Wyndham and Wyndham

[2014] FCCA 2718

FEDERAL CIRCUIT COURT OF AUSTRALIA

WYNDHAM & WYNDHAM [2014] FCCA 2718

Catchwords:
FAMILY LAW – Parenting – several orders agreed including equal shared parental responsibility and school holiday time to be shared equally – dispute centred on time during school terms and whether the father’s time with the children should be reduced or extended to equal time – high conflict.

Legislation:

Family Law Act 1975, Pt.VII, ss.60CA, 60B, 60CC, 61DA, 65DAA, 121

Applicant: MR WYNDHAM

Respondent: MS WYNDHAM

File Number: DNC 401 of 2013

Judgment of: Judge Harland

Hearing dates: 12 & 13 November 2014

Date of Last Submission: 13 November 2014

Delivered at: Darwin

Delivered on: 21 November 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms V Farmer of Withnalls Lawyers

ORDERS

1. That the Orders made 10 February 2014 in relation to the child [X] born [in] 1999 be discharged.

2. That the parties have equal shared parental responsibility for the children of the marriage, [X] (“[X]”) born [omitted] 1999, [Y] (“[Y]”) born [omitted] 2005 and [Z] (“[Z]”) born [omitted] 2009 (“the children”).

3. That the children live with the Mother.

4. That [X] spend time with her father in accordance with her wishes and the Mother will facilitate the time expressed by [X] to spend with her Father.

5. That [Y] and [Z] spend time with the father during school terms every second week from after school on Thursday to before school on the following Monday.

6. That [Y] and [Z] spend time with the Father during school holidays as follows:

   (a)With the Mother for the first half of the school holidays in odd years and with the Mother for the second half of the school holidays in each even year; and

   (b)With the Father for the second half of school holidays in each odd year and the first half in each even year.

7. That Orders 5 and 6 herein be suspended for the following days of significance and the children spend time with the parties as follows:

   (a)With the Mother from 5:00pm on the Saturday prior to Mother’s Day to before school on Monday;

   (b)With the Father from 5:00pm on the Saturday prior to Father’s Day to before school on Monday.

8. That all changeovers take place at the children’s school when a school day and when not a school day at [C] Petrol Station.

9. That all communication between the respective parties be by email and/or text message.

10. That for the purpose of calculating school holidays, school holidays commence the day following the last day of the school term and conclude the day prior to the first day of the following school term.

11. That the parties shall immediately advise the other party as to any emergency, illness or medical concerns in relation to the children and if there are any matters of an urgent nature, the parent who has the care of the children will notify the other parent immediately, and should the relevant person not be contactable a close relative of theirs shall be contacted.

12. That each parent shall be entitled to obtain copies of the children’s health-care records and to discuss matters with the children’s medical practitioners and specialists and each parent shall sign any necessary authorities to ensure this information can be freely disclosed to each parent.

13. Each parent shall keep the other informed of their residential address, postal address (if different), landline telephone number, mobile telephone number and email address at all times and shall notify the other of any changes to their contact details within 14 days of any change.

14. That the parents communicate with the children at all reasonable times and in default of agreement each Sunday between 6:30pm and 7:30pm with the parent with whom the children are not living to instigate the telephone, FaceTime or Skype call to the resident parent.

15. That the children be permitted to travel interstate and/or overseas with either of the parties during any time spent provided that the party with whom the children are to travel provides to the other party not less than twenty eight days’ notice for overseas travel and fourteen days for interstate travel and provides itineraries and contact addresses and telephone numbers for the children whilst they are overseas or interstate so that the children can communicate with the other party at all reasonable times.

16. That the children not be taken overseas to a Department of Foreign Affairs declared “hot spot” or caution areas due to the Father’s rank and occupation in the Armed Forces.

17. That the Father forthwith upon presentation by the Mother sign the children’s passport applications.

18. That the Mother provide to the Father the children’s passports not less than seven days prior to travel or earlier upon request if visas for the travel are required and the Father return the children’s passports to be held by the Mother after the conclusion of travel immediately upon return and that in the event of a request, the Mother provide to the Father the children’s passports not less than seven days prior to any intended overseas travel and the Father return the children’s passports to the Mother after conclusion.

19. That each parent be restrained from denigrating the other parent or the parent’s partner or members of that parent’s family in the presence of or within the hearing of the children or any of them and each parent remove the children from the hearing of anyone else who may be denigrating the other parent or that parent’s partner or family.

20. That each parent is restrained and an injunction is granted restraining them from discussing the court proceedings with the children or allowing the children to read or view any court documents.

21. That the Father be restrained from taking any of the children to any medical practitioner or counsellor without consulting the Mother.

