Welsh & Welsh
[2022] FedCFamC2F 779
•15 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Welsh & Welsh [2022] FedCFamC2F 779
File number(s): MLC 5422 of 2017 Judgment of: JUDGE HARLAND Date of judgment: 15 June 2022 Catchwords: FAMILY LAW – parenting – competing live with applications – whether or not the children are at risk of harm in either parent’s home – parental responsibility – geographical distance Legislation: Family Law Act 1975 (Cth), pt VII, ss 60B, 60CA, 60CC, 61DA 64, 65D, 65DAA 67Z. Cases cited: Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] 240 CLR 461
Re G [2000] FamCA 462
Welsh & Welsh [2021] FCCA 149
Waterford & Waterford [2013] FamCA 33
Division: Division 2 Family Law Number of paragraphs: 315 Date of hearing: 25, 27, 28 January 2022, 4, 7, 11 February 2022, 2, 4 and 31 March 2022 via teams, 30 and 31 May 2022 in person Place: Melbourne Counsel for the Applicant: Mr Glezakos Solicitor for the Applicant: JS Law Counsel for the Respondent: In person ORDERS
MLC 5422 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WELSH
Applicant
AND: MS WELSH
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
15 JUNE 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Father have sole parental responsibility for the children:
(a)X, born in 2013;
(b)Y, born in 2013; and
(c)Z, born in 2014
(“the children”) PROVIDED ALWAYS THAT the Father keep the Mother informed of significant long term decisions that he makes in relation to the child and actively seeks the Mother’s input on such issues.
3.For the purpose of Order 2 hereof before any such long term decisions are made in respect of the children:
(a)the Father shall advise the Mother by email of his proposal relating to the children;
(b)if the Mother wishes to comment on the Father’s proposal (or if the Mother has any proposal she wishes to make relating to the children on this issue) she shall, within seven (7) days after the date of the Father’s email, advise the Father by one email (to the email address from which the Mother sent her communication) of her views;
(c)upon receipt of any comment or proposal by the Mother, the Father shall give consideration to the Mother’s views;
(d)after the Father has considered the Mother’s comments, he shall make a decision and advise the Mother by email or SMS text message of the outcome immediately after making that decision; and
(e)if the Mother does not respond by email as provided in order 3(b) hereof, the Father shall be entitled to presume that the Mother does not wish to be involved and he may decide the issue.
4.The children live with the Father.
5.The children spend time with the Mother as follows:
(a)Each alternate weekend from the conclusion of school Friday, or 3.00pm if a non-school day, to 5.00pm Sunday.
(b)Each Wednesday from the conclusion of school until 7.00pm in the City M area, unless the Mother has advised the Father via text or telephone message that she is unavailable, with such notification to be given 24 hours or more before the Mother’s time is scheduled to begin;
(c)For the first week of the mid-term school holidays from 3.30pm Friday at the conclusion of school until midday Sunday of the following week;
(d)During the long summer holidays, each alternate week from 10.00am on the first Monday of the month until 10.00am on the following Monday;
(e)On each of the children’s birthdays for no less than 2 hours with the birthday child, at times as agreed in writing between the parties and failing agreement from 5.00pm until 7.00pm.
(f)For Christmas 2022, from 3.00pm Boxing Day until 3.00pm on 27 December 2022 and each alternate year thereafter;
(g)For Christmas 2023, from 3.00pm Christmas Eve until 3.00pm Boxing Day and each alternate year thereafter; and
(h)As otherwise agreed between the parties in writing.
6.For the purpose of changeover, the Mother shall collect the children from school or at the McDonald’s closest to the Father’s Residence at the commencement of her time, and the Father shall collect the children from the McDonald’s closest to the Mother’s residence at the conclusion of her time, unless as otherwise agreed between the parties in writing.
7.For the purpose of Order 5(b) the Applicant Father shall collect the children from the McDonald’s closest to his residence at the conclusion of the Respondent Mother’s time, unless as otherwise agreed between the parties in writing.
International Travel
8.Either party may take any of the children outside the Commonwealth of Australia for holidays.
9.If either party wishes to travel with the child outside the Commonwealth of Australia, the departing party shall:
(a)Provide the non-travelling party with no less than twenty-eight (28) days prior written notice (‘Notice’) of the proposed travel and obtain the non-travelling party’s written consent with such consent not to be unreasonably withheld.
(b)For the purposes of paragraph 6.1, the Notice to include the following details:
(i)The period of proposed absence from the Commonwealth of Australia
(ii)A copy of the travel itinerary or any other documentation evidencing the proposed destination(s) and the dates and times of the departure and return; and
(iii)All complete addresses, telephone numbers or other contact details where the non-travelling party can contact the children during the travel period.
10.Both parties and/or their agents be retrained by injunction and an injunction be granted restraining the parties from removing and/or causing or allowing any of the children to be removed from the Commonwealth of Australia without giving said prior Notice to the other party and obtaining written consent from the other party.
THE COURT ORDERS BY CONSENT THAT:
11.The parties shall keep each other informed at all times of their residential address, mobile telephone number/s and email address and advise of any such changes 48 hours prior to such changes.
12.The parties advise each other by telephone upon becoming aware of any of the following in relation to any of the children:
(a)Any illness or injury requiring a medical examination or medical consultation;
(b)Any illness requiring the provision to any of the children of any medicine prescribed by their General Practitioner;
(c)Any hospital attendance for examination, consultation, or treatment;
(d)Any dental treatment; and
(e)Any issue of concern raised with either parent by any of the children’s school/s in relation to any of the children’s education, welfare, or behaviour.
13.Both parents be restrained by injunction and the injunction hereby be granted, restraining each party from the following:
(a)Organising events for any of the child/ren during the period the child/ren are not in their respective care without prior written consent of the other party;
(b)Denigrating the other party or member of the other party’s family in the presence of or within hearing of any of the children and the parties shall take all reasonable steps necessary to ensure that no other person denigrates the other party or members of the other party’s family in the presence or within hearing of any of the children; and
(c)Discussing these proceedings in the presence of or within the hearing of any of the children.
14.In the event the parties are unable to reach an agreement about parenting arrangements pursuant to these Orders, the parties must attend (in person or by telephone) upon an agreed, appropriately qualified Family Dispute Resolution Practitioner or Counsellor in an attempt to resolve those issues without the recourse to further litigation.
Interstate Travel
15.Either party may take any of the children outside the State of Victoria for holidays.
16.If either party wishes to travel with the child outside the State of Victoria, the departing party shall:
(a)Provide the non-travelling party with no less than twenty-eight (28) days prior written notice (‘Notice’) of the proposed travel and obtain the non-travelling party’s written consent with such consent not to be unreasonably withheld.
(b)For the purposes of paragraph 6.1, the Notice to include the following details:
(i)The period of proposed absence from the State of Victoria;
(ii)A copy of the travel itinerary or any other documentation evidencing the proposed destination(s) and the dates and times of the departure and return; and
(iii)All complete addresses, telephone numbers or other contact details where the non-travelling party can contact the children during the travel period.
17.Both parties and/or their agents be retrained by injunction and an injunction be granted restraining the parties from removing and/or causing or allowing any of the children to be removed from the State of Victoria without giving said prior Notice to the other party and obtaining written consent from the other party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Welsh & Welsh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
Twins X and Y were born in 2013. They are 9 years old. Their younger sister, Z, was born in 2014. She is 8 years old. I must determine whether or not the children should remain in their mother’s primary care or move to their father’s primary care. Both options carry risks. Unfortunately there is no middle ground. For reasons I shall give I have determined that the children should live with their father.
This case is characterised by high conflict and distrust. The parties entered into final consent orders on 12 July 2018 which provided for the parties to exercise equal shared parental responsibility for the children, and for the children to live primarily with the mother and spend regular time with the father.
This has been a challenging case. Due to the geographical distance between the parties, it is not possible for the parents to have a shared care arrangement. One parent will be limited to spending time with the children on alternate weekends, school holidays and special occasions. It is unlikely that the distance between the parties, both geographically and also in terms of parenting style and values, will change. Both parties have some deficiencies as parents. Both have much of value to offer as parents.
Most of the trial was conducted by way of Microsoft Teams. The mother had the assistance of a Country L interpreter. Both the mother and the interpreter were provided with a copy of the court book and exhibits. Conducting much of the trial via Microsoft Teams had its challenges, particularly with respect to cross-examination on documents and tendering documents. The last 2 days were conducted in person. The penultimate day consisted of the cross-examination of the Court Child Expert. On the last day, both parties were briefly recalled and cross-examined on two discrete issues before giving their closing submissions.
