Watts & Watts
[2022] FedCFamC1F 649
Federal Circuit and Family Court of Australia
(DIVISION 1)
Watts & Watts [2022] FedCFamC1F 649
File number(s): SYC 8596 of 2020 Judgment of: BRASCH J Date of judgment: 23 August 2022 Catchwords: FAMILY LAW – INTERIM PARENTING – Where both parents sought orders for international travel with the children – Where father’s application for travel not pressed - Where both parties sought orders for Family Therapy - Orders made by consent.
FAMILY LAW – INTERIM PARENTING - Where parents agree on new school for child but disagree when she ought commence there – Where one party proposes the child start at the new school in Grade 5 – Where the other party proposes Grade 7 - Where older sibling attends that school
FAMILY LAW – INTERIM PARENTING – Where the father sought orders for defined time with the children – Where there has been no material change in circumstances – Where Rice v Asplund (1979) FLC 90-725 not met.
Legislation: Family Law Act 1975 (Cth) ss 60B(2)(c), 60CC, 60CC(3)(a), 106A Cases cited: Edwards & Edwards (2006) FLC 93-306; [2006] FamCA 1230
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Line & Line (1997) FLC 92-729; (1996) 21 Fam LR 259
1 Poisat & Poisat [2014] FamCAFC 128;
Re G: Children’s Schooling (2000) 155 FLR 459; [2000] FamCA 462
Rice & Asplund (1979) FLC 90-725; (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16
Division: Division 1 First Instance Number of paragraphs: 73 Date of hearing: 22 August 2022 Place: Sydney Solicitor for the Applicant: Reid Family Lawyers Solicitor for the Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Medcalf Grant Lawyers ORDERS
SYC 8596 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WATTS
Applicant
AND: MR WATTS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BRASCH J
DATE OF ORDER:
23 AUGUST 2022
BY CONSENT, THE COURT ORDERS:
Family Therapy
1.That the parties do all things and sign all documents to engage in family therapy with Mr B at the C Centre and that the mother ensure the children's attendance at such appointments at such duration and frequency as recommended by the therapist.
Passports and overseas travel to D Region
2.That:
(a)the parties meet the costs of express passport applications equally;
(b)if the father fails to pay his share of the passport application fees, then, these Orders authorise, the payment for the full amount of the passport application fees to be paid from the funds held in Fiona Reid Lawyers Pty Ltd (trading as Reid Family Lawyers trust account), earmarked for the parties Education Fund, and if paid in the first instance by the mother, to be reimbursed to her in full.
3.That pending the final determination of the matter, the passports be held in safe keeping by Mr E as the Independent Children's Lawyer and are not to be released to either party without written authority from both parties or an Order of the Court.
4.That:
(a)pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother be permitted to remove the children from the Commonwealth of Australia between 26 September 2022 to 8 October 2022 for the purposes of taking the children to their aunt's wedding in D Region.
(b)without admissions, the mother is required to send a text message to the father upon her stopover in Melbourne, and upon her arrival in D Region with the children, as to their safe arrival;
(c)without admissions, the mother is required to send a text message to the father upon the stopover on her return journey from D Region, and upon arrival in Sydney with the children, as to their safe arrival.
5.That not less than seven days prior to her departure the mother shall provide the father with:
(a)details of the accommodation in which the children will be staying;
(b)a copy of the children's travel insurance policy; and
(c)contact details for the children for the duration of the trip.
6.That the father agrees not to travel to D Region during the period 26 September to 8 October 2022 except if there is a natural disaster, or other incident in D Region, which renders the mother or her family members with her, unable to get the children out of Country F as expeditiously as possible.
7.That without admissions, the mother shall remove the children from any situation in which a member of her family or any other person is taking illicit drugs in D Region or at any other time.
THE COURT ORDERS THAT:
8.In the event the mother has any difficulties obtaining passports for all or any child due to the forms completed by the father at Court on 23 August 2022, then, pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), and without further Order being required, the mother is permitted to make an express application for and to maintain current Australian passports with respect to the children without the father's consent.
9.If the children or any of them express a desire to spend time or communicate with the father during their holiday in D Region, the mother will do all things to facilitate phone communication between the child(ren) and the father during the trip and will facilitate face to face time between the child(ren) with the father in the week following the child(ren)'s return to Australia.