NOTATION

A.Orders 5, 7, 8, 18 and 21 are not by consent.

IT IS NOTED that publication of this judgment under the pseudonym Wyndham & Wyndham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 401 of 2013

MR WYNDHAM

Applicant

And

MS WYNDHAM

Respondent

REASONS FOR JUDGMENT

1. [X] turns 15 on [omitted] 2014. Her parents have sensibly agreed that the time she spends with her parents should be in accordance with her wishes. This is consistent with her strongly expressed views and the family report recommendations.

2. The parents were able to agree on several final orders by consent. This is to their credit.

3. The issues the Court is asked to determine are as follows:

   a)the amount of time the children should spend in their father’s household during school terms;

   b)with respect to Mother’s Day and Father’s Day and if the children are not already in that parent’s care they should be returned to the other parent by 5:00pm on that day or before school the following day;

   c)whether the mother should hold the passports for the children or they should be placed in a bank security deposit box with withdrawing signatures of the parents being required in order to release them;

   d)whether or not handover should take place at McDonald’s [C] or the United petrol station at [C] on non-school days;

   e)whether or not there should be a mandatory injunction preventing the father from having the children attend any medical specialist for treatment including counselling and whether or not he should be required to comply with all recommendations with respect to prescription medication and follow the mother’s reasonable directions with respect to the children’s prescription medication.

4. The biggest issue in dispute is the time the youngest two children, [Y] aged 9 and [Z] aged 5 should spend with their parents during school terms.

5. The father represented himself at the final hearing.  He was respectful to the Court at all times and clearly prepared for the hearing. It is always difficult for someone who is not legally trained to represent themselves at a final hearing. The father was able to put his case before the Court. The hearing proceeded in an efficient, professional and respectful manner due to the way Ms Farmer and the father presented the case.

The Father’s case

1. The father says that the children have adjusted well into the new routine and that there have been no obvious problems of hostilities with respect to the parents’ respective partners. He says the children’s school reports show that they have adjusted well. He says that whilst there had been some organisational confusion for the children with the transitions taking place across two weeks he thinks that a week about arrangement would solve this issue as the changeover would take place on the same day each week. He says he is willing to attend counselling to make the transition for the children easier.

2. The father relied on an affidavit by his wife Ms J. Her affidavit largely mirrors the father’s affidavit. She says she has changed her working arrangements so that she can better support the father and the children. She says she is also willing to attend counselling.

3. The father says it has always been difficult to communicate with the mother.  He says the mother always dictated when he could see the children.

The mother’s case

1. The mother says that initially the care arrangements post separation worked well until about late 2012. She says that she was able to communicate with the father and they were able to be flexible and swap weekends.

2. The mother lays much of the blame for the deterioration in their relationship and the high conflict on the father’s partner. She says that the father now speaks to her disrespectfully or aggressively and that she disagrees with his discipline towards the children which she finds harsh and in an authoritarian manner which he uses with the children.  She complains that Ms J writes much of the correspondence for the father because the length and tone has changed.

3. The mother says the interim arrangements made on 10 February 2014 are not working for the children.

4. She says the children are not coping with the current arrangement and that at times they resist going to spend time with the father.

5. The mother also relied on an affidavit by her partner Mr H. He works as a [omitted] and does shift work. Unsurprisingly he supports the mother’s position and says that the current arrangements are not working.

Issues of Conflict

1. There was another period when the father did not see the children in August 2013 because of the dispute between the parties about the handover location. The mother said she would no longer bring the children to [omitted] police station and that handovers would revert to [C] where they had taken place previously.  The father conceded when cross-examined that the mother texted him on the alternate weekends during the period telling him that she and the children would wait at [C] petrol station for twenty minutes. He agreed he received those texts and preferred not to see the children rather than go to handover at a place that he did not agree with (he thought handovers should continue at [omitted] police station). The children would have been disappointed the father did not attend. The father was asked that if in hindsight he would have behaved differently. He said that it was more than likely that he would not do that again for the benefit of the children. It is an example of both parents being inflexible and unable to communicate with each other constructively for the benefit of the children.  It does not reflect well on either parent.

2. The father married Ms J on [omitted] 2013. The children remained in the father’s care for ten days. The father agreed that he told the mother the children went to school when they did not. Such conduct is unlikely to encourage the mother to trust the father.

