WARREN & CRAWFORD
[2015] FCCA 1878
•9 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WARREN & CRAWFORD | [2015] FCCA 1878 |
| Catchwords: FAMILY LAW – Final arrangements for children aged 11 & 10 – children have lived predominantly with their father since 2010 – children have special needs, particularly in respect of education – allegations of abuse – educational needs of the children – application of presumption of equal shared parental responsibility – parties have poor parenting relationship characterised by significant deficits in communication – views of children – effects of change – assessment of risk of abuse – reasonable practicability – best interests – appropriateness of equal time – substantial and significant time – parental responsibility – should one parent have sole parental responsibility in respect of educational issues given difficult parents have in reach consensus in respect of such matters. |
| Legislation: Family Law Act 1975, ss.4(1); 60B; 60CA; 60CC; 61DA; 64B; 65DAA; 65DAC; 65DAE Evidence Act 1995 (Cth), s.140 |
| B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 MRR v GR (2010) 240 CLR 461 Bartel & Schmucker (No.3) [2012] FamCA 1094 M & M (1988) FLC 91-979 W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892 N & S and the Separate Representative (1996) FLC 92-655 Fox v Percy (2003) 214 CLR 118 See H v W (1995) FLC 92-598 R & R: Children’s Wishes (1999) 25 Fam LR 712 |
| Applicant: | MS WARREN |
| Respondent: | MR CRAWFORD |
| File Number: | ADC 4817 of 2012 |
| Judgment of: | Judge Brown |
| Hearing dates: | 17, 18 February & 30 March 2015 |
| Date of Last Submission: | 25 May 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 9 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Mr Boehm |
| Solicitors for the Respondent: | Moloney & Partners |
ORDERS
The parties have equal shared parental responsibility for the children of the marriage X born (omitted) 2004 and Y born (omitted) 2005 (hereinafter referred to as “the children”) save and except that the father has sole parental responsibility for decision in respect of the enrolment of the children at school, subject to the provisions of orders 2 and 3 hereof.
The father be restrained and an injunction issue restraining him from changing the enrolment of the child Y from the (omitted) Primary School without the prior consent of the mother.
The father be restrained and an injunction issue restraining him from changing the enrolment of the child X from the (omitted) Primary School, during the school year of 2015, without the prior consent of the mother and thereafter he be authorised to change the child’s enrolment only on the basis that an in count special class placement becomes available within a reasonable distance of the (omitted) Primary School and he advises the mother in writing of this placement.
The children live with the father nine nights per fortnight and the mother five nights per fortnight, during school terms, on the following basis:
(i)With the mother from 3:00pm Friday until 8:45am the following Wednesday and each alternate weekend on the same basis;
(ii)With the father at all other times.
The children shall spend time with each of their parents during the short term school holidays (being from the first Monday of the holiday period until the commencement of the school on the Monday of the new term) as follows:
(i)With the mother for the first week from the first Monday of the holiday period until the second Monday of the holiday period.
(ii)With the father for the second week from the second Monday of the holiday until the Monday of the new school term.
The children spend one half of each end of year school holiday with each of their parents subject to the provisions for the festive day of Christmas set out in orders 7 & 8 hereof, the halves to be agreed between them and failing agreement to be with the mother for the first half in 2015 and each alternate odd ending year thereafter.
The children spend time with the mother at Christmas as follows:
(i)From 6:30pm Christmas Eve until 3.00pm on Christmas Day in the year 2015 and each alternate year thereafter, and
(ii)From 3.00pm Christmas Day until 6.30pm Boxing Day in the year 2016 and each alternate year thereafter.
The children spend time with the father at Christmas as follows:-
(i)from 3.00pm on Christmas Day until 6.30pm on Boxing Day in the year 2015 and each alternate year thereafter, and
(ii)From 6.30pm on Christmas Eve until 3.00pm on Christmas Day in 2016 and each alternate year thereafter.
The children shall live with each of the parents for the Easter long weekend as follows:-
(i)In 2016 and each alternate year thereafter with the father from the conclusion of school on Maundy Thursday or 3.00pm if a non-school day until 3.00pm Easter Saturday and with the mother from 3.00pm Easter Saturday until 9.00am the following Tuesday and each alternate year thereafter;
(ii)In 2017 and each alternate year thereafter with the mother from the conclusion of school on Maundy Thursday or 3.00pm if a non-school day until 3.00pm Easter Saturday and with the father from 3.00pm Easter Saturday until 9.00am the following Tuesday and each alternate year thereafter.
The children shall spend time with the parent that does not have the children living with them on the child’s birthday and their respective birthdays as follows:-
(i)If a school day from the conclusion of school until 6.30pm, and
(ii)If a non-school day from 12.00pm until 5.00pm.
In the event the children are with the father on Mother’s Day the children shall spend time with the mother from 6.00pm on the Saturday before Mother’s Day until the children are returned to school on Monday morning provided that in the event that the children are with the mother on Father’s Day the children spend time with the father from 6.00pm on the Saturday before Father’s Day until the children are returned to school on Monday morning.
In the event Mother’s Day falls during the father’s time, the children be returned to the mother from 5:000pm Saturday the day prior to Mother’s Day until 5:00pm Mother’s Day.
In the event Father’s Day falls during the mother’s time, the children be returned to the father from 5:000pm Saturday the day prior to Father’s Day until 5:00pm Father’s Day.
All handovers that do not otherwise take place at school take place at the (omitted) Shopping Centre, (omitted).
The mother and father shall:
(i)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(ii)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and
(iii)Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
The parents authorise by this order, the school, attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at the expense of the parent requesting same).
Each parent is at liberty to attend at the children’s school for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the children or from permitting any other person to do so.
The parties be restrained and an injunction is hereby granted restraining them from physically disciplining or verbally abusing the children or from permitting any other person to do so.
All applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Warren & Crawford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4817 of 2012
| MS WARREN |
Applicant
And
| MR CRAWFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Warren “the mother” and Mr Crawford “the father” are the parents of X born (omitted) 2004 and Y born (omitted) 2005.
On a final basis, the mother seeks orders, which would see X and Y living predominantly with her and spending alternate weekends, during school term, with their father.
In addition, she proposes that the children should spend approximately equal periods of time, with each of their parents, during school holidays and that orders should be made that would see the children seeing each of their parents, on special occasions, such as Christmas and Father’s Day.
The parties have been separated since 2010. Since that time, X and Y have lived predominantly with their father. In October 2013, the parties agreed that they would inaugurate a regime whereby the children spent substantial and significant time with each of their parents but would continue to live mainly with their father.
This arrangement continues to the present time. It sees X and Y being in their mother’s care for five nights per fortnight from 3:00pm Friday until 8:45am the following Wednesday. School holidays are shared.
The father seeks the continuation of this arrangement. Both parties seek that they should have equal shared parental responsibility for the children other than that Mr Crawford seeks to have sole responsibility for making all decisions in respect of the children’s enrolment at any school or educational facility, which they may need to attend.
The basis for the mother’s application to change the current regime, which sees both children interacting regularly with each of their parents, is that she asserts the father and his current partner, Ms R subject the children to physical and emotional abuse, which poses a serious threat to both children’s emotional wellbeing.
The father and Ms R vehemently deny the allegations of having abused either X or Y. In this context, it is the father’s position that he provides firm but appropriate and loving discipline to the children concerned and has done for a significant period of time. It is his case that it is only comparatively recently that the mother has become significantly involved with the children’s education and given the significant differences, in personality and parental ethos between them, this has led to difficulty.
Both children, but particularly X have special needs. As such, each child is likely to demonstrate challenging behaviours, from time to time, which would make them difficult to parent. It is the father’s case that he has been providing appropriate care for the children, given their special needs, but of late he and Ms R have fallen into dispute with the authorities at the school which the children attend. This has caused the school to be prejudiced against them, which the mother has seized upon.
It is essentially the mother’s case that the father and Ms R have been found wanting in regard to their parenting of X and Y, by their school and therefore it is incumbent upon the court to change the current arrangements for their care as quickly as possible. It is her case that she is a loving and committed parent, who is more in tune with the children’s emotional, educational and physical needs than the father, who is intolerant of the children’s difficulties.
On the other hand, it is the father’s position that the mother is a manipulative person, who has suffered from a number of deficits, both as an individual and a parent, over many years. He fears that the mother is emotionally manipulating the children and has the capacity to enlist others to support her aims, by which means she seeks to gain control of the children, in order to satisfy her own emotional needs.