BACKGROUND
Since the beginning of the year, the children have been living in a week about arrangement. This has been a temporary arrangement pending final reasons being delivered. Both parents accept that it is not a viable long term arrangement and accept that regardless of which parent the children will primarily live with, they will need to change schools to one closer to their primary residence.
The father lives in Town E, just outside of City M. The mother lives in Suburb O. Due to the distance between the parties’ homes which is approximately 164 kilometres, it is not possible for there to be a shared care arrangement.
When the mother and the children lived in Suburb H the distance between the parties’ homes was approximately 118 kilometres.
The parties’ communication is poor. Both have considerable distrust of the other.
Each party complains bitterly about the other being non-negotiable, however there are instances where both have been responsible for ineffective communication.
The parties and the children saw Dr P in December 2020 for the preparation of a family report. Due to delays in the trial being heard, by the time Dr P gave evidence it was clear that updated expert evidence would be needed to place the Court in a position to make final orders. This is not simply because the report is old, but because for the past several months the children have been living in a week about arrangement which is a significant change in circumstances. Fortunately the Court Children’s Service was able to provide an urgent family report which was released to the parties on 18 May 2022. The Court Child Expert was cross-examined for a day. This timing allowed the trial to finish and reasons to be delivered before the commencement of term three.
2018 CONSENT ORDERS
The parties entered into Final Orders by consent on 12 July 2018. The relevant orders, being orders 1 to 4, 9, 12 and 14 are set out here below:
1.The parties have equal shared parental responsibility for the children, X born in 2013 (“X”), Y born in 2013 and Z born in 2014 (“Z”) (collectively “the children”) in relation to all major long-term issues affecting the child and that the parties do consult each other and make a genuine effort to come to a joint decision prior to making any decisions about such issues.
2.That each party have sole parental responsibility of decisions relating to the day to day care, welfare and development of the child during periods when the child is living or spending time with them.
3.The children live with the Respondent Mother and spend time with the Applicant Father as follows:
3.1 Each alternate weekend in from 5:00pm after school Friday until 5:00pm Sunday as agreed between the parties in writing;
a.If the Monday following the Sunday specified in paragraph 3.1 is a public holiday, the Applicant Father shall spend time with the children until 5:00pm Monday;
3.2 Each Wednesday from the completion of school until 7:00pm, unless the Applicant Father provides the Respondent Mother with notification that he is unavailable;
Such notification specified in paragraph 3.2 shall not be effective unless:
a.Provided in writing by text message 12 hours or more before the Applicant Father’s time with the children is scheduled to begin.
3.3 For the first week of the midterm school holidays, from 3:30pm Friday at the conclusion of school until 12:00pm Sunday the following week.
3.4 During the summer school holidays, each alternate week from 10:00am on the first Monday of the month until 10:00am on the following Monday.
3.5 On each of the children’s birthdays, for no less than 2 hours with the birthday child on times as agreed in writing between the parties;
a.Failing agreement as stipulated in paragraph 3.5, from 3:30pm until 7:00pm if the birthday is a school day and from 3:30pm until 5:00pm if a school day.
3.6 Any other times as agreed between the parties in writing.
4.For the purposes of handover and unless otherwise stipulated above, the Applicant Father shall collect the children from the Respondent Mother’s residence in Suburb H on Friday, and the Respondent Mother shall collect the children from the Applicant Father’s residence in Town E on Sunday; and
4.1 Handover may occur in any other way and at any other time as agreed between the parties in writing.
9.The parties shall keep each other informed at all times of their residential address and mobile telephone numbers and email address and advise of any such changes 48 hours prior to such changes.
12.Both parties be restrained by injunction, and the injunction hereby be granted restraining each party from the following:
12.1 Enrolling the any of the children in any school without both parties’ written consent;
12.2 Organising events for any of the children during the period the child is not in their respective care without prior written consent of the other party;
12.3 Denigrating the other party or member of the other party’s family in the presence or within hearing of any of the children and the parties shall take all reasonable steps necessary to ensure that no other person denigrates the other party or members of the other party’s family in the presence or within hearing of any of the children; and
12.4 Discussing these proceedings in the presence or within hearing of any of the children.
14.In the event that the parties are unable to reach an agreement in relation to major long-term issues affecting the child or parenting arrangements pursuant to these Orders, the parents must attend (in person or by telephone) upon an agreed, appropriately qualified Family Dispute Resolution Practitioner or Counsellor in an attempt to resolve those issues without recourse or further litigation.
Both parties complain in their affidavits that they agreed to the 2018 parenting and property consent orders under duress, as a result of the other party’s conduct. The orders dated 12 July 2018 show that at the time, the mother had legal representation and the father did not, although the father had been receiving some legal advice at that time.
The mother argued that there was something unreasonable in the way the 2018 orders were drafted particularly with respect to the order restraining the parties from changing schools without the other parent’s written consent. That complaint is without substance. The mother was legally represented at the time and though the father was not, as noted he was receiving legal advice. The 2018 orders are not unusual.
Any action in changing the children’s school without the other parent’s consent would be a breach of the equal shared parental responsibility order. The fact that the consent orders include a specific restraint on the parties enrolling the children at another school without the other party’s written consent is suggestive of the issue of the children’s schooling being important to the parties.
THE FATHER’S CASE
The father commenced these proceedings on 25 February 2020 in response to the mother changing the children’s schools without his consent. The father seeks to change the children’s residence and have them living primarily with him and attending a school near his home. The mother has been on notice of this since he filed his amended initiating application on 4 June 2020. He points to numerous concerns including the mother’s ongoing non-compliance with orders and her punitive parenting style.
The father’s case is that the mother is unwilling or unable to facilitate a relationship with him. He is also concerned about the significant school absences and most concerned that the mother’s emotional abuse is placing a lot of stress on the children. He says the children appear scared to do anything at the mother’s house for fear of getting in trouble. They also talk about being yelled and screamed at. He says it is in the children’s best interests for the children to primarily live in his care and spend regular time with the mother.
THE MOTHER’S CASE
The mother seeks sole parental responsibility and that the children remain in her primary care. She says the father is impossible to negotiate. She says that the living arrangements should remain as they are and that she is flexible about the father having additional time. She confirmed she consents to the orders about interstate travel, dispute resolution, injunctions, organising events for the children during the period where the children are not in their respective care without prior written consent, denigrating each other or their family members and discussing the proceedings with the children present. The mother also agrees for the parties to keep each other informed at all times of their residential address, mobile numbers and email addresses, and that the parties advise each other regarding the children should they become unwell or attend hospital.
The whole tenor of the mother’s case is that the father is impossible to negotiate with, that he has manipulated her, and that she has been disadvantaged and taken advantage of at various stages of the proceedings.
One of the disadvantages for a litigant appearing in person is that they do not have a lawyer to filter their arguments. At times it was clear that the mother thought that she was at a disadvantage and implied lawyers have acted in a manner that was inappropriate. It is common for unrepresented litigants to be suspicious of lawyers representing the other party.
The mother was well prepared to present her case and clearly prepared her cross-examination of the father and other witnesses. Initially the mother attempted to ask the questions in English as she had them prepared, however quickly decided to utilise the interpreter. The mother also submitted documents for tendering throughout the course of the trial.
At the beginning of these proceedings the mother was represented by the same law firm that she used in 2018 when the parties entered into final consent orders. The mother became self-represented in January 2021. The mother was keen to emphasise that she only sought to rely on the affidavit filed on 11 September 2021, which she prepared herself with the assistance of a friend. She distanced herself from the material filed by her previous lawyers. When cross-examined the mother was keen to stress that her lawyers were the cheapest that were available and she only dealt with them online and did not have the assistance of an interpreter. She said she could not be sure that she understood what was included in her court documents. When asked why she did not find a local lawyer, she retorted, “How could she when Melbourne was in lockdown?”
The mother’s case is that the children should remain living in her primary care. She has always been their primary carer. She says the father is a neglectful parent, who feeds them junk food, lets them play on their iPads all day and does not impose rules on them. She also says the father neglects the children’s medical and developmental needs and has been obstructive every time she has tried to get assistance for the children.
DOCUMENTS RELIED ON
The father relied on the following documents:
(1)Father’s Notice of Risk filed on 26 February 2020;
(2)Affidavit of Ms Q filed 20 April 2020;
(3)Section 11F Child Dispute Conference Report dated 4 May 2020;
(4)Affidavit of Dr P filed 14 January 2021;
(5)Affidavit of the father filed 15 January 2021;
(6)Financial statement of the father filed 27 August 2021;
(7)Affidavit of Mr R filed 27 August 2021; and
(8)Affidavit of the father filed 10 January 2022;
(9)Tendered material.
