ANSEN & OLLAM - [2012] FMCAfam 1148

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ANSEN & OLLAM

[2012] FMCAfam 1148

FAMILY LAW – Parenting – four children close in age – Husband seeks regular future overseas travel – Husband not willing to undertake counselling recommended by Family Report Writer – Husband does not cross-examine Family Report Writer – parents’ attitudes toward each other.

Family Law Act 1975, ss.60B, 60CA, 60CC

Applicant:

MR ANSEN

Respondent:

MS OLLAM

File Number:

MLC 377 of 2009

Judgment of:

Curtain FM

Hearing date:

13 August, 2012

Date of Last Submission:

14 August, 2012

Delivered at:

Dandenong

Delivered on:

9 November, 2012

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Mr Meehan

Solicitors for the Respondent:

Taussig Cherrie Fildes

THE COURT ORDERS:

That the parenting Orders contained in paragraphs 13, 14, 15, 16, 17, 18, 19 and 20 of the Consent Orders made 6 April, 2010 be discharged.
That paragraph 22 and all Orders from 1 to 12 inclusive made 6 April, 2010 remain in full force and effect.

THE COURT ORDERS BY CONSENT:

That the husband and wife have equal shared parental responsibility of the children of the marriage, [W] born [in] 1999, [X] born [in]2000, [Y] born [in] 2001 and [Z] born [in] 2003 (“the children”).
That the children live with the wife.
That the husband and wife be and are hereby restrained from removing the children from the state of Victoria without twenty-one (21) days prior written notice to the other party but in any event the children shall not, in the absence of any agreement to the contrary, travel interstate more than once in a period of six (6) weeks and accompanied by an adult.
That the children’s passports be held by Taussig Cherrie & Associates or its successor and not to be released to either party except with prior written consent of both parties or by Order of this Honourable Court.
That the travelling party return the children’s passports to Taussig Cherrie & Associates or its successor within seven (7) days of the children’s return to Australia.
That the husband and wife do all such things and sign all such documents as required to re-issue the children’s passports at least one (1) month prior to any travel.

THE COURT FURTHER ORDERS:

That the children spend time with and communicate with the husband as follows:
(a)During school terms, each alternate weekend from the conclusion of school Friday to the commencement of school Monday, save that should Monday be a public holiday then the commencement of school Tuesday, commencing 9 April, 2010.
(b)For one seven night block during each school term holidays at times to be agreed and failing agreement, in the first week of the holiday period and the husband to notify the wife not less than twenty-one (21) days prior to the commencement of the school term holidays of his intention to exercise such time with the children and in the event that he is unable to take such time or does not give the requisite notice, the children shall be booked in to attend a school holiday programme of the wife’s choice at the expense of the husband;
(c)(i) During even years subject to paragraph 13 below, commencing 2012/2013 for one half of the long summer vacation at times to be agreed, and failing agreement from 3.00 pm 26 December, 2012 to 3.00 pm 15 January, 2013;
(ii) During odd years subject to paragraphs 10, 11 and 12 below, commencing 2013/2014 for one half of the long summer vacation at times to be agreed, and failing agreement from 3.00 pm 10 January, 2013 to 3.00 pm 31 January, 2013;
And the husband is to notify the wife twenty-one (21) days prior to the commencement of the holidays of his intention to exercise such time with the children and in the event that he is unable to take such time or does not give the requisite notice, the children shall be booked in to attend a school holiday programme of the wife’s choice at the expense of the husband;

THE COURT ORDERS BY CONSENT:

(d)For the period of Christmas Eve to Boxing Day as follows:
(i)From 3.00 pm Christmas Day to 3.00 pm Boxing Day in 2012 and for each even-numbered year thereafter;
(ii)From 3.00 pm Christmas Eve to 3.00 pm Christmas day in 2013 and for each odd-numbered year thereafter;

(e)Upon the children’s birthdays and the husband’s birthday by agreement and failing agreement, for not less than two (2) hours; and
(f)At all other times to be agreed between the parties in writing.