10.The mother has leave pursuant to s 121 of the Family Law Act 1975 (Cth), to provide a copy of this order to Department of Foreign Affairs and Trade, the Passports Office, or any Visa providers as may be required to facilitate the children spending time overseas, as provided for in this order.
Enrolment of Z at G School in 2023
11.That the parties do all things and sign all documents to enrol Z at G School commencing in year 5 in 2023.
12.That:
(a)if there are insufficient funds in the Education Fund to meet the school fees and school expenses for all children to complete Year 12 and if the shortfall is in excess of the costs of Z's early enrolment at G School (that shortfall being defined as the difference between what Z's fees would have been at H School in Years 5 and 6 and what the parties paid to G School in Years 5 and 6 ("the shortfall")), then at that time, in addition to the mother's obligation to meet 50 per cent of the children 's expenses pursuant to Order 9 of the Orders made 23 May 2022, she will pay the shortfall;
(b)if the deficit is equal to or less than the shortfall, the mother will meet, by way of Child Support Departure Order the shortfall.
13.The oral application made on behalf of the wife with respect to monies in trust is dismissed.
14.All other interim applications are dismissed.
THE COURT NOTES THAT:
A.The parties have already engaged with Mr B who has indicated that he will first meet with the parties individually with the first appointment scheduled on 19 September 2022.
B.The father indicated in court he is happy to sign the passport applications for the children and will do so at Court this afternoon (23 August 2022).
C.It is noted that the parties entered consent orders on 23 May 2022 for the establishment of an Education Fund.
D.The orders of 23 May 2022 provided for $300,000 (less agreed expenses already met by the mother) to be placed into an Education Fund to meet the children's school fees, school related expenses and other expenses as agreed.
E.Order 9 of the orders of 23 May 2022 provided that if there are insufficient funds in the Education Fund to pay the expenses, then by way of Child Support Departure Order, those expenses shall be met equally by the parties as and when they are due.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Watts & Watts has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
These are my ex tempore reasons. A copy of these Reasons was requested by the ICL. I have corrected the reasons from the transcript, but only in so far as correcting grammatical errors and making the oral reasons more amenable to the written word.
This is an Application in a Proceeding filed by the mother on 17 June 2022 seeking, essentially, three sets of orders. First, permission to travel with the children for her sister's wedding in D Region from 26 September 2022 to 8 October 2022. She also sought orders to facilitate the securing of passports for the children.
Second, the mother sought an interim order for sole parental responsibility for major long-term decisions, or, in the alternate, that the current equal shared parental responsibility order be discharged. The effect of that would be that each parent would have parental responsibility under s 61C of the [Family Law] Act.
The third set of orders concerned changing the school to be attended for the parties’ youngest child, Z, from H School where she currently attends, to G School, which is attended by her sister Y. The parties agree Z attend at G School - the issue is when - Grade 5 next year for the mother, or Grade 7 for the father.
The mother handed up a proposed Minute of Order, which became her Exhibit 1. The Minute of Order proposed family therapy in addition to the three themes of orders already discussed.
The principle relief sought by father in his Response to an Application in a Proceeding filed 12 August 2022 was to vary the parenting orders that were made after a contested hearing on 13 April this year before a Senior Judicial Registrar. Relevantly, those orders suspended previous orders for the children to spend specified time with the father. Order 2 of that order provided:
That children shall spend time with the father in accordance with their wishes and by agreement between the parties. For the purposes of this Order, in the event the children express a wish to spend time with the father the mother shall do all things to arrange and thereafter facilitate that time with the father.
The father did not review those orders. Instead, the father, before me yesterday, sought the following orders with respect to time:
That the current time with the father be amended from "as per the childrens wishes" to a defined schedule as per the following.
a. [X] and [Y]- every second Saturday and Sunday from 12pm to 5pm notwithstanding sport arrangements and with the father to take the children to sport, if that is required during his time with them.
b. [Z]- every Saturday 12-5pm with supervisor to be paid for by the father for the first 4 weeks pending a report then as per the schedule of [X] and [Y]
(Response to Application in a Proceeding filed 12 August 2022, paragraph 7)
As already observed, the “children’s wishes” orders were only made about 18 weeks ago.