3. There was a three month period late last year where the father did not spend any time with the children.  This is referred to in the family report. The father complained that the mother unreasonably withheld the children from him.  The father says that the children spent ten days with him after his wedding to Ms J and that he and the mother argued when he tried to negotiate time on subsequent weekends. He says he told the mother as a result of this that he could not return the children to her and they would remain in his home until the matter was determined by the Court. The mother says that she withheld the children after the father made that threat.  The father acknowledged saying that but still saw the mother as being unreasonable. This shows a lack of insight and shows no regard to how such an action would have impacted on the children. It is not surprising that the mother reacted the way she did given what the father said. It is concerning the father could not see this. It would have been confusing and distressing to the children not seeing their father for three months and both parents must take some responsibility for this.

4. Mr R deals with the dispute between the parents about [Z]’s asthma in his family report. The mother says [Z] was diagnosed with asthma some years ago and was prescribed preventer medication which she needed to take daily. The mother complains that the father did not believe that [Z] has asthma and regularly failed to give [Z] her prescribed medication. The father took [Z] to a different general practitioner who said that [Z] did not have asthma. The father stopped giving [Z] her medication.  He did this without consulting the mother.  The mother said this was contrary to the advice she had received from the doctors treating [Z] a short time before. At interview and when cross-examined the father stood by his position and said that he would do the same thing again. He feels he did nothing wrong. As Mr R said “the issue of [Z]’s medical care highlights the inability of the parents to effectively cooperate, communicate and resolve their differences for the sake of the children.”  The appropriate thing for the father to have done would have been to consult the mother about obtaining a second opinion about [Z]’s asthma. He should have continued the medication in the meantime. Instead he took a unilateral approach that raises some concerns about the ability of the parents to effectively exercise equal shared parental responsibility in the future. It is concerning that the father cannot see anything wrong with his conduct and that he would do the same thing again.

5. The father took [X] to see an Army Chaplain without consulting or informing the mother. The father says he did this after [X] came home disturbed by a class discussion about suicide. The mother says that [X] told her the counselling was not about that at all and was about her attitude towards the father’s partner. The father said that in hindsight he should have let the mother know but he would not have changed his actions. This is another example of the type of issue that the parties need to consult with each other about, and agree on the course of action, given that they are to share equal parental responsibility. Simply informing the mother after he made the decision is not consultation.  Mr R expressed concerns about this in paragraph 37 of his report particularly because youth suicide is such a sensitive issue. It was put to the father that his failure to consult with the mother adds to her lack of trust of him.  The father replied that he could not comment on that. He said that in the future he will consult the mother but it is apparent from his answer that he does not really appreciate why his course of conduct is of concern.

6. There are several instances where the father shows a rigidity in his approach and attitude. The mother had previously sought the father’s agreement to take the children to Bali on a holiday with her partner. The father refused. During cross-examination the father said that he was concerned about the children going to Bali given his employment. He said Bali is a ‘hotspot’ as far as the Department of Defence is concerned and he was concerned about the children’s safety in the event they mentioned that their father was a soldier. The father agreed that he did not convey his concerns to the mother. It would have been a simple thing for him to explain to the mother why he was concerned. Given the chance, the mother may well then have changed her travel plans but instead the father said no without explanation. The parents have resolved this issue on an ongoing basis with the orders they agreed to. The issue of concern is not the father’s refusal but his failure to communicate his reasons why.

7. There has also been conflict between the parents about the children’s extra-curricular activities. The father says he was not consulted by the mother prior to her enrolling [Y] in rugby training and that [Y] is not interested in rugby.  [Y]’s games take place on Friday nights and the training is on Thursday nights.  The father does not take [Y] to training and did not always take him to his games. The father said that if he had been consulted and if he and Ms J did not have other plans that probably would not have been a problem. It was put to him that [Y] cannot effectively participate only attending training and games once a fortnight as playing in the sport is a commitment to a team. The father’s response was to be critical of the team [Y] is in.

8. The parents will need to consult with each other about the children’s extra-curricular activities for the 2015 school year.  Many children like to participate in team sports.  It can be a good experience for children but only if they are able to participate consistently and do not stand out to their teammates, as a child would if only able to participate in team activities every other week. This is another example of the father being quite rigid rather than seeing it from [Y]’s perspective.

9. The mother emailed the father about the upcoming Christmas school holidays.  That email is exhibit A. It is dated 25 September 2014. She was simply seeking confirmation as to whether the father’s time would start on 12 December 2014 and end on 2 January 2015 or start on 13 December 2014 and end on 3 January 2015. The father said he did not respond because he could not make that determination until after these proceedings. He acknowledged that there was not much difference between the two proposals and, as it turns out, that centred on how the holidays should be defined with the father agreeing that he would define the holidays as starting the day after school finishes and ending the day before the children go back to school. As a result of this the parties agreed on an order defining the beginning and end of school holidays. This is another example of the father’s rigidity and inability to communicate with the mother. It would have been a simple thing for him to say to the mother in response to that email exactly what he said in court instead he simply ignored it for months.  Given the narrowness of the issue there is no reason why he could not have responded.