In all these circumstances, the father asserts that it would be detrimental to the children to disrupt their longstanding care arrangements and place them with a parent, who has significant unresolved mental health issues and lacks insight into the consequences of her behaviour for the children, who must be regarded as being vulnerable.
Background
The mother was born on (omitted) 1971. The father was born on (omitted) 1976. The parties met, in late 2001, at a church group in suburban Adelaide and began to live together soon afterwards. The father is a person, who still retains strong religious beliefs. The mother not. This is just one aspect of the differences in personal orientation between them.
The mother has three older children from an earlier relationship. They are A, born (omitted) 1995; B, born (omitted) 1997; and C, born (omitted) 1988. Their father is Mr M, who was born on (omitted) 1971.
The mother acknowledges that between 2001 and 2003 A, B and C were placed in the guardianship of the relevant Minister, in South Australia, responsible for the welfare of children and their care and protection. Ultimately, the three children came into Mr M’s care and remained so for several years.
The event that precipitated the involvement of the child welfare authorities, with Ms Warren, was her attempted asphyxiation of C, which led to his hospitalisation. For a period of time thereafter, the mother had only supervised time with the children. This regime was in place, when she began her relationship with Mr Crawford.
The relationship between the mother and Mr M was clearly a turbulent one. They had finally separated in 1999. It is apparent that the mother found the separation deeply traumatic and was concerned at its implications for her children. She herself had come from a broken family and did not want her children to suffer the same emotional hardships, which she had done. She wished to resume her relationship with Mr M.
From late 2000 onwards, as a consequence of C’s hospitalisation, which had led to the departmental involvement, the mother had been attending a psychiatrist at the Women’s & Children’s Hospital, Dr J. Dr J described the mother’s explanation for her abuse of C, in the following terms:
“She [the mother] described her abusive behaviour towards C as an attempt to engage her husband, Mr M, not so much for her own benefit but in order to have him around the children. She talked about her fear of her own children growing up in the same kind of broken family that she had and that she would do anything to avoid this. She spoke of asphyxiating C for the first time in response to a memory as of how much more engaged Mr M had been when B had breath-holding attacks and needed to be in hospital. She talked about Mr M being at her side throughout the children’s hospitalisations.”[1]
[1] See annexure A to the father’s affidavit filed 3 February 2015 and the report of Dr J dated 12 April 2001
At this stage [October 2000] Dr J also raised other concerns of the mother having physically disciplined the children and of using a disciplinary strategy of threatening to leave the children, if they did not behave and then concealing herself until they became distressed, whereupon she would reappear. Dr J was concerned that this parenting behaviour lacked insight and was potentially abusive of the children.
Following the involvement of the department, records available to the court indicate that Ms Warren worked with a variety of therapists. She was gravely concerned at the prospect of the children being placed in the care of Mr M. A process of reunification counselling between her and the children was abandoned as a consequence of her volatile behaviour.
Records subpoenaed from the South Australian Police indicate that Ms Warren was charged with damaging property belonging to Mr M, after having broken into his home and was later convicted of arson, which related to her attempting to set fire to Mr M’s car, on 2 September 2001, at the (omitted) carpark.
Mr Crawford and Ms Warren married on (omitted) 2003. Initially the father was employed in (occupation omitted), but was involved in a tractor accident, which caused him to retrain in (occupation omitted). Thereafter, in 2007, he obtained employment in the ACT, whilst the mother and children remained in Adelaide.
A, now aged around thirteen, returned to the mother’s care around this time. B and C remained in the care of their father. Also in 2007, X was found to present with a global development delay. This followed concerns being raised about his level of speech and other apparent developmental delays, which had come to notice at his childcare centre.
The mother and children did not elect to follow the father to Canberra. Instead, they moved to Sydney. The mother asserts that she moved to Sydney because she thought that X would receive better care in a large city. X was formally diagnosed with autism, at the (omitted) Hospital, on 15 May 2008.
The father was disappointed that the mother and family had not come to Canberra. From his perspective, it was a capricious decision, which had not followed any consultation with him. In these circumstances, he elected to commute regularly between Canberra and Sydney to spend time with the children, but this was a difficult arrangement and the parties’ relationship came under increasing strain.
In September 2009, the father obtained employment in Sydney and the parties resumed cohabitation. However, this did not ameliorate the parties’ marital problems and they finally separated in November 2009, but under the same roof. It is the father’s case that around this time, there were tensions in the mother’s relationship with A. New South Wales Police became involved in these issues, but no charges were laid.
The mother had been in full-time employment in Sydney. She had formed a relationship with her then boss, who was a married person with children. The relationship ended in difficult circumstances, in early 2010. Clearly, there were many stresses, in the mother’s life, at this time.
In these circumstances, in February 2010, the mother attempted suicide with an overdose of medication prescribed for her, including panadol and ibuprofen. The father discovered the mother and summonsed an ambulance, which conveyed her to the (omitted) Hospital. The mother was treated overnight and later voluntarily applied for admission to the mental health facility attached to the hospital.
This was not the first time the mother had attempted suicide. Following her separation from Mr M, and whilst Families SA had been involved, the mother had attempted suicide on two previous occasions.
Neither party, in the current proceedings, has provided a definitive psychiatric report of the mother’s condition at this time and whether any diagnosis was made of her. In addition, there is no current medical material – the mother asserting that it is not necessary. In the medical notes, made on her admission to the (omitted) Hospital in regards to her previous psychiatric history, the mother is quoted as saying as follows:
“Munchausen’s by proxy with C suffocated (sic) him to fake seizures and had him commenced on medications I tried to kill my kid.”
The notes further indicate that some thought was given, at the time, as to whether the mother suffered a borderline personality disorder.
In any event, it is common ground that, since the mother’s admission to (omitted) Hospital, in February 2010, the children have lived predominantly with their father. It is Mr Crawford’s case that members of the medical staff, at (omitted), were concerned at the prospect of the children returning to the mother’s care.
In those circumstances, Mr Crawford asserts that Ms Warren agreed to the children coming into his care, provided that he re-locate back to South Australia, where he would have family support, from both his own parents and those of Ms Warren.
On 11 February 2010, X and Y left Sydney, in the care of their paternal grandmother. A was apparently already in the care of her maternal grandmother, at the time. Mr Crawford followed about a fortnight later, after he had worked out his notice at his employment in Sydney.
Thereafter, Mr Crawford lived with the children at the home of his parents in suburban Adelaide. X was enrolled at the (omitted) Primary School and Y at the associated kindergarten. Ms Warren remained in Sydney, but spent time with the children in the April 2010 school holidays. She returned to live in Adelaide, in November 2010, moving in with her own mother.
In late 2010, Mr Crawford was able to leave his parents’ home and obtain his own accommodation in (omitted). At this stage, the children began their educational relationship with the (omitted) Primary School, where they remain. Ms Warren began to spend alternate weekends, usually from Saturday until Sunday, and half of each school holiday, with the children. The mother suffers albinism, which has resulted in her having a visual disability. As a consequence, she is classified as being legally blind and is not authorised to drive.
It is Mr Crawford’s evidence, which I accept, that throughout 2011 and 2012 he delivered and collected the children to and from their mother, so that she could spend time with them. It is his position that he has always supported X and Y having a proper level of relationship with their mother.
It is Mr Crawford’s evidence that the mother’s accommodation arrangements, following her return to Adelaide, were far from stable. Nonetheless, in late 2011, at the mother’s request, he agreed to vary the arrangements, so that she could spend every weekend with the children. This continued throughout 2012, with Mr Crawford continuing to do the bulk of the driving.
In 2011, first B, by then aged around fourteen and then C, then aged around twelve, returned to live with Ms Warren. I have not been advised what was the attitude of Mr M to this change and exactly how it came about, other than that Ms Warren indicated to the family report writer that B had been thrown out by his father.
It is Ms Warren’s case that the two children are doing well in her care. Both are attending high school. B has struggled somewhat academically but has now settled down, whilst C has excelled, both at school and in sports. A now lives independently with her fiancé and two year old child.
In early 2012, the father commenced his relationship with Ms R. They are engaged to be married. In February 2013, they purchased a house together at Property M, where they continue to live. Ms R has two children, from an earlier relationship. They are D, born (omitted) 2003 and E, born (omitted) 2006.
D and E live with their mother and Mr Crawford. They too, until recently, attended (omitted) Primary School. The principal of the school is Mr R; and the relevant special education teacher is Ms B. D is a child with special needs, suffering from periventricular leukomalacia, a serious neurological disorder, which causes her to have a significant developmental delay. In the past, she has been in the same special class as X.