The mother was very clear that she did not want to rely on any document prepared by previous lawyers. The mother relied on the following documents:
(1)Financial statement of the mother filed 8 September 2021; and
(2)Affidavit of the mother filed 11 September 2021;
(3)Tendered material.
The expert evidence before the Court was:
(4)Section 11F Child Dispute Conference Report dated 4 May 2020;
(5)Affidavit of Dr P filed 14 January 2021;
(6)Family Report released 18 May 2022.
ISSUES IN DISPUTE
By the end of the trial both parties acknowledged that continuing to exercise equal shared parental responsibility is unworkable. I agree. At the end of the trial the parties submitted minutes of orders which included an order for sole parental responsibility but with obligations to inform and given the other parent the opportunity to provide input.
The father proposes that the children live with him and spend alternate weekends with the mother. The mother proposes that the children live with her and spend three out of four weekends with the father which picks up on the court child expert’s recommendation. The mother also included an order that she attend recommended courses.
The overarching issue is that the parents have very different personalities and parenting styles. Whilst at times the parents have been able to reach agreement about matters, the parents do not have an effective communication style. This is unlikely to improve. The parents also have a deep distrust of each other and disapprove of the other’s parenting style. The other issue that emerged is whether or not the children are at risk in the primary care of either parent.
This case is finely balanced. The father is untested as a primary parent. A major issue of concern with respect to the father is his understanding of the children’s developmental needs and the father’s willingness and ability to ensure that the children’s medical and educational needs are met. These are major issues of concern as the girls are struggling. The mother also raises risks in the father’s care due to his anger and family violence.
The risk to the girls if they remain in their mother’s primary care is to their emotional and psychological wellbeing. There is a rigidity to the mother and her parenting style. Of most concern is the mother’s refusal to accept any criticism and to take on board recommendations. I think the issue goes beyond the mother being self-represented and just having a loud voice.
I told the parties that I would discharge the 2018 orders in their entirety so that the parties would only have to look at one set of orders. The parties agreed to some of the 2018 orders being replicated in these orders and they are referred to as being made by consent at the beginning of these reasons.
The issue of overseas travel can disposed of easily. In 2018, the parties consented to orders permitting each parent to travel overseas with the children subject to meeting the requirements set out in the orders. The father seeks that order being replicated in these orders. The mother opposes this. Her reasoning is that in her view the father will oppose any proposal she makes. She says that therefore if either party seek to travel overseas with the children in the future, then they should have to bring an application to the Court. As will be demonstrated later in these reasons, the mother’s characterisation of the father as being obstructive and unreasonable is unfair. It would not be a good use of Court resources for the parties to be required to bring an application about travel. The parties previously thought it was in the children’s best interests for them to be able to travel overseas with their parents. Neither parent raise any risk issues with respect to overseas travel. I will make the order for international travel in the same terms as the 2018 orders. In the event either parent opposes the other parent’s proposed travel, they will be able to bring an application to Court seeking to prevent that travel.
The issue of changeovers was mentioned but not dealt with in any detail. Prior to the current interim arrangements, the parties were doing changeovers pursuant to the orders made 10 June 2020 as follows:
At the commencement of the father’s time with the children, the father to collect the children from school at the conclusion of school on Friday and if not a school day, then changeover to occur at 3.30pm at the S Supermarket carpark in Suburb H; and
At the conclusion of the father’s time with the children, the mother to collect the children from McDonald’s near the father’s home.
I will make orders for changeovers with the mother to collect the children from school on Fridays and the father to collect the children from the McDonald’s closest to the mother’s home in Suburb O on Sundays. For changeovers that do not take place at school, the mother shall collect the children from the McDonald’s closest to the father’s home.
FAMILY VIOLENCE
Each party makes complaints of historical family violence against the other. They both make allegations about physical violence but primarily describe the other parent as being emotionally abusive and controlling. The parties made these complaints in their affidavits and to the experts.
In the first family report, the mother made complaints about the father instigating these proceedings as a form of a level of control by the father. She was also critical of his attempts at arranging mediation. The father claims that the mother continued to make unilateral decisions without consulting him and so attempted to arrange mediation. The mother said that the father did not seek her availability before arranging mediation in City M. The father’s understanding was that he told the mediation centre what dates he was available and they would contact the mother. It is not within the father’s knowledge or control as to what the mediation service said or did not say to the mother. Despite this, the mother accused the father of deliberately scheduling the mediation on the day she was working knowing that she could not attend. She has failed to establish that on the evidence given the issues in contention and the potential significant delay in securing a mediation, it was a reasonable approach to take an appointment as early as possible. There is no evidence of the mother making her own attempts to arrange mediation before taking the unilateral actions that she did.
In the recent Family Report interviews, both parents confirmed that they do not have any current fear of the other. In these circumstances I do not need to address this issue any further.
THE PATERNAL GRANDFATHER
The paternal grandfather filed an affidavit in support of the father’s case on 27 August 2021. In his trial affidavit, the grandfather states he has meaningful relationships with his 11 other grandchildren, but does not enjoy a meaningful relationship with X, Y and Z. He states that this is due to the mother’s influence and denigrations of the paternal grandparents to the children.
In his affidavit the paternal grandfather said he has only seen and spent time with the children approximately a dozen times since they were born. He then goes on to describe a number of times he has seen the children. This includes the twins’ birthday one year, where the mother told the paternal grandparents to meet at the City M Gardens, but would not allow them to take photos.
In cross-examination, the paternal grandfather said that he last saw the mother a couple of years ago. He said the last time he recalled speaking to her was at City M Gardens. He did not accept the mother’s proposition that this was over 6 years ago, as he can recall seeing the children running up some stairs. The paternal grandfather’s evidence did not greatly advance matters.
LANGUAGE DIFFICULTIES
The mother had the benefit of interpreters throughout the trial. Whilst the mother clearly understands and speaks English, language in Court is quite different to conversational English and the environment is stressful. At times during the trial the mother asked questions she had prepared in English but for the most part used the interpreter.
It was apparent to me during the course of the trial that from time to time, the difficulties between the parties was due to misinterpretations as to what the other was saying. English is the mother’s third language. It is important to note that interpreting one language into another is not a perfect or precise exercise and at times there may be difficulties because there is no direct translation of a word or phrase from one language to another, or the same word is used in different contexts.
One example is with respect to the mother’s cross-examination of the father, and in particular paragraph 22 of his affidavit sworn 15 January 2021, where he says, “During the marriage, I kept detailed notes of the day-to-day activities in our home.” The mother called for those records. The difficulty has arisen with respect to the reference to day-to-day. Understandably, the mother has interpreted that to mean every day. The father’s evidence was that he kept records of day-to-day activities but did not make a note each day and could not produce records for a particular time period. The mother says his evidence as being false. Given the language issue, whilst I understand the mother’s reason for her view, I am not satisfied that it is the case. As this relates to before the 2018 orders were made it is not relevant to the issues I have to determine. I only refer to this as an illustration of the language difficulties.
Another example was with respect to the handover provisions in the 2018 orders. The orders referred to handovers taking place at the parties’ homes. As the mother was cross-examining the father on this topic, there was some confusion as she was referring to the handovers taking place ‘near’ the parties’ homes. What became clear is that what the mother was trying to make clear was that handovers did not take place inside the parties’ homes, but outside the parties’ homes.
CONTRAVENTION HEARING
Her Honour Judge Carter (as she was then known) heard the father’s Contravention Application hearing on 4 and 15 December 2020. The mother required and had the assistance of a Country L interpreter. The mother plead not guilty to each of the 8 counts. She confirmed that whilst English is not her first language, she understood the Court orders and the obligations these imposed. Significantly she also said she understood that both parties were obliged to comply with the Court orders. The mother was legally represented at the contravention hearing. Her lawyers ceased acting for her whilst the contravention judgment was reserved.
Her Honour Judge Carter found that count 2 was made out. It follows that the mother breached order 12.3 of the primary order whereby she attended the father’s home on 23 November 2019 and denigrated him in front of the children.
Counts 4 and 5 are in relation to the mother changing the children’s enrolment from B School to C School. Her Honour ultimately found that the mother had contravened orders 1 and 12.1 of the primary orders. There is a text message exchange included in the reasons and her Honour states it is clear the father did not consent to a change of schools in writing prior to the children being enrolled at C School. The mother’s evidence was that it was in the children’s best interest to change schools. The mother also said it was impractical for the children to remain at B School (B School) as she had moved houses. Her Honour comments that an order for equal shared parental responsibility requires the parties to make joint decisions. Her Honour did not accept the mother’s evidence that she tried to meaningfully discuss the matter of changing schools with the father prior to determining the change. Ultimately this was in breach of order 1, which was the order for equal shared parental responsibility and order 12.1, the restraint on changing schools without the other parent’s written consent.