THE COURT FURTHER ORDERS:

That the husband be permitted to take the children overseas for a holiday for two periods of up to five (5) weeks each (including all travelling time from and to the wife’s residence), in the 2013/2014 and 2015/2016 long summer vacation period or such other periods as agreed between the parents in writing, commencing at a time to be agreed and in default of agreement, at 9.00 am on the morning of the fourth day after the last child finishes school for the long summer vacation (with the children to reside with the wife from the conclusion of school until the trip commences) SUBJECT TO AND CONDITIONAL UPON the husband undertaking before any such overseas holiday personal counselling at his expense with a qualified psychologist with experience in the family law area for a period of no less than six (6) months on a regular basis as recommended by the said psychologist after he or she has read the report of Dr W dated 11 July, 2012 and a copy of this Order.
That the psychologist that provides the counselling to the husband (above) shall write an open letter to the wife after the counselling has been completed, confirming that:
(a)He or she has read the report of Dr W and a copy of this Order;
(b)He or she has recommended the husband attends for a stated number of sessions over a period of not less than six (6) months; and
(c)The husband has attended all of those sessions as recommended.
That the husband do all things necessary and sign all necessary documents including but not limited to providing the psychologist with all necessary instructions to undertake the counselling referred to above, and provide a clean copy of the report of Dr W and a copy of this Order to the said psychologist.
Should the children be with the husband for the long summer vacation in 2013/2014 and 2015/2016 pursuant to paragraph 10 then they shall be with the wife for the same length of time in 2014/2015 and 2016/2017 respectively.
For the purpose of paragraph 9(a), on the Friday that the children are to spend time with their father, the wife will ensure they have a further bag packed with their clothes and equipment required by them for school, after the weekend with their father.

THE COURT ORDERS BY CONSENT:

That each party be permitted to email the other to discuss parenting issues as and when they arise;
That each party shall communicate with the children via telephone and/or Skype (using the children’s telephone numbers and/or Skype addresses) while they are in the care of the other parent at times to be agreed, and failing agreement, no less than once every second day to each child with each parent to facilitate and encourage this communication.
That each party keep the other informed of:
(a)Any significant health issues concerning the children;
(b)any proposed elective health treatment and its expense in relation to any of the children; and
(c)their mobile telephone numbers, the children’s Skype address and email address.
Subject to paragraphs 10, 11 and 12 above the parties respectively be permitted to remove the children from the Commonwealth of Australia for the purpose of travel provided the parties give each other at least thirty (30) days’ written notice of their respective intentions to travel overseas with the children during any holiday period entitlement under these Orders, together with the written itinerary of the intended travel including flight details, details of the proposed accommodation, details of any travelling companion, length of travel and expected date of return.
That whilst overseas the parent with the children shall:
(a)Facilitate the children telephoning the other party within twelve (12) hours of arrival;
(b)Facilitate and encourage the children to contact the other party upon the other party’s request to do so;
(c)Provide the other party with details of any emergency contact and telephone contact to be utilised by the other if required (being the other’s mobile telephone number and/or landline if practical), and ensure that the telephone is on international roaming;
(d)Contact the other party as soon as practicable in the event of any emergency regarding the children; and
(e)Provide the other party with contact details including telephone numbers to permit the other party to telephone the children twice a week and the travelling party shall facilitate the calls as far as practical;
That the Husband be permitted to attend all school concerts and sports training relating to the children and all other school-related special activities relating to the children to which parents are normally permitted to attend.
In relation to any payments owing by the husband pursuant to the child support Orders made by consent on 6 April, 2010, the husband shall pay such expenses owing by him directly to the service provider, subject to paragraphs 27 and 28 below.
That the wife shall promptly provide to the husband copies of all non-school related expenses referred to in the child support Orders made by consent on 6 April, 2010, which exceed $500.
That the wife be permitted to do all such acts and things necessary to facilitate the child [Z] born [in] 2003 (“[Z]”) attending upon speech pathology and socialisation programs with an independent speech pathologist as recommended by [Z]’s treating medical practitioner or school and undertake any occupational therapy as recommended by [Z]’s school.
That the wife also be solely responsible to facilitate the child engaging in any other program/ service/ assessment that the school may recommend in order to aid [Z]’s learning and education.
That the husband pay all fees and expenses directly incurred in relation to paragraphs 23 and 24.
That within fourteen (14) days the husband have his accountants confirm to the wife as to whether the wife remains a trustee of the [omitted] superannuation fund, and in the event that she does so, then each party do all things necessary to forthwith have her removed as a trustee.

