Aldrich and Bingley - [2014] FamCA 516

FAMILY COURT OF AUSTRALIA

ALDRICH & BINGLEY

[2014] FamCA 516

FAMILY LAW – CHILDREN – Final Orders – provision of information – where mother opposed the father being made aware of the location of the children’s school – where father sought to be involved in children’s education – previous allegations of violence – orders made for the father to be permitted to obtain school reports and attend interviews by telephone – injunction granted restraining father from attending the school.

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) 37 Fam LR 518

APPLICANT:

Mr Aldrich

RESPONDENT:

Ms Bingley

INDEPENDENT CHILDREN’S LAWYER:

Terry Stephen

FILE NUMBER:

MLC

3119

2010

DATE DELIVERED:

16 July 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

14 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dansie

SOLICITOR FOR THE APPLICANT:

Duncan Basheer Hannon

COUNSEL FOR THE RESPONDENT:

Ms Aylward

SOLICITOR FOR THE RESPONDENT:

Catherine Hicks & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

NOTING the orders made on 14 July 2014

Orders

That the father is restrained and an injunction is granted restraining him from approaching the mother and the children at their home, their place of education or child care, any place of employment or any place that they may frequent PROVIDED that nothing shall preclude the father from communicating with the children’s school by telephone or email with a view to:-
(a)Obtaining school reports and any other material which would normally be provided to a parent (at his cost); and
(b)Taking part in any parent-teacher interviews providing same shall occur by telephone.
That the parties are restrained and an injunction is granted restraining each of them from denigrating the other or being derogatory about the other in the presence of the children or to any teachers, staff or the general school community (other students and their parents or guardians) in respect of any school at which the children may attend from time to time.
That the order for the appointment of the Independent Children’s Lawyer is discharged.
That all matters be removed from the Active Pending List of Cases.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Aldrich & Bingley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLC 3119 of 2010

Mr Aldrich

Applicant

And

Ms Bingley

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 12 March 2014, I made orders that listed this matter for a final hearing before me on 1 September 2014. On 26 June 2014, counsel for the parties and the Independent Children’s Lawyer (“ICL”) advised the Court that the parties were attending a dispute resolution process which they hoped would resolve some or all of the outstanding issues. The matter was thereafter adjourned for further consideration to 14 July 2014. On that day the parties, their counsel and the ICL appeared and advised the Court that there had been substantive agreement reached, the terms and conditions of which were set out in a draft Minute of Order which was tendered to the Court and is marked “Exhibit 2”.
The draft Minute of Order seeks orders by consent that the mother have the sole parental responsibility for the children C born in 2001, S born in 2002 and D born in 2004 (“the children”). The children are to live with the mother and spend time with the father from 10am until 4pm each alternate Saturday commencing 26 July 2014. Each of the parties were subject to injunction and restraint. The mother is restrained from changing the children’s usual place of residence to outside of the environs of the Adelaide metropolitan area. The father was obliged to provide all and any passports held in the name of any of the children to the Registrar and is restrained from applying for or seeking to obtain a passport for any of the children. Both parties are restrained from attempting to remove any of the said children from the Commonwealth of Australia.
The parties were not however in agreement as to the extent, if any, of the involvement, interaction and information that the father would have in respect of the children’s school and their education.
Put simply, the mother sought an order in the following terms:-
The father is restrained and an injunction is granted restraining him from approaching the mother and the children at their home, their places of education or child care, any place of employment, or any place that they may frequent.
The father does not oppose that order but seeks orders that he can communicate with the children’s school, participate in parent/teacher interviews and receive school information. The mother is opposed to an order in those terms.
It was of significant advantage to the parties that the substantive and more contentious parenting issues were the subject of agreement.
As is evident from the background of the matter, a significant issue was the extent of time that the children would spend with their father and whether any time spent would be the subject of supervision. Leading up to the proposed consent order, the mother remained totally opposed to any overnight time and insisted that any time spent between the children and their father should be supervised. The father remained opposed to any condition of supervision.
The basis for the mother’s opposition to the father’s application for unsupervised time has its genesis in her fear, concern and allegation that if the father’s time with the children remained unsupervised he may well abscond with the children or alternatively, that the unsupervised interaction may lead to the children disclosing their place of residence or the school at which they attend.
It was initially contemplated that orders would be made in terms of the draft Minute of Order but that the proceedings would then be adjourned for a further short hearing in respect of the orders that the father seeks to enable him to communicate with the children’s school. The parties agreed that they would file short affidavits focussed on the narrow issue that remained unresolved.
I determined that to further adjourn the matter would not be efficient but rather, proposed to counsel that the parties give some short evidence on oath, be subject to cross examination and thereafter, I would rule on the outstanding issue.
The parties and counsel agreed to that process and the matter resumed later in the afternoon with judgment reserved at the conclusion of the evidence.