Her Honour noted in the reasons that the parties agreed the counsellor at B School had recommended against the change of schools. However, the mother was adamant the counsellor was biased and obliged to recommendations she did to support her employer. Her Honour did not accept this was a reasonable conclusion and that limited weight can be placed on the evidence as the counsellor had not provided a written report nor was available to give oral evidence. Her Honour also noted that the mother provided no evidence to support her assertions that it was more difficult for the children to travel to B School by public transport from her new home.
Count 7 was proved without reasonable excuse. Her Honour was not satisfied that the mother had made reasonable attempts to comply with the orders as much more is required than simply bringing the children to the handover.
The mother did not appeal her Honour’s orders. The mother made it clear she does not agree with the contravention decision. I do not accept her contention that she could not appeal the orders as she did not have a lawyer. Despite the findings in the contravention hearing, there was considerable focus at trial on the changes of the children’s school. On the one hand, the mother is highly critical of the father and also raises concerns about, in particular, the twins’ progress at school. Yet it is the mother who not once, but twice, has unilaterally sought to change the children’s school.
The mother complained that the focus throughout the trial has been on criticisms of her with the father’s failings being ignored. That is not accurate. One example is when the mother complained about her being found to have contravened the orders but the father not being dealt with contravening the orders in failing to see the children on Wednesdays. Firstly the mother did not file a contravention application. Secondly the situations do not compare. It is clear that the Wednesday afternoons were not practical given the distance and particularly in the context of lockdowns and public areas being closed. The parties were also living a further distance apart than when they agreed to the 2018 orders.
CHILDREN’S EDUCATION AND DEVELOPMENT
The children’s education and development has been a major source of conflict between the parties.
As was emphasised in the contravention proceedings, the parties have equal shared parental responsibility and therefore it is incumbent on both of them to consultant with each other and try to come to an agreed position with respect to major issues concerning the children’s care, welfare and development. It is important to note that the mother is found to have contravened the order for equal shared parental responsibility and the restraint on unilaterally changing the children’s schools without reasonable excuse by unilaterally changing the children’s school from B School to C School. Whilst this was dealt with in the contravention proceedings, both parties were cross-examined on the issue in this trial and it is relevant to put it in the context of the mother’s further attempt to unilaterally change the children’s school from C School to T School.
When cross-examining the father, the mother claims that she raised the potential issue of the change of schools to C School with the father on many occasions. The father disagreed and said that his understanding was that the mother wanted to change the children’s schools because of the cost of school fees and not for any other reason. He said he was very happy with the school as the school had gone out of its way to provide the children with additional assistance and says he was not aware of the other problems mother raised. The father rejected the mother’s contention that he was not aware of them because he was not very involved with the school. The father agreed that the mother was responsible for the vast majority of taking the children to and from school, but says that nonetheless he was involved with the school and had regular meetings with the teachers discussing the children’s learning, and also attended other activities at the school the parents were invited to. The father also complained that if there were problems, the mother should have raised with him.
The mother asked the father to agree that she had raised that the children were having problems at school on many occasions. The father said that he was well aware that the children were having issues at school because of their learning difficulties and that they met with the psychologist and teachers on a regular basis to discuss those issues. He thought that they were working quite well with the school to address those issues. At a meeting in November 2019 the school psychologist recommended against changing schools.
The mother asked the father if he was aware of the children being bullied. He said he was not aware of bullying but was aware that the children were having trouble fitting in as they had not been around other children before. He thought the children would face that challenge, regardless of which school they were at and that it was part of what the school psychologist was working with them on. It is significant to note that the mother did not raise the issue of bullying in her correspondence or her affidavit. It is clear that B School was inconvenient for the mother once she moved. Whilst the mother also raised financial issues at the time I am satisfied that transport to and from school was the mother’s main concern.
The mother then suggested that the children have not had any difficulties settling in and making friends at C School. The father readily agreed that the children like that school.
The father accepted when cross-examined that the NAPLAN results show that the twins are below average in their academic education.
The fact that the twins have individual learning plans also supports the need for additional assistance at school. The mother criticised the father for not getting copies of their individual learning plans. The mother assumes that the father knew the individual learning plans existed.
The mother is somewhat disparaging of the father’s level of education. However, just because one parent is university educated and the other is not does not mean the parent with less education is less interested in their children’s education, or less able to provide assistance and be involved in their children’s education.
B School
At the time the parties separated they were living in Suburb H and the father was commuting to the family farm in Town E for work. The children were attending B School in Suburb H.
The father is Catholic, the mother is Orthodox. The father does not go to church regularly, but believes that the Catholic education system is a good one. The mother asked him if he believes that public schools do not provide good education for children. The father said that is not his belief. He said his position is not that all public schools are bad, but that some schools are better than others and he wants the children to have the best education they can. It was clear during the cross examination of the father that he had previously referred to some public schools being “dodgy” and said there were some schools in some areas that he prefers the children not go to.
The father agreed that part of what makes a good school for the children is where the children feel settled and respected.
The mother claims that she raised the issue of the children changing schools in several emails and referred to the Court and other participants not having them, but the father receiving them. I assume this was a reference to the contravention proceedings and I indicated to the mother that she would need to produce the emails and show them to the father and give him an opportunity to comment on those. Throughout the course of the trial, both parties sent in additional documents they sought to cross-examine on and be tendered. During the contravention proceedings, Judge Carter refers to the father’s evidence that the mother raised changing schools with him in November 2019 saying that she could not afford the school fees. She sets out a text exchange between the parties on 29 November 2019 where the mother said she was changing schools and the father said he opposed it.
The mother tendered and relied on her emails dated 6 January 2020 and 3 February 2020. In her email dated 6 January 2020 to the father’s lawyers, she refers to her previous letter dated 18 December 2019 referring to her no longer being able to afford the school fees. In her January letter she repeats this and says unless the father agrees to a change of schools he will have to be responsible for all of the fees. There is no mention of any other reason for changing schools. Significantly there is no mention in either of the letters tendered to the children being bullied.
It is clear that there has been a previous exchange of correspondence with various complaints being made about each other. The mother referred to her previous letter of 18 December 2019 putting the father on notice of a significant change of circumstances that require the orders to be varied and specifically referred to her reference that she could no longer afford the school fees at B School. Significantly, the last line of her email states “if the father does not consent to the children changing schools, he will be required to pay for the entire school fees at our B School, Suburb H.” [Sic].
The father gave evidence at the contravention hearing that the mother first raised the change of school from B School with him in November 2019. There is nothing in the evidence before me to contradict this.
The mother relied on her email dated 3 February 2020, noting that this is a few days after the start of the school year. She starts that email by saying that the father has been unreasonable to date about changing schools and that she will be taking unilateral action to enrol the children at C School before the end of the month. She refers to having previously given her reasons for that, but summarises them again. She refers to a significant change in circumstances being the fact that she had moved suburbs and that her new house in Suburb H was 5 kilometres away from school and not within walking distance. She also refers to how she was working and had her roster changed at short notice, and that she relied on her mother to assist her with getting the children to and from school, the difficulty being that her mother does not drive. Despite all of this, the mother purchased the Suburb H property. The mother would have been aware in the course of looking for a property to purchase that she potentially would no longer be living in close proximity to the children’s school. Nowhere in any of the evidence is there any suggestion that the mother raised the possibility of the children needing to change schools whilst she was looking for a house to purchase. Significantly, the mother says that:
“If the issue of a change of school involved genuine debate over the best interests of the children. I agree it would be up to the parent seeking change to make an application to the court. but in this case it is obviously in the children’s interests that they attend C school is only this school is within walking distance of their home.”
She then goes on to quote from Re G [2000] FamCA 462 and says
I do not intend on wasting money on a court application on the right course of action is so obvious.
With all due respect to the mother, it is she who was unreasonable and misguided in her approach. It appears that the mother either failed to consider the location of the children’s school near her new home when looking for a home to purchase, or she assumed she would be able to change the children’s school as she saw fit, without argument. In either case her approach was unreasonable and lacked child focus.
The father found out the mother unilaterally changed the children’s school when he rang their school in February 2020. He commenced these proceedings in February 2020 when the children were not attending school at all due to the impasse about schools. The father’s approach was also unreasonable and unhelpful in so far as he did not communicate to the mother that he was willing to pay all the school fees to keep the children at B School.
In cross-examination the father said that up until the day Z was to commence school, the only reason the mother gave for changing schools was that she could no longer afford half of the school fees. It was the father’s impression that if he solely paid the school fees, then the children would stay where they were. In light of the mother’s own email which is Exhibit 2 and in particular the last sentence of that email, the father’s interpretation is reasonable. The mother’s letter dated 3 February 2020 is after the commencement of school term.
