information as to the costs and he was not therefore able to pay his half. The mother said the father left an appointment without paying. Dr S indicated it would be possible to inform the parties at the time of an appointment, what the cost would be to enable them to share that expense.
154The father is willing to pay his share of the extra costs, but has not always done so to date, partly by reason of the conflict between the parties and his exclusion from appointments.
the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
155The children are accustomed to the current arrangement of living with the mother and spending time with the father each alternate weekend and after school on Thursdays. The mother proposes to change the arrangement in term time by suspending time on Thursday. The father seeks to increase the number of nights the children spend with him each fortnight from two to six.
156Both children have some anxiety. Child A has separation anxiety. Both are secure and comfortably attached with the mother. It is very important to bear this in mind when considering any changes to the children's living arrangements. I accept Dr Watts' evidence that a "big removal" from the current arrangement is likely to cause the children some distress. However, the father has a close and loving relationship with the children and it is likely they would adapt to the changes in their arrangements. The important factor as identified by Dr Watts is that any changes introduced will need to be slow, not fast. I consider it too great a leap to change the children's arrangements every alternate weekend, from Friday to Sunday, to Thursday to Monday, and then a further two nights in the intervening week.
157Both parties acknowledge the children's separation anxiety and Ms C said both have attempted to address this within their own homes. It is important that the children do not regress and that any changes in their arrangements are consistent with their ability to cope with them.
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
158There is no practical difficulty and expense such that it would substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis. There have been some difficulties with handovers. Handovers should occur at school. The mother said her parents would not facilitate handovers, however, the maternal grandfather said handovers could take place at his home and that the maternal grandmother would facilitate this.
the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
159Both parties have the capacity to provide for the children's needs. The father criticises the mother for being negligent in relation to the children's medical needs, pointing to her failure to engage or follow up with health professionals including physiotherapists, a dietitian and a psychologist to whom Child A was referred. I consider that a number of the father's concerns arise from the failure of the mother to provide him with all relevant information, rather than on a needs basis, and also the absence of a collaborative approach to the children's medical issues. An example of this is Child A's attendance at the physiotherapist to which she was referred. Had the father attended appointments with Dr S, he may have understood that her attendance there was not a priority and at the time was too overwhelming for Child A. The father's criticism of the mother for failing to provide information to him is justified; however I reject his criticism that the mother has been negligent with the children's medical care. She has engaged with many health professionals in difficult circumstances. As a single parent with two young children, both with health issues, she has done the best she could and I accept Dr S's evidence that she is a good and competent mother. To the extent that there is a failing on the part of the mother, it is her failure to involve the father in the treatment for the children. The mother's counsel questioned the father about not being proactive in seeking information, however the evidence suggests otherwise. He is a caring and competent father.
160Both parents have provided well for Child A in relation to her medical condition. I consider the father was particularly sensitive to her needs. He suffered from similar difficulties as a child and he is well placed to assist her. As she gets older, he will be less able to assist her with personal care and she will be more able to look after herself. I consider both parties have provided well for the children's health needs.
161The mother has allowed her own views to influence the children. Dr Watts said that the mother "contributed to [Child A]'s anxiety by some of the more direct discussions" she had had with her.
162I consider she did not provide well for Child B's emotional needs when she showed him an email about going on the overseas holiday and caused the children to believe that their father might not allow them to go on that trip. Both children were anxious as a result and their anxiety was exacerbated by the mother's actions. Dr Watts said at [51] in relation to this:
… Being aware of these sorts of issues can have a big impact on the children. While I am a great advocate that children should have truth, it should be layers of truth in developmentally appropriate doses, and not truth which undermines or destroys relationships with other parents.
163The father showed some sensitivity when he described how he discussed Child A's living arrangements with her and spoke of her living with both him and her mother, which was a good thing, with her getting the best of both worlds. The father said Child A may phone the mother from his house when she wants to, something Ms C said Child A was concerned about.
164The father was critical of the mother's provision for the children's educational needs, particularly as there has been some deterioration in Child A's progress from Semester One to Semester Two. I accept that Child A's current health conditions impact on her attendance at school and Ms C indicated that the mother very firmly told Child A that she had to go school at times when she said she did not want to. The father's position was that the mother's decision to take the children on the overseas holiday during term time was ill considered in the light of their progress. I am not sure that there is a direct connection between the drop in Child A's marks and the overseas holiday.
165Both parties are in employment. The mother makes arrangements for the care of the children while she is at work. The father's work arrangements are flexible and he is able to work hours which are compatible with his time with the children.
166The father lives with his mother in Suburb B. The home is settled accommodation and well set up for the children. At present he assists his mother with her care, although she has a carer. His home is about 15 minutes from the children's school.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
167The children are aged 11 and nine years. Child A suffers from separation anxiety and a medical condition. Child B has been diagnosed [as falling within the range of a medical condition]. Dr Watts questioned the [Child B's] diagnosis and said he has some emotional/behavioural problems which need to be addressed. He saw Child B as a normal boy with some difficulties rather than as a "special needs" child.
if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right
168This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
169Until now the mother has been able to dictate the children's arrangements to the father. There were no interim orders in place and she unilaterally ceased the children's time with the father on Tuesdays. She does not consider it necessary for the children to spend any more time than they currently do with the father and now seeks to reduce the time by suspending Thursdays. The father wants to play a greater role in their upbringing and consequently to have them spend more time with him.