BACKGROUND

Short History:-
…1969          Date of birth of father
…1976          Date of birth of mother
May 2000      Date of commencement of cohabitation and marriage
…2001          Date of birth of C
…2002          Date of birth of S
…2004          Date of birth of D
…8.2007       Date of divorce order
The father travelled to Australia in 1995 on a study visa. He holds qualifications in the study of science and it is common ground that he is currently undertaking a PhD program in his field of interest. The parties met in 2000 and were married shortly thereafter. The father became an Australian citizen in about 2000. The family relocated to Saudi Arabia in 2005 but separated in 2007. Their separation was the subject of approval by a Saudi Court in 2008.
The circumstances of the parties residing in Saudi Arabia and the events that occurred during their residence is a matter of significant dispute and disagreement.
Ultimately, both parties and the mother’s current partner Mr F were deported from Saudi Arabia to Australia. The mother arrived in January 2010, Mr F shortly thereafter and the father in April 2012.
The mother alleges that she was the subject of significant and ongoing family violence. She further alleges that the father had given information to the relevant authorities alleging that the mother had breached Islamic law by being unfaithful during their marriage. The mother and Mr F denied the allegation. Apparently, before Mr F was deported from Saudi Arabia in January 2010 he was convicted of having a relationship with the mother and was sentenced. The mother came to Australia with two children of a former relationship, but the children the subject of these proceedings were prevented from accompanying her. The children were separated from their mother for a period in excess of two years and then for a period of nine months from their father when he was incarcerated before his deportation.
The proceedings were commenced by the mother on 7 April 2010. She sought final orders that she have sole parental responsibility for the children, that they live with her and spend time with the father as may be determined by the Court. Notwithstanding that the children remained in Saudi Arabia, orders were made on 31 August 2010 that the children live with the mother and that she have liberty to apply for Australian passports for the children.
On 31 August 2010, orders were made that confirmed the children should reside with the mother and provided for all extant applications to be dismissed.
Ultimately, the children arrived in Australia in April 2012, lived with the mother pursuant to orders made and had no contact with the father until supervised visits commenced on 18 November 2012.
The father was ordered to file an Initiating Application and did so on 30 July 2012 which sought orders that the children spend significant time with him in Australia, but that they be permitted to leave Australia and take up residence in Saudi Arabia.
The mother remained fearful of the father and was concerned that he would abscond with the children to Saudi Arabia if given an opportunity to do so. Moreover, the mother was concerned that the father would attempt to influence the children against her.
Orders were made by Dawe J on 4 September 2012 which provided for the parties to be restrained from removing or attempting to remove the children from the Commonwealth of Australia, an Airport Watch List Order was put in place and the father was required to surrender all and any passports to the Registrar of the Family Court Adelaide Registry.
An ICL was appointed, a report ordered pursuant to Section 62G (2) of the Family Law Act1975 (Cth)(“the Act”) and the father began to spend time with the children supervised at a Children’s Contact Service. It was a further order that during any time spent between the father and the children, he was restrained from speaking with them in Arabic or any language other than the English language.
The Family Consultant published a report dated 21 February 2013 pursuant to the orders made.
With the advantage of the report, Dawe J heard and determined an Application in a Case filed by the father on 6 August 2013 in which he sought unsupervised time with the children. The mother continued her opposition to the prospect of the children spending unsupervised time with the father and in her Honour’s Judgment of 11 October 2013, she succinctly sets out the mother’s position as follows:-
[6]Those matters are raised as significant issues by the mother in her affidavit material and submissions on her behalf, particularly in relation to the emotional and psychological risk to the children that the mother maintains would be in place if the father were to have unsupervised time with the children, due to what she alleges to be the past history of violence, controlling behaviour and what she asserts is inappropriate religious views of the father. These matters are strongly disputed by the father. The Court is not in a position to make any findings in relation to those disputed matters.
As to the competing matters that the Court needed to determine, the following is recorded:-
[7]The Court has previously made injunctions restraining the father from attending upon the home in which the mother or the children reside, schools to which the children attend or any other place where the children frequently attend for social occasions. That is some protection for the mother and her concerns about the father’s attitude but would not overcome the risks that she asserts will exist if the father was to have unsupervised time with the children. I am being asked to ensure that the children are being protected if I grant the unsupervised time, that I also make an injunction restraining the father from questioning the children about these proceedings, where the children live or where the children go to school.
[8]In unsupervised time, it would be difficult to have any such injunction monitored. I have pointed out that I consider it would be difficult to provide the protection that the mother seeks, bearing in mind the ages of the children and the capacity of the children to inadvertently disclose material which would cause concern to the mother. The provisions of the Family Law Act1975 however, emphasise the need to have time and establish and maintain a meaningful relationship with both parents which is in the children’s best interests.
Ultimately her Honour had significant regard to the recommendations of the report of the family consultant and whilst taking into account the ongoing conflict between the parties her Honour considered that in all the circumstances it would be in the best interests of the children that there be the introduction of “limited unsupervised time”.
Orders were made that the father spend time with the children each Saturday from 10am to 4pm with handover to take place at a Children’s Contact Centre.
The tenor of the previous injunctions was continued by the orders.