NOT BY CONSENT

In full compliance with paragraph 22 of the Order made 6 April, 2010 the husband pay or cause to be paid to the wife the sum of $1,438.49 within twenty-eight (28) days, calculated as follows:
(a)For school related expenses:
(i)$29.94
(ii)$98.65
(iii)$79.95
(iv)$343.20
(v)$196.75
Sub- total $748.49
(b)For dental expenses:
(i)$55.50
(ii)$100.50
(iii)$15.50
(iv)$55.50
Sub-total $227.00
(c)For speech pathologist $463.00
In further full compliance with paragraph 22 of the Order made 6 April, 2010 the husband pay to the wife within twenty-eight (28) days:
(a)If the husband was paid the Federal Government holiday program rebate for the [omitted] holiday programs, the sum of $2,059; or
(b)If the wife was paid the Federal Government holiday program rebate for the [omitted] holiday programs, the sum of $1,029.50.
Pursuant to section 13C of the Family Law Act 1975 the parties:
(a)attend and complete as soon as practicable, the Parenting Apart post separation parenting program (“the Program”);
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the Program to the other parties solicitors and their solicitors.
That the question of costs be reserved to Chambers for directions if any party seeks same within twenty-eight (28) days of these Orders.
That all extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A.That the parents agree children shall be permitted to attend Church if they wish and both parents are to facilitate and encourage their attendance at Church.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DANDENONG