10. The father says that he and the other adults will have to change the way they communicate moving forward for the benefit of the children. He says that after the proceedings are over they will be able to do that. The Court does not share his confidence. There is nothing to indicate that either parent’s attitude will change.  They have not been able to change it before now.

11. The father was asked about things the mother alleges the children have said as set out in paragraph 49 of the mother’s affidavit. The father says that [Y]’s comments were taken out of context.  The father said that in the heat of the moment after [Y] kicked him in the knee causing him pain. He said he told [Y] “if that’s the way you’re going to act in this household you may as well not come again.”  He acknowledged he could have disciplined him in other ways.

12. Ms Farmer asked the father if he accepted that the children do not get on well with his wife. He said there were difficulties but in the past few weeks it has been quite harmonious.

1. Exhibits E and F is a series of text messages between the parties. Both parties need to take responsibility for the poor way they communicate with each other. Given the tone of their texts to each other it is not surprising that it deteriorates to the point of abuse.

2. The poor attitude and rigidity is not all one sided.

3. The father cross-examined the mother about a text she sent where she said to the father “fuck off cunt”. That is appalling language and there is no excuse for it but it needs to be put in context as it was in response to an insulting text from the father criticising her as a parent.  When questioning the mother about her response the father says that he was “trying to open an adult dialogue”. If he genuinely thinks his text was doing that then he lacks insight.  It was inevitable that such a text would receive a negative rather than a constructive response.

4. The mother was cross-examined about a Facebook post her partner made. It is exhibit D.  Apparently it refers to lyrics of a song the children love.  To someone not knowing that song it could be misinterpreted.  The adults should assume that everything they post on social media is public.

The family report

1. The mother did not require the family report writer for cross-examination. This is not surprising given the content of the report. What was surprising was that the father did not require the family report writer for cross-examination. I explained to the father that if he did not require Mr R for cross-examination then the family report would be admitted into evidence without challenge. He confirmed that he did not want to cross-examine the family report writer. The father’s position is surprising because in emails and texts with the mother he clearly disagrees with the report and was critical of Mr R. This is apparent from the email exchange annexed to the mother’s trial affidavit. Mr Wyndham confirmed that he did not wish to cross-examine Mr R and that he understood that the report be admitted into evidence.

2. The family report is dated 5 August 2014. At paragraph 15 Mr R says “it is notable that the parent’s relationship is marked by a lack of communication, poor cooperation upon parenting matters and marked difference in their views and attitude to the care of the children.”

3. Mr R pointed out that the parenting practices of each parent is a relevant consideration for the Court. It is clear that the parents have very different parenting styles particularly with respect to discipline  and that the children have different experiences of the two households and see the father’s household as being stricter and more rigid. The mother has raised this of a concern and the children themselves have raised concerns particularly about discipline and placing [Z] in time out in the bathroom for as long as half an hour or more on occasion. [Z] is only 5.

4. Mr R also referred to the difficulties that blended families experience.  He says at paragraphs 71 and 72:

   “Mr Wyndham and Ms J have clearly taken a stand on what they consider to be appropriate parenting strategies and as a couple that they aspire to have a more active and beneficial influence in shaping the children’s development. The difficulty with this is that their parenting practices appear to be markedly different from the mother’s and certainly different from what the children have expected from the father in the past. As a result the children are somewhat confused and resistant to the imposition of rules and standards upon them that they are not accustomed to and which they view as mean and unfair.

   It would have been preferable in this situation if the father and Ms J had focused more on promoting a warm and respectful relationship between the children and that Ms J rather than adopting a firm stance on enforcing discipline and routines and that the children are not accustomed to. This is not to suggest that they should abandon the parenting standards they believe in, but to acknowledge that the introduction of such standards will be problematic if this process is not founded on respectful and nurturing relationships in the first place.”

5. The father and Ms J should listen to what the children have said in the family report. I do not accept that this is the mother influencing the children. I accept that the children’s views are based on their experiences.

6. At paragraphs 74 and 75 Mr R refers to the well-known research into shared care arrangements and sets out the indicators in favour of and against shared care arrangements.

7. Whilst the parents live in close geographical proximity to each other and no issues have been raised with respect to the work places or financial capacity, the Court cannot be confident that the parents will be able to improve their communication and cooperation in order to develop a businesslike working relationship. The parents have not been able to keep the children out of the dispute and there are examples of the children being placed in the middle.  For example the disagreement about taking [Y] to football games and the like. This is clear that the children are highly aware of the conflict and they could not help but be very aware of Ms J’s attitude towards the mother. The other factors that indicate that a shared care arrangement would not work is that [Y] and [Z] are under 10 and they are not happy with the arrangement.