Ms R and Ms Warren were significantly involved, with one another, initially through their mutual involvement in the (omitted) Committee of (omitted) Primary School. Both were strong advocates for the special needs of their children at the school. They seem to have been initially cordial with one another or at least ostensibly desirous of having a constructive relationship with one another.
It is now Ms R’s position that she has had a falling out, with the school’s administration, as a consequence of their care of D, whilst she (D) was on a school excursion. This led to her making complaints about the school at a high level within the Education Department. It is also her position that Ms Warren became resentful because of her level of involvement with caring for X and Y, particular in terms of the fact that she arranged medical appointments for them. Something which she has done since become involved with Mr Crawford.
In these circumstances, Ms R believes that Ms Warren has made vindictive and unfounded complaints about her care of the children to authorities at the school, which the authorities, particularly Mr R and Ms B maintain because of their animosity for her arising over her complaints about their care of D.
As a consequence, Ms R now no-longer takes part in the governance of the children’s school. In addition, she feels bitterly disposed towards Ms Warren, particularly as she believes that she and Mr Crawford have always been reasonable, so far as their dealing with Ms Warren are concerned. They feel their initially open attitude and desire for a cooperative relationship has not been reciprocated by Ms Warren.
During 2013, it is apparent to me that the parties’ parental relationship, always somewhat tense and mistrustful, significantly deteriorated. Issues arose in respect of the number of nights the children had been in their mother’s care. This was relevant for the calculation of child support to be paid by the mother to the father, as well as the calculation of family tax benefits.
In July of 2013, Mr Crawford supplied the Child Support Agency with details of the exact number of nights that the children had been in the respective care of each of their parents. This did not coincide with information supplied by the mother. The Agency ruled in Mr Crawford’s favour, increasing tensions between the parties.
Thereafter, Mr Crawford asserts that the mother took to over-holding the children, in contravention of the previously agreed arrangements. The implication of his evidence being that the mother was motivated by financial concerns.
It is Ms R’s evidence that finances in the household, which she shares with the father, are frequently stretched. She is currently the family’s main breadwinner. She works as a (occupation omitted), at the (employer omitted) and is able to work flexible hours fixed around the needs of the children in the household. However, it is a challenge for her and Mr Crawford to meet the mortgage payments on their home and other bills. As such, she and Mr Crawford rely on financial assistance from Centrelink, particularly whilst Mr Crawford is not in the workforce.
Against this background, the father asserts that he wished to have certainty in his financial relationship with the mother. It is also his position that he wished to avoid having an acrimonious dispute, with her, in respect of arrangements for the children. As a consequence of these factors, he asserts that, in October of 2013, he agreed to the current five/nine nights per fortnight regime, for the care of the children.
Essentially, he says he proposed this arrangement to placate the mother. This enabled Ms Warren to claim some family tax benefit. From Mr Crawford’s perspective, the mother has difficulty managing money and always wants or needs more of it. This arrangement commenced on 25 October 2013.
In November of 2013, Ms Warren moved to accommodation within walking distance of the children’s school at (omitted). On 11 November 2013, Ms R deposes that there was an altercation between her and the mother at the school.
Ms R had attended at the school to take Y to an occupational therapy appointment, which she had arranged earlier. Y was not at school, but Ms Warren was there with X. It is Ms R’s evidence that the mother objected to her assuming a mothering role in respect of the children. Regrettably, it seems that no one involved at the time had the ability to defuse this situation.
Around about this time, Y was also suspended from school for misbehaviour. This degree of difficulty, including conflict between the children’s carers, led to the school authorities calling a meeting to discuss care arrangements for the children.
It is Ms R’s evidence that her relationship with Ms Warren has now completely broken down. It is her case that she now tries to avoid any contact whatsoever with the mother. Ms R is particularly aggrieved that, in her perception, the mother has wrongfully alleged that she harmed X by scratching him.
It is also Mr Crawford’s evidence that, notwithstanding his attempts to placate Ms Warren, his relationship with her has also come to the point where the two are unable to communicate verbally with one another and the only viable mechanism for them to exchange parenting information, concerning X and Y, is via email.
Mr R convened the meeting which took place on 12 November 2013 between Ms Warren, Mr Crawford and Ms R. On 17 March 2014 he wrote a letter in which he detailed his recollection of what was discussed at the meeting.[2] In the letter Mr R set out the following, as to the background of the meeting:
“Both X and Y were frequently unsettled and distracted in class, leading to a number of ongoing inappropriate behaviours which were affecting their learning and the learning of others. As they were living in an informal shared custody arrangement with both parents, the school believed that this may have been a mitigating [sic] factor in their inappropriate behaviours.”
[2] See annexure A to the father’s affidavit filed 10 April 2014
In this context, Mr R discussed strategies, with each of the children’s households, to minimise the potential for disruption to the children, as they transitioned between their parents and so improved their social and emotional wellbeing. The strategies were as follows:
·The parents endeavour to emphasise to the children that though separated, they remained on cordial terms with one another;
·No adult conversations take place in the presence or hearing of the children;
·The parties avoid having conversations with raised voices or in tones that implied any sort of disharmony between the two aspects of the children’s families;
·As much as possible, there be consistency between the children’s two households, in terms of how X and Y are disciplined, routines for meals and bedtimes;
·The time at which homework should be completed and pickup and drop off times at school.
On 17 December 2012, Mr Crawford applied to divorce Ms Warren. As previously indicated, it is his position that he and Ms R are engaged to be married. On 26 February 2014, the mother commenced these current proceedings.
The history of the proceedings to date
Ms Warren has acted on her own behalf throughout these proceedings, although I understand she may have had some professional assistance in compiling her final written submissions to the court, which were received on 25 May 2015.
In her application, on an interim basis, the mother sought orders for the care of the children concerned to be shared equally, with the children moving between their parents’ respective households on a week about basis.
It is Mr Crawford’s evidence that a few days prior to the mother instituting these proceedings, he had received an email from her, which proposed that such a week on/week off arrangement commence in May of 2014. From his perspective and given that he had only recently agreed to the five/nine day per fortnight regime, this was unacceptable.
Mr Crawford responded to the application on 10 April 2014. At this stage, he sought orders for the settlement of any property issues arising between the parties. By this stage, the parties were divorced, the divorce order having become final a few days previously.
On the first mention of the case, which occurred on 14 April 2014, the parties were able to agree on how the children were to be parented in the forthcoming school holiday and on Mother’s day. They also agreed that wherever possible, the children would be exchanged at their school or at Ms Warren’s home in (omitted), provided she did not approach Mr Crawford’s car and the children were promptly ready to leave her home.
Other procedural orders were made appointing a conciliation conference and requiring the parties to attend a family dispute resolution conference. At the conciliation conference, the parties were able to resolve the financial issues arising between them. They were not able to make any headway, in respect of children’s issues at the family dispute resolution conference. The consultant, who convened the conference, recommended that a family report be prepared.
Ms Warren’s initial affidavit was brief. She asserted that the authorities at (omitted) Primary School had requested that care arrangements for X and Y be formalised through either a parenting plan or court order to eliminate any confusion in regards to the residency and guardianship of the children. She also asserted that she had concerns for the welfare of the children as there had been “increasing incidents of emotional and physical inappropriateness” reported to her by school staff.
In accordance with the rules of the court, Ms Warren was required to file a formal document indicating whether she believed that there had been any child abuse or risk of such abuse in respect of any child to whom the proceedings related. She asserted that there had been such abuse and that there was a risk of its reoccurrence.
The abuse she detailed was in the following terms:
“X has received injury to his wrist and arm by respondent’s de facto partner. X has reported being yelled at, hit and held by the throat by respondent. Emotional abuse by respondent to Y.”
On 3 July 2014, an order was made for the preparation of a family report. This was duly completed by Mr I, a social worker by profession, who has been a child and family consultant since January 2010.
His report was released to the parties on 7 October 2014. On interview with Mr I, Ms Warren indicated that she sought to hold parental responsibility, for X and Y, jointly with Mr Crawford and for the children to live with each of their parents, on a week about basis during school terms and for half of each school holiday period.
On the other hand, Mr I understood that Mr Crawford sought the maintenance of the current cycle of the children spending nine nights per fortnight with him and five nights per fortnight with their mother.