MLC 377 of 2009

MR ANSEN

Applicant

And

MS OLLAM

Respondent

REASONS FOR JUDGMENT

Introduction

This is a sad and disappointing case. It is sad because the children of the marriage, [W] born [in] 1999 (“[W]”), [X] born [in] 2000 (“[X]”), [Y] born [in] 2001 (“[Y]”) and [Z] born [in] 2003 (“[Z]”) (collectively, “the children”) are caught in the emotional and psychological crossfire of the parents’ tit for tat behaviour towards each other. It is disappointing because only the wife, after reading the Family Report dated 11 July, 2012 by Dr W, said in the witness box that she will change given the contents of the Report whereas the Husband was generally very rigid in his views throughout the two days of this hearing, and gave the impression he had not reflected on the comments about him contained in the Family Report at all.
The husband, appearing for himself, is the Applicant in this matter and filed an Amended Application on 16 July, 2012 seeking a number of parenting Orders with the major issue being whether the husband should be permitted to take four children overseas during the long summer holidays in 2012/2013 and 2014/2015 and if so, under what terms and conditions.
The wife filed an Amended Response on 2 August, 2012 opposing the husband’s Amended Application and sought Orders in terms of the major recommendation of the Family Report, namely that before the husband takes the children on any holiday overseas, that he should immediately commence and undertake personal counselling for six months with a psychologist to be nominated by the author of the Report to address the issues raised about him in the Report as well as undertaking a post-separation parenting program. She also sought some variation to some earlier parenting Orders, which were made by consent by the parties in the Family Court of Australia on 6 April, 2010, and enforcement of payment of monies in relation to the children.
In the afternoon of day 1 there was a discussion between the bench and the parties about the Orders sought by the husband, after the Court provided him with a copy of his Amended Application, that he did not bring to Court. In paragraph 24 the husband sought a variation of earlier Child Support Orders but he:
a)did not understand it;
b)did not properly have it before the Court; and
c)knew nothing of the law in this area.
In the circumstances of him being unable to prosecute it, this paragraph was struck out. Paragraph 3 was also struck out given the parental responsibility issues should be apparent to the parties and any listing of them had the risk that it could lead to further arguments between them. The husband agreed to withdraw Orders sought in paragraphs 8, 10, 12, 17(f), 18, 22 (which was to be a consent notation) and paragraph 23.
Throughout the trial, there were further discussions between the bench and the litigants and it became common ground that some of the Orders were to be made by consent.
The matters in dispute between the parties, in so far as they related to the Amended Application of the husband were as follows:
a)Whether the alternate weekend time with the children, when Monday is a public holiday, should finish with delivery of the children to the school on Tuesday the next morning (paragraph 6(a) of the husband’s Application) or 6.00 pm Monday (paragraph 4 of the wife’s Amended Response);
b)Whether the children spend time and communicate with the husband for one ten night block (to incorporate two weekends) during each three week school term holiday period at times to be agreed and failing agreement, commencing at 10.00 am on the first day of the school term holiday period (paragraph 6(b) of the husband’s Application);
c)Whether the children spend time and communicate with the husband during the 2012/2013 long summer school holidays, from 3.00 pm on 25 December until 3.00 pm on 2 February (paragraph 6(c) of the husband’s Application);
d)Whether the children spend time and communicate with the husband during the 2014/2015 long summer school holidays from 3.00 pm on 25 December until 3.00 pm on 31 January (paragraph 6(d) of the husband’s Application);
e)Whether the children spend time and communicate with the husband during the 2016/2017 long summer school holidays, and for each alternate year thereafter, for one half of the long summer school holidays at times to be agreed and failing agreement, from 3.00 pm on 26 December until 3.00 pm on 15 January (paragraph 6(e) of the husband’s Application);
f)Whether the children spend time and communicate with the husband during the 2017/2018 long summer school holidays, and for each alternate year thereafter, for one half of the long summer holidays at times to be agreed and failing agreement, from 3.00 pm on 10 January until 3.00 pm on 31 January (paragraph 6(f) of the husband’s Application);
g)Whether the husband be permitted to remove the children from the Commonwealth of Australia for the purposes of travel from 26 December, 2012 until 1 February, 2013 (paragraph 15 of the husband’s Application);
h)Whether the husband be permitted to remove the children from the Commonwealth of Australia for the purposes of travel from 26 December, 2014 until 31 January, 2015 (paragraph 16 of the husband’s Application);
i)Whether both parties will encourage the children (and if necessary transport them) to attend extra out of school hours music, schooling and sporting classes if and when required, subject to any other necessary commitments the children have (paragraph 19 of the husband’s Application);
j)Whether in the event that the husband is available, the children wish to spend time with the husband and the children have no other school or school related activities planned, then the wife shall facilitate the children spending time with the husband during periods when the children would normally be spending time with the wife (paragraph 21 of the husband’s Application);
k)The parties agree that there shall be an Order by consent that provides that the wife will make available to the husband copies of all non-school related expenses in relation to the earlier child support Orders which exceed $500 but the following was in dispute, “and if a particular expense exceeds $500, then the Husband will be entitled to obtain a second quotation prior to payment” (paragraph 25 of the husband’s Application); and
l)Whether all elective health expenses relating to the children are to be discussed and agreed upon between the parties before such expenses are incurred or any appointments made (save for emergency treatment and normal general practitioner appointments) (paragraph 27 of the husband’s Application).
The matters in dispute in the wife’s Amended Response, not referred to above, were as follows:
a)Whether the husband’s Application filed 6 February, 2012 and Amended Application filed 16 July, 2012 be dismissed (paragraph 1 of the wife’s Amended Response);
b)Whether paragraphs 13 to 17, 19 and 20 of the Orders made on 6 April, 2010 remain in full force and effect (paragraph 2 of the wife’s Amended Response);
c)Whether paragraph 18 of the Orders made on 6 April, 2010 as it relates to overseas travel by the Husband, be suspended subject to paragraph 9 hereof (paragraph 3 of the wife’s Amended Response);
d)Whether the husband immediately commence personal counselling to address the issues raised in the Report of the Family Consultant, Dr W, for six months with a psychologist to be nominated by Dr W and the husband notify the wife of the commencement of such counselling and with whom (paragraph 5 of the wife’s Amended Response);
e)Whether each party attend a post-separation parenting program and that each party upon completion of the course provide to the other party’s solicitors a copy of the Certificate of Completion (paragraph 6 of the wife’s Amended Response);
f)Whether there be no overseas travel between the husband and the children until:
i)The husband has attended counselling to gain insight into the children’s needs as provided for in paragraph 5 hereof; and
ii)The parties participate in a further Family Report by Dr W within 12 months and consider her recommendations as to overseas travel and that the issue of whether the children be further interviewed be at the sole direction of Dr W (paragraph 9 of the wife’s Amended Response); and
g)Whether the husband forthwith comply with paragraph 22 of the Orders made 6 April, 2010 and pay within seven days all monies outstanding to the wife (paragraph 10 of the wife’s Amended Response).

The Evidence

The parties relied on the following documents:

The Applicant Husband

a)Amended Initiating Application filed 16 July, 2012; and
b)Affidavit sworn and filed 16 July, 2012.

The Respondent Wife

a)Outline of Case filed 9 August, 2012;
b)Amended Response filed 2 August, 2012;
c)Affidavits of the wife filed 19 March, 2012 (two);
d)Affidavit of wife filed 20 June, 2012;
e)Affidavit of Mr J filed 31 July, 2012; and
f)Family Report of Dr W dated 11 July, 2012.