8. The father downplays the differences in the parents’ households but I do not accept his submission that he and the mother use similar discipline techniques and that they will be able to improve on their communication once the court proceedings are over. I accept Mr R’s opinion expressed at paragraph 76 that the given the evidence in this matter that it is likely that a shared care arrangement rather than being experienced by the children as being a “richly shared experience” is likely to be experienced by them as being “deeply divisive”.

9. Mr R recommends that the father’s time be reduced from the current five nights per fortnight arrangement. He sets out his reasons for recommending reduction in time with some details in paragraph 78. He recommends that during school terms the children spend time with the father from after school on Thursdays until before school Mondays on alternate weeks.

10. Paragraph 80 is also significant and the father and Ms J would benefit from taking note of the comments in that paragraph on seeking assistance to improve their parenting style.  Mr R says:

    “Regardless of the amount of time the children might spend with the father and Ms J a primary consideration for the father and Ms J is the need to re-evaluate their approach to the parenting of the children and for them to adopt a style of parenting that is less authoritarian, more child focused, and does no damage to existing relationships, but promotes mutual respect and positive regard between adults and children. In the absence of such a re-evaluation and re-alignment of parenting styles it is likely the children will continue to experience time at the father’s household as an unsettling and negative experience leading to increased resistance to making the transition to his care.”

11. Both have indicated that they are willing to attend counselling to improve this but give no indication that they have done anything about it to date.  Mr R is a very experienced family consultant who, whilst having an expertise in indigenous matters, also has an expertise in carrying out family assessments generally. His observations and recommendations are consistent with the evidence before the court and I place significant weight on his report.

The presentation of the witnesses

1. The father is a career soldier. He gave his evidence in a clear and straightforward manner.

2. The mother also gave her evidence in a clear and straightforward manner. At times she was very blunt and it was apparent that it was difficult being cross-examined by the father.  It was also a difficult thing for the father.

3. The Court has the advantage of watching and listening to the parties and the witnesses and assessing them throughout the hearing. I am satisfied that both parents are sincere in their position and believed that their respective positions are what is best for the children. It is also clear that there is a lot of tension between the adults.

4. Of most concern was the presentation of the father’s current wife, Ms J. From the moment she stepped into the witness box she was extremely defensive and at times openly hostile. It was clear that she felt very strongly that the mother had manipulated the children by using their images on a fundraising website seeking to raise funds for this court case. The mother’s actions were inappropriate but this strength of negative feeling Ms J displayed towards the mother is not entirely explained by this. She remained in the court room after she gave her evidence and continued to clearly feel quite strongly about what was going on in the courtroom. It is unusual to see this kind of behaviour from a partner.  Her presentation was concerning and lends credence to the mother’s evidence about her.

5. Ms J has also at times acted in an appalling manner. When confronted with this she was very defensive and was unwilling to meet that she had made inappropriate posts on Facebook.  Exhibit F is an extract of Ms J’s posts on Facebook. They include references to the court case which very much portray the case as a battle to be won or lost. What is most concerning is that [X] used to be a friend of Ms J’s on Facebook and could easily be aware of Ms J’s views.  Ms J’s contempt for the mother was obvious from the moment she stepped into the witness box. Her strength of feeling about the case was obvious from the whole time she was in the court room. (She remained in the court room for the rest of the hearing after she gave her evidence).  The children must also be aware of it. This would contribute to the tension in the household and leads some credence to the complaints the mother makes.

6. Ms J should take a back seat. The father should communicate with the mother and not have Ms J prepare emails for him if that is what has been happening.

7. Mr H was cross-examined briefly. He gave his evidence in a straightforward manner.

8. As I said during the hearing the adults in this matter have set a poor example for the children in the appropriate use of social media and in particular Facebook. [X] uses Facebook and for a period of time was Ms J’s friend on Facebook until [X] defriended her. The adults would do well to stay off social media altogether and should be particularly careful about involving the children in their disputes and referring to matters which should remain private. In particular they need to be mindful of s.121 of the Family Law Act 1975 and the prohibition in that section of publishing any identifying material about family law cases.  Adults are supposed to set the example for the children.

9. All four adults would benefit from undertaking a post separation parenting course so that they can gain an understanding of the negative impact of the ongoing conflict on the children.