FAMILY REPORT

In preparation for the matter being listed for trial, an updated Family Report was ordered by me on 12 March 2014 and a report was published dated 23 June 2014.
The difficulty for the Family Consultant was that she was confronted with the mother’s trenchant allegations of the father’s family violence and extreme religious views and the father’s vehement denial of the allegations made.
The Family Consultant was concerned as to the possibility of the father manipulating the children. The following is reported:
If the mother’s accounts were accepted she has identified multiple indicators of potency, and a clear pattern of using coercive, controlling tactics by a primary perpetrator which indicates a high risk, abusive, controlling relationship that has the potential to play out post-separation – through litigation and through the children. Therefore, allowing [the father] contact with the children’s school, or allowing him to provide [C] with a telephone could provide an avenue through which the children could be unduly influenced and this may then pose a risk to their ongoing physical and psychological stability and well-being. Moreover, given the above discussion regarding the risk to the children in matters characterised by allegations of coercive violence, the fact that the children’s time with [the father] has been unsupervised is of “significant concern”.
Ultimately, the recommendation of the Family Consultant is that at this stage the children not spend any additional time with him and that consideration be given to reinstating the supervision order. The Family Consultant was also opposed to allowing the father contact with the children’s school.

EVIDENCE AND SUBMISSIONS

The oral evidence given by each of the parties was necessarily of narrow compass. The parties did however rely upon matters raised in the Family Reports dated 21 February 2013 and 23 June 2013. During the proceedings I was also referred to the report of observations of supervised contact between the children and their father between 18 November 2012 and 27 January 2013 which forms Annexure “A” to the affidavit of the ICL filed 21 February 2013. I also had regard to the affidavit of the mother filed 20 February 2013 and to the father filed 6 August 2013.
The mother’s evidence was consistent with the concerns previously raised in affidavit material. She remained generally fearful of the father and was opposed to the father having any contact with the school because she considered that it would provide an avenue for the father to learn of the whereabouts and residential address of the mother and the children.
She did propose that, providing school reports were redacted as to the identity of the children’s school, she had no concern about the father being generally aware of the educational development of the children. Moreover, if it could be arranged, she was also receptive to the concept of the children’s teacher ringing the father and discussing relevant matters.
In her affidavit filed 20 February 2014, she reports the following:-
[45]The children have all settled into their schooling and are doing well at school.
[46][C] has won awards for good work at school and is now in advanced mathematics and English.
[47][S] has won 3 awards for excellence and also a sporting medal.
[48][D] has won 2 awards for excellence. He comes third in the school fun run and has also won a sporting medal.
Under cross examination, the mother agreed that notwithstanding the serious allegations that she makes in respect of the father’s behaviour when the family lived in Saudi Arabia and the subsequent retention of the children when she travelled to Australia, there have not been any breach of the orders made during the currency of these proceedings.
The mother also confirmed that notwithstanding the matters raised in the most recent Family Report, she understood that the orders made by consent provided for the children to spend time with the father on an unsupervised basis.
For his part, the father expressed a keen interest in the educational development of the children noting his own extensive educational background and his current PhD study program.