Each of the parties gave evidence and were cross-examined. The wife’s partner Mr J was called but the husband did not seek to cross-examine him. Their evidence in examination in chief and cross-examination was noted along with the contents of the Affidavits.
Neither party sought to cross-examine the author of the Family Report. They never challenged the opinions or recommendations directly with Dr W.

Background

The husband was born [in] 1975 and is therefore aged 37 years and by occupation is an [omitted]. The wife was born [in] 1977 and is therefore aged 35 years. She describes her occupation as being a [omitted]. As previously commented on, they have four children aged between thirteen and nine years.
The parties did not cohabit before marriage. They were married [in] 1998 and separated in September, 2008, a period of cohabitation of around ten years.
On 6 April, 2010, Final Orders were made in the Family Court of Australia at Melbourne in relation to property, parenting issues and child support.

The Family Report

Although the topic was raised by me, neither party sought or wanted to cross-examine Dr W in relation to the Family Report. Therefore it goes into evidence unchallenged, pursuant to paragraph 2 of the Order made 11 July, 2012.
The parties and children attended upon Dr W on 28 June, 2012 and she wrote a report dated 11, July 2012. She set out in the Report that she contacted the Deputy Head of the [omitted] School and classroom teacher of [Z] at [school omitted] and also read extensive material, which is detailed on page 2 of her Report.
This Report should have been an education to both of these parents. It set out very clear critical comments in relation to both the husband and the wife, which included but were not limited to the following paragraphs:
“… 58. Whilst the parties suggested that the fundamental issue in this matter is the proposed overseas trip, with secondary issues being of a financial nature with respect to the children’s needs and activities; it appears to the writer that there are quite a number of other issues in this matter that warrant discussion in this report.
59.    In a memorandum to the Court as part of a Child Responsive Program and Children and Parents Issues Assessment in December 2009, the family consultant suggested that there was enormous hostility, acrimony, and a total lack of communication between the parents; that a lot of this hostility and difficulty stemmed from the parties having very disparaging views on parenting and child rearing, creating different rules and expectations for the children; that the children wanted to spend more time with their father; that the children have an acute understanding of the intense conflict between their parents; and that whilst some of Ms Ollam’s concerns did not seem unreasonable, she still appeared at times to struggle with separating from the children and allowing them to have a relationship with their father independent of her, with the mother objecting to an extended 4 week holiday back then too, but in the family consultant’s view this being more about the fact that she would miss them too much herself. The family consultant also suggested that the mother would be assisted by the father facilitating regular phone contact during holiday periods, as would the children; and whilst the children saw their mother as their primary carer, it was important for them to have an opportunity to experience an ongoing, meaningful, and significant relationship with their father as well.
60.    From the writer’s perspective, the very same issues appear to be at play now too; and if anything, it appears that the conflict and the various issues have gotten worse.
61.    For instance, whilst I have no doubt that both parents really care for these children; the reality is that they both appear to be acting inappropriately, and in ways that are not in the children’s best interests, albeit in different ways.
62.    Specifically, they both appeared to be somewhat immature, reactive, self focused, petty, and unreasonable at times, and the mother appeared to be quite punitive at times, whilst the father appeared to lack insight and understanding, he appeared impulsive, manipulative, and self serving, he appeared unable to recognise his children’s real needs, he appeared to function in a primitive way whereby he justified his own actions on the basis of how he perceived the mother to have behaved, he appeared to selectively use information for his own needs, he appeared unable to elevate his children’s needs above his own, and he appeared to have a limited capacity to understand how important it is for his children to have a relationship with the mother, and also with him, but without conflict and tension, and arguments.
63.    Ultimately, they both appear to have this ‘tit for tat’ mentality; whereby they both seem to be reacting more and more punitively and nastily towards each other as time goes on, based on their perception of how the other has behaved towards them; and it appears that it is the children who are suffering as a result.”
“…66.   In fact, whilst I have no doubt the father truly believes he is doing the right thing for the children, and that the mother is not; I am extremely concerned about his apparent lack of insight and understanding, and his apparent inability to even contemplate anything other than his own views and opinions, and his apparent inability to understand and reflect on the children’s needs and experiences, and psychological world, and his apparent inability to reflect on how his behaviour impacts others, and particularly the children, and his apparent inability to elevate the children’s needs above his own.
67.    For instance, interviews and observations revealed that Mr Ansen believes the children should be allowed to decide where they want to reside, even if this means they continually change residence according to their mood and/or anger with either parent, and he is suggesting that even [Z], at 9 years of age, and with his reported learning difficulties and immaturity, is old enough to make this decision; suggesting to the writer that he will be able to do so at 16, “so why not now”; without any reflection whatsoever on the vast differences between the maturity, cognitive ability, and understanding of a 16 year old compared to a 9 year old; and without any apparent understanding of how important it is for children to have stability, consistency, routine, and familiarity in their lives; and that children should not be placed in a position whereby they can and are expected to choose between their parents, and they should not become conduits for information; and without any apparent understanding of how damaging it is for them to be exposed to ongoing conflict.”
“…69.   Whilst I recognise that the mother appears to also be undermining the father, to a lesser degree; my view is that the father is much more persistent, powerful, and effective at it, and this alignment with him is likely to be also related to the fact that they do not see him much and they miss him and feel like they are being prevented to some extent from seeing him; in conjunction with the father’s obviously persuasive and powerful influence over the children as their father.”