This was also my understanding, when the matter was fixed for trial. It was my assumption that the case centred on the viability of a shared care regime, given the obvious deficits in the parties’ parenting relationship and capacity to communicate with one another.
That is no longer the case, from the mother’s perspective. It is currently her position that worrying evidence has emerged during the hearing of evidence in the case, which requires the children to live predominantly with her. In the main, this evidence has come from Mr R and from Ms B, who is a special education teacher at (omitted) School, in which capacity she has been a teacher of both X and Y.
Neither Mr R nor Ms B provided an affidavit of evidence in these proceedings. Rather, they were subpoenaed by Ms Warren to attend at court to give evidence. Both Mr R and Ms B have a negative view of Mr Crawford and Ms R. In their respective oral evidence, both teachers asserted the view that X and Y had been subjected to serious abuse, whilst in the care of their father and Ms R.
It was as a consequence of this evidence, which Ms Warren asserts is supported by records subpoenaed from the Department for Families & Communities (Families SA), that the mother’s primary position, in the case, is that the protection of X and Y dictates that they should live primarily with her.
On the other hand, it is Mr Crawford and Ms R’s position that there has been no such abuse, whilst the children have been in their care. At best, they believe that Mr R and Ms B have unwittingly misinterpreted the children’s, at times, challenging behaviour, which they (Mr R and Ms B) have erroneously attributed to deficits in their (the father and Ms R’s) household, either mistakenly or because they are in some way prejudiced against them.
At worst, they believe that Mr R and Ms B have a grievance against them because of complaints made by them (Mr Crawford and Ms R) regarding their (Mr R and Ms B’s) handling of educational issues to do with both the children concerned in this matter and D. At best, the teachers have just got it wrong.
It is also Mr Crawford’s position that both teachers are unaware of the complexity of the family situation in this case, particularly Ms Warren’s previous difficulties in parenting all five of her children and the involvement of authorities with her. He believes that if Mr R and Ms B knew what had happened in the past, they are likely to have cast a more critical eye over Ms Warren’s behaviour.
As such, he asserts Mr R and Ms B are unaware of Ms Warren’s capacity to manipulate both them and the children concerned in this case. They believe that, on many occasions, the difficult behaviour, manifested by the children at school, is likely to have been instigated by Ms Warren, in some form or other, to gain advantage over them.
It is also Mr Crawford’s positon that there are fundamental differences between the manner in which he approaches parenting and the approach of Ms Warren. He categorises himself as an organised parent, who places a significant level of emphasis on discipline.
From Mr Crawford’s perspective, it is important that both children follow school and home rules. He is also sensitive to what he believes is the danger of children of X and Y’s age having excessive exposure to electronic devices, such as computers and IPads. He is very careful about issues, such as screen time, which he concedes may result in others considering him old-fashioned.
On the other hand, he characterises Ms Warren as being a permissive and somewhat laissez faire parent, in contrast to him, who places strong emphasis on organisation and discipline. He categorises her household as being chaotic; lacking in routine; and beset by poor financial management.
It is his case that the mother has orchestrated the case against him to satisfy her own emotional needs and quite possibly to secure a financial advantage. It is his position that he has always been reasonable with Ms Warren and supportive of her having a proper level of relationship with the two children concerned, notwithstanding her longstanding history of parental problems.
These proceedings are directed to resolve these various issues between the parties. As indicated earlier, the nature of the proceedings changed during the course of the case. This was regrettable. It arose because Ms Warren has been unrepresented and filed her material at a late stage.
I am not critical of her for this. However, it was at times difficult to glean what was her actual position in regards to the children. At the end of the day, I formed the view that her objective was to gain what she perceived to be the maximum advantage over Mr Crawford, a person for whom she has no great regard.
As such, as the evidence developed, she promoted a proposal for the children to live predominantly with her and have only supervised time with their father. This seemed to me to have something of the flavour of an ambit claim, divorced from both the reality of the situation and the interests of the children concerned.
In many ways, it was regrettable that an independent children’s lawyer was not appointed for the children, but given the apparent ambit of the case, it did not consider it necessary. Initially, at least, the case seemed to be centred on the issue of whether the 9/5 regime should be replaced with a 7/7 regime during school terms.
Mr Crawford has been represented by the same solicitors throughout. He has also been consistent in his position. He is not a wealthy person and it was difficult for him to confront the mother’s, at times, amorphous allegations against him and refute her claims, particularly those ventilated by Mr R and Ms B, of which he had scant notice.
Accordingly, the case began as one about shared care. It ends with the mother seeking predominant care of the children because of allegations of significant abuse of the children concerned. In her affidavit material, Ms Warren makes scant reference to her own previous difficulties.
My impression of Mr Crawford is that he is not a vindictive person. He has alluded to Ms Warren’s difficulties but not excessively so. In addition, it is my impression that he has neither had the inclination nor the resources to investigate exhaustively some aspects of Ms Warren’s prior parenting, which might have been undertaken by an independent children’s lawyer.
Deficits in the evidence were also apparent to Mr I, when he compiled the family report. As such, he was unable to provide a definitive recommendation in his report, rather he recommended that the court needed to make findings of fact and perhaps obtain more evidence from a number of sources.
The family report
Mr I found both parties and Ms R, on interview, to be polite and cooperative with him. In her interview, the mother indicated a previous diagnosis of borderline personality disorder and bipolar disorder, which were apparently discounted by Dr J, as was a diagnosis of Munchausen’s By Proxy. In this context, Mr I considered that Dr J’s views should be canvassed as to Ms Warren’s mental state and parenting ability.
Mr I also elected to attend personally at (omitted) Primary School to interview Mr R and Ms B. He was advised by them that the school regarded Ms R as a strong advocate for special needs children. D and E were described as well behaved and likeable children, with no emotional or behavioural problems.
However, Mr I was advised that relations between the school, on the one hand, and Mr Crawford and Ms R, on the other, had become strained. This was attributed to an incident, which had occurred at the school on 20 August 2014, involving X.
In the incident, X had become agitated and distressed, hiding himself in an enclosed sensory space, within the classroom, stating that he did not want to return to his father and Ms R’s care, later that afternoon. This had been the subject of a notification to the child abuse report line monitored by Families SA.
Mr I reported that it was the school’s view that the father and Ms R had a belief that a school was collecting information about them. In addition, controversy had arisen between the father and the school in respect of the former’s desire to have X removed from his special class and placed into a mainstream classroom. Neither Mr R nor Ms B believed that it would serve X’ best interests, given his diagnosis of high functioning autism.
The school described X as a caring sensitive boy, who had a supportive relationship with D. The two had been in the same special class in the past. Overall, Mr R and Ms B apparently considered that X needed to remain in a special class, which would provide him with intensive support and supervision.
Y was reported as remaining in a mainstream classroom. However, he was also perceived to require significant support to assist him to moderate his emotions and behaviour, particularly when his senses became overloaded.
From time to time, it was considered that he could be regarded as just as needy as X. The evidence available to Mr I indicated that Y had received input from various agencies, which provided behavioural interventions and support for children with emotional needs.
Mr I took some pains to detail what were Mr R and Ms B's concerns about the father and Ms R’s parenting of X and Y. He wrote as follows:
“…Mr R and Ms B indicate that both X and Y would be very difficult children for anyone to parent, due to their cognitive, sensory and behavioural difficulties, and express concern that Mr Crawford and Ms R may need additional support to meet X and Y’s complex social, sensory, emotional and behavioural needs. They have noted for example their parenting style is reported to have become much more insensitive and punitive, with punishments ranging from withholding food, making the boy’s eat food they gag on such as meat containing gristle, taking it to school the next day if not eaten, being forbidden to have food from the schools breakfast program, provided with lunches which are knowingly sensory challenging, particularly to X. Other punishments include having to write lines and being doubly punished at home when transgressions dealt with at school are reported back to Mr Crawford and Ms R by E and D. Concerns have also been raised about physical punishment with bruises and nail marks noted on the boy’s arms and attributed to being caused when at their father’s home.
Ms R had also been observed by staff and students behaving quite angrily on one occasion toward X when she was called in to pick him up when he was obviously sick with a high temperature, yelling at him loudly as she yanked him off the sick bed, telling him there was nothing wrong with him. Some consternation was also noted amongst staff about Mr Crawford and Ms R completely ignoring X in the classroom when they drop D off during the days he spends with his mother, despite him running up to say hello.