The father accepted that the mother was genuine in her fears and concerns but that he did not accept there was any substance or basis for the position adopted by the mother. In short, he highlighted that there had been strict compliance with orders of the Court and that there was no evidence of any attempt to intimidate the mother, harass her or her partner, or to abscond with the children. It is noted that he has spent unsupervised time with the children without incident since the orders were made on 11 October 2013.
The ICL supported the father’s application generally, but in particular in terms of a Minute of Order (Exhibit 1) in the following terms:-
[8]The father is restrained and an injunction is granted restraining him from approaching the mother and the children at their home, their place of education or child care, any place of employment or any place that they may frequent provided that nothing shall preclude the father from communicating with the children’s school by telephone or email with a view to:-
(a)obtaining school reports and any other material which would normally be provided to a parent (at his cost); and
(b)taking part in any parent/teacher interviews by telephone.
The proposed order was the basis of the father’s application to amend the orders sought. There was no objection and I granted leave for the amendment to the orders sought to be made.
The ICL submitted the further final orders now made by consent, it would be necessarily artificial for the children to continue to interact with their father on an unsupervised basis (notwithstanding that the duration of the time was limited and did not include overnight time) and not allow the father to have a better understanding of the children’s school attendance and educational development.

The concern was that unless the children remained hyper-vigilant to the possibility of a slip, there remained the distinct possibility that they may inadvertently give the father information which would reveal the identity of their school.
Whilst I accept the mother’s evidence that she was not in the habit of continuously reinforcing the need for the children to keep their home address and their school a secret, taking into account the ages of the children and the significant time that they have spent with their father on an unsupervised basis without incident, the ICL argues that the retention of an overarching injunction as sought by the mother would be difficult to enforce, is likely to be the subject of inadvertent disclosure by the children, but in any event the father’s access to proper information as to the academic progress of the children is likely to add substance to the relationship that the children have with their father.
Reference to the observed interaction between the children and their father on 18 November 2012 highlights that on that occasion the children spoke to their father about school. To his credit, the father was careful to ensure that the conversation was general.
A further concern of the mother arose during the evidence namely, that the mother holds a position of employment within the school. Whilst there is some uncertainty as to the exact nature of her employment, I think it is reasonable to assume from her evidence that her position has some formality and that she can be considered as part of the school staff community.
She attends at the school regularly and there is no circumstance where the father should be permitted to attend the school if there is any risk that he would come into contact with the mother.
The intention of the orders sought on his behalf is for remote access rather than his physical attendance at the school.
Equally, the father understands that by the nature of the consent order namely, that the mother has sole parental responsibility in respect of the children, that she has the sole decision making ability in respect of matters affecting the children’s education.
Counsel for the mother raised this as an issue and she suggested that if the Court ultimately made orders in terms of the father’s application, then consideration should be given to a further order being made namely, that the parties do not denigrate the other to the children directly, in their presence or allow anyone else to do so. It would seem appropriate that if orders are made that allow the father to have communication with the school and to receive school information and reports, then neither party should be permitted to denigrate the other within the general school community, teaching staff and parents of children.