“…73. Again I would say that Mr Ansen’s attitude about these issues shows a complete lack of insight and understanding of the relationship and attachment issues at play here, and a very self focused attitude; whereby the children all see their mother as their primary care giver, and she has been the stable parent in their lives for many years, and if the children are going to be away from her for any length of time; in order to avoid any anxiety or concern, it will be imperative that they be supported and facilitated to maintain regular phone and even Skype contact with the mother; and particularly [Z], who appears very attached to his mother, and very reliant on her for support and security. Furthermore, I would say that if the father is not willing to do this, then it would not be in the children’s best interests to be away from their mother for so long.”
“…77. To this end, I would again say that the father’s attitude about [Z]’s learning difficulties seems more about his own wants, views, and opinions, and his apparent need to control things, and his anger over his perception of being excluded, as opposed to [Z]’s real needs;…”
“78. My observations of Mr Ansen with the children were also concerning, in the sense that he presented as being extremely impatient and demanding and directive, and I fear that this kind of negative and demanding attitude may serve to significantly undermine the children’s confidence and self esteem, as they will constantly feel that what they are doing is not right. I believe that this is an unconscious part of Mr Ansen’s personality, and that he does not even seem to realise he is doing it, and thus he may fail to see how damaging it is.
79.    In short, I have serious concerns about the father and his attitude toward the mother and his parenting views; and whilst I do not doubt that he loves and cares for the children, and that he believes he is doing the best for them; and whilst I do not doubt that he is capable of caring for their general needs, despite the mother’s concerns; I fear that he allows his own rigid views, and his own hurt and anger and emotional turmoil to get in the way of his decision making and as a result, he is not meeting the children’s emotional needs, and he is not reading their cues or reflecting on how his actions and behaviour impacts them and others; and if this continues, then he is likely to continue to put them in emotionally difficult situations whilst zealously believing he is in the right.
80.    However, in saying all of this about the father, as already mentioned above, I also have concerns with respect to the mother, and specifically her apparent tendency to undermine and denigrate the father to and in front of the children, and to allow her own anxieties, and her own need to have the children close, to interfere with their relationship with the father. The children have made it clear that the mother often prevents them from speaking to the father, and makes it difficult for them to see their father in the event he is in Melbourne outside the ordered times, even when they clearly want to see him; and they made it clear that the mother refuses to compromise and negotiate about changing times/days when there are special events on; and they made it clear that the mother refers to the father as a criminal. Whilst I can see why the mother might find it difficult to bring herself to negotiate with the father about changes if what she alleges about him is true; and whilst I am certainly not minimising or downplaying the seriousness of her allegations against the father; I fear that some of her actions relate more to her own negative views about the father, and her reactive and possibly punitive response to him at times, as opposed to what might be in the children’s best interest; especially since the children have made it very clear that they would like to spend more time with the father, and they would like to have more phone contact with him.
81.    Moreover, regardless of what is and isn’t true, my concern is that if the mother continues to be so rigid in following Orders, and she refuses the children having additional time and phone contact with the father when they clearly want it; she is likely to find that the children will see this as her being petty and uncooperative and interfering of their relationship with the father, and this will only encourage them to continually take their father’s side more and more; and ultimately she may find that they become more and more angry with her, and eventually they may completely rebel. This process is only likely to be aided and hastened by the father’s continued undermining behaviour; and so not only do I believe that the mother needs to re-think the way she approaches the children’s relationship with the father; but I also believe the father needs to be prevented from continuing with his undermining behaviour as well.
82.    In summary, this is an extremely difficult case, because there is no easy answer, because both parties are acting inappropriately, albeit in different ways; although I am much more concerned about the father’s behaviour, as I believe this is more damaging for the children, and more damaging for their stability and their relationship with the mother, who is their primary care giver.”
At page 28 of the Report, there were recommendations made by the Author, where she said, inter alia:
“ 90. It is also recommended that if the father agrees to provide all relevant information regarding his proposed trip to the mother; and that if he agrees to organise, facilitate, and finance the children having phone or Skype contact with the mother every second day whilst they are away; and that if he agrees to attend upon a psychologist who has experience in the family law area, on a regular basis as directed by same psychologist, for at least 6 months prior to this proposed trip; that the children be allowed to travel overseas with their father on the proposed dates later this year, but for no more than 5 weeks.”
“93. I think it is important for the Court and the father to understand that I’m extremely concerned about the father’s actions and undermining behaviour, and that there could be consequences to him not changing this behaviour, such as reduced or even no contact with the children until he does address this issue; and it may be that a review of this matter might be needed, possibly by way of an updated report, if the Court shares these concerns; as the recommendation for the children to be allowed to travel overseas with the father for 5 weeks, was based on, among other things, the proviso that the father addresses this issue in counselling with an experienced psychologist, and makes appropriate change; and if there is no other appropriate mechanism to review this treatment progress, then an updated report may be necessary.
94. Whilst I understand that the parties have attended a post separation parenting program in the past, upon recommendations made by the family consultant in 2009, I am recommending that the parties attend another one now; as it appears that they continue to lack insight into the children’s needs in relation to them being a separated family.”