The parties’ submissions

1. The mother says that [X] gives support to the younger children and that this is a factor in the time that the younger children should spend with their father given that [X] will not be spending as much time there. She says the current arrangement is not working for the children. She referred to the family report and the fact the children do not feel that they can talk to their father about their concerns that their parenting styles are radically different.  She expressed concerns about the father’s negative discipline particularly placing [Z] in time out in the bathroom for up to half an hour. She expressed concerns about [Z] not being able to understand what the punishment was for at her age and stage of development. She said that holiday time is different to term time. She also relied on the research referred to in the family report.

2. The father wants to have a week about arrangement in place during school terms. Pursuant to the orders made on 15 February 2014 the children spend time with the father during school terms from Thursdays after school until before school on Tuesdays on alternate weeks. The mother seeks a return to the previous arrangement whereby the children would spend time with their father on alternate weekends from after school Friday until before school on Monday. The family report writer recommends that the children spend time with the father from after school on Thursday until before school on Monday.

3. The father submitted that a week about arrangement will be less disruptive to the children than either the mother’s proposal or Mr R’s recommendations. He said that as they have agreed the holidays should be shared equally he cannot see why term time should be any different. He challenged the mother’s submission that [X] is a protective factor for the younger children and that as she will not be spending as much time in father’s household it will negatively impact on the younger children. He said that [X] often spends long periods of time in her room in both households as is typical for a teenager. The mother conceded that much in her evidence.

4. The father says the children have adjusted well to the arrangement and that the younger two children expressed to him their desire to spend more time with him.

5. During his final submissions the father conceded that he was agreeable to handovers being after school Friday and before school Monday rather than on Sunday afternoon as he sought during the hearing.

6. The father said that he had adapted his parenting style since the family report was released and says upon reading the mother’s affidavit he thinks their parenting styles are similar.

7. He concluded by saying the week about arrangement would be the only fair and equal arrangement and that it would be an injustice to have anything less. This is focusing on the needs of adults rather than the children.  Children’s proceedings are not about what is fair to the adults.  The paramount consideration must always be the best interests of the children.

8. The father says that all four adults need to improve their communication and work together for the children’s interests and he says he is confident that that could happen in the near future. That was not evident in the courtroom. The Court must take the parents as it finds them. The Court does not share the father’s confidence that the parents and their partners’ communication will improve to such an extent that they will be able to work cooperatively in the future in a businesslike relationship.

9. It is clear that all four adults who gave evidence in these proceedings love the children and want what is best for them. They cannot agree on how to achieve that and I do not accept the father’s submissions that the mother and father’s parenting styles are similar.

Legal principles and their application to the facts of this case

1. In cases about children under Part VII of the Family Law Act 1975 (the Act) the court must regard the best interests of the child as the paramount consideration: s.60CA. What this actually means in an individual case is informed by a number of statutory provisions which I will briefly discuss below.

2. There are objects set out in s.60B that help to clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objects: s.60B(2).

3. The concept of best interests is explained in s.60CC. The primary considerations are set out in s.60CC(2) and include the benefit to the child of having a meaningful relationship with both parents, and protecting the child from harm arising from abuse, neglect or family violence.

4. There are additional considerations set out in s.60CC(3). These include: the views of the child, the nature of the child’s relationship with parents and other persons; the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent; the likely effect of change on the child; issues of practical difficulty and expense associated with contact; the parents’ capacity to provide for the child’s needs; the maturity, sex, lifestyle and background of the child and parents; special considerations if the child is of Aboriginal or Torres Strait Islander culture; attitudes to the child and to the responsibilities of parenthood; family violence or any family violence order; issues of finality; and any other fact or circumstance that the court thinks relevant.

5. At the core of Part VII of the Act is a presumption of equal shared parental responsibility. Thus s.61DA creates a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. This presumption may be negated in certain circumstances (s.61DA(2)), or rebutted (s.61DA(4)).

6. If the presumption applies, the court is required to consider certain time arrangements as between parents and children: s.65DAA. Thus the Court is required to consider equal time, or substantial and significant time, but only if this would be in the best interests of the child, and is reasonably practicable: s.65DAA (1) and (2). Equal time means what it says, and substantial and significant time is explained in s.65DAA(3):

7. Another important concept used in s.65DAA is that of reasonable practicality. That is explained in s.65DAA(5).

Primary considerations

1. There is no doubt that the children have a meaningful relationship with both their parents. There are no issues raised with respect to family violence or abuse. I am satisfied that both parents will continue to have a meaningful relationship with the children.

Relevant additional considerations

Children’s views

1. [X] will be 15 in a few weeks’ time and has expressed strong views. The parents have listened to her and have sensibly agreed that the time that [X] spent with her father should be in accordance with her wishes. During the father’s final oral submissions he sought to qualify this by referring to her reasonable views. To qualify the order with respect to [X] in such a way that would lead to the potential for dispute between the parties as who determines whether [X]’s view is reasonable or not?