170Dr Watts reported:
… there is a lot of anger. This is still particularly evident on the mother's part …
171I found the mother to be poorly disposed towards the father, somewhat rigid and uncompromising. The father was far more straight forward and less complicated, but no less determined. It is important that the children are not exposed to further parental conflict and I refer to that below.
172I am not convinced the mother has promoted and encouraged the children's time with the father. She has left the children in the care of others while she has been working at times when the father was available to care for them. She has kept them off school to avoid him collecting them. The children are aware of their parents' views.
173Dr Watts reported:
In this particular case I was concerned more about the mother giving the children "truth" and damaging the relationship between the children and the father. I suspect that there are people in the father's household who may say inappropriate things, and the father did not strike me as overly insightful, which may result in some indirect inappropriate actions. The suggestion that the father is lying to the children is concerning in that the father also needs to speak truth and to know when to keep children out of the dispute.
174The father was asked about a pair of football boots which he bought for $35 and wanted this expense recorded with the Child Support Agency. As to medical costs the father is prepared to pay half of the mother's out of pocket expenses, in relation to appointments which he attends.
any family violence involving the child or a member of the child's family
175There was family violence between the parties at the time leading up to separation. This was not a normal characteristic of their relationship and was associated with its breakdown.
if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
176At the time of separation the mother obtained an interim VRO against the father, which was subsequently resolved by way of undertaking.
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
177It would be in the best interests of these children to make final orders which are least likely to lead to the institution of further proceedings and that these proceedings should be concluded.
any other fact or circumstance that the court thinks is relevant
178The parental conflict between the parties to which the children have been exposed remains a concern. Ms C recommended family therapy which the parties should attend. The parties should also attend the Mums and Dads Forever program.
179Dr Watts recommended that the father consider psychological therapy or medication for a possible anxiety disorder.
180The father is prepared to attend counselling and has commenced doing so.
CONCLUSIONS
181Having considered the evidence in the context of the primary and additional considerations I have come to the following conclusions.
Parental responsibility
182The presumption that it is in the children's best interest that their parents have equal shared parental responsibility for them does not apply as there has been family violence between the parties. Notwithstanding that, I am of the view that it is in the children's best interests that their parents have shared parental responsibility for most, but not all long-term issues. In all but medical issues, I think both parties should jointly make the decisions. Both are competent caring parents who have much to offer the children. I also consider that there is a risk that the mother will exclude the father from important decision making, if such an order is not made.
183In relation to medical issues, I consider it is important that treatment for the children is not delayed or obstructed by a failure of the parties to reach agreement. For example Child A was medicated, something the father was opposed to and the mother did on medical advice. I consider the appropriate order to be that the mother should have sole responsibility for medical issues concerning the children. The father is to be provided with all relevant information, promptly informed of any decisions made and the reasons therefore.
The children's living arrangements
184As to the children's living arrangements, I consider the time that they spend with the father should be increased. I do not think it would be in their best interests to make the significant increase he seeks, particularly having regard to Child A's separation anxiety. I agree with Dr Watts that the children could cope well with an increase of one night every alternate weekend and I intend to order that the children spend time with the father from afterschool Friday to before school Monday each alternate weekend. They should also continue to spend time with him in the intervening week on Thursday afternoons. With effect from Term 3 in 2018 (that is about 12 months from now) the Thursday afternoons should be extended to Thursday overnight to give the children some more meaningful time with the father in that intervening week. An overnight stay is likely to be less rushed and more enjoyable for the children.
185As to holidays, the mother proposes that the children spend time with the father during the school holidays as agreed. If the past is anything to go by, this means the mother will inform the father of the time the children may have with him. Again, going by the past, it is unlikely her offer will be sufficient time for the father and therefore unlikely it will be acceptable to him. I have little confidence that this issue can be agreed between the parties and to give the children some certainty I consider specific orders should be made. The father proposes half of all school holidays consistent with the recommendation of Dr Watts, who refers to the children's positive bonds with their father and his view they are likely to cope with the arrangements, provided they are staged in.
186The children spent seven nights with the father in the last Christmas holidays and there were no reported difficulties. They spent six nights in blocks of four and two nights in the July 2017 holidays.
187I consider it would be in the best interests of the children to spend a block of six nights with the father in the holidays at the end of Term 3. Thereafter, in the holidays at the end of Term 4, unless otherwise agreed in writing, the children should spend time with the father on a week-about arrangement subject to the orders for time at Christmas and New Year. With effect from 2018 the children should spend one half of each of the school holidays with the father. Again to provide certainty, this will be specified in the orders as the first half, although the parties may agree otherwise.
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
15In the event of an appeal being lodged prior to the expiration period of 42 days, orders 13 and 14 above do not apply.
I certify that the preceding [318] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
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