The Husband’s Evidence

The husband in chief said very little and confirmed he relied on his Affidavit that was sworn and filed on 16 July, 2012. He was then cross-examined by the wife’s Counsel.
An example of the poor relationship between the husband and the wife was made very clear in the cross-examination of the husband as follows:
(Counsel for the wife) “So what I’m putting to you is that my client’s evidence is “I communicated to the husband that [Z]’s teachers were concerned with his listening and his speech skills. The husband emailed me on 24 July 2011.”
“And this is the email “[Z] will not [sic] repeating this year. Discussion closed. We need to do all we can to help him improve. One way is to not allow the TV to be turned on during the week. They all have enough to do. Simply getting him to repeat the year is not your call. I paid for it and I will make that call. A bit of catch up work is all that is required. If you think I’m working here for the love of it you are mistaken. If you would talk all the issues can be resolved, otherwise I look forward to the Kids making their own decisions.”
“Now you agree you sent that email, don’t you?”
(Husband) “Yes”
“Well I put it to you your wife can’t win, can she, because at the bottom of the email you say “If you would only talk-”
“And yet the second sentence is:
“Discussion closed.”
“She couldn’t win that argument, could she?”
(Husband) “… Probably not”
In further cross-examination the husband agreed that he sent the following email to the wife on 3 August, 2011 and that it was both demeaning and abusive:
“Stop treating me like a tag along and someone that only needs information and has no right to make decisions on my kids. Remember I am the only one that has their interests as a priority. What about getting him a referral to get his nose checked. Stop trying to convince me that he can understand things. Maybe if you sit and help him with this homework you will understand. How about the fact that you fucked off with the kids three years ago and his schooling has been affected. As I said before he is not repeating. Try make him repeat. He knows that it will be you making him do it.”
I brought to the husband’s attention that the Family Report writer recommended that he should see a psychologist who has experience in the family law area for counselling for at least six months on a regular basis prior to any proposed trip overseas. I had the following exchange with Mr Ansen:
“I don’t have time to do the psychologist’s – or the counselling”
“What if you could start that before the trip?”
“That’s the problem. I don’t have time, because I work in a remote area.”
“You don’t have the time.”
“No.”
“You’re not going to make the time.”
“Well, I can’t, because I work in a remote area.”
“What’s you remote area?”
“[location omitted].”
“Yes, and you’re an [occupation omitted]. What type of [omitted]?”
“Yes, [omitted].”
“And how many weeks on and weeks off do you work?”
“It’s usually about eleven days on, three off.”
“Eleven on, three off.”
“But in that time that I’m off I’m taking my kids around to various…”
“And you couldn’t find a couple of hours to see a psychologist?”
“Well, I can’t get offsite during the day.”
“What do you mean? The kids come to you onsite.”
“Sorry. No, what I mean is during – well, I’m only basically here on the weekend – every second weekend.”
“Okay. Have you ever made inquiries with a psychologist if they’re available on the weekend?”
“No, I haven’t.”
“Why not?” If you’re going to tell me you can’t do it, you’ve got to explain to me that no one can see you.”
“I haven’t investigated it.”
“Okay. All right. So you’re not prepared to undertake the counselling at all with the psychologist?”
“That’s right.”
Subsequently, the Counsel for the wife put to the husband the following:
“You’re not prepared to go to a psychologist in Melbourne on Saturday, are you, in relation to your travel plans overseas?”
“Correct”.
I then intervened to clarify and I said:
“That’s correct? You’re not prepared to do it”
The husband replied:
“No.”
On the second day of the hearing, the husband was cross-examined about attending a post-separation parenting course. He was asked whether he was prepared to attend it. He said no. The following took place:
(Counsel for the wife) “My client has sought an order that each party attend a post-separation parenting course. Are you prepared to do that?”
“No.”
(I then intervened to clarify and asked) “No?”
“No.”
“Why not?”
“I don’t believe it is necessary and I don’t have the time.”
“Do you know what a parenting course is?”
“No”
“Well how can you decide whether it is necessary or not?”
“Based on how I interact with my kids and what I do for them, in comparison to other people I know, it’s no different.”
“Really?”
“Yes.”
“You’re a perfect parent? You know everything about it?”
“No. I’m not saying that. But I don’t believe…”
“Well what’s the problem with going along? At worst you already know it, and at best you will pick up something. It’s all about parenting. They teach you tricks on how to communicate, how to read things, how to be a better parent. Do you think there’s a problem with that?”
“No. But I don’t believe I need to do it”
“Really? Is that really your evidence? You don’t believe you need to do it?”
“Yes.”
“Because you’re a good enough parent, or you’re a perfect parent?”
“No. I’m a good enough parent.”