2. Both parents describe [X] as a typical teenager who is moody and spends long periods of time in her room. It is typical of teenagers that they prefer to spend time with their peers rather than with their parents. This is a normal stage of their development. [X] is more likely to be willing to spend time with her father if she knows that it is her choice and is not being forced upon her. As Mr R noted in his report that given her age “the ability to impose parental authority upon her and enforce compliance becomes increasingly problematic”. He recommended that the time [X] spends with her father be in accordance with her wishes and should be negotiated directly between [X] and the father. I am satisfied that that is in [X]’s best interests.

3. [Y] told the report writer that he would like to spend less time with his father. [Y] made several complaints about the strictness in his father’s household and the perceived unfairness of this. This is a common theme for the three children.

4. [Z] is too young to understand what a week about arrangement would mean for her. She said she would like the arrangement to remain the same. Mr R noted that [Z] talked about the discipline in the father’s household and that sometimes she did not know why she had been sent for time out and that she did not like it.

5. The father says that the children have not spoken openly with him about their views. Given the concerns the children have expressed about the discipline in his household it is not surprising that they may feel unable to talk to him about those things, which they would know he would not be happy about being that they would like to reduce the time spent with him.

6. There is nothing to suggest that the children’s views have been manipulated by the mother and that they are not reflective of their genuine experiences. [X]’s views have been given significant weight by her parents in light of the orders that they consented to in respect to her. I also play some weight on [Y]’s views and to a lesser extent [Z]’s views given their ages and stage of development.

1. The father conceded that the views of the children probably were as recorded in the family report but he qualified this by saying at the time of the family report. He was at pains to say that the younger children told him they want to spend more time with him when they spent time with him on the weekend.

Nature of the children’s relationships with their parents and significant others

1. It is clear that the children are close to one another and derive support from one another. They are aware of the conflict between their parents which places them in a very difficult position as they love both their parents. They are developing their relationships with their parents’ partners. There is limited evidence with respect to Mr H as Mr R chose not to interview him for the report and there is nothing in the evidence on cross-examination to indicate any concerns about Mr H. The children indicate they have a positive relationship. I will not repeat my comments with respect to Ms J.

The extent to which the parents have taken or failed to take the opportunity to participate in making decisions about the long-term welfare of the children and to spend time with the children

1. As noted above the father on occasion has made unilateral decisions about the children.  The father has also failed to take the opportunity to spend time with the children due to disagreements with the mother. Hopefully there will not be a repeat of this in the future.  I will certainly accept that the father wants to spend as much time with the children as possible and has made sacrifices in his career to ensure that he is available to do that.

The extent to which the parents have or have failed to fulfil their obligations to maintain children

1. The father pays the child support as assessed. The father suggested that the mother’s desire to reduce his time with the children was motivated by child support but I do not accept this. I accept that the mother is genuinely concerned about the things that the children have reported in the father’s household and that she sees his style of discipline as unnecessarily harsh.

The likely effect of any change on the children’s circumstances

1. I am satisfied that the current arrangements are not working for the children. The father has focused on the children being disrupted because his time with the children falls across two weeks’ time being from the alternate Thursday to Tuesday which causes confusion for the children. He says the solution be to have a week about arrangement.  I do not accept the difficulties the children have is due to the pattern of time rather than its duration.

Whether it be preferable to make orders that be least likely to lead to further proceedings

1. If orders were made for a week about arrangement, in my view it is likely that the matter would be back in court because of the difficulties with that arrangement. I am satisfied that the orders I am going to make are less likely to lead to further proceedings.

Parental responsibility and the injunction sought by the mother

1. The presumption that an order for equal shared parental responsibility is in the children’s best interests applies in this case. There were no allegations of family violence or abuse. The parents have agreed to consent orders for equal shared parental responsibility. It is clear that the parties have great difficulty in communicating with each other and this is something that they will need to work on to improve.

2. It is also clear that on at least two occasions the father has not consulted with the mother and has acted unilaterally with respect to issues that clearly fall within the obligations of the parents to consult with each other. This is with respect to taking [X] to see an Army Chaplain and with respect to his decision to stop [Z]’s asthma medication.

3. It is because of the father’s actions that the mother seeks an injunction preventing the father from taking the children to any medical specialist for treatment including counselling. She also seeks an injunction requiring the father to positively comply with all recommendations with respect to prescription medication and follow the mother’s reasonable directions with respect to that.

4. Given the father’s previous conduct in his responses in cross-examination I find there is merit in including a specific order restraining the father from taking the children to medical or counselling appointments without consulting the mother. I think this is necessary because the father was not remorseful about this and indeed with respect to [Z]’s asthma and said he would do the same thing.