The father also sought orders responding to the mother's application, in short that her application for sole parental responsibility be dismissed; Z attend G School in Year 7; both parties be able to take the children outside of the Commonwealth including the mother’s proposed trip to D Region, but on the basis he could have [specific] make up time.
The Independent Children’s Lawyer (“the ICL”) provided a comprehensive case outline and set out his position on each of the live issues.
Background
Mr Watts (born in 1976) and Ms Watts (born in 1973) married early 2004 and separated in August 2020. Ms Watts moved out of the family home in late 2020 with the children. There are three children of the relationship, namely X (born in 2008), Y (born in 2010) and Z (born in 2013).
On 7 January 2021, consent orders were reached for the children to live with Ms Watts and spend time with Mr Watts: in week one on Monday and Tuesday from 3.00 pm to 7.00 pm; and in week two on Saturday and Sunday from 9.00 am to 5.00 pm.
I have already referred to the more recent time with order (the wishes order) of April 2022 above.
I will not go into the further history of litigation in this matter, suffice to say it has been on foot for some time, being 2020, but the matters that were before me yesterday afternoon were quite narrow and discrete. Looking at both parties' material, it would be fair to describe this matter as one of high conflict. No one cavilled with that description when raised by me in court.
Evidence
The applicant mother relied upon:
·Application in a Proceeding filed 17 June 2022;
·Affidavit of Ms Watts filed 16 June 2022;
·The Single Expert Report of Ms J dated 8 April 2022 (“the Family Report”); and
·Outline of Case.
The respondent father relied upon:
·Amended Response to an Application in a Proceeding filed 12 August 2022 – I have a document of that date but it is not called ‘amended’. In any event, having worked through the orders sought by the father with him, I am satisfied I have the correct document before me;
·Affidavit of Mr Watts filed 12 August 2022 (although actually filed 5 August 2022);
·Outline of Case Document filed 18 August 2022; and
·The father took me to a document contained within his tender bundle, being an email from a school principal, but I did not need to receive that into evidence as it was attached to the mother’s affidavit
The ICL relied on the Single Expert Report of Ms J dated 8 April 2022.
Principles
I now turn to the principles that I must turn my mind to, as they fall within Part VII of the Family Law Act The orders sought by both parties fall within Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Part VII as follows:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Albeit of course those presumptions can be rebutted or otherwise found not to be in the children’s best interests.
Best interests of the child
Section 60CC of the Act sets out the list of matters that the court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
(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.
In balancing these considerations, s 60CC(2A) of the Act requires the court to give greater weight to the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I am ultimately required to act in the best interests of the children.
When it comes to overseas travel and change of schools, authorities such as Line & Line (1997) FLC 92-729 (particularly at paragraphs 4.49 to 4.51) outline what I ought consider for overseas travel, whilst decision such as Re G: Children’s Schooling (2000) 155 FLR 459 (“Re G”) identify the considerations for a change of school.
For the father’s application to vary the parenting orders of April 2022, I raised with him and have turned my mind to Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) for the material change of circumstances consideration. I have also turned my mind to Goode & Goode (2006) FLC 93-286 (“Goode & Goode”) for hearings of interim parenting applications.
The applications
Family Therapy
The parties agree I make the order for family therapy as proposed by the mother in her Exhibit 1. Despite the misgivings expressed by the Family Report about the prospects of this proving successful, I will make that order. The correspondence attached to the material indicates these parties need to re-set how they deal with each other and perceive each other. Even a modicum of success will be of benefit to the children and in their best interests.
The wedding in D Region
Ultimately, the parties agreed on a form of orders for the mother to travel with the children to D Region on the specified dates in September to October 2022. I am content to make those proposed consent orders.
I am satisfied the mother is not any kind of flight risk, with all of her roots, family and connections in Australia. Nor do I have concerns that she may go to Country F to go to another country. Nor am I satisfied on the balance of probabilities that the mother posed some kind of unacceptable risk to the children from her apparent anxieties, or from the medication she takes. When I look at the idea of going to another country, as I have said, all of her roots are well and truly, firmly in Australia. The father, quite appropriately, eschewed the idea that I find Country F is an inherently unsafe place. His concerns about the mother's health, or something catastrophic occurring, either within D Region or to the mother when away for the 12 or so days, were accommodated by amendments to the mother's proposal with which the parties agreed to yesterday and a slight variation on one of those orders that they have agreed to this afternoon.