The boys are reported to become very agitated and anxious in the lead up to returning to their father’s care, making comments that they do not want to go. None of these behaviours are noted when the boys are about to go to their mothers house as they are generally observed to be excited and looking forward to the visits. One of the boys has made the comment that Ms R has not been punishing them as much lately, but noted their father had been hurting them more.”[3]
[3] See family report dated 3 July 2014 at paragraphs 49-51
As the evidence unfolded, these various allegations of abuse of the children were subject to scrutiny. Mr Crawford and Ms R have provided their response to them. It is common ground between all concerned that Families SA have taken no specific action in regards to any of these issues.
In his evidence, Mr R saw it as his responsibility to document the complaints made by the children to compensate for the deficits of Families SA. He did not see it as incumbent upon him to discuss these issues directly with the father and Ms R, so that some light could be cast upon them and some potentially constructive approach adopted. I will return to this area of the evidence, when considering Mr R’s evidence in due course.
The school authorities reported to Mr I that they had noted an appreciable deterioration in the nature of the relationship between the children’s parents during much of 2014. In particular, it was noted that Mr Crawford and Ms R attempted to ignore Ms Warren, in spite of the latter’s attempts to be courteous.
In this context, Mr I noted Ms R’s apparent dismay when Ms Warren also became a member of the (omitted) School Governing Council, of which she (Ms R) was an existing member. This had led Ms R to withdraw from meetings.
To Mr I, neither Mr R nor Ms B apparently disclosed that their relationship with Ms R had become strained because of issues relating to D, rather than the children concerned in this case.
As previously indicated, it is the view of both the father and the mother that the school lacks objectivity in its dealings with them. Ms R in particular is concerned at the possible implications of notifications potentially made about her parenting as she works for the (employer omitted).
Mr I’s impression was that X was struggling emotionally, at times, because of the high level of conflict between his parents and his perception that he was unfairly treated by his father and Ms R.
To Mr I, Mr Crawford indicated his view that X needed to be placed in a situation where he could transition into a mainstream high school, clearly Mr Crawford believes this would be advantageous to X. Mr I perceived Y to be more settled and doing better at school.
In interview with him, Mr I regarded Y, although younger, to be something of a mouthpiece for X. Although interestingly, X appeared to Mr I to be somewhat frustrated, when Y spoke for him.
In respect of the children’s interview with him, Mr I reported as follows:
“In respect to our discussion about time spent with each parent Y said it was good at his mother’s house because he was able to watch MA15+ videos with B, whilst X said he watched You Tube and played with an iPad. Y stated he wanted to spend more time with his mother, because she tells them she wants more time.”[4]
[4] Ibid at paragraph 66
Y apparently also had some complaints in his perception that X got an easier time than he did, in respect of such things as cleaning his room up. X apparently confirmed that it was easier for him at his mother’s house because she had fewer jobs for him than his father. Such a comment confirms my impression that the children’s two parental households approach significant issues in very different ways.
In interview alone, Y also indicated to Mr I his impression of the different parenting styles of his parents. Mr I recorded the following:
“…At his father’s they tell him off if he is arguing with X but also tell him he is good if he has behaved. He said his father told him that he tells him off because he is trying to make him a better person. Y said his father scares him when he is angry and uses a loud voice when he tells him off. He commented this was in contrast to his mother who does not shout at him or gets angry. Rather if she gets upset she would tell him it is not all right and then look sad.”[5]
[5] Ibid at paragraph 69
Initially, X apparently indicated to Mr I that he wanted the time which he spent with his mother and father to stay the same but later indicated that he wanted to spend more time with his mother because she was “nice” and his father was “very cranky”. He complained of having been smacked on the bottom by his father. Ms R was described by X as nice but also cranky at times, but not as much as his father.
Mr I’s observations of the children’s interaction with each of their parents and significant others were positive. The children were observed to be attached to their mother. In addition, X and Y played together well over an extended period of time while Mr I engaged with the adults.
It should also be noted that when the children engaged with Mr Crawford and Ms R, E and D were also present. In this context, Mr I noted that all of the children were well behaved and friendly towards each other.
Mr Crawford and Ms R were noted to be calm in their management of the children who presented happily in their interactions with them. The children were described as smiling openly and demonstrating no signs of fear or apprehension in the dealings with either their father or Ms R.
In my view, this is a most significant finding. The children have a happy and positive relationship with each of their parents. They did not present as frightened or traumatised children who had obviously been subject to some form of trauma or mistreatment.
In his evaluation, Mr I indicated his concern that Ms Warren had apparently given up two sets of children, on two separate occasions, under concerning circumstances relating to her mental health. In this context, he recommended that the court should obtain further information from Dr J in particular.
He also noted that the relationship between Mr Crawford and Ms Warren had gradually deteriorated since the mother’s return to Adelaide. In this context, he noted that there had previously been a reasonable amount of goodwill in the relationship as Mr Crawford had gone out of his way to support the children having a relationship with their mother.
It was Mr I’s view that many factors might be contributing to the deterioration in the parties' relationship. They included financial factors; Ms Warren moving closer to the children’s school and to the father’s home; and Ms Warren advocating to spend five nights per fortnight with the children which soon turned to a request for equal time.
Mr I considered that it was difficult to know whether Mr Crawford and Ms R’s parenting of the children would have been different if Ms Warren had not moved closer to the school and become more involved. However, he opined that the concerns raised by Mr R and Ms B might reflect Mr Crawford and Ms R’s attempts to manage the children and gain their compliance in the light of what was perceived to be the threat of Ms Warren.
It does not seem to me to be improbable that Mr Crawford and Ms R would have found the increased involvement of Ms Warren to have been somewhat threatening, particularly given Mr Crawford’s perception, based on his prior experience that Ms Warren behaviour could be erratic.
In this context, Mr I was concerned at the artificiality surrounding the father and Ms R’s desire to distance themselves from Ms Warren in the classroom setting by not engaging with her or the children when they were in her care. The intent of this was to emphasise the dichotomy of the parenting arrangements to the children concerned.
Obviously, these are adult concepts which the children are not likely to be able to comprehend. This situation may have lead X to feel rejected by his father or to perceive himself to be some form of scapegoat for the difficulties in the relations between his parents. As a consequence of these considerations, Mr I provided the following opinion:
“… Having spoken to Mr R and Ms B it is acknowledged the specific concerns raised by school staff about their parenting would fit at the lower end of the notification scale, the impact as such on X appears to have been quite significant emotionally if his ongoing comments to staff and behaviour in not wanting to return to his father’s care are taken seriously. From Ms R comments both she and Mr Crawford are on the same page in respect to their parenting and for all intents and purposes share the same ideas in respect to how the boys should be treated and parented. Given the schools description of the treatment they have observed Mr Crawford and Ms R implementing, it would be in the children’s best interest for them to find more flexible and compassionate approaches to parenting X and Y commensurate with their disabilities.”[6]
[6] Supra at paragraph 82
In respect of the issue surrounding X’s placement in a special class, Mr I deferred to the school authorities. He considered that it was likely to be important for X to remain in the same class at least to the end of the year.
As previously indicated, Mr I was unable to give any clear recommendation in the case, which he found to be a difficult one, particularly given the children’s special needs. He was however in favour of the parties retaining joint parental responsibility for the children. He also recommended that Mr Crawford and Ms R seek professional parenting advice to address the concerns raised by Mr R and Ms B about managing the children’s challenging behavioural issues.
In respect of the children’s apparent desire to spend more time with his mother and the possibility of their being an equal time arrangement, which at the time of the interviews was Ms Warren’s apparent position, Mr I wrote as follows:
“With regards to the children’s expressed wishes to have more time with their mother it is apparent from Y’s comments that she has probably been encouraging them to ask for more time with her, however it is also clear he is attached to his father and Ms R. X may well be sincere in his desire to spend more time with his mother, however this may well be based on his feelings about how he is treated by his father and Ms R. Given his reactions to their parenting, more time spent with his mother may well be an appropriate step to take and would also be a consideration for Y provided the information obtained from other services and Dr J are supportive.
Both children present as being developmentally behind due to the developmental problems and X diagnosis of Autism. Mr Crawford’s assertions and concerns about the mother’s mental health problems and objection to her having the children half time, seem somewhat out of place given his agreement and support for her to have them for five days a fortnight and half of the school holidays although it would again be of benefit to the Court to have some understanding about her current mental health status.”[7]
[7] Ibid at paragraphs 84-85
Mr Crawford, through his solicitor, has been able to take up Mr I’s recommendation regarding Dr J. With the mother’s consent, he obtained a report from Dr J in respect of Ms Warren. In his report dated 15 January 2014, Dr J indicated that he had had no involvement with Ms Warren since 2005. When he last saw her, he considered that she was in a good state of mental health.