The father agreed that the children have learning difficulties and were having problems fitting in and making friends at B School. His point was that they were working with the school on those issues and therefore did not see a change of school as being the solution to those issues. The father said he was aware that the B School was trying to make arrangements for the children to get tested for Autism Spectrum Disorder.
I refer to paragraph 50 and 51 of Judge Carter’s reasons in the contravention proceedings.
50. The Mother must have known from the time she purchased her new home that once the family moved, it would be impracticable for the children to remain at B School given her reliance on the maternal grandmother and on the poor public transport options. She should have raised those matters with the Father well before the new school year, and prior to her actually taking possession and moving, so that the parties could have had the opportunity of visiting and considering other schools in the area that may have been acceptable to both parents. If no agreement had been reached the parties could have sought assistance through mediation, and if there was still no agreement, she should have issued Court proceedings. Instead, the Mother delayed raising the issues as to practicality at a very late stage, making it almost impossible for the parties to have any meaningful negotiations or discussions, and preventing the parties from being able to realistically consider other options. I do not accept the Mother’s evidence that she tried to discuss the matter with the Father in any meaningful way prior to determining to change the children’s enrolment and then doing so.
51. Accordingly, I am satisfied that the Mother did not take reasonable steps to comply with either the order for equal shared parental responsibility, nor with the restraint on changing schools without the other parent’s written consent. In the circumstances, I am satisfied that she contravened both order 1 and order 12.1 of the primary orders. The flavour of her evidence was that she felt entitled to make the decision as to where the children would attend school, and that the Father’s views were not particularly relevant to her or the children.
The flavour of the mother’s evidence was similar before me.
C School
In his affidavit filed 27 August 2021, the father explains how in July 2021 he rang the C School and was informed that the children were no longer enrolled and that they were relocating to Suburb U. The father’s solicitors emailed the mother informing her that he did not agree with the children changing schools again. The mother replied advising she had sold her home in Suburb H and had moved into a rental property in Suburb O, and that the children would be attending either V School or T School. The father says the mother did not discuss her proposed change of residence or change of children’s school. The father’s lawyers wrote to the mother on 21 July 2021. The letter asked the mother to provide evidence of her loss of employment, financial hardship and the net proceeds of sale she received from selling her home. This is also the time Y refused to return to her mother’s and remained with her father for a week.
The issue of the mother’s financial circumstances and specifically what she received from the sale of her home was raised several times during the course of the hearing. The mother claimed that she contacted her conveyancer but was unable to obtain any documents. At the same time the mother complained that she did not understand how it was relevant to these proceedings. The relevance as was explained during the hearing was because of her assertion that financial hardship required her to move. In her affidavit the mother says she sold her house in May 2021. She would have known for months before she informed the father about a change of school that she was going to move. I find it hard to believe that it would not occur to her that she may have to move out of the school area.
On 27 July 2021, the father’s solicitors sent a further letter again confirming he does not consent to the children changing school and requesting details of the children’s residential address. The mother replied to this on 28 July 2021. That email was annexed to the father’s affidavit and is set out as follows:
Dear Ms W,
Your client does not consent to change of the school?
How does your client see the children to attend the school in Suburb H while residing in Suburb O?
I would like to remind you of the fact that your client was very much against the school that the girls attended previously.
It looks it is in the nature of your client not to consent to any of my proposals.
I hope your client understands how important and pressing is the issue of schooling. The girls need to continue their education and it would be the best time for them to start after a lockdown as he kids come back to school after a break. It will be easier for the girls to adapt into new environment together with others.
So, in the best interests of or children, I urge your client to make a choice between two schools so that girls could start their schooling immediately.
If you client continues bluntly disagree without any proposals or discussions I would not have a choice but enrol them into school I find the best for them.
Regards,
Ms Welsh
Again, it is seen that the mother thinks she can relocate and expect the father to fall in line with her decision. The mother was aware, and should have brought, an application to change the children’s school. The father did bring an urgent application and the parties agreed to interim consent orders requiring the parties to re-enrol and ensure the children’s attendance at C School. The mother also does not appear to appreciate the disruptive effect of changing schools has on children. Particularly for children who struggle academically and socially, going to a new school requires children to make significant adjustments, particularly after the school year has started. They stand out as new students when everyone else has already been at the school and knows the school routine.
The father’s evidence is that he was not aware of the individual learning plan for the twins until it was produced by the mother during the trial. During the course of the trial the mother was highly critical of the father and seeks to portray him as being uninterested in the children’s education. With respect to the individual learning plans, it is unfair to criticise the father for not seeking those plans when he did not know they existed. The father’s evidence is that he had difficulty over several months with logging into the school portal and obtaining information, and that he subsequently obtained the reports from the school and has spoken with the teachers.
It is also very apparent that the mother’s position remains firmly that the father’s position with respect to the children’s school was unreasonable. However, what is also clear from her own evidence is that the mother failed to give the father reasonable notice of her intentions, and failed to give him a reasonable opportunity to discuss those issues with her. The mother’s attitude seems to be that the father should accept that what she is proposing is reasonable, and that it is unreasonable for him to disagree or question it. In both instances she has set up a difficult situation by already making commitments to moves prior to raising the change of school issue with the father.
One of the other difficulties is that the mother is highly critical of the father, but does not answer his queries in his lawyer’s correspondence to her. The mother appears to expect the father to simply agree with her proposals and if he does not, then he is being unreasonable and difficult to negotiate with. I do not accept the mother’s contention that the father is not interested in the children’s education.
INTERIM ARRANGMENTS DURING THE TRIAL
Once it became clear that the trial would not be concluded within the original timeframe the parties agreed to an interim arrangement whereby, since the beginning of the school year, the children have been living in a week about arrangement. This is very much a temporary measure so that the children will continue to attend their current school at Suburb H pending my decision. This results in the parents sharing the burden of driving the children to and from school, which is over an hour from either party’s home. Of course, this does not save the children from the burden of such travel every week, but is the best short-term solution, otherwise the children would need to change schools in the interim before a final decision is made. The parties agree that the children like their current school. It is inevitable that the children will have to change schools, given where the parties now live. When the children change schools again it should be a long-term move.
The mother was critical of the father as the children were late to school several days during the first week he was taking them to school pursuant to this interim agreement. The mother obtained the attendance records for that period (although not the enrolment records she had been asked to produce). The father says that he asked the school for assistance and that on the first day they agreed that X would stay at home with him for the day, whilst Y and Z went to school. The father readily agreed that small children should not be able to decide whether or not they wish to attend school, but the father insightfully referred to the issues going on currently between the parents and it having a negative impact on the girls. It is important to note too, and this is not a criticism of either party, that this arrangement for the children to stay for an additional week with the father and then to continuing a week-about arrangement pending final reasons in this matter was determined by the parties at short notice. It is to the parties’ credit that they were able to reach this interim agreement but it means that the father had very little notice of this. It also was something that the girls have had very little notice of and it is not surprising that there were some initial difficulties.
I accept the proposition that was put by the mother that delivering children, who already have difficulties with socialisation, into class after class has started is difficult as it draws attention to them. The father readily agreed with this. When the mother suggested that he did not try hard enough, he said that there were problems on that first day however after those first couple of days, the girls have settled and have been happy to go to school.
I do not accept the mother’s criticisms of the father in this regard as it makes no allowance for the unsettling nature of this interim arrangement. It has to be seen in this context. There is no evidence that this has continued to be a problem as the weeks have passed. Of course, currently the drive to and from school is considerable. Whilst the parents only have to drive the girls every other week, the girls have to do it every week.
The father has also been able to rely on the assistance of family members. For example, when the matter was in Court on 4 February 2022, the father made arrangements for his niece to collect the children from school. Otherwise, the hearing would had to have ended considerably earlier that day to enable him to be at the school in time to collect the children. In fact what became apparent is that the father does have family members who are able to assist with these practical issues. On 11 February 2022, the trial was not able to proceed as scheduled at 1:00pm as the mother joined the hearing sitting in her car outside the children’s school. It was a completely inappropriate arrangement. I have some difficulty accepting that the mother could have thought that it would be acceptable for her to continue to be cross-examined while sitting in a car wearing sunglasses for some period. Even if I had been willing to permit this, the hearing would not have been able to continue beyond the end of the school day. The mother did not raise this difficulty earlier, causing a waste of the Court’s time and resources, including the interpreter booking.
The father says that if the children come into his care, he will start work after he has dropped the children at school and he will cease work so that he can collect the children from school. It must be remembered that part of his application is for the children to attend a school much closer to his home, which will not involve the current logistical difficulties. The mother asked the father what he would do if there were further lockdowns where the children are required to be educated from home. The father responded that he works in an essential industry and so the children would be able to continue to attend school and if they were ill he would take time off to look after them.