5. I am satisfied that the father will obey court orders as it is clear that he respects authority. Such an order will send a message to him that he needs to consult with the mother about these issues.  I do not think it is necessary to include an order that the father follow the mother’s reasonable directions with respect to medication. The necessity for the father to consult with the mother about medical issues will alleviate that concern. Ideally both parents should be involved in and attend appointments for the children concerning major medical issues.

Section 65DAA equal time or substantial and significant time

1. It will be clear from the comments I have made already that I find that it would not be in the children’s best interests for there to be an equal time arrangement in place.  The conflict between the parents and the difference in their parenting styles are simply too great.

2. The next issue to consider is substantial and significant time. This is defined in s.65DAA(3) as including days which fall on the weekends and holidays, days that do not fall on the weekends and holidays and time that allows parent to be involved in the child’s daily routine and also on occasions of special significance.

3. The mother’s proposal of the father having alternate weekends during school terms from Fridays after school until Mondays before school would give the father very limited opportunity to be involved in the children’s weekday routines. It is important that the children see the father taking an interest in their schooling routines during the week and in my view it is in children’s best interests that the father have that opportunity. The recommendations that Mr R makes provides for that by the father having the children on alternate weeks from after school on Thursdays until Monday mornings.

4. The father asked why, if it is agreed that he should have equal time with the children during holidays, it should be the case that he should not have equal time during school terms.  The answer to that is that because the school holidays are a different type of time and experience for the children.  It is a different type of time the children experience to the time during school term.

Specific orders sought

1. With respect to the end time on Mother’s Day and Father’s Day I see no reason as to why the children should be returned to the other parent at 5:00pm on that day rather than before school the following day. It avoids handover directly between the parents and potential disruption to the activities taking place on those days.

2. The dispute about handover location says more about the level of conflict between the parents than anything else. The father does not want handovers to take place at McDonald’s because he does not want the children to get a treat every time they go and that he prefers the handover to be at the petrol station where it has been throughout the year. The mother says there is better CCTV coverage at McDonald’s. There is no evidence that there has been any physical altercation between the parents at handover or any other time. The problem is their verbal and written communication. CCTV coverage will not address this. I will order that handovers continue to take place at the petrol station where they have been taking place for the past year.

3. With respect to the passports, initially the father wanted the passports to be held by the Court or an independent solicitor. By the time of the final submissions he sought an order that the parties place the passports in a bank deposit box with the requirement that both parents sign for the release of the passports.

4. During cross-examination the father said that he thought the mother could breach the orders and that was why he wanted the passports to be held by a third party. He conceded that the mother had not breached the orders with respect to [X]. It is the father who has acted unilaterally with respect to the children’s care as exemplified by taking [X] to the Army Chaplain and stopping [Z]’s asthma medication.

5. When the father claimed that the mother breached the orders he was referring to the mother not paying the second day of the hearing fee for the trial.  When asked about this, the mother said her lawyer had advised her not to pay as the second day might not be required. As it turned out this was correct because Mr R was not required for cross-examination. The only reason why it took up any court time on the second day at all was because the father wanted overnight to consider whether or not he would make written or oral submissions and so that the parties could agree on and hand-up the orders that they had consented to in principle by that stage.

6. It was also clear that the father and his wife harbour some resentment towards the mother for her not informing them who her solicitor was when asked. Until she instructed Ms Farmer to go on the Court record she was not obliged to.  It is not unusual for parties to seek legal advice from a lawyer from time to time without fully engaging that lawyer to act in proceedings.  However it is understandable that the father and his wife would not be aware of this.

7. In circumstances where the parents agreed that they should have equal shared parental responsibility and agree on orders for overseas travel subject to conditions I see no reason why the passports should be held by a third party. There is no evidence that either party has ever threatened to take the children overseas without the other parent’s permission. In fact there is evidence that the mother sought the father’s permission to take children to Bali and when the father refused she did not take them.  I will order that the mother hold the children’s passports except when the father needs them for travel.

Conclusion

1. I accept that the parents and their partners love the children and genuinely want what they think is best for them. I agree with Mr R’s observations of the parents where he says “[a]lthough they both clearly desire the same outcomes for their children their capacity to work together to ensure this is achieved is limited.” This is true of both parents. The Court must take the parents as it finds them. There is nothing in the evidence before it to suggest that the parents are suddenly going to be able to find the ability to work constructively together once the proceedings are over. If the parents can improve on their communication then that will be of benefit to the children.  That still leaves the very different parenting styles.

2. For the reasons set out above I am satisfied that the orders I am making are in the best interests the children.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  21 November 2014