The ICL also supported the travel orders.
The mother’s Order 10 on her Minute of Order was for make up time on the provisos set out in its terms. The father opposed this order, wanting instead specific day time time with the children before and after the holiday. I will make the Order proposed by the mother; I do so because it is in keeping with the spirit of the April 2022 order of a Senior Judicial Registrar. I will, however, separately consider the father’s wider application for specific time later in these Reasons.
As for the children’s Passports, the evidence before me is that the father had completed forms previously, but erroneously so. Having told me during the interim hearing that he agreed to signing the passport forms, I stood down to allow that to happen. However, the father signed in the wrong place; he said that was the agent for the ICL’s fault in letting him sign where he did. [The father later contacted Chambers saying he did not blame the ICL. Nothing turns on whether he did or did not; the point was the form was again wrong.] Whatever the circumstance, the holiday looms and passports need to be obtained. I will therefore make an order, which is not by consent, that if the father was able to complete the forms yesterday afternoon, well and be. But if his completion of the forms presented any difficulty for the mother in obtaining the passports, then the need for his signature would be dispensed with.
I have also added an order that the mother be at liberty to provide a copy of this order to the Department of Foreign Affairs and Trade, any Visa providers and Passport Office to assist her in obtaining the passports. I did not raise that with the parties yesterday but I consider it simply to be a machinery order to facilitate the securing of passports.
Parental responsibility
The next issue that arose for consideration was the mother’s application for sole parental responsibility on an interim basis, or the alternate, as I have already set out, that s 61C of the Act [apply].
The father and ICL opposed this order. The ICL said that it would be premature on an interim basis to consider the allocation of parental responsibility, and ought be left for consideration once the evidence was tested at trial.
To her great credit, Ms Reid for the mother accepted that once I determined the schooling issue and the travel issue on an interim basis, then, there were no other identifiable major long-term issues, which raised the application of parental responsibility. I accept that to be so.
I also accept what the ICL said: that the allocation of parental responsibility would be better considered once the evidence was tested, as occurs at a trial.
I also accept the ICL's written submissions that to remove parental responsibility from the father on an interim basis would be to curtail a significant aspect or symbol of being a parent, in circumstances where the untested evidence is that the father wants the best for the children, wants to be involved with them, and loves them dearly.
On those bases, I decline to make the parental responsibility orders sought by the mother. Nothing I say here however precludes, or in any way fetters, a fulsome consideration of the allocation of parental responsibility at trial.
Schooling
I now turn to the issue of Z’s schooling. Again, this falls within Part VII of the Act and ultimately the paramount consideration is Z’s best interests, indeed the children’s best interests.
Re G, is a long-standing authority. It tells me:
·That the parent, with whom the children live, has no ‘right’ to decide the school, but as a separate practical issue, “[s]o far as s 60B(2)(c) is concerned, and with no criticism of the husband, the duties and responsibilities fall more heavily on the wife on a day-to-day basis” [33] and [65];
·Any prior agreement does not foreclose the court’s consideration of schooling nor restrict the court’s jurisdiction to do so [34];
·My consideration of this issue falls "against the backdrop of the objects and principles set out in s 60B, and taking into account the relevant factors in s 68F (as it then was) of the Act” [12] and [66];
·Children’s wishes are to be considered, but now I would of course do that under s 60CC(3)(a). However, as was also said in Re G at [53], there is no presumption that decisions should accord with expressed wishes and it is not to be expected that lengthy reasons for departing from expressed wishes is the equivalent to showing "good reason" for doing so” [53]; and
·Further, the children’s wishes fall within a raft of other considerations [67].
In this matter, both parents agree that Z should attend G School; the only issue is when. The mother proposed she follow her older sister there and commence in 2023 for Year 5.
The father opposed this and proposed that Z not start until Year 7.
The ICL's position was it was too premature to consider this application and that more evidence would be needed. I am, however, unsure what that additional evidence would be. For example, there was no application that a single educational expert be appointed with respect to this issue.
The parties conferred $300,000 on an educational trust for the purposes of the three children's schooling. Agreed expenses have been taken out from the fund per the 23 May 2022 order. Contrary to that order, the funds are not being invested in interest earning accounts.