The mother referred to the seasonal nature of farming work and the fact that there were times when they were together where the father would leave as early as 7:00am and return home late. The father conceded that that was the case. The father says that they now have more workers on the farm and that there are various family members who are willing to assist taking on that work whilst he cares for the children.
The parents agree that the children will need to change schools which will be another significant adjustment for them. I anticipate that there may be some resistance from one or more of the girls initially. Lateness and non-attendance at school becomes an issue of concern when it is chronic. At the same time they will also be an adjustment in their living arrangements. As the Child Court Expert, Ms AB, stressed during her oral evidence, it will be important that the parents prepare the children as much as possible by involving their current and new school. The parents should speak to both schools and provide their new school with the learning plans, assessments and reports they have.
THE FATHER’S PARENTING CAPACITY
The mother makes various complaints about the father’s parenting capacity. One of the mother’s concerns is that the father has left the children on their own. The father conceded he had done so for short periods of time.
The mother raises various concerns about the father’s standard of care. Exhibit 2 is a letter from the mother to the father’s lawyer dated 8 January 2020 referring to the father not giving iron supplements for a week to one of their daughters, and it appearing that the girls’ hair had not been brushed for a week.
The father conceded that he did leave the children home alone. He said these were for short periods and at the mother’s request. The mother denies this. Even if I were to accept that the mother did so, and there is no evidence to establish this, the father cannot simply abrogate his parenting responsibilities. He should have refused to leave them alone. It is not clear to me whether he left the children in the house whilst he was at another part of the farm. I do not know what the distance that would involve. In any event, children, particularly young children, need close supervision. Whilst no parent, including parents in intact relationships can be expected to watch the children constantly, there is a difference between being in another room in the same house where a parent will be able to hear a child call out and that child also being able to find the parent, and young children being left alone in the house.
The s 67Z response by the Department of Families, Fairness and Housing acknowledges concerns raised regarding the standard of care provided by the father, including lack of supervision and providing junk food. It also acknowledges concerns raised regarding historic family violence perpetrated by the father towards the mother. The Department determined that there was insufficient information contained in the report to suggest that the children are at risk of significant harm and the case did not warrant further Departmental intervention. The Department did not investigate the allegations.
PSYCHOLOGICAL ASSESSMENTS FOR THE CHILDREN
The father said he was aware that the B School was trying to make arrangements for the children to get tested for Autism Spectrum Disorder. The mother asked the father what he had done to organise the children to be assessed and he replied that he thought the mother was making arrangements. The mother said that the father refused all of her proposals for such an assessment. Again, it is necessary to carefully look at the communication between the parties which is outlined in Exhibit 17. The mother’s lawyers at the time wrote to the father’s lawyers on 18 June 2020 referring to previous concerns raised about the twins’ speech and that the mother was concerned that it may be due to Autism Spectrum Disorder. Significantly that letter refers to the children’s psychologist recommending that the twins undergo an assessment for autism through the children’s psychologist. Presumably this is an error and should refer to a school psychologist or counsellor. The letter further refers to the mother confirming that she has provisionally made a booking for an assessment on Saturday 20 June 2020. This proposition provides just two days’ notice, and it is significant that the letter does not provide any details as to who is conducting that assessment. The letter also refers to X having an appointment with an ENT specialist on 29 June 2020 at 3:30pm again without reference to who the specialist is and with the expectation that the father would take X to that appointment as the mother would need to collect the other children from school at 2:50pm.
The father’s lawyers responded the next day and referred to the fact that the parties have equal shared parental responsibility and that the mother was obliged to consult with the father before making any appointments to give him the opportunity to attend the appointments and speak with the professionals. They asked for the names and contact details of any professionals the mother had made appointments with for the children.
The mother’s lawyers responded to that letter on 22 June 2020, which I note is after the time the psychological assessment had passed. The letter goes on to say that the mother had not confirmed any appointments with respect to Z and X but was seeking the father’s consent. That is not how their prior letter read which was more consistent with the mother’s attitude which is to make appointments, advise the father at the last minute, and expect him to cooperate.
Exhibit 18 is an email from the mother to the father’s lawyers dated 18 August 2021 asking for the father’s availability so that she could arrange an appointment with the AC Psychology Centre for the initial psychological assessment for the children. The father’s lawyers responded on 23 August 2021 stating that the father will support the children attending a psychologist but asks to be involved in the choice of appropriate psychologists and an explanation as to why the mother believes the children require a psychologist, noting that this is a decision that requires the parties to consult and agree. They further query if support is available through the children’s school. In response the mother sends a further email asking as to the father’s availability to attend an appointment with the AC Psychology Centre. Within a few hours she sends another email complaining that their letter was “yet another example of how to say nothing by saying so much.” The mother also posed the following questions for the father: “does he think that children do not need a psychological help, can he suggest a psychologist himself, and in what way would he support children to see a psychologist.” The mother’s response is unhelpful and combative.
Exhibit 19 are email exchanges the mother had with the children’s school in early October 2021. It is an example of the mother being proactively concerned about the children’s education. It was during one of the many periods of lockdown and remote learning in Melbourne, where the mother asks if there was a way that the children could spend some time at school and obtain face to face assistance as they were behind.
Exhibit 20 is the subpoenaed school enrolment forms the mother signed on 2 August 2021 for T School, Suburb O. It is telling that the mother included the father’s name and contact details on the enrolment forms, but she did not include him as an emergency contact. An explanation for this could be the distance from the father’s home to the school. The mother also nominates herself as the primary family member. Most significantly when answering the question about Z and Y’s living arrangement, the mother ticked the option that the “student was living with the primary family always.” She could have ticked the option “mostly” as this would be a more accurate reflection. She also opted for the choice to send correspondence to her as the primary family rather than both adults. The mother signed the consent form to release information to T School on 27 July 2021.
The mother also asked the father what he was doing to encourage the development of the children. He referred to reading books to the children, including the series of “AD Books”. However he also said that he was having difficulty getting the children to go out as they tend to only want to play on their iPads. He said that children were reluctant to go out and were worried about getting into trouble with the mother when they return home.
The father rejected the mother’s proposition that he cannot find an appropriate way of managing the children. The father said that the girls are told what they can and cannot do when they are with him, and that the mother has told them that she has cameras in his house where she is watching them on her phone. The father also said that the children have been told by their mother that she will put their father in gaol. This makes it very difficult to have a healthy relationship with the children.
The mother then sought to ask the father if he had tried to take the children to a psychologist to discuss their issues. Of course, as the parents have equal shared parental responsibility, taking the children to a psychologist is something that both parties are obliged to consult with each other. This has been another area of controversy and conflict between the parties.
The evidence is clear that the father did not simply refuse to agree to the children seeing a psychologist, but asked the mother to explain why she thought it was necessary. The mother may well have thought that the answer should be obvious, but in the evidence before me she makes no attempt to explain her reasoning. It is consistent with her dismissive attitude towards the father.
Exhibit 23 is another example of what the mother considers to be consulting the father. It contains a text from the mother dated 29 March 2022 telling the father that X and Z have an appointment with the optometrist the next day at 2:40pm, commenting that the girls have seen this doctor for many years and was not some random doctor and asked him to confirm he would take them to the appointment. The father replied asking where the appointment was and how much it would cost. The mother simply texted the website in reply. Initially the father responded saying that he would take the children to the appointment, but then realised that Z had swimming that week and suggested that it might be better to change the appointment. The mother suggested that the father take Y instead of Z and that she would book Z at a later time. When the father replied saying that he would not be able to get back to the school to collect Z at 3:15pm, the mother told the father to “just pick Z earlier” and complained “we waited for this appointment very long time, and now you simply don’t want to take children??” Their argument continued with the father complaining about the late notice of the appointment and the mother saying that the appointment had been made at the children’s last visit. The mother said “you again refused provide medical care? which is yesterday you confirmed” and the father replying that he did not realise when he agreed on that day that Z had swimming. He argued that “Company AE are usually more than happy to change appointments.” Given that the website the mother included the link to Company AE Optometrist and Audiology at Suburb H, it is hard to accept that it would be difficult to change the appointment. It seems that rather than it being a situation where they had been waiting a long time for that appointment as the mother first suggested, it was that the appointment that was made for them when they last saw the optometrist. The mother consistently provides the father with last minute notice of appointments that she has made and expects him to comply with her directive. This falls well short of any genuine attempt to consult and engage with the father. It is also disingenuous and unreasonable to suggest that the father was being obstructive.
