WATTS & DECKERT
[2021] FCCA 600
•9 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WATTS & DECKERT | [2021] FCCA 600 |
| Catchwords: FAMILY LAW – Parenting – final orders – two children aged 6 and 4 – where the father is not the biological parent of the eldest child in the proceedings – where the father seeks that both children live with him – where the parties cannot agree on what school the children should attend – best interests of the children. |
| Legislation: Family Law Act 1975 (Cth), Pt VII |
| Cases cited: MRR & GR (2010) FLC 93-424 Mazorski & Albright (2007) 37 FamLR |
| Applicant: | MR WATTS |
| Respondent: | MS DECKERT |
| File Number: | NCC 131 of 2020 |
| Judgment of: | Judge Betts |
| Hearing dates: | 8 and 9 March 2021 |
| Date of Last Submission: | 9 March 2021 |
| Delivered at: | Newcastle |
| Delivered on: | 9 March 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levick |
| Solicitors for the Applicant: | Lea Smith Solicitor |
| Counsel for the Respondent: | Mr Bithrey |
| Solicitors for the Respondent: | Harris Kelly & Associates Lawyers |
ORDERS
All previous orders are discharged.
The parents have equal shared parental responsibility for the children X born in 2014 and Y born in 2016 (“Y”) (“the children”).
The children live with the Mother.
The children spend time with the Father as follows:
(a)During school terms each alternate weekend from the conclusion of school or 3pm Thursday to the commencement of school or 9am Monday, commencing Thursday 11 March 2021;
(b)In the alternate week, from 3pm the conclusion of school Thursday to the commencement of school or 9am Friday;
(c)During end of Terms 1, 2 and 3 school holidays periods from 10am on the first Saturday of the school holiday period to 5pm on the following Saturday in even numbered years and from 5pm on the second Saturday to 5pm on the last Sunday of the school holiday period in odd numbered years;
(d)During Christmas school holidays each alternate week commencing the first day of the school holiday period in even numbered years and the second week in odd numbered years with changeovers to occur at 10am.
(e)From 2025, for the first half of each Christmas school holiday in a block in even numbered years and the second half of the Christmas school holiday in a block in odd numbered years, with the Mother to have second half of each Christmas school holiday in a block in even numbered years and the first half of the Christmas school holiday in a block in odd numbered years.
(f)At other times as agreed between the parties.
The weekend time with each of the parties shall recommence at the start of each school term so as to ensure the alternate weekend pattern continues uninterrupted.
Notwithstanding any other order here;
(a)The children shall spend time with the Mother from 1.30pm Christmas Day to 1.30pm Boxing Day in even numbered years and from 1.30pm Christmas Eve to 1.30pm Christmas Day in odd numbered years;
(b)The children shall spend time with the Father from 1.30pm Christmas Day to 1.30pm Boxing Day in odd numbered years and from 1.30pm to 1.30pm Christmas Day in even numbered years;
(c)The children shall spend time with the Mother from 5pm on Thursday prior to Easter Friday to 5pm Easter Monday in odd numbered years;
(d)The children shall spend time with the Father from 5pm on the Thursday prior to Easter Friday to 5pm Easter Monday in even numbered years;
(e)The children shall spend time with the Father from 5pm on the Saturday immediately prior to Father’s Day to 5pm Father’s Day if not otherwise scheduled to spend time with the Father on that weekend;
(f)The children shall spend time with the Mother from 5pm on the Saturday immediately prior to Mother’s Day to 5pm Mother’s Day if not otherwise scheduled to spend time with the Mother on that weekend.
To facilitate these orders and where changeovers do not take place at school, the Father shall collect the children from the Mother’s residence at the commencement of his time with the children and the Mother shall collect the children from the Father’s residence at the conclusion of the Father’s time with the children.
Each parent must permit the other to communicate with the children by telephone and other electronic means at reasonable times and intervals when they are with that parent, except in emergencies or on special occasions, only between 6.00pm and 6.30pm and not more often than two times per week.
Each parent shall notify the other as soon as reasonable practicable and within 2 hours of any of the following occurring;
(a)Either of the children being involved in an accident requiring medical attention;
(b)Either of the children becoming seriously ill;
(c)Either of the children being hospitalised;
(d)Any General Practitioner appointment either of the children attend and provide information regarding any diagnosis or outcome.
Each parent shall provide to the other parent a current residential address, email address and mobile telephone number and notify the other parent of any change to such addresses or mobile telephone numbers within 24 hours of such change.
Each parent is at liberty to attend any school events, carnivals or other extracurricular activities to which parents normally attend or are normally invited to attend at any school attended by either of the children.
Each parent is to authorise the Principal of the school attended by either of the children from time to time to supply to the other copies of school reports, notices relating to pupils at such school, school letters, invitations to any cultural event, carnival, sporting or social function, notices of and invitations to parent teacher interviews and any other notices directed to parents of children attending such school and service of a sealed copy of these orders upon any school attended by the children shall be sufficient discharge of this order.
Each parent is to:
(a)Notify the other by text message or email within 24 hours of any specialist medical appointment either of the children are required to attend; and
(b)Shall authorise such treating specialist medical practitioner to discuss or provide any documents in regard to the child’s treatment to the other parent upon that parent’s request and service of a sealed copy of these orders upon such treating medical specialist is sufficient discharge of this order.
Each parent is restrained from denigrating the other parent or the other parent’s family and friends to the children or within the hearing of the children shall restrain any other person from doing so.
Both parties shall ensure the children’s attendance at any extra-curricular activities which may fall during their time with the children and which the parties have agreed in writing that the children shall participate in.
The children X (“X”) born in 2014 and Y born in 2016 (“Y”) (“the children”) are permitted to travel internationally as provided by section 65Y(2)(b) of the Family Law Act1975 and section 11(1)(b) of the Australian Passports Act2005.
From 2024 each parent is at liberty to take the children on an overseas holiday on not more than one (1) occasion in each calendar year, if such holiday is scheduled to take place during the other parent’s time with the child/children, on the proviso:
(a)The parent intending to travel with the child/children shall provide to the other by email not less than 3 months prior to the scheduled travel notice of the intended travel; and
(b)An itinerary including the dates of departure and return, accommodation and flight details and evidence of travel insurance (for overseas travel) for the child/children; and
(c)Such travel shall not exceed 21 days;
(d)If such holiday included the other parents time with the children during school holiday periods, the non-travelling parent is at liberty to request make-up time during the next school holiday period or at such other times as agreed between the parents.
Unless otherwise agreed in writing, the children are to attend B School for their primary schooling.
The matter is removed from the Active Pending Cases List.
NOTATION:
A.For the purposes of these orders school holidays shall be deemed to commence on the first day both the children (once both children are attending school) are not required to attend school at the conclusion of Term 4 and conclude on the day immediately preceding the first that both children are required to attend in Term 1 of the new school year.
B.The court notes that the Father is not the biological Father of the child X.
C.The court notes that within 12 months of the date of these orders the parties will make a joint appointment for X with the Anchor Program, and if not otherwise available with a psychologist or other counsellor agreed upon between the parties and as suggested by the Anchor Program for the purposes of explaining to X that the Father is not her biological Father.
IT IS NOTED that publication of this judgment under the pseudonym Watts & Deckert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 131 of 2020
| MR WATTS |
Applicant
And
| MS DECKERT |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript so as to make them easier to read.