The mothers case with respect to schooling was that:
·Z has been very unhappy at school this year;
·H School has become involved in the adult dispute;
·A change of school is indicated by Z’s therapist;
·Z will be able to apply for a scholarship for a reduction in fees if she attends there;
·The mother currently has three children at three different schools: the logistics will be better for her if that is reduced to X at his school and the girls at the same school in circumstances where the mother is “also trying to hold down a full time job”;
·It was the mother’s case that the funds in the Education Trust will be sufficient to cover these two extra years of fees. If not, the mother had an alternate order that she will meet the difference between the costs of H School for Grades 5 and 6, and, that which G School will charge if Z goes there earlier than Year 7.
On 14 June 2020, Z’s psychologist said this:
I have been providing psychological treatment to [Z] since May 2022. It seems that there are several psycho-social stressors that are a precipitating factor causing psychological distress, challenges in managing emotional overwhelm and dealing with overwhelming stress. Although, the recent family breakdown seems to have caused challenges with adjustment to change, [Z] has reported a major component to her ongoing lapses in mental health are related to schooling issues including isolation/bullying, and relationships within the educational system including teachers. The school are aware of these ongoing issues and have indicated they are working with and supporting [Z]. On the other hand, [Z] has reported she is not comfortable with her current school due to the above-mentioned complaints. [Z] has indicated change of school, in which, I recommended exploration of resolving the social schooling issues prior to making a definitive decision.
(Mother’s affidavit filed 16 June 2022, p.72)
It falls to me however, given the mother has brought an application, which the father opposes, to make that “definitive decision”, but within the wider Re G principles, I have articulated.
The father's case in opposing the early entry of Z to the school was as follows:
·Z was unhappy but that has improved;
·The father's main opposition to this earlier entry to G School was one of money: that the Education Fund (which I pause to note has more than $250,000 in it right now and not earning interest) would be unable to meet the costs of these two additional years. But the mother, said there would be sufficient funds. I indicated to both parties at the hearing that I would not engage in some prognostication of financial planning to work out what the Fund might be able to do, or not, over future years. However, the order proposed by the mother was that she will meet any shortfall in the Education Fund, in the way I have already outlined;
·The father next said Z’s teachers and principal do not support the move – but I have no evidence of that from them, other than the father’s say so;
·It was said that the H School Principal is good - but that said, the father had not engaged with the G School Principal to gauge whether he or she is good as well (I note Y is attending there already);
·It was next said that if Z is at the school she cannot apply for a scholarship – the parents are in dispute about that – I cannot resolve it;
·H School has very good supports and networks for very vulnerable children – the father, appropriately, accepted G School did too, which is not surprising given the parties have sent Y there.
As part of the father’s submissions, he read to me part of a letter from the principal from 14 June 2022 this year, who described Z as:
During Term 1 (2022) [Z] was presenting at school as a very unhappy child. As the term progressed she became more withdrawn both in. [sic] the classroom and on the playground. Discussions with her class teacher, [Ms K], indicated that she was not completing work to the standard of her capability. She was also quite disrespectful in the manner in which she engaged with students and with her teachers at times.
I had several discussions with [Z], many at her request, and she indicated to me that, in summary, she felt [Ms K] ‘picked on her’ and didn’t like her. This was despite her getting regular rewards and awards other very positive feedback from her teacher.
I had some discussions with Alic’s [sic] mother regarding this situation during the term but [Z] continued to feel she was being picked on.
When we returned for Term 2 I scheduled a meeting for [Ms K], [Ms Watts] and myself to meet on May 2 after [Ms Watts] had indicated there was a further escalation to [Z]’s unhappiness at school.
(Mother’s affidavit filed 16 June 2022, p.70)
The letter goes on to add that a condition for Z to change class was:
[Z] was to receive some external professional support to assist the improvement of her wellbeing. [Ms Watts] agreed to both of these conditions.
We also agreed that it was not the fault of the teacher that this had come to be a problem for [Z], it was a matter of a teaching style that did not suit [Z]’s perception of what was taking place, as well as a number of challenges at home that had impacted [Z] over a period of time, including the sale of the family home and discussion of changing schools.