STABILITY
One of the criticisms the father makes of the mother is the frequency with which she has moved homes. The father says they moved homes during the marriage several times at the mother’s insistence and moved to Suburb H as the mother wanted to be closer to Melbourne. The father refers to the number of times the mother has moved post separation in his affidavit and is critical of this. However, the point the father makes is a good one, which is that stability is important for the children, particularly given their learning difficulties and difficulties in settling in school.
The mother asked the father to agree with the proposition that the children are most comfortable where their parents are comfortable. The father agreed but stressed that stability, particularly with respect to schooling, was important for the children. The mother then asked him to agree that staying at the same school is good for the children if they are not being bullied of which the father agreed. Both parties agree that the children settled well into C School and were happy there, yet the mother sought to change their school again because of her move. The mother says that she could not find a rental property in the Suburb H area but does not provide any evidence with respect to that. Again, one of the real difficulties is the fact that the mother again did not raise this until after she sold her property.
When questioned by the mother, the father said that after they moved to Suburb H he was not able to be as involved with their care at home because of the commuting that he had to do to and from work. Due to the length of the commute the father would stay with his parents a few nights a week.
The mother sought to cast the father’s position of wanting to change the children’s school to one in the City M closer to his home as being hypocritical in light of his opposition to her changing the children’s school to a school in Suburb O. She however misses the point that the father is seeking to change the children’s primary residence to his care and so it would not be practical for the children to attend school at either Suburb O or Suburb H due to the distance.
I accept that people’s financial positions can change unexpectedly. I accept the mother’s evidence that she and the children had to move out of the rental property she secured unexpectedly because of the damage in the home.
However, I am not confident that the mother will remain living in the area she is living in now (barring unforeseen circumstances beyond her control). The mother’s concern about the children’s educational progress does not sit easily with her changing the children’s schools so often. The mother’s continued opposition to an order restraining the parties from unilaterally changing the children’s schools, particularly given her past actions is also of concern. In the minute the mother submitted on the last day of trial she refers to the children attending AF School. This was the first mention of AF School and her wanting the children to attend there.
PARENTS REPARTNERING
Both parents have repartnered.
Ms Q
The mother complains about the father’s relationships. Ms Q was in a relationship with the father for about six months from late 2019. They did not live together. She is an allied health professional. She swore an affidavit on 20 April 2020 in support of the father’s case and was cross-examined.
Ms Q refers to incidents where she came into contact with the girls. In her affidavit she claims that on 18 January 2020 took the girls to his home. She states that the girls told the father that the mother told them they must go to their rooms and close the door and not speak with her. She says she went to the room and told them that “mummy made a mistake and you are allowed to talk to me, when you are with Daddy, Daddy makes sure you are safe and that the people around you are ok.”
In early 2020, Ms Q, the father and the girls had lunch to celebrate the paternal grandmother’s birthday. Y told her that her mother had taken away their Christmas presents because they had visited her home. Y also told Ms Q that the mother informed them they are not allowed to visit her home.
Ms Q has a daughter. She says the girls visited her home on about three occasions.
She says that on two occasions in January 2020, the girls told her that they did not want to go back to the mother’s home because “she yells all the time” and that “they wanted to stay at Daddy’s.”
In early 2020, she took the children shopping to buy a present for the father’s birthday. The next day the mother took out a family violence order against her.
Ms Q says she has never heard the father denigrate the mother in front of her with the children in earshot. In the complaint and summons, the mother says that the children told her that Ms Q forced them to go with her without their father. It further states that when they said they did not want to go, Ms Q pulled them by their arms and that when they tried to get out of the car, she locked the car. The mother said Y had a nosebleed due to the heat in the car. The mother also complained that Ms Q denigrates her and has said things, including “your mother will die soon and you will have to live with us.” The mother says X had experienced nightmares and the girls told her they were scared of Ms Q. This is not addressed in the mother’s affidavit.
The intervention order is annexed to Ms Q’s affidavit. The intervention order is in fact against “Ms Q”. An interim order was made protecting the three girls preventing Ms Q from attending the father’s home when the girls were in his care. The fact that the paperwork refers to her as “Ms Q” is consistent with the mother not knowing her full name. Ms Q is the name Ms Q uses on Facebook. It is clear that Ms Q had limited involvement with the children, due in part to the IVO but also the relative brevity of her relationship with the father. Ms Q’s evidence does not greatly advance matters.
The father’s current partner
The father gave evidence that he has been in his current relationship for about a year. His partner has a child. The father’s evidence is that his partner and her daughter stay at his home with her daughter staying in the fourth bedroom at times when the children are not in his care. Given what occurred with Ms Q, it is not at all surprising that the father has taken this approach.
The mother tried to put to the father that having multiple partners does not set a good example for the children but quite properly, counsel objected to this as it presupposed that the father has introduced the children to his partner. Parties are entitled to continue to live their lives and form new relationships. It only becomes relevant to the parenting matter if it impacts on the children’s welfare. Being introduced to a partner shortly after separation, when those particular children may not be ready for such a change can reflect a lack of insight. It can also be confusing for children to be introduced to a partner to form a relationship with them for that person to then disappear from their lives, and if that continues to happen it can be detrimental to their welfare. Certainly, the children were introduced to Ms Q. The father was adamant that neither of his partners or current partner’s child has stayed overnight at his house whilst the children are in his care.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3). These considerations include the views of the child, the nature of the child’s relationship with their parents and significant others, the extent to which the parents have or failed to take opportunities to participate in decision-making, spending time with and communicating with the child, the likely effect of separation on the children, the attitude of the parents to the responsibilities of parenthood and the capacity of the parents and significant other persons to provide for a child’s needs.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] 240 CLR 461, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an order for equal time.
At paragraph 13 of the judgment the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
Neither parent seeks orders for equal time. The distance between the parties’ homes makes this impractical.
APPLICATION OF LEGAL PRINCIPLES TO THE FACTS OF THIS CASE
By the end of the trial the parties agreed that equal shared parental responsibility was unworkable and not in the children’s best interests. I agree. I will make the order proposed by the father that still enables the mother to be involved in those decisions but the father will be able to make the final decision. Ms AB referred to an organisation in Suburb H where the children would be able to see a paediatrician. The father proposed a consent minute that would have enabled the parties to arrange this pending the reasons. The mother agreed that the children should see a paediatrician but would not agree to the order proposed by the father. It was clear that the mother was suspicious of anything proposed by the father even though he was merely taking up a recommendation of the independent court expert based on enquiries she made about waiting times. I will not make the order proposed by the father as he may find services closer to him.
Both parties made allegation of family violence of the other but there little evidence before me about this as what was clear is that the parties do not have current fears of each other. Quite properly the focus was on future risk. Both parties also made allegations of abuse by the other towards the children which I referred to earlier in these reasons.
Y and Z have expressed a preference to live with their father. X wants to spend time equal time with both parents. Given the girls’ ages and maturity their views carry limited weight.
The maternal grandmother is an important figure in the children’s lives. The father acknowledges this. It is of some concern that the children were reporting at least at the time of the report that they had not seen their grandmother since she moved out. The mother claims they did not have a falling out. It will be important that the mother ensure that the children maintain their connection with their maternal grandmother. I acknowledge that the girls will be spending significantly less time with the mother and they will need quality time with their mother.
The children will have more opportunity to spend time with the father’s extended family. They are a support for the father.
The parties have been unable to communicate effectively with each other about major decisions about the children. The evidence shows that the father has sought to be involved in these decisions and asked questions that the mother did not answer. The mother has at times offered the father additional time with the children. The parties were also able to agree on the interim arrangement which involves considerable travel for both. I do not think it was unreasonable for the father not to continue the Wednesday visits given his work commitments, the distance and difficulties due to Covid. It will able to be a reasonable position for the mother to take in the reverse particularly as she hopes to obtain employment. I will include an order enabling the mother to spend a couple of hours after school with the girls once a week provided she gives the father 24 hours’ notice by text of her intention to do so. It may not be practicable for her to do so every week but if she is able to that will be beneficial for the children.
There are practical difficulties that restrict the amount of time the children will be able to have with their parents because of the geographical distance. If the parents live closer together then it would be the children’s best interests for the children to have more time with their mother which would enable her to be more involved in their school week.
The children come from two very different cultures and it is important that they be able to maintain their connections to their mother’s culture which is very important to her. As they will continue to spend regular time with their mother I am satisfied this will happen.
It is difficult to predict whether these orders are less likely to lead to further proceedings as there are many uncertainties. It is difficult to predict how the children will settle into their father’s primary care and the father’s willingness and ability to take on the responsibilities of ensuring that the children’s health and developmental needs are met.