Background:
These are parenting proceedings relating to two children, X born in 2014 and Y born in 2016.
The children have a younger sibling, C born in 2019. He is the child of the mother and another man who is not a party to the proceedings and who has no relationship with C by his choice.
The parties to these proceedings are the applicant father, Mr Watts, and the respondent mother, Ms Deckert. The father is not the biological father of the child X; however, for all intents and purposes he has acted as her father figure throughout her life. She calls him “Dad”. He has been, in every sense, a father to her.
He has standing to apply for parenting orders in relation to X pursuant to section 65C of the Family Law Act. So much is conceded by the mother.
X’s biological father is a fellow by the name of Mr D. He has been served with these proceedings but has chosen not to participate in them. Although he met X a few times when she was young (a baby) he is not playing any significant part in her life at all. He pays child support to the father who has the primary care of X at this time. The mother in fact reimburses Mr D the child support figure that he pays to the father because that was always the agreement between the mother and Mr D, namely, that he would not have to provide financial support for X.
In relation to the parents, the father lives at Town E. He works a professional at Town F. He works a 38-hour week. There is some flexibility around his employment. The father also has the paternal grandparents living about five minutes away in the Town E region. He has not re-partnered and in the witness box indicated a reluctance to enter into a relationship with anyone anytime soon.
The mother is engaged to Mr G. They live together at Suburb H. They purchased a property there in November of 2019, although they had been living together in a rental property at Suburb H prior to that date. Both the mother and Mr G have been university students. The mother hopes to start a public service career by the end of this year or early next year and indicates in the witness box that she will not leave the City J region. Her employment circumstances are somewhat unclear because there have been no job offers yet. Moreover, she first has to finish her last year at university and some placements.
Her fiancé, Mr G, has recently completed his university studies and is also proposing to be a public servant. He has received interim or provisional approval to start working as a public servant. He intends not to seek full‑time employment at this stage but to work part time or casual, consistent with the care commitments necessary for the children.
A looming difficulty in this case for X, but an unavoidable one, is that at some point she will have to be informed about her true biological parentage. She does not know that Mr Watts, the father, is not her biological father. This is a difficult issue that the parties are going to have to work out. It is one of those “unknowns” going forward how she will react to that, but I suspect it will be no easy thing for her to cope with, at least in the short term.
X and Y call the father in this case “Dad”. They call Mr G “Mr G”. C calls Mr G “Dad”. As with X, C is unaware at this stage – and it is probably beyond his comprehension to understand anyway at this point – that Mr G is not his biological father. This is another one of those difficult bridges that will have to be crossed on a future date in terms of that child’s parenting.
The proceedings are before me fundamentally because the parties cannot agree about who should be the primary carer of the children X and Y. The father contends that the children should live primarily with him but effectively spend five nights per fortnight with the mother and half holiday periods. The mother, though initially advocating that the children live with her and spend four nights per fortnight with the father, has since amended her position to five nights per fortnight. She contends for a slightly different configuration of days to the father but not in any material way that matters to me.
Ultimately, at my suggestion, the legal representatives for the parties have been able to iron out practically all of the other issues, which is of great assistance to me and, I think, fundamentally to the parties, and I express my thanks to the legal representatives for that. The agreed minute of order is set out before me as exhibit 4, and save for the issue of who should be the primary carer of the children going forward, which is clearly the major issue, the only other issue is whether there ought to be in place some form of restraint concerning physical disciplining of the children.
The mother seeks, specifically, an order that each parent be restrained from physically disciplining the children or directing or allowing any other person to do so. The father opposes the making of such an injunction, essentially contending through his counsel that the injunction is unnecessary and, indeed, inappropriate.
I should perhaps record at this time before going further that the parents do have very different parenting styles. The Family Consultant in this matter refers to them as divergent parenting styles.
The father described his parenting approach in paragraph 60 of the Family Report which is before me as exhibit 3. His words were:
I guess you would say I’m an authority figure, somewhat old-school, but not in terms of discipline. But I guess I don’t engage as much in child-level play in the house, instead we go on adventures. I am more of an outings person and we engage that way, finding things, playing in new places. At home I let them run their own race and they come to me when they need help. If they don’t do as asked, they go to their room for a couple of minutes, then we have a conversation about why they were in there, make sure they understand.
He said he has smacked the children but it’s always a last resort. The mother described her parenting style in paragraph 61 of the Family Report in these terms:
…kid-focused, play-based. Physically playing with the kids is very important trying to juggle X, who is very physical, and Y, who is very imaginative.
In terms of boundaries, the mother said:
We take hitting, spitting and biting very seriously. The rest is warning. No running inside. We are very strict on how they are with C. They can love him so hard. Sometimes when it is more serious we resort to walkouts.
which she described as taking the children for a walk until they calm down and then they have a conversation afterwards. She said that Mr G usually conducts the walkouts.
So the parents in this case, like most couples, have different parenting styles. But to be clear, the children in this case love both of these parents very dearly, and I have no doubt from seeing both of these parties give their evidence, and from hearing them in the witness box and reading their material, that each parent has much to offer the children.
Given that essentially the court is dealing with two “good” parents, at the outset of the trial I had invited the parties to engage in some discussions as to whether it was possible to reach agreement. They were unable to do so, and in the circumstances it is my role now, as they have been unable to do so, to exercise the discretion vested in this court by the Family Law Act to arrive at a decision that I consider to be in the best interests of the children.
This is not a case in which equal time is contended as appropriate by either party. It is a case where ultimately one parent will be the primary carer and the other will have substantial and significant time with the children. In some ways that is a little bit of a regrettable outcome, but it is unavoidable in this case for reasons as will become clear.
Material relied upon:
If I start, then, with the material relied upon by the parties.
In the father’s case, he being the applicant, I have regard to his Amended Initiating Application filed 5 February 2021 and his trial affidavit filed 5 February 2021. The father’s counsel had also prepared a helpful Case Outline which I have had regard to and which has been marked as exhibit 1.
In the mother’s case I have had regard to her Response filed on 3 March 2020, the mother’s trial affidavit filed on 5 February 2021 and the affidavit of Mr G filed on 5 February 2021. The mother’s counsel has similarly prepared a Case Outline which again has been of assistance to me and I have had regard to that as well; it is marked as exhibit 2.
The Family Report is exhibit 3, and for completeness the draft parenting orders are exhibit 4.
Witness observations:
I have had the opportunity to see both of the parties give their evidence, as well as Mr G and the Family Report writer, Ms K. Having seen these parties give their evidence I do not propose at this time to go chapter and verse through what each of them has said. I will address the relevant issues in the course of these reasons. However, I would make a few observations.
Consistent with their different approaches to parenting I see the father and the mother as two very different people. The father, in my view, is much more rigid as a general statement in terms of attitudes towards parenting and towards communication. On occasions, regrettably, he has communicated with the mother in a way that I consider to be disrespectful, if not bullying.
I am not entirely convinced from seeing him in the witness box that he has full insight into the impact of some of his messages on the mother. He certainly indicated in the witness box that he took responsibility for certain things that occurred.