Dr J enclosed several reports from his earlier involvement with her. On this basis, he advised that Ms Warren had had a disturbed childhood, which had left her emotionally immature and so with a compromised capacity to manage her emotions when she herself became a parent. In this context, he provided the following diagnosis:
“The most useful diagnosis was complex post-traumatic stress disorder. More important than the diagnosis was her incapacity to put her children’s needs before her own; to the extent that she used her children, in particular C, in an attempt to deal with her own needs, which compromised their safety, culminating in her inflicting physical injury on her son C (for which she later took full responsibility).”
In this context, Dr J opined that he knew of no residual parenting problems relating to Ms Warren which should disqualify her from having full parental responsibility for X and Y.[8]
[8] See annexure A to the father’s affidavit filed 3 February 2015
Ms Warren places significant emphasis in her case on Dr J’s opinion. However, I note that he has not seen Ms Warren for many years and is unaware of the background to the current matter. In particular, he is unaware of the circumstances surrounding Ms Warren’s admission to the (omitted) Hospital in 2010 and the manner in which X and Y came into their father’s care.
The issues
This is a complicated case. In my view, the issues which it throws up and which require resolution by the court, if possible, can be summarised as follows:
·Have X and Y been exposed to abuse whilst in their father and Ms R’s care?
·If so, what is the nature of that abuse and should it disqualify the father and Ms R from playing a significant role in the care and parenting of the two children?
·Associated with these issues is the objectivity, reliability and expertise of Mr R and Ms B to provide evidence of what they believe is the father’s abuse of the children and the overall dynamic of the family, particularly the relationship between Mr Crawford and Ms Warren;
·What factors are causing the currently impaired parental relationship between the parties?
·If the children have been subjected to some form of abuse, is the abuse of such moment to justify a dramatic change to the longstanding care arrangements for the children?
·What are the implications for the children of changing a long standing arrangement for their care?
·What are the different parenting styles of the parties and what are the implications of such differences for the children?
·Essentially, who is the more insightful of the parents and who is likely to better support the children’s educational needs, bearing in mind each child’s special needs?
·Is it likely to be in the children’s best interests and practical, in objective terms, for the children to live for equal periods of time with each of their parents which was initially Ms Warren’s position?
·What are the implications, if any, of Ms Warren’s previous psychological and parenting difficulties?
·What are the pros and cons of the 9/5 nights per fortnight regime to which both parties consented in late 2013, given the current level of mistrust and communication deficits in their relationship now?
In the light of these issues, it is now necessary to set out the legal principles which must be applied to the resolution of those issues.
The legal principles applicable
Part VII of the Family Law Act 1975 deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(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.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[9]
[9] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[10] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[11]
[10] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[11] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
As set out above, the current case raises controversies about who of the parties is better placed to ensure that X and Y received adequate and proper parenting. Significantly, both parties also assert that the case is primarily centred on protective concerns relating to the children.
In the mother’s case, she asserts that the children have been both assaulted and exposed to emotional abuse whilst in their father’s care. For the father’s part, he asserts that the mother’s previous parenting practices have been questionable and as such, she poses a risk for the children. In addition, underpinning Mr Crawford’s case is his assertion that the mother is manipulating the children, which of itself is abusive.
Parental responsibility
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development, there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents. It stems from the principle enshrined in section 60B(2)(d) that parents should agree about how their children are to be parented. It is not always possible for this lofty expectation to be met in every family.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[12]
[12] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
Ms Warren proposes that the parties should have equal shared parental responsibility for the two children. The father agrees other than that he wishes to reserve for himself the parental responsibility to make decisions in respect of the children’s future school enrolments. This is to deal with the controversy, arising between the parties, as to which high school X should attend and whether he should remain in a special education class or unit at (omitted) School.
The court has authority conferred upon, through the provisions of Part VII of the Family Law Act, to alter the conferral of parental responsibility on any parent or parents, which arises by reason of their status as parents of any child concerned. This is done through the mechanism of a parenting order.
A parenting order is an order which deals with such issues as the persons with whom a child should live; spend time and communicate with; and the persons, who should have responsibility for making decisions, both significant and otherwise, about a child and the degree of consultation necessary to implement such decisions [section 64B(2)].
Pursuant to section 65C of the Act, a child’s parents may apply for a parenting order. In addition, as a consequence of the provisions of section 65D, the court is empowered to make whatever parenting order it considers “proper”. Pursuant to section 64B parental responsibility can be allocated to two or more persons.
Clearly this provision, when considered in the light of the objects and principles underlying Part VII, contained in 60B, is supportive of the concept of parents sharing parental responsibility and meeting their responsibilities concerning their children’s care, welfare and development.
One of the central difficulties, arising in this case, is that the parties, due to the conflict and poor communication skills between them, are likely to experience extreme difficulty in exercising parental responsibility for X and Y jointly.
The issue of which school X should attend is likely to be emblematic of this difficulty. I am concerned that whatever is the resolution of this case, these difficulties may become entrenched.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
In Bartel & Schmucker (No.3) Cronin J said as follows regarding the nature of parental responsibility:
“Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision. It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.” [13]
[13] See Bartel & Schmucker (No 3) [2012] FamCA 1094, at [18]
Legal considerations relating to issues of abuse
As I have already indicated, pursuant to the provisions of section 60CC(2A), the court is required to give greater weight, in its determination of a child’s best interests, to issues arising under the primary consideration relating to the protection of children from abuse, neglect or family violence. The recent changes to the Family Law Act are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[14]
[14] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.”
This is not a case which deals with sexual abuse. Nor is it a case in which it is alleged that either of the children has been exposed to the corrosive consequences of family violence. It is however the mother’s case that the children have been assaulted and certainly exposed to situations, in which they have suffered serious psychological harm. The Act does not speak of emotional abuse specifically.
Given the ages of the children concerned, and the fact that they have not been formally interviewed, by a suitably qualified expert, about what it is alleged has occurred to them, it may be impossible to ascertain, with the required degree of certainty, what is the truth or otherwise of the allegations of abuse concerning them, raised by the mother.
This evidentiary difficulty does not absolve the court from the responsibility of putting in place the orders which it believes are proportionate and reasonable to the degree of risk identified in the case concerned.
At the same time, there may be risks for the child or children concerned, if the court unduly restricts a parental relationship on the basis of amorphous or uncertain allegations of abuse. In M & M[15] the High Court formulated a test, which has been referred to as the unacceptable risk test as a standard to achieve a balance between the risk of a detriment to a child from being exposed to abuse, including sexual abuse and the possibility of benefit to the child from interacting with the parent or individual asserted to be the abuser.
[15] See M & M (1988) FLC 91-979
In W and W [Abuse allegations: unacceptable risk][16] the Full Court summarised a number of authorities dealing with abuse allegations. In particular, the Full Court approved the comments of Fogarty J in N & S and the Separate Representative[17]:
“Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often by required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations for the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
[16] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
[17] See N & S and the Separate Representative (1996) FLC 92-655 at 82,713-82,714
The evidence
In these reasons for judgement, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[18] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[19]
[18] See Evidence Act1995 (Cth) at section 140
[19] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ
The mother relies on the following documents:
i)An affidavit of herself filed 26 February 2014;
ii)A further affidavit of herself filed 5 May 2014;
iii)A further affidavit of herself filed 9 February 2015;
iv)A further affidavit of herself filed 26 March 2015.
This latter affidavit largely consists of documents, which were produced to the court by the Department of Families & Communities (Families SA) in response to an order pursuant to section 69ZW of the Act directed to it by the court.
It is also my impression that Ms Warren’s house is more relaxed. When asked to describe his former wife, Mr Crawford said that she was outgoing. In these circumstances, I can also understand why X and Y would find their mother’s household attractive, particularly because it placed less demands on them, in respect of such things as the performance of chores and access to screen time.
In all these circumstances, I believe that I must approach the children’s professed views with a significant degree of caution. Certainly, in this difficult case, I do not think that these views should be a definitive factor in the determination of this case.
b)The nature of the children’s relationship with each of their parents and significant others
X and Y have lived in their father’s predominant care since 2010. Given their ages now, this is a significant period of time. On this basis, it is undoubtedly the case that Mr Crawford is a very significant, if not the most significant, individual in the children’s lives at present.