(Mother’s affidavit filed 16 June 2022, p.70)
That email continued:
Over the next couple of weeks [Z]’s presentation did not change, she remained somewhat distant from students socially and did not seem happy while at school, but she did engage better in the learning in the classroom. From then on [Z] has slowly improved and she is now engaged in learning, is usually participating in games during recess and lunch, and her presentation is generally much happier.
(Mother’s affidavit filed 16 June 2022, p.70)
The father wished for me to link Z's distress to the fact that she was not seeing her father. I cannot make that link on this interim basis, and without any evidence that could assist me to do so, even if we were on a final basis. Nevertheless, I remain troubled by Z’s distressed presentation, even if she is “now engaging in learning” as described by the independent observer, the Principal. I am also troubled by this school, H School, having been brought into the adult dispute.
The Family Report described:
[Z] attends [H School] and is in year four. She said she does not like anything about school and dislikes “just about everything”. [Z] likes art and in particular painting. [121]
[Mr L] described [Z] as an opinionated child. He denied that she shows any aggression at school. He said if [Ms Watts] is upset [Z] tends to withdraw and she looks for someone to sympathise and notice her. He reported [Z] has been missing her sister in the morning and afternoon but seems be managing at school reasonably well. [148]
Unfortunately, H School has been caught up in the parental dispute; for example:
[Mr L] described [Mr Watts] as having been quite aggressive towards him and feeling that his reputation was being slurred in the community by [Ms Watts]. To his knowledge, [Mr L] was not aware of [Ms Watts] undermining [Mr Watts]. He advised [Mr Watts] that he was not taking sides in the parental dispute. He reported that it took him some time to reassure [Mr Watts] and he was able to gain a positive relationship with him. [144]
[Mr L] reported that at the end of 2021, [Mr Watts] wanted to attend [Y]’s confirmation and [Ms Watts] was concerned that [Mr Watts] would impose himself. [Mr L]’s priority was that the children are comfortable and that the children are not “piggy in the middle”. [145]
On either parties' case, Z will attend G School. By dint of their agreement on choice of school, I accept it must be a good enough school and one suitable to Z. The issue is timing.
Consistent with Re G, there is no onus on either party to establish the need for change or not.
In considering those principles and the wider Part 7 matters such as the objects and principles and the s 60CC factors, I make orders consistent with the mother's proposal. I do so because:
(1)Z will be changing to this school, the only issue is when;
(2)The parties have funds set aside for the children's education, with the mother proposing she pay any shortfall between what they would have paid had Z remained at G School for Years 5 and 6, as opposed to going to G School in those years;
(3)The parents agreed on G School for Z, thus it must be a good enough school on their own cases;
(4)The father accepts G School offers supports which would be available for Z too;
(5)In making this decision, this is one less thing for parties to disagree about and collect evidence about, for example, involving the school principal and counsellor in support of their respective cases. That is in circumstances when school and counselling ought be the sanctuaries of safety and peace for the children, quarantined from the many and varied adult disputes;
(6)The logistics for the mother as such, and effect of change in s 60CC allows me to look at this, as do the Re G principles. In the circumstances I have previously described - three children at three different schools whilst holding down a job - the logistics will be slightly improved [for the mother] with two children at one school and X at his school; and
(7)Finally, and perhaps most importantly, in this high conflict matter the one thing Z will have with her changing schools, is to go to a school which her sister attends, thereby giving her a constancy and a consistency in her life.
I have also considered Z’s wishes but that is not determinative of the matter; it is a factor though that I have considered in the above.
For those reasons, I will make the order proposed by the mother.
Varying the parenting arrangements
The father sought specific time orders as I have already set out. He also sought specific make up time before and after the D Region trip.
Both the mother and ICL opposed the variations, both relying on Rice & Asplund - that is, there was no material change in circumstances since making the orders in April 2022 to warrant re-opening parenting on an interim basis.
In Rice & Asplund, Evatt CJ said that the Court should only hear an application to alter an earlier order if the Court is satisfied there is:
… some changed circumstance which would justify such a serious step, some new matter arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…
The Court added:
[it] should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation – per Evatt CJ in Rice & Asplund.