For example, his initial decision that he did not want to see X for a while in 2018 after the parties unsuccessfully attempted reconciliation. He acknowledged that this was initially his choice. He did not seek to blame the mother for that, and he accepted that his actions were wrong. They were really a form of manipulation or punishment, effectively of X, who had done nothing wrong, seemingly to get back at or send a message to the mother in relation to their relationship breakdown.
He accepted responsibility for some aspects, but I do not consider that he fully appreciates the import or the impact on the mother of some of his past communications. It might also fairly be said that he displayed some double standards on occasions in terms of his expectations of the mother as distinct from what was expected of him. In other words, there was one rule for her and one rule for him.
But overall I thought that the father was a pretty straightforward - blunt at times - and direct fellow, and in many ways I can understand the position that he takes in a number of different aspects.
The mother, for her part, it seems to me, was also essentially an honest and reliable witness.
I did not have so many concerns about the mother’s communication style as I did about the father’s, although there are a number of occasions in which the mother failed to communicate with the father in a way that was unhelpful to the parenting dynamic.
One was in relation to the child Y who had been detected with a medical condition in 2019. The father only found out about that in mid 2020. The mother acknowledged she should have told the father about it before then, and I agree with that.
Her decision in late 2019 to change the agreed schooling arrangement in relation to the children, particularly X, was understandable to me. But I think, in fairness, it could only reasonably have been interpreted by the father as the mother “pulling the rug out from under him” in terms of what he expected was going to happen.
In short, like all parents – like all people, neither parent was perfect, neither of them were a perfect witness, but each was essentially telling their truth and each is committed to these children.
Of lesser significance in terms of the evidence in this case was the evidence of the mother’s fiancé, Mr G, to whom I have already referred. I was very impressed with the limited evidence Mr G gave in the witness box. He made clear to the court, and I accept, that he regards the father’s relationship with X as “invaluable” (his word.)
The father’s counsel Mr Levick pressed Mr G about some of the observations in his affidavit about the children being “unsettled” in the early days after they returned to the mother’s care after being with the father. When Mr Levick asked why Mr G thought that they may have been unsettled, he indicated that he was willing to answer the question but pointed out – probably accurately enough – that he was being invited to speculate.
It was really a question directed to attitude because the affidavit had, itself, perhaps by insinuation, suggested that it was the father’s household that was the “problem”.
But Mr G explained that there were many reasons why the children could have been upset, including being tired, hungry, thirsty, fighting, having issues relating to the attachments with both parents. I thought his answer was very insightful, frankly, and he seemed to be at pains to be as accurate and fair as he could.
Although he has been in the mother’s life for quite a long time now, it does not seem that the father fully accepts him. This is something that has to be addressed going forward whatever the outcome of this proceeding.
In terms of Ms K, the Family Report writer, her report and her evidence raised a number of issues about the future parenting of the children.
In a perfect world, I think she would have liked to have seen an equal time arrangement – reading between the lines of her report – but ultimately her view was that if equal time was not an appropriate outcome then an order should be made for substantial and significant time with one parent and that the children live primarily with the other. She agreed that a nine night / five night fortnightly arrangement was the best or appropriate configuration ten night / four night arrangement.
Much was made of paragraph 113 of the Family Report in which she stated:
If the court is of the view that an equal time arrangement is not in the children’s best interests, then the primary issues for consideration as to which parent the children should primarily live with would appear to be which parent is best placed to provide for the children to have a meaningful relationship with both parents and which parent is able to communicate and co-parent most effectively with the other parent.
Of course, the opinion of the report writer is relevant and of assistance to the court but it is not determinative; a point that Mr Levick made in closing submissions, observing that the case is more broad than simply a consideration of those particular matters. I agree with that.
Relationship history - relevant findings:
I propose, firstly, to deal with some historical matters and to make various findings as to events that have occurred in the past. I do not propose to address every issue raised by the parties in their material; not every issue is relevant to the determination of this case. This is not a Royal Commission into every event that ever occurred between these parents nor is it an attempt to find fault where fault reasonably cannot be apportioned to anyone. Both parents have done their best; at times, their best has perhaps fallen somewhat short.
I am aware that in some of the matters that I address there are some sensitive topics, particularly in relation to C and suggestions about aborting pregnancies and the like. I will deal with the evidence as best I can but this is one of those cases where I can see enormous benefit, frankly, to these children never reading these reasons for judgment.
I turn then to the short history and some relevant findings.
The parents commenced a relationship around 2015. At that time, X was about 10 months old; she was very much a baby. The parties had an on/off or sporadic relationship.
The mother fell pregnant with Y; the parties moved in together in late 2016 and Y arrived, literally, a month later.
The parties maintained a relationship until January 2018 at which time they separated. They were, at that time, living at Suburb L.
When the parties initially separated in January 2018, it was the mother who instigated that separation. The father did not take the separation well which is understandable from his perspective. The parties had very different backgrounds. The father came from a home where, as a child, his parents stayed together and, from his perspective, he thought that separating was a terrible thing for children – which in many ways is true. The mother came from a broken home, and I am not critical of her about that in any way - the point is that she had an entirely different childhood experience. That was her life.
But this relationship, for whatever reasons, did not work and the mother separated.
It seems to me that there was an awful lot of tension between the parties at that time, which is perhaps understandable given the high emotions involved. When the parties first separated, they entered into an arrangement whereby the father cared for both children for some five nights a week; the mother had the children for two nights. The mother’s evidence is that she was trying to avoid conflict in giving the father five nights per week and that she was, to some extent, attempting to placate him, given that he was somewhat angry. He conceded as much; he was stewing over the ending of the relationship.
The father did send the mother some text messages, which are annexure “A” to her affidavit, in which he told her that (by separating) she was going to ruin her own life, ruin the children’s lives, and that she needed to listen and try to sort herself out.
On one occasion, his message to her was:
Destroy my family like you’re some higher fkn being. How did I ever love you? You’re the worst kind of human filth. You can’t even put your children’s needs before your own and call yourself a mother. How many more men will come into our children’s lives before you find out what you want and how will that cause less damage and distress to them than actually address our issues like adults?
The mother was unhappy about these messages and it seems to me that she did not respond in any sort of aggressive way towards the father.
On the balance of probabilities, and it is certainly the mother’s case, I find that at this early post-separation time the mother felt, to some extent, pressured or bullied into an arrangement whereby the children spent that much time (5 nights per week) with the father. But, in saying that, this was the arrangement that they came to.
Not long after that, the mother was seeking additional time with the children. The parties ended up agreeing that the children would spend four nights a week with the father over each weekend and that the mother would spend three nights. The mother was working on weekends and the father was working during the week and I accept that that was a major – perhaps the major – basis for that agreement. It effectively placed the father into the position of being the primary carer of the children, though he already was pursuant to the previous five/two arrangement.
But in a practical sense, although the father had the extra night with the children each week and, in that sense was the primary carer, the mother’s time with the children each week was not much less than his, particularly given the work hours of the parties and the availability that each had for the children.
Things remained somewhat tense between the parties. The mother soon found that she had a problem with Centrelink because she was receiving a sole parent pension (however described at the time) and the number of nights she had with the children was a relevant factor. She contacted the father because she wanted to have the children for one extra night per fortnight so as to improve her Centrelink position.