As already indicated, the children also have a significant relationship with their mother, which Mr Crawford has supported, since Ms Warren returned to Adelaide and more significantly since she moved closer to his home and the children’s school.
Mr Crawford and Ms R have created a complex blended family. Interestingly, Mr I formed the view that X’s most significant friendship, perhaps his only friendship, was with D. Accordingly, the relationship between X and D appears to be a very important one for him. In my view, this is a factor which militates against the children concerned in this case being moved into the predominant care of their mother, as Ms Warren proposes.
Although I did not hear any evidence from them, it appears that the children’s paternal grandparents have played a large role in caring for the children, particularly when Mr Crawford returned with them, to Adelaide, in 2010.
It also seems to be the case that Ms Warren’s parents have also been involved with the children. It is also likely to be beneficial for the children to interact with their older half siblings B and C, who are currently living with their mother and A, who lives not far away. Accordingly, X and Y seem to be able to access an extended family, whilst in their present setting.
c) The extent to which each of the children’s parents have taken or fail to take the opportunity to be involved in decision making and to spend time or communicate with the children
Both parents have a deep interest in everything to do with the children. There is no suggestion that Ms Warren has ever failed to take up an opportunity to spend time with X and Y.
The particular difficulty of this case is that the parents past history; their differing parenting values and disparate personalities; and their struggle for advantage over each other; renders it extremely difficult for them to agree about many things likely to be important for the children’s care and development.
Accordingly, Mr Crawford and Ms Warren are likely to share the aspiration that everything be done to ensure that X and Y have a happy and secure childhood, which prepares them for a fulfilling adulthood, but they are likely to fundamentally disagree about the means through which this is to be achieved.
Underpinning this difficulty is Ms Warren’s visceral and fundamental belief that X and Y should not be in their father’s predominant care because what happened in 2010 was unfair to her.
ca) Provision of financial support for the children
I am satisfied that it is Mr Crawford, who has provided more of the essential financial support for these two children. Given their special needs, both X and Y are likely to be expensive children to support. They require access to a variety of health specialists, for whose services payment is required. Mr Crawford has provided these services, at some personal sacrifice to himself. In my view, this is greatly to his credit.
Mr Crawford portrays Ms Warren as something of a financial profligate. She acknowledges that she has had to seek assistance in the past for financial management. One of the reasons why Mr Crawford agreed to the current regime was in order to mollify the financial concerns of the mother and authorise her to receive some of the family payment, following the child support objection hearing, which favoured him.
Again, in my view, this is a piece of evidence which reflects credibly on Mr Crawford. In my view, there is no suggestion that he is motivated, in these proceedings, by any consideration of financial betterment for himself. The same could not be readily said of Ms Warren.
d)The likely effect on the children of any changes in their circumstances
Assessing the possible effects and consequences of change are at the heart of this difficult matter. X is not likely to be a child who copes well with change because of his special needs. Largely, as a consequence of this, Mr I was not in favour of any dramatic changes for these two children at the present time.
Given my view that there are no significant abuse concerns relating to X and Y, the matters which fall for consideration under this heading significantly favour the maintenance of the current status quo.
e)The practical difficulties and expense of the children spending time and communicating with each of their parents
The parties live in close proximity to one another in suburban Adelaide. Ms Warren does not drive, but Mr Crawford, in the past, has volunteered to drive the children to and from her home. In addition, the evidence indicates that both parents are easily able to get to (omitted) School, which is where, more often than not, the children are exchanged between them. The father has proposed a neutral but public place as a fall back option to school, for handover, which appears sensible.
As such, there are few practical impediments to the children spending regular periods of time with each of their parents. The difficulties, which are likely to arise between the parties in this regard, are not logistic but relate to their poor relationship and the related communication difficulties between them. Neither of these issues are likely to be ameliorated in the short to medium term.
f)The capacity of the parents to provide for the children’s emotional and educational needs
Given the manner in which this case has unfolded, this is one of the more significant considerations in the case. It is the view of the educational experts, who have given evidence in the case – Ms B and Mr R – that the father’s parenting style and opposition to such things as computer screens are not helpful to the children’s educational advancement or overall emotional equilibrium.
Ms Warren supports these views, I think. As such, it is her position that she is better placed to provide for X and Y’s emotional and educational needs. Given their expertise and familiarity with the children, it is necessary for the court to give serious consideration to the evidence of the two teachers concerned, who each presented themselves as honest brokers in the matter.
Interestingly, it is Ms B’s evidence that previously she had a good relationship with Mr Crawford, which has recently deteriorated. Whilst Mr Crawford has indicated that he still respects Ms B as a teacher. Although he also believes that his professional relationship with Mr R is broken beyond repair.
Mr I could find no evidence of Mr Crawford’s allegedly authoritarian parenting style in the children’s reactions to him (the father). In addition, in my view, although Ms B has criticisms of Mr Crawford’s views, in respect of some educational issues, such as mainstreaming and the use of computer screens in the classroom, she does not assert that he is in any way disinterested in issues to do with the children’s education. To the contrary, Mr Crawford and Ms R are clearly interested in the management of the (omitted) School and are each deeply concerned about matters relevant to their respective children’s education.
Some of the difficulties, arising in this case, in respect of the relationship between Mr Crawford and the authorities at the (omitted) School relate to Ms R’s complaints to the relevant Minister regarding Mr R’s local decision in respect of the number of out of count students in special classes at the school and the implications this is said to have had for the care of her daughter D.
I am not examining this particular controversy in these reasons for judgment. However, previously, Ms R was regarded by the school authorities as a positive advocate for children with special needs at the school. In my view, Mr Crawford is likely to be a similar advocate. The problem with such advocacy is that it is likely to be characterised as rigid or reactionary if relevant authorities disagree with it.
I do not doubt that Mr Crawford loves both the children very much indeed. From time to time, X and Y may perceive this as being tough love. Certainly, Mr Crawford’s parenting is structured and organised. These were characteristics which Mr I considered would be useful for the children, who as they get older will benefit from being able to regulate their own emotions efficiently.
On balance, I do not consider that there are any compelling features, in the evidence available to me, which indicate that Mr Crawford is not able to cater sufficiently for either X or Y’s emotional and intellectual needs. As I have already indicated, in my view, it is to Mr Crawford’s credit that he has sought professional assistance from Ms D in regards to the provision of affective parenting strategies in order to manage the challenges arising from X’s behaviour.
It also seems more probable than not that Ms Warren is able to manage the children’s emotional and educational needs. However, in both regards, she is something of an untested quantity. This was certainly Mr I’s opinion. As such, in my view, it cannot be the case that she is demonstrably superior to Mr Crawford in either regard.
Certainly, in my view, in this difficult case, I must be very careful not to embark upon some form of experiment in respect of the children concerned, in the hope that the new care arrangements proposed will necessarily be better for their emotional needs. In this case, such a view, in respect of Ms Warren, must be based on conjecture.
g) The children’s maturity, sex, lifestyle and background
h) Aboriginality
I do not think that either X or Y have any idiosyncratic features relating to the background, which require individual consideration. I am, however, acutely aware that both children, particularly X, have special needs. Both parents are well aware of these special needs and I am confident that both children are likely to receive the assistance, which they require, in respect of those needs, in both their households. Certainly, Mr Crawford’s track record thus far demonstrates that this is so, so far as he is concerned.
i)The attitude that each parent has demonstrated to the responsibilities of being a parent
In general terms, I accept that both Mr Crawford and Ms Warren aspire to being good parents for X and Y. However, up to this stage, Ms Warren has been less involved in respect of the discharge of these responsibilities than has Mr Crawford.
In very difficult circumstances both children came into his predominant care in 2010. The evidence indicates that he discharged his obligations at the time responsibly. In addition, and to his credit, he supported the children having a relationship with their mother when she returned to Adelaide.
In my view, it is a matter of some significance that over four years passed between the children coming into their father’s care and the mother instituting these proceedings. In my view, this indicates that Mr Crawford takes his responsibilities as a parent very seriously indeed and ostensibly at least, Ms Warren was satisfied with him in this regard.
For understandable reasons, Ms Warren has no desire to dwell on her past problems as a parent which she would characterise as having occurred in her deep past. I hope that Ms Warren’s problems are behind her, as Dr J opines.
However, Dr J has not had any direct involvement with Ms Warren for some time. In addition, as Mr I indicates, it is a significant thing that Ms Warren had two sets of children taken from her care. However, in this context, I note that A, B and C have all elected to return to her, when they have each grown older.