CONCLUSION
If geography was not in issue, then the best arrangement for the children would be for the shared arrangement of the children in the primary care of one parent, and spending five nights a fortnight with the other parent during school terms and sharing holidays and special occasions as both would be actively involved taking the children to and from school and be involved in their weekday routines. I have to however address the evidence before me. The father is employed by his family’s business, working on the family farm and has the support of his family nearby. If he were to move to Melbourne then he would lose that employment and that family support.
The mother has been more able to move than the father and has moved a number of times. It is very clear, however, from her evidence that she was unhappy living in the City M area feeling isolated and has been much happier living in Melbourne in a more urban setting. She has her mother in that area and it is important not to forget that the mother has emigrated from another country, so of course she does not have the same connections that the father has in City M. But what is also important for the mother is to have access to her friends and supports, and whilst there is no evidence about this it is more likely that the mother has been able to find connections to her culture and heritage in the city. It is clear that it is very important to the mother that the children learn about her culture, and it is important to her that the children learn the Country K and Country L languages. During closing submissions, the mother expressed a fear that if the children live primarily with the father they will lose that cultural connection. Certainly, the children will have less opportunity to be immersed in it, but they will still be able to maintain those connections through the mother. The mother also appeared to perceive there being a criticism of the children being bilingual. It can be an incredibly valuable thing for children to be able to learn another language at a young age which is something that many children do not have the opportunity to do. I do not see the fact of the children being bilingual a negative thing at all. Dr P mentioned it in the context of a multitude of issues for the girls.
I accept that the mother clearly has a greater understanding of the children’s developmental issues and has been proactive in trying to seek assistance for the children. As Ms AB noted, the father did not show a good understanding of this and assumed that their difficulties were with respect to trauma that they have experienced. Certainly, a limitation of the psychological assessments of the twins is the fact that the father had no involvement in it, and that the psychologist did not have the opportunity of obtaining collateral information from him and his perspective in observations of the children which would have been different to the mother’s. This does not mean that there is no validity to the tests that the psychologist carried out of which Ms AB also made clear. Upon seeing the assessments for both twins, Ms AB said it was consistent with the behaviour that she observed, and that she was not suggesting that the tests were wrong. Part of Ms AB’s recommendations are for all three children to be assessed by a paediatrician, and she helpfully pointed out that in order to obtain NDIS funding it may be necessary to have a paediatrician confirm the diagnosis. The wording of the reports referring to it being “consistent with” rather than a definitive diagnosis would not appear significant to many laypeople, but is the type of language that agencies look for in a set criteria as to whether or not the child is entitled to funding.
I am also satisfied that the mother has not genuinely tried to consult with the father. She does not value his opinion and does not think that he can meaningfully contribute to issues concerning children’s education, development and health. The various emails that the mother relies on to support her contention that she has tried to consult with him and that he has been obstructive did not support that at all. What they do show is a consistency by the mother to inform the father of a decision she has made as late as possible, and giving him little opportunity to consider it. Any questioning by the father in an attempt to understand her reasoning is interpreted as being obstructive and oppositional. This pattern is consistent with respect to both the change of school in February 2020, the further attempted change of school in 2021, and informing the father about appointments that she has made shortly before they are due to occur. As discussed above with respect to the optometrist appointment and not telling the father until the day before, but complaining that the girls had been waiting for that appointment for some time. What is apparent is that it is likely that the follow up appointment was made at the last occasion when they saw the optometrist, and that would have meant that the mother was aware of that appointment for some months but did not tell the father until the day before. This has been consistent with her approach to assessments that she initially booked for the children in June 2020 and with respect to her relocation from Suburb H to Suburb U. These are not examples of the mother genuinely seeking the father’s input and collaboration. Rather, that she expects him to accept that what she is arranged the best of the children. This is made clear from the tone of her communication throughout.
It is not unreasonable for the father to ask the mother to explain to him what he thought the assessments were needed for, particularly when the evidence is that the father did not have a good understanding of the children’s developmental and educational needs, noting that prior to this year he only saw the girls on weekends and holidays and did not have care of the girls during school week. Regardless of any justifiable criticisms of the father in this regard it was not at all helpful for the children for the mother to ignore those requests as she repeatedly did, and then for the mother to not justify her actions by making unilateral decisions. If there is blame to be laid, it must be laid at both parent’s feet. However, focussing on blame is not helpful. It will be far better for the children if the parents can focus on the future.
I accept that if the children remained in the mother’s primary care with sole parental responsibility she would make arrangements for the children to be assessed and to obtain the further assistance they need in a proactive way. In contrast, there is some concern about how proactive the father will be. As Ms AB noted, when a parent does not see that there is an issue, there is not that same sense of a need to address it. However, what is also clear from the evidence is that the father has not simply ignored or opposed the mother’s efforts, but has sought to understood understand them. It is also clear that he accepts that the children need help and have difficulty learning and with socialisation, but his focus has been more on this being about trauma.
The father is now aware of the need to follow through with assessments for the children and further assistance. I am also more confident that he will be more inclusive of that process than the mother would be towards him, because if nothing else, the father has experienced the frustration of being excluded when seeking further information.
It is also clear that the father values the importance of stability. I accept that the parties moved several times during their relationship. I also accept the father’s evidence that that this was not his preference, and indeed the move to Suburb H was difficult for him because of the travel to maintain his employment and limited time with family. It is troubling to me that the mother has relocated multiple times post separation and attempted to move the children’s schools more than once. Of course there are circumstances that can be beyond an individual’s control, and certainly nobody would have foreseen the pandemic and the consequences that that would unfold. I want to make it clear that criticism is not about the mother losing employment and her financial circumstances changing, but what was clear from her evidence is that even though she had a better understanding and awareness of the children struggles at school, she did not see how changing the children’s schools would have added to that difficulty.
The mother’s consistent opposition to an order restraining the parties from changing the children’s schools without the other’s consent or court order is particularly concerning given her past actions. I am not confident that if the children remained in their care that the mother would not change their schools again. There is also the possibility that the mother will move further away from City M, further adding to the geographical distance between the parties as she has done previously. Whilst the mother said in her affidavit that she was unable to secure rental accommodation in Suburb H, she did not provide any details of those attempts and she vehemently opposed when cross-examined to the notion of moving anywhere that would be closer to the father’s home.
This has been a difficult matter to consider and balance all the competing factors and risks in this case. Major change for the parents and the children is unavoidable as the week about arrangement is not sustainable, and nor is the children remaining at their current school which clearly is a source of stability and support for them as they have made very clear that they would rather continue to travel than change schools.
Whilst the current arrangements have had their benefits and has given the children and the father the opportunity to deepen their relationship, the distance between the schools and the parties homes means, particularly with this trial continuing, that it has not been possible to follow up and obtain the necessary assessments and supports for the children.
It will also be important for the children to attend a school that is part of their local community as that will also assist with their socialisation difficulties. This enables them to participate in the local community and make friendships with local children. Whilst Ms AB recommended the parties engaging with a service in Suburb H, that is some distance from the father’s home. It may be that he is able to find services in City M or closer that do not have lengthy waiting lists. In my experience in Melbourne and regionally, there are significant delays in public health services, particularly services for children with respect to mental health and assessments and treatment for autistic spectrum disorders and other conditions which has been greatly compounded by the impacts of the pandemic.
The father will need to step up and be proactive in seeking the supports and proactively engage with the children’s school. There is no doubt that the next few months in particular, will be very challenging for both parents and the children. Adjusting to another new school will initially be difficult for the children, and that is to be expected, particularly one or more of the children may resist going to a new school and making that adjustment. It will also be an adjustment for the father and the children for him to take on their primary care which he has not done before. A difference between the parents in this regard is that the father has shown a willingness to recognise his deficiencies in parenting, and is motivated to seek help and improve. I note in this regard despite the mother’s relentless criticism of the father, the father reaching out to the mother and seeking her assistance when the children were resisting returning to the mother’s home in April 2022 would have been an opportunity for the mother to assist the father and therefore the children, of which would have been to her credit.
Having considered the many competing issues in this case, I have concluded that it is in the children’s best interests to live with their father. I acknowledge that this will be difficult for the mother to accept. It will also be a significant adjustment for the girls, which will include another change of school. The father will need to be proactive in arranging paediatric assessments and supports for the children. The mother has much to offer in this regard. She has clearly been attuned to these issues.
If the mother is able to spend time with the girls for a few hours after school each week in addition to the alternate weekends that will benefit the children, but will not always be possible.
The parents have such different parenting styles, with positive and negative aspects to both that it is hard for the girls to transition between them and they need to have one home base whilst still spending regular time with the other.
I certify that the preceding three hundred and fifteen (315) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 15 June 2022
0
2
1