Her message to the father, which appears as annexure “A” to his affidavit, starts by saying:
Morning. I don’t know how to say this without sounding like a bitch but please read it knowing bitch vibe isn’t what I’m going for. The child support deadline is this week so I’m going to fill the form out today. You’ll probably get a call today or tomorrow and I just wanted to give you a heads-up.
The father responded in his, perhaps fairly typical, blunt style:
I have both kids more than dou – I think he meant “you”
why do you even need it?
The mother then responded that if she did not apply for child support then her Centrelink payments would be cut by half; that they would definitely be reduced at any rate - but cut completely if she did not apply. She also said:
I’m opting for private arrangements so we can discuss whatever later. Just wanted to let you know that they’ll probably contact you.
She also went on to say that she was putting the start date of “shared care” as of that day, which was 26 February, saying:
I hope that’s okay.
The father responded that they had had shared custody since 9 January and that he had started with five nights per week and had since dropped back to four. He stated that, prior to that, he was still paying rent at the former joint property even though the mother was claiming the single parenting payments, getting tattoos and wasting money on furniture:
I’m not going to lie to cover your ass to them when they call. If you want to be a fraudulent benefit collector, that’s your problem not mine.
That communication is an example of a theme that recurs in the material. Namely that the mother, to some extent, at least on occasions, pandered to the father or at least came across as pandering to him in the sense that she wanted to achieve an outcome but did not want to upset or annoy him or cause a fight. It is an aspect of the nature of the parties’ communication that has caused me a degree of concern in these proceedings.
At or about this time – that is, April 2018 – the father also messaged the mother – which is annexure “C” to the father’s affidavit – indicating that he wanted to return to the five night per week arrangement for the children’s stability and routine.
He indicated that he had noticed a lack of manners and disrupted sleeping and routine since they had changed to the four night / three night arrangement. He said there were a number of ways they could proceed:
I requested you to see a psychologist, as I already was, and you agreed. I feel like my requests haven’t been followed through on. I’d like if you would come back and see the doctor you’ve seen to get the mental health plan with me in attendance. I want to make this situation between us better not
The message finishes with “not” and it might be that some of the message is missing.
The father had, himself, been seeing a Dr M, a clinical psychologist, in relation to issues of anxiety and depression surrounding the breakdown of his relationship. And I am not in any way critical of him about that. He took appropriate steps to manage his mental health and he should be given credit for it. The issue with this particular communication, though, is that it comes across to me as rather a controlling message. That is, the father wanted to be there with the mother’s psychologist, presumably and inferentially, to tell him or her the issues with the mother’s mental health from his perspective. This is entirely consistent with the mother’s complaint about him - that he used to attack her mental health at different times during the relationship.
The father said (in relation to this message) that he wanted to support the mother; I am not so sure that that is the case.
In any event, the parties reconciled for about a month in June 2018 before their relationship finally broke down again.
Post-separation:
It was around this time that the father, who was “smarting” from the breakdown of the relationship, decided that he was not going to see X for a while. The father was complaining to the mother that she was wrecking the family, that being separated was not good for the kids and that, in his words:
I’m not looking after X. She’s not my kid. I’m not looking after someone else’s kid.
By his own choice, the father ended up not seeing X for about four weeks after that time. He acknowledged in the witness box that he had been behaving in a manipulative fashion and, as I have already indicated, I think the child was regrettably a casualty of that adult issue.
I want to make clear though that the father’s actions on this occasion were out of character. He had played a significant role in looking after X; he had always been her father figure. He had not shirked financial responsibility. He had assisted the mother to look after the child. I see his actions on this occasion as an aberration. Moreover, it seems that the mother perpetuated the separation of the siblings for a period of time afterwards - for some months in 2018 - because she had Centrelink issues that she had to deal with, and it put her in a better position financially if she retained X.
The issue about X is somewhat grey. I have some empathy for the mother’s position in the sense that she had some financial difficulty. Too wrongs, perhaps, don’t make a right in this instance, but as I’ve indicated, certainly this was an aberration on the father’s part.
Around this time in August 2018, the parties reached an agreement in terms of time to be spent with the children. Essentially, X was to live with the mother from 7am Tuesday to 10am Saturday, and with the father from 10am Saturday to 7am Tuesday. Y was to live with the mother from 7am Tuesday to 5pm Friday, and then with the father from 5pm Friday to 7am Tuesday.
The parties attended mediation in October of 201, the upshot of which was that a draft parenting plan was prepared. The draft parenting plan was not signed. It is not strictly a “parenting plan” under the Act as observed by the mother’s counsel, Mr Bithrey, but it clearly formed the basis upon which the parties acted going forward.
Pursuant to that draft parenting plan the children were to be with:
· the father on the Monday;
· the mother on the Tuesday/Wednesday/Thursday;
· the father on the Friday (with X initially to remain in the mother’s care that night);
· the father on Saturday, with X going back to his care;
· the father would have both children Saturday and Sunday.
In later times, the mother started providing X to the father again on the Friday night.
This was the arrangement which persisted for quite some time, and, indeed, in every sense of the word, it was shared parenting albeit that the father had somewhat more time in terms of nights with the children. But again, in the context of the hours of work of each party, it really was very much a shared care arrangement.
By 2019, the mother’s relationship with Mr G had taken a more serious turn, and she and Mr G were initially living together in a rental property at Suburb H. There continued to be significant tension between the parties in terms of trust issues. And it seems to me that the father was not happy about the mother not returning to the relationship with him. He was not happy that they remained a separated family. And he was not happy when she re-partnered with Mr G either.
To be clear, I should add to the chronology here that the parties had agreed that the children would attend at Town E for their schooling. X was enrolled in an early learning or daycare type centre at Town E. But by 2019, with the mother living in Suburb H, I accept that from her perspective, this was not a convenient arrangement. Nonetheless, it was the basis upon which the parties had conducted their affairs. The father had set up and purchased a home in Town E on that basis.
In 2019, there was tension between the parties in relation to a number of aspects. The mother suggested a change to the children’s daycare arrangements in March 2019 due to a change in her University timetable.
To facilitate the mother’s University attendance the father had to drive an extra five minutes one way or the other. He responded to her request as follows:
Could you fuck their routine around more if you tried? If you can’t keep a routine for them, I’d like more time with them.
There was a degree of inflexibility or rigidity in that response consistent with some of his previous messaging.
Flexibility is one of the cornerstone recommendations of the Family Report writer in this case in terms of achieving the best outcomes for children. There was a distinct rigidity/lack of flexibility evident.
In March 2019, the mother texted the father to tell him that she had told the children she was expecting another baby. (This was in relation to her pregnancy with C.)
The father’s responses to that were, in my view, deeply regrettable.
He asked the mother whether she had a new partner which was fair enough. She responded by saying that she didn’t have a serious partner, no-one that she had introduced to the children.
He told her:
That sets a great example for the kids.
to which she responded:
I’m not here for your judgment. I’ll send you an email tonight.
He then went on to say:
Yeah. The example we set for our kids doesn’t matter, does it? Seriously, what the fuck goes on in your head?
She responded:
More judgment, fantastic.
To which he replied:
I couldn’t care less what you do with your life. I care about how your actions affect my kids.
The messaging goes on from the father as set out in annexure “C” of the mother’s affidavit.
But, essentially, the father asks her whether she was seriously going to bring another fatherless child into the world; that she should be focused on the two children she had, and that he was really unhappy that she was pregnant again and that she wasn’t with the biological father of the child, because it wasn’t fair to the children.