In my view, the evidence indicates that, to a large extent, Mr Crawford has passed through the rigours of parenting and has proved his credentials, notwithstanding Ms Warren’s criticisms of him. I am not convinced that Ms Warren’s parenting has been subject to the same degree of scrutiny.
j) Family violence
k) Any family violence order
This is not a case centred on concerns relating to family violence.
l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
Whatever is the outcome in this case, it is hard to rule out the possibility of further litigation between the parties, given their poor relationship with one another. This is particularly so, given their propensity to disagree about issues relating to the children. In this regard, the most significant and emblematic area of disagreement between them is which high school X, and in time, Y should attend.
At this juncture, there appears little prospect of this being consensually resolved. The longer it remains outstanding, in my view, the greater is the prospect of X feeling unsettled which is not likely to be helpful to him. As Mr I indicated, X, like many children, likes predictability and certainty in his life.
Given the breakdown of trust between Mr Crawford and the authorities at (omitted) School, which cannot have been healed by the evidence given in the case, by Ms B and Mr R, I can understand why Mr Crawford would want to remove X from the school, if an in count special class placement could be found for him at a suitable school convenient to his home.
If such change was to occur, it would need to occur quickly. Again, Ms Warren is unlikely to acquiesce in such a change. In all the circumstances, particularly Mr Crawford’s resolve to keep Y at (omitted) and the desirability of the two children attending the same school, it seems unlikely that there will be any changes in the children’s primary school education, at this juncture.
Although it is my assessment that the parties’ parenting relationship is poor, it is the case that neither has previously sought to institute proceedings in respect of care arrangements for X and Y. Between 2010 and mid-2013, it seems that they had a reasonably workable relationship. Things seem to have deteriorated between them with the advent of Ms R into the parenting dynamic.
Although it is always unwise to prognosticate, in proceedings such as this, on balance, it seems to me that the maintenance of the current parenting status quo is the one best calculated not to lead to further proceedings. However, I am also well aware of the destabilising consequences that these bitterly contested proceedings will have for the parties’ future relationship with one another.
Conclusions
This was a difficult case for all concerned, myself included. The difficulties arising because of the uncertainty surrounding Ms Warren’s position, in the case, and the extensive evidence which was received from Ms B and Mr R, which was not supported by any previous affidavit material and which came at a late stage.
In this material, very serious concerns were raised about alleged abuse of the two children concerned which had not been previously subjected to any scrutiny by the relevant authorities. Nonetheless, this court was called upon to assess those allegations of abuse. For obvious reasons, this exercise precipitated an extreme emotional reaction from all concerned.
After having considered all of the applicable considerations arising under section 60CC of the Act, I do not think that it would be in the best interests of the children concerned for there to be any significant change in their current parenting arrangements at present. Importantly, I do not consider that Mr Crawford represents a risk to the psychological well-being of the children concerned.
I do not believe that it would be in the best interests of either X or Y to live mainly with their mother and to spend alternate weekends in the care of their father. For the reasons provided above, protective considerations, germane to the children, are not sufficient to justify this large scale change in arrangements for their care.
In this context, I must turn to consider the presumption arising under section 61DA of the Act and what follows from it, if it is applied. If the presumption is applied I am required to consider an equal time arrangement, as a consequence of the provisions of section 65DAA(2) of the Act.
Given the longstanding animosity between the parties and the communication difficulties arising between them, questions arise as to whether it is in the best interests of the children for the presumption to be applied.
Against this consideration, it is undoubtedly the case that both parties are deeply interested in every aspect of the children’s care. However, given their problems and the mistrust between them, the difficulty arising relates to how any parental responsibility is to be applied or utilised, either jointly or consensually.
This is particularly so in respect of educational issues pertaining to the children. In my view, up to this point, for a variety of reasons, many important educational issues, relating to X, have miscarried. This has occurred because of the breakdown of trust between Mr Crawford and Ms R on the one hand and Mr R and Ms B, on the other. The breakdown of this relationship has suited Ms Warren.
In terms of any practical consideration arising pursuant to the operation of section 65DAA, I am satisfied that the reality of the children’s current familial circumstances rules out an equal time regime. In my view, such a regime clearly will not work. I also consider that such an outcome would not be in the best interests of the children.
The current regime, which in my view, fits the criteria relating to a substantial and significant time regime mandated by the relevant section is also, in my view, at the upper end of the range of what the parties’ parenting relationship will sustain.
However, notwithstanding my reservations, it is the regime on which the parties agreed in October 2013 and Mr Crawford does not propose winding it back. In these circumstances, I do not propose changing the regime, which has subsequently been endorsed by court order and which has been the reality of the family since late 2013.
The tenor of Ms B and Mr R’s evidence is that if Mr Crawford is conferred with parental responsibility alone for educational issues pertaining to X and Y there is a significant risk that he will exercise such authority in manner which is congruent with their best interests. They suggest he will enrol the children in a school inappropriate to their needs or will attempt to mainstream X prematurely.
Although Mr Crawford does not always adhere to the educational orthodoxy advocated by Ms B and Mr R, particularly in regards to such things as access to computer screens, it is not my assessment that he is pigheaded about such matters. He is open to advice from appropriate experts. In this context, in the early years of their professional relationship together, Ms B conceded that she had an excellent relationship with Mr Crawford in respect of issues to do with the children.
It is clear to me that for various reasons, which I have attempted to analyse in this reasons for judgment, this relationship has significantly soured. No doubt each side attributes blame to the other for this regrettable state of affairs. However, in my view, this does not mean that I should conclude that Mr Crawford’s judgement in respect of educational issues pertaining to the children is inevitably going to be flawed in future.
If parental responsibility is conferred equally upon the parties, they would be required to consult with one another and make a genuine attempt to achieve a consensus in respect of all major long-term issues pertaining to the children. Which high school the children should attend and whether X should move to a different school, if an in count placement becomes available for him, are obviously major long-term issues.
It seems unlikely, at this stage, that the parties will be able to agree on which high school the children should attend, when the applicable time arrives. In my view, this issue is emblematic of the long term stresses in their parenting relationship, which this case has cast into sharp relief. Regrettably, one of the consequences of these proceedings seems to have been that the parties’ respective positions have become more, rather than less, polarised.
Inevitably, it seems to me, each party is likely to regard his/her view in respect of such an issue to be superior to that of the other and, as such, is unlikely to yield his/her view to the other. The parties, in my view, share one character trait – they are both determined and somewhat stubborn people. In these circumstances, the probability of the case having to return to court for the issue to be resolved appears to be high.
Mr Crawford has indicated that he accepts the validity of Mr I’s evidence that it would be preferable for both children to remain at the same school for as long as possible. It is also Mr Crawford’s position, supported by Ms Warren that Y should remain at (omitted) for the remainder of his primary school education.
So, if an in count placement should become available for X, there is the possibility of the children attending different schools, at least for a few years, if Mr Crawford is authorised to determine educational issues. From Mr Crawford’s perspective the benefit of such an in count placement is that it would be better resourced than an out of count placement and he and X would be able to have a fresh start with a new school.
In my view, neither of these factors can be regarded as capricious on Mr Crawford’s part. This is particularly so given Mr Crawford has accepted Mr W’s recommendation, for X, that, for the remainder of 2015 school year, he should remain at (omitted).
In all these circumstances, I have come to the conclusion that the parties should have equal shared parental responsibility for the children concerned. This reflects the love and interest both parent have in everything to do with their care, welfare and development.
However, given the difficulties which will inevitably arise in respect of educational issues, which the parties do not have the capacity to resolve consensually, I have come to the view that Mr Crawford should have pre-eminence in respect of school placement issues only, provided that X does not change school during the remainder of 2015 and only moves thereafter, until he is due to commence high school, only on the basis that an in count special class placement is found for him at a school which is reasonably proximate to (omitted). Whether such placement is probable is not clear to me.
For reasons already provided, it is likely to be in the children’s best interests and reasonably practicable to implement if the current regime is maintained. This satisfies the statutory definition of substantial and significant time. In these circumstances, I propose to make orders essentially in the terms of Mr Crawford’s amended response.
This provides for the continuation of the current 9/5 regime, during school terms and divides school holidays evenly between the parties. I will also make orders dealing with some specific issues, which seem to me to be important and make arrangements for special occasions for the children.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding four hundred and eight (408) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 9 July 2015
[22] See Ms R’s affidavit of evidence at paragraphs 22, 23, 26, 27, 28, 29 & 30
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