THE LAW

In Goode & Goode (2006) FLC 93-286 the Full Court considered the appropriate legislative pathway when dealing with interim parenting applications.
There is no challenge to the proposition that the mother shall have sole parental responsibility. The parties are also in agreement as to the time that the children should spend with the father and the terms and conditions of how that time will be spent.
Notwithstanding that the outstanding issues are narrow nonetheless, I am obliged to have proper regard to the provisions of the Family Law Act 1975 (Cth) generally in so far as they relate to parenting issues but in particular to the provisions of Section 60CC (2):-
The primary considerations are:-
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
The consideration of the primary considerations in Section 60CC (2) is central to the determination of the current interim proceedings.
There is significant mistrust and inter-parental conflict between the parties. The parties have agreed to a resolution of the substantive issues and accordingly I am not able to determine whether there is voracity in the mother’s allegations that the father engaged in significant family violence, harbors a genuine desire to remove the children from the Commonwealth of Australia, or is likely to be manipulative in respect of the children both as to his religious views, but also as to how the children should view their mother. Equally, I am not able to determine whether the mother was telling the truth in respect of her allegations of the father’s behaviour whilst the family resided in Saudi Arabia. The factual matrix is complex and there is no conceded or agreed position.
I am however able to place reliance on the agreement between the parties which further entrenches the relatively long period of time that the father has enjoyed unsupervised time with the children.
Neither party has demonstrated significant goodwill towards the other, but it is hoped that a final resolution of the litigation may help the parties to better shield the children from the ongoing dispute.
The interaction between the father and the children in respect of matters that would be considered ordinary and ancillary to a parent/child relationship namely the topic of school, should be given strong consideration providing that the children are protected from physical or psychological harm and that there is no risk of abuse or family violence.
The consent orders are suggestive of a recognition that there is an underlying relationship between the father and the children that needs to be supported.
In Mazorski & Albright (2007) 37 Fam LR 518 Brown J commented on the definition of “meaningful” and said:-
What these definitions convey is that “meaningful” when used in the context of a meaningful relationship is synonymous with “significant” which in turn is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the applications of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equal shared parental responsibility and the requirement for time for children to be where possible and in their best interests, substantial and significant.
I have had careful regard to the provisions of Section 60CC both as to the primary and additional considerations. I consider that the focus of these proceedings properly centre my attention on the need to promote a meaningful relationship between the children and the father (and both parents) but also to ensure that they are not at risk.

CONCLUSION

Taking into account the evidence and the strong submission of the ICL supporting the orders sought by the father, I propose to make orders essentially in those terms.
I consider there is merit in an expansion of the orders sought to ensure that the parties are not able to denigrate the other in the presence of the children, or in the wider school community and am persuaded that whilst the mother is genuine in her fear of the father and mistrustful of his motives, nonetheless by her own evidence and her consent to substantive orders notwithstanding matters raised in the most recent report of the Family Consultant that she will accept the orders and promote the children’s relationship with their father and continue her ongoing protection of the children.
For his part, I accept the father’s assurance that he understands the importance of continuing to comply with Court orders and his ability to access and communicate with the children’s school is not an opportunity to interfere with their education or to promote or direct the children’s education in a way contrary to the position adopted by the mother.
I make orders as appear at the commencement of these reasons.

I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 16 July 2014.

Associate:

Date: 16 July 2014