He also asked her, rather pointedly:
Have you considered other options?
To which she responded:
Excuse me, I don’t think that is an appropriate thing to ask.
After various other messages in which he lectures the mother about having broken up a family to bring another baby into the world without a father, he texts her:
Three kids and three fathers, do you understand what you’re teaching our kids?
The father acknowledged in the witness box that these messages were perhaps inappropriate. He also acknowledged that his text referring to “other options” included the possibility of adoption. But, really, these are very highly sensitive matters that in my view were not appropriate for him to lecture the mother about.
They come across as controlling, although I accept there is a kernel of basis for the father being concerned about disruption and instability given what had happened with X and her biological father. So I can see that the father had some concerns, but the manner in which he went about it in my view was abusive, controlling and entirely inappropriate. It was also strongly judgmental of the mother. And judgmental communication between parents after separation is usually very unhelpful in terms of fostering a positive co-parenting relationship.
The mother attempted to re-visit the issue about the children’s schooling. The father did not want to enter into any such discussions which, from his perspective, is understandable.
In the same month, March 2019, the father indicated to the mother that he didn’t want her contacting him except by text message and that she not use email unless it was an emergency.
The mother’s evidence is that she had sent texts to the father such as advising if she was running late or other minor issues such as the children being injured at daycare and the like. The father’s requirement or request that communications be by email was described by the Family Report writer as dictatorial, and I agree with that. It also demonstrated a lack of flexibility.
The father raised a concern in the witness box about receiving text messages when he was at work. I can understand that concern, but there is no need for him to respond to a text message received at work. Simply receiving it, does not seem to me to be a particular onerous matter, particularly where he says he has flexible employment, and where, presumably, he has a lunch break or some other break where he could read messages. I understand why he wouldn’t want to do so at work, but to be fair it seems to me that he was being more difficult than the circumstances warranted.
The situation got a little worse in that the mother, notwithstanding the father’s message, decided to text him about a child’s birthday party. The father responded with:
Stop messaging me and start emailing me if you expect a response on either of your last two messages.
I have read the mother’s messages which appear as annexure “E” to her affidavit. There is nothing rude or aggressive about the messages. They are entirely appropriate. Indeed, the second one starts with:
Sorry to message you.
The father followed up this text message with an email of 8 April 2019, which is annexure “F” to the mother’s affidavit:
Ms Deckert, I don’t understand why it is so hard for you to respect my request regarding communication. After several reminders, you still wish to communicate by any other means. This is a direct sign of disrespect and I’m not going to entertain it. Please leave my parents out of the communication as the decisions are not theirs to make. And unless this issue is addressed in an email, I will treat it as if I haven’t been informed. Text messaging is for emergencies only. Mr Watts.
The context to that particular email was a rather unfortunate situation where the mother had previously been communicating with the paternal grandfather in relation to handovers and, generally, any other issues to do with the children as she says it was easier than communicating with the father. I accept her evidence about that.
She says that on this particular occasion, 8 April 2019, that the father was effectively complaining about the mother dealing with his parents in any way, which strikes me as inflexible, but also unrealistic, and I would think unreasonable.
If the paternal grandparents were involved in handovers, it is only logical, reasonable and appropriate to be able to communicate with them at least at a basic level. The father it seems to me adopted a double standard in this regard. He demonstrated a contentment to involve his parents to some extent and on his terms, but that same flexibility did not apply when it came to the mother.
In September of 2019, the mother requested of the father that the children be able to be removed from daycare to spend time with the maternal grandfather who was visiting. He normally lives in Country N but works in Western Australia. I accept the father’s evidence that the children had already missed one day of daycare to see him.
The mother specifically asked the father if the children could spend some time with him on the Monday before the maternal grandfather left. The father refused. His email to the mother stated that:
The girls do swimming lessons on Mondays and do other things. As far as I’m concerned, your father, through his own choices and lack of accountability isn’t a fixture in our children’s lives, let alone any of his own children’s lives. I’d be surprised if Y even remembers him. And, honestly, they don’t need someone that unreliable in their lives. So I believe the disruption to the day care routine or otherwise is warranted at all.
I think he meant to say, “is not warranted.” Certainly, that’s how it was intended to read.
Interestingly, the father went on to say that he was going to Sydney next Saturday night for an engagement party and he offered the children to stay with the mother while he was away - which she agreed to do.
The father prioritised one day at daycare or at swimming, one day of extra-curricular activities, over the children having an opportunity to spend some time with their grandfather. The maternal grandfather may not have played nearly the role in the children’s lives that the paternal grandparents have, no question about that. The paternal grandparents parents have been much more involved. But it strikes me as rather callous of the father to deprive the children of a chance to spend time with their granddad on this occasion and for the reasons that he gave. It was, in my view, an example of inflexibility of the kind that the Family Report writer expressed was a relevant issue in this case in terms of parenting arrangements.
Around this same time, the father also sent a highly disparaging message to the mother in relation to her re-partnering. She had apparently used the words “we” and “us” in communications in the context of being in a relationship with Mr G. The father emailed the mother on 14 September 2019 to say:
I’ll drop them off around the same time as last week, probably. What’s this “we” and “us” shit? They’re your kids, not the little helper boy you’re using to make your life easier.
This message was disparaging, critical and entirely “disrespectful” to borrow the father’s expression. It was disrespectful of someone he did not really know, but he did not need to know Mr G to know that he did not like the fact that he was in a relationship with the mother.
Mr G had done nothing to offend the father. These parties, like many people who come before this court, have to be able to get on with life despite being separated. The father’s email was not only aggressive, but in my view it was bullying. It was not conducive to positive communication between the parents at all. Indeed, it was a disincentive to communicate in an open and honest way from the mother’s perspective.
There was another unpleasant exchange between the parties in October of 2019 wherein the mother had made some arrangement directly with the paternal grandmother whereby the paternal grandmother was going to collect the children from the mother. The paternal grandmother was going to pick the children up after she finished work. In this respect the mother said to the father:
Your mother has offered to pick them up after she finishes work, but I’m more than happy to drop them off any other time you like. I haven’t corresponded with your father, but I will send him a message now to see what he suggests
to which the father responded:
Sort your own shit out. There is no drop-off because I pick the kids up after work. Stop contacting my parents altogether.
This was unhelpful, unnecessary, inflammatory and demonstrated a complete lack of flexibility on the father’s part.
Against that backdrop the mother took Y to the doctor, who detected a medical condition. The mother did not tell the father about that. She should have. Even if it was a matter that was not seen as urgent – as indeed it clearly wasn’t – the fact of the matter is that, as Mr Levick observes, anything to do with a child’s health is inevitably a concern to a parent; I absolutely accept that.
The mother should have communicated that finding to the father; there is no question about that whatsoever. I accept that her failure to communicate may in part have been because of the communication style adopted by the father, but, nonetheless, this was a failing on her part. When the father discovered in May 2020 that the child had had an ECG he was understandably somewhat shocked or at least surprised.
The mother also indicated that she was very much intending to have the children, but particularly X, attend the B School. But she had signed an enrolment form at Town E, which had always been the agreement between the parents. The father had acted on that basis.