See also Edwards & Edwards (2006) FLC 93-306, where the Full Court of the Family Court stated:
The well settled principles in Rice and Asplund were formulated to promote the best interests of children who are subject of proceedings under the Act. The principles recognise the damage which may be caused to children by endless litigation which may, directly or indirectly, expose them to conflict, and the potential abuse of a child by subjecting the child to repeat expert interviews.
The principle is only a manifestation of the best interests test and the court must consider whether in the circumstances of the case it is in the child’s best interests for the court to rehear the matter, or, to dismiss the proceedings. It is based on the notion that continuous litigation over a child is generally not in the child’s best interests: SPS & PLS (2008) FLC 93-363, cited with approval in Poisat & Poisat [2014] FamCAFC 128.
Only in April this year, a Senior Judicial Registrar considered the father’s proposal for “a precise time arrangement for the children … irrespective of their wishes” (Reasons at [1]). After extracting paragraph 163 of the Family Report, the Senior Judicial Registrar said at [7]:
Of course, this begs the question regarding allegations to be tested, and I cannot make a finding on an allegation, so therefore why should I accept the basis of that recommendation or suggestion by the report writer? It is my view that the report writer, having observed all of the parties and also, having read all of the material, has taken the view that at this particular stage, until matters are thoroughly canvassed before the Court and the matters are articulated, that the Court should act with some caution, and therefore, consider the fact that the risk to the children, in having time with their father, far outweighs the benefit for the children having time with their father. There are other factors in the report, and I highlight in particular paragraphs 181, 234,236 and 242 and I do not intend to necessarily recite those paragraphs.
It was the father's position that Rice & Asplund was satisfied because:
(1)Senior Judicial Registrar’s Orders are not being adhered to. That, however, is a matter of compliance. More so, the parties are in dispute about whether the Orders are being adhered to or not, and that is not a matter I can resolve on an interim basis (Goode & Goode);
(2)The children told him they wanted time, but he accepted that they told him this before the April orders were made too;
(3)Senior Judicial Registrar “did not make the orders lightly. He was very fearful the mother would not comply.” The Reasons of Senior Judicial Registrar do not support this. He made the orders in any event;
(4)X has told him and told the ICL he wants two nights – this too, was before and apparently after the April Orders. The ICL does not support re-opening the interim parenting orders, irrespective of what X may have told him. I also note the ICL’s submissions at paragraph 25 where he advises “the children’s views were consistent in relation to not wanting defined times with the father”. Again I cannot resolve this dispute, but note the ICL’s position is that the father fails to meet the rule in Rice & Asplund;
(5)Time had been planned and cancelled - that may well be so. One example was a March rock band concert, which I note was before the Orders - that has been re-scheduled;
(6)The father sent Z letters through X about things Z had left at his house. I put aside for the moment the father using X as a messenger, but he accepted that this had occurred before the April 2022 order; and
(7)The children’s interests are not being cared for and he referred to the letter from the Principle, which I have already extracted. Nothing in that letter warrants re-opening. It was further not explained how the short defined time sought by the father would ameliorate how the children were not being cared for.
I do not accept that any of these factors warrant a material change of circumstance. I will not re-open the parenting on this interim basis.
I do however repeat and join with the Senior Judicial Registrar and in his Reasons at paragraph 9 that my dismissal of his re-opening application ought not suggest:
This is not to suggest, nor is it to be read or interpreted by the father, that this means that a trial Judge hearing the matter would not do something completely different. Making a Final Order in relation to children’s time with parents is an entirely different matter than an Interim Order that is made. An Interim Order that I make at the moment is based on a preliminary assessment.
The oral application
During the course of the hearing, Ms Reid, on instructions, made an oral application essentially that the monies in her trust account earmarked for the Education Fund were languishing in her trust account earning no interest. She applied for orders that would see the funds placed into interest earning accounts with Westpac and M Bank.
In circumstances where the father, self-acting, was given no notice of this, I declined to entertain it. That said, it seems to me that what is required of the parties to invest the Education Fund in interest bearing accounts is plainly set out in the May 2022 Order.
It maybe the mother can rely on s 106A to have signatures applied to necessary documents, but that was not argued before me and I take the matter no further other than to observe it is plainly in everyone’s interests to have the Education Fund earning interest – so much so, as the parties actually agreed on this proposal in that May 2022 order.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 23 August 2022
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