I understand why the mother, who was lived at Suburb H then, wanted to send the children to B School because it is a short trip for her, whereas it was a significant drive to and from Town E each day, some 25 minutes each way, which would have been something of an imposition.
The mother had her then solicitors, Toronto Legal, write to the father in relation to this matter but also indicating that the mother would be sending X to B School – and she did so. She filled out the enrolment forms, and that is where the child ended up starting school notwithstanding that she had attended her preschool period in Town E and that she had friends there.
The proceedings were then commenced, effectively, by the father in this court.
The matter came on for interim hearing before her Honour Judge Terry in March of 2020. On that occasion her Honour made orders that the children live with the father from conclusion of school or 3 pm Wednesday until 10 am Sunday and with the mother from 10 am Sunday until 3 pm or conclusion of school Wednesday. This was effectively four nights with the father, three nights with the mother, but essentially a “shared care” type of arrangement.
Her Honour specifically ordered that the child X was to attend B School. Her Honour did so by way of order that the parties not disturb the child’s enrolment there.
The father went about the schooling issue in the proper manner. He litigated the matter before a Judge, he did not take the law into his own hands. As it happened, her Honour Judge Terry, who previously had the conduct of this matter, determined that it was best in the interim to leave the child where she was at B.
The father should be given credit for going about this issue in the way that he did. The fact of the matter is that the issue of schooling was ultimately, at least in the interim, resolved by a Judge.
In terms of the subsequent events, those interim parenting orders have continued since that time whereby the children have been spending four nights with the father and three nights with the mother each week.
There have been some ongoing difficulties between the parents, but things have improved to an extent.
The mother complains in paragraph 112 of her affidavit that in June of 2020 she contacted the father to ask:
Is there a reason X wasn’t at school today?
He responded:
Yes.
She asked:
Can you please tell me why she was absent and if she will be absent tomorrow.
He responded:
She was apparently unwell. I don’t appreciate you prying into my time with the children. If something is wrong I will inform you.
The mother complains that the father accuses her of prying, which is, in my view, emblematic of and consistent with the phenomenon in this case. There are two very different households with two different sets of rules, and to a very large extent these parents “parallel parent” these children. While it could be said that the father’s initial response “yes” could be seen as passive/aggressive – probably it is – equally, the mother’s initial question was:
Is there a reason X wasn’t at school today?
which I could read as being accusatory.
And I suspect, having seen the father in the witness box, given his lack of trust of the mother and what seems to be his attitude that she sets out to “rile him up” – that he would have interpreted her initial question as an insult or at least as a question mark about whether he was a good enough parent.
But really the key point about that is the two different households – the my house / your house phenomenon that arises in this case.
In the same way, I might add, the father complains about the mother sending toys on visits with the children. This seems to have occurred in June 2020, as best I can discern from the evidence. (Although in the affidavit material the event seems to be a little bit out of chronological order if it was 2020 rather than 2019.)
In any event the father complained about the mother sending toys with the children to his place. She says that he emailed her on 3 June saying:
I don’t want toys from your house coming to my house anymore. It has become clear that you’re trying to manipulate the children into being dependent on you while they’re not in your care, and I don’t encourage that behaviour at all.
The mother responded that she had asked the girls if they wanted to take their favourite toy with them to his house, but she did not push them to do so. She said that certain of the toys were “comfort toys”. As with the issue of belongings not passing between the two houses, this again is an illustration of the sometimes abrupt, difficult and accusatory communication style that the father can sometimes adopt, but it is also evidence of the two totally different household environments for the children.
And, in the same way, on 17 August 2020 the father sent the mother a report from Y’s preschool which required parental engagement and completion. But despite him emailing the report to her for input, she did not reply or engage in that process. At the very least the mother could have said to him, “Thanks for sending me that report, Mr Watts. I have nothing that I want to say.” The absence of a response sometimes can be just as frustrating or irritating as responding in a negative way.
The father also legitimately raises an issue about the mother being unwilling to change the handover location at his request. Effectively it involved her walking a couple of hundred metres from the original school collection point. Her refusal to do so came at the cost of what was 15 to 20 minutes of additional driving time for the father.
Changing the handover location would have been a small sacrifice by the mother, one would think, in the interests of working together. The mother acknowledged that commuting times could be difficult, particularly around school. Anyone who has driven in a school zone understands that 2.30pm - 3pm and the like is usually a difficult, if not frustrating, time to be on the road around a school zone.
So to be fair, as I indicated earlier on, both parents have at times, perhaps, not put their best foot forward, but they’ve done the best that they can.
The law:
In terms of the law these are, of course, parenting proceedings that arise pursuant to the provisions of Part VII of the Family Law Act. There are a number of key objects and principles which underpin Part VII that are set out in section 60B. Mercifully for everyone, I do not intend to restate them here.
When deciding whether or not to make a particular parenting order I have to have regard to the best interests of the children as the paramount consideration: section 60CA. This requires me to have regard to the two so‑called “primary considerations” in section 60CC(2)(a) and (b) and the fourteen so-called “additional considerations” in section 60CC(3).
“Parental responsibility” is defined in section 61B as:
…as the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61DA imports a rebuttable statutory presumption that, when making a parenting order for children, it will be in the children’s best interests for the parents to be allocated equal shared parental responsibility.
Once I make such an order, section 65DAA of the Act is engaged. This requires that as the as the first option I consider making an order for the children to spend equal time with the parents if such an order is in the “best interests” of the children and “reasonably practicable”.
If an equal time order is not in the best interests of the children or is not reasonably practicable, then I must consider an order that the children live primarily with one parent but that they spend “substantial and significant time” with the other parent as legislatively defined in section 65DAA(3).
In particular, “substantial and significant time” includes time not just on weekends and holidays, but also time apart from weekends and holidays. It includes time which enables a parent to participate in occasions and events that are of particular significance to the child.
The law has come a long way since the early days of the Family Law Act when one parent had “custody” and the other parent had “reasonable access” which ordinarily connoted weekends and holidays. Clearly, the legislation is now designed to maximise - within reason, and where in the best interests of children and reasonably practicable – the mutual engagement of both parents to the maximum extent that works to be in the best interests of the children concerned.
“Reasonable practicability” is a relevant consideration in section 65DAA as it goes to the very jurisdiction of the court to make an order. On one view, reasonable practicability is every bit as important as best interests. I can’t make an order that is not reasonably practicable. It is a jurisdictional finding, as was made clear by the High Court in MRR & GR (2010) FLC 93-424. Frankly it seems to me that “reasonable practicability” stands at much the same level as “best interests”.
In MRR & GR the High Court emphasised that reasonable practicability involves a consideration of the reality of the situation of the parents and the children, not whether it was merely desirable that there be equal time or some other time arrangement. The presumption in favour of equal shared parental responsibility does not determine the questions [as to the appropriate time orders] arising under section 65DAA.
Each case, of course, turns on its own facts. No two parenting cases are the same. No two children are the same. No two parents are the same.
Best interests:
Turning then to best interests findings, I have made a number of findings already which engage the various best interests considerations set out in section 60CC. Nothing I say should be interpreted as taking away from any of those earlier findings, but I am endeavouring not to be unduly repetitive.
In terms of the primary consideration in section 60CC(2)(a), the children in my view would benefit from having a meaningful relationship with both parents. That is how the case was argued before me and, in my view, it is absolutely correct. I have before me two people who greatly love these children and who are good parents.
This leads me to observe that in Mazorski & Albright (2007) 37 Fam LR 518, Brown J held that “meaningful” in this context is a qualitative adjective rather than a strictly quantitative one. It is a relationship of meaning, of substance, to the child.
In a different context, albeit a relocation case, Kay J, sitting as the Full Court in Godfrey & Sanders [2007] FamCA 102, held that “meaningful” under section 60CC(2)(a) does not mean “optimal”.
In my view, the children would have a meaningful relationship with the father and with the mother whichever parent’s order I make - whether it be a 9/5 fortnightly arrangement in the father’s primary care or in the mother’s primary care.
In terms of section 60CC(2)(b) - protecting the children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence - this is one of those happier cases which has made it all the way to a trial through the Federal Circuit Court of Australia in which in truth neither party advocates any particular “risk” to the children. It may be little comfort or interest to these parties but there are a great many cases this court hears in which children are directly at risk from the violent, aggressive behaviour of parents or from other dangers and harm of which counsel and the solicitors no doubt are very experienced.
This is a case happily in which as I have said – I have got two good parents.
In terms of the additional considerations, the children X and Y are too young to express any views that could be taken into account.
Mr Levick observes that there is evidence that the mother has involved the children to some extent in the litigation by talking to them about different court events. She says she did so in a way to explain in as neutral terms as possible what was going on and I accept as a general proposition that that is what she did.
I do not consider, in any event, that the views of the children in this case are either reliable or relevant in any serious way. No one suggests otherwise.
In terms of section 60CC(3)(b) - the nature of the relevant relationships - the father and the children have a loving relationship. His parents also see the children regularly and have a loving relationship with them. The mother obviously sees the children regularly and has a loving relationship with them. As does Mr G. There are also other family members, the maternal grandmother and her sister and various others. The children have good relationships with their family.
The child X no doubt has relationships with children in her school and no doubt, Y, has relationships with the children at Town E where she attends daycare. The children have positive loving relationships with everyone relevant and significant in this case.
In terms of section 60CC(3)(c), both parents have participated in decisions about major long-term issues with respect to the children. They have participated in two mediations. Each of them has been an active and an involved parent.
Apart from the very briefest period in relation to X, for which the father expresses regret (which I accept), it cannot be said that he has been anything other than an active parent to her. It cannot be said that the mother has been other than an active parent to the children either. Both parents have fully participated.
In relation to section 60CC(3)(ca), both parents have, in my view, maintained the children to an appropriate standard. In the father’s case, he had no legal, no strict liability to do so for X in terms of the child support scheme in this country.
In relation to section 60CC(3)(d) - the likely effect of any change in circumstances - this was a matter particularly pointed to by Mr Levick on behalf of the father. He observes that under the current regime, the children have been spending eight nights with the father, six nights with the mother each fortnight for quite some time. And, indeed, to be fair, post-separation, they have spent more time with the father than they have with the mother.
He submits that for me to change that arrangement so that the father has five nights per fortnight rather than eight will be a bigger adjustment for the children than if the mother has five nights with them instead of six as the father seeks.
The children have coped with change in their life in a number of different ways. Clearly, there has been some disruptions and behavioural dysregulation at times, but I accept that in a strict quantitative time sense that there is some force in Mr Levick’s submission.
There would be a change in school in terms of, effectively, X, but ultimately both children because they would end up at Town E if they lived with the father or they would remain at B if they were with the mother. Again, I think the children would cope with any such change.
I do not think that these children in terms of either parent’s proposal would experience a radical change. I observe that although the father has been the primary carer on paper and, indeed, in reality, since separation, the mother has always had a very significant role. I am satisfied the children will adapt and adjust to whatever set of orders the court made in that context.
In relation to section 60CC(3)(e) - the issue of practical difficulties and expenses - the parties live about 25 minutes apart. There are some practical difficulties that are frankly rather more in the nature of a nuisance than anything else. I don’t see them as a major issue in this case. The parties effectively concede that if the father is successful, that X should go to Town E school; if the mother is successful, then she should continue at B. This simple acknowledgement reflects the practical reality of this case and also the decision of the Full Court of the Family Court in Re G: Children’s Schooling (2000) FLC 93-025 which is really a statement of common sense as much as it is a statement of the law in terms of practicalities for the primary carer.
In terms of section 60CC(3)(f) and s 60CC(3)(i) - parenting capacities and attitudes - I have indicated at the outset that both parents can be criticised in relation to things they have done.
In the father’s case, it is more the sending of aggressive messages and demonstrating an air of judgment or, perhaps, superiority at times over the mother, which I don’t think he fully acknowledges or has complete insight into.
In the mother’s case, it is a matter of really not communicating with the father and not informing him about matters. I accept that the mother has to some extent involved the children in the litigation. It seems to me that although she did so perhaps more than the father did, that the father’s own evidence at paragraphs 110 and 114 of his own affidavit indicate that he has himself had discussions with X about which school she wants to go to, and does she still want to go to Town E, etcetera.
Much was made of the mother’s negative commentary about X’s relationship with the father to the Family Report writer. And it was a matter the Family Consultant took on board as being a relevant concern. Certainly, the mother was quoted at paragraph 24 as stating that the relationship between X and the father was:
I don’t think she likes him very much. Every week, she says things like, “I don’t want to go back to Daddy’s. I want to live here. I hate Daddy. I want to see him twice a year or just on my birthday. Daddy smacks really hard.
She said that X also said that she doesn’t get along with the father as well as Y does; that X was a bit resentful because the father believes Y’s stories over hers although she couldn’t validate the truthfulness of that.
True it is that the mother presented in a somewhat negative way to the Family Report writer about the father’s relationship with X. Superficially, it could read as raising a concern that the mother would not promote the father’s relationship with X if she became the primary carer.
I have seen the mother in the witness box. I have heard her evidence about this. While she talked about the child saying these negative things at times - that she doesn’t like the father – the mother also acknowledged that the child loves the father, and that liking the father is part of loving him.
The mother’s actions over the years speak louder than those words to the Family Report writer. She has fostered the father’s relationship with X from the very outset. Save for the period where she retained X in 2018 relating to Centrelink issues, I see no evidence that the mother would frustrate or seek to diminish or limit the father’s relationship with her. She could certainly have attempted to do so had she been that way inclined. She could have sought out X’s biological father Mr D to say:
Hey, I want you to play a role. I can’t stand Mr Watts anymore. Why don’t you join the litigation.
The mother has done nothing like that. She has over the years promoted, fostered and encouraged that relationship in the same way that when she withheld the child for a period in 2018, that was as much an aberration on her part as the father’s earlier aberrant decision not to see X.
I do not see as a serious risk in this case that the mother would not foster the relationship between the father and X.
There is an unknown in terms of the long-term impact of each parent’s attitudes towards the other parent in terms of the impact that might have on the children. Whatever negative attitudes the mother may have displayed to the Family Report writer or whatever negative comments she may have made, the fact of the matter is that the children do not seem to have been impacted by any negativity from either of the parties.
In the same way, the father’s messages to the mother do not seem to have affected the children; in no way do the children seem to have been exposed to those.
Whichever parent ultimately has these children, there is a risk that that parent may deliberately behave or, perhaps more subtly or insidiously behave, in a way that impact the other parent’s relationship with the children. I do not take the view that the mother poses any higher risk than the father on that issue on the evidence before me.
I should also say in the context of attitude to parenting that the father has significantly involved himself in the children’s lives particularly X who is not his biological child.
In terms of section 60CC(3)(j) and (k) - family violence and related issues - some of the communications between the father and the mother may amount to family violence or something akin to it, but I do not see this as a family violence case. I do not see this as so much an issue of family violence as about communication, flexibility and the ability to work cooperatively going forward. And I should also record here that the evidence pointed to in relation to the father’s negative communications with the mother, etcetera predates the Family Report - save perhaps for the toys event. But even the toys event would pre-date the Family Report interviews. It is a fair observation that things have settled down to some extent between the parents.
In terms of section 60CC(3)(l) - whether it would be preferable to make an order least likely to lead to the institution of further proceedings - I certainly intend to make orders that are less likely to lead to further proceedings, but there are no guarantees going forward. I have little doubt there will be difficult issues to negotiate in relation to X in the not-too-distant future when her biological parenting is raised with her. (She has been attending the Anchor Program, and both parents have worked together in that respect.)
The statutory pathway:
I turn then to the statutory pathway identified by the Full Court of the Family Court in Goode & Goode (2006) FLC 93-286 and specifically the issue of parental responsibility.
In this case, both parents agree that there ought to be an order for equal shared parental responsibility. Strictly speaking, section 61DA is not engaged in the case of X so far as the father is concerned because in my view he does not fit within that definition of being a “parent” in that section. However, that is a legal nicety that has no real relevance here because the parties agree that there ought to be equal shared parental responsibility.
The father has in every way acted in loco parentis to the child, and in my view it is appropriate for there to be an order for equal shared parental responsibility. I accept the parties’ joint position about that as embodied in exhibit 4.
I am then obliged to consider section 65DAA as identified in Goode & Goode. The first option I am obliged to consider is equal time: section 65DAA(1).
I do not intend to make an equal time order which would come as no surprise to anyone in this case. The fact of the matter is that neither party advocates for it, neither party wants it. I also consider that such an order would not be in the best interests of the children nor would it be reasonably practicable. I say that because although the communication lines may have improved between the parents in recent times, they very much remain two very different households with two very different expectations. There is a lack of the necessary flexibility that would be required to make such an arrangement work.
For the same reason, it would not be reasonably practicable to impose such a responsibility on the parents, and such an arrangement on the children. I do not consider that these parents could make equal time work. If they could have, I would have a consent order for equal time sitting in front of me. I do not. As I indicated, I invited the parties to consider such arrangements or such possibilities at the outset of the case, but the matter has instead proceeded to trial.
What then should be the arrangement? Should the mother be the primary carer, with the father having substantial significant time or should the father be the primary carer, with the mother having substantial and significant time?
In the end, weighing up the section 60CC considerations and the other matters to which I have referred, I consider that the “tipping points” are:
· I see the mother as being a more flexible parent, in terms of communication. I see the father as being much more rigid. The flexibility of the primary carer is a significant matter and, in my view, bears directly on the question of who will be better placed to parent the children.
· I consider both parents can foster the children’s relationship with the other, by reference to paragraph 113 of the Family Report. I consider that both can communicate effectively with the other on occasions, but not always. I consider that the mother is the more willing to be negotiable and flexible than the father is.
· I also consider that the presence of the child, C, is a relevant matter. If I did not refer to him earlier pursuant to section 60CC(3)(b), then that is my error. I intended to. He is the little brother of these two children. They love him dearly. They play with him. No doubt they will fight with him, perhaps like cats and dogs when they get older, but he is a sibling to them for all intents and purposes. In some ways, he also has a similar experience to X, in that he lives with the mother, but his biological father is not a feature of his life.
Perhaps in years to come this is a matter that X and C will talk about, but who knows? I see C as an important person, as an important relationship.
· I am also impressed, as I indicated, by Mr G. Although his own affidavit indicated perhaps a litany of negatives about different interactions of the children, his own oral evidence to me indicated a desire and a willingness to support and to continue to promote the father’s relationship with the children. I take him at his word on that, and I consider that he was being honest.
The father did not want to get to know Mr G or to take steps to become involved in at least meeting him. And in my view, this lingering negativity, on his part, is unhelpful and contributes to some of that inflexibility and to his more, perhaps dogmatic approach.
In the end, in what is truly a finely balanced case, with two good parents, I am of the view that the children’s best interests would be better served living with the mother. I propose to make orders to that effect.
Physical discipline:
I need to address one other issue, concerning disciplining of the children.
The mother seeks the injunction to which I have already referred. I do not propose to make the order sought by the mother.
The evidence relating to physical discipline is thin, at best. Mr G talks about X saying that, “Daddy hits hard”, but given the fact that the children have been involved to some extent in the litigation, it is a matter I do not place any great weight on.
The mother earlier agreed to the children living with the father for more nights than with her, which would be incompatible with any serious concern about physical force.
The Family Report addresses the issue of physical discipline. Although the mother identified it as a concern, she does not believe it rises to the level of abuse. She, herself, acknowledged that she has previously smacked the children. Although she says she worries about the force the father may be using, I have no evidence before me that the father has used inappropriate force.
It is not a case where the mother produces evidence of a child coming home with bruising, which sometimes the court sees.
The father, himself, acknowledged that he smacked the kids. But he says it is not a first, second or third resort. It is more if they are going to do harm to themselves or somebody else. I cannot be critical of him for that. I do not see this as going to a best interests issue in any serious way. To make an injunction pursuant to section 68B requires that I be satisfied that such an order is “appropriate”.
I am not of the view that it is appropriate, as that section envisages, for me to make an order that the father be prohibited from exercising his parental responsibility when he has the children. The decision to discipline children is a “day-to-day” issue by reference to section 65DAE of the Family Law Act. The father can make those choices. I do not consider that any unacceptable risk issue arises.
Another difficulty with me putting an injunction in place as the mother seeks, is also that it might cause more rather than less trouble. If X were to say something, even inadvertently, to the mother that suggested that the father had hit her in breach of an injunction, I might re-start this whole sorry litigious exercise, with parties rushing back to court to have a debate about it. And I do not want that, for either this father or this mother, but particularly, for these children.
I am not persuaded that it is appropriate to make such an injunction, particularly where the law otherwise regulates parental disciplining of children, and where these parties have different parenting styles, which is a point I come back to, and I accept Mr Levick’s submissions about.
Conclusion & orders:
In the circumstances, what I propose to do is to make orders in terms of exhibit 4 with some amendments.
I will order that the mother have the first half of the Christmas holidays from 2025 in even years and the second half in odd years which is what was requested. The father didn’t have a preference one way or the other about how those half holidays should run.
I propose also to order that, unless otherwise agreed in writing, the children are to attend B School for their primary schooling. In a sense I am regulating their exercise of parental responsibility, but I really do that to avoid problems. I don’t think there’s any likelihood the mother would change the school, but I want to put out any potential fires before they flare up.
For the above reasons, I now make the orders set out at the commencement hereof.
I certify that the preceding two hundred and fourteen (214) paragraphs are a true copy of the reasons for judgment of Judge Betts
Associate:
Date: 6 April 2021
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