I found the husband’s unwillingness to consider the potential of improving his role as a father to be very disappointing. He displayed a serious lack of insight into the emotional needs of his children and the capacity in him to improve his skills to meet their needs in every sense of the word, particularly given the contents of the Family Report.
To his credit however, at the end of the trial he did say “…I will think about it further…” when I again raised this topic with him.
A great deal of the cross-examination related to [Z] and his need for him to attend a speech pathologist and his related problems including socialisation. Ultimately the husband agreed to a consent Order on this topic including meeting the costs for same.

The Wife’s Evidence

Just prior to the wife being called, Counsel for the wife advised the Court of an open offer as follows; that the husband be permitted to take [W] and [X] on a four week European holiday from Boxing Day 2012 and that he takes the other two children [Y] and [Z] for a four week holiday from Boxing Day in 2014 on condition that the Husband forthwith undertakes a parenting course and secondly, counselling by a person recommended by the Family Report writer each fortnight for at least three months. The husband did not hesitate to reject this offer.
After the wife was called and confirmed the truth of the contents of her material, she indicated that any overseas travel should finish a week before school commences, which is desirable but not always possible in my view, and further indicated that she was prepared to do a post-separation parenting course.
After about twenty minutes of evidence in chief, she was cross-examined by the husband in person. A great deal of this time was spent by him asking and the wife detailing, each and every extra-curricular commitment that the children undertook both during the week and at weekends. His cross-examination generally did not assist the Court.
The next witness was the wife’s de facto partner, a Mr J. He confirmed that the contents of his Affidavit, affirmed 30 July, 2012, were true and correct. Just prior to the husband cross-examining this witness I raised with the witness the truth of the contents of paragraphs 17 and 18 of his Affidavit, which say the following:
“17. Whilst at the front of the house, the husband then began yelling that the wife and I were “losers”, and that the wife would be lonely when he takes the children to Europe for eight weeks and she had nothing to do. This all took place within the hearing of the children
18. I stepped outside and quietly asked the husband to leave. He aggressively told me to “shut your mouth”. I told the husband quietly that I did not want him to embarrass himself in front of his children, and asked him to leave. He responded again by saying “shut your mouth”; but then left with the children, who had had gotten into his car”.
I did this to highlight to the husband indirectly that in relation to him there were at least these two difficulties that were raised by this Affidavit. I expected him to address them in cross-examination.
Nonetheless, the husband chose not to cross-examine this witness at all.

Relevant Legal Principles

Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the child is met by:
a)ensuring that child has the benefit of both their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the child; and
b)protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that the child receives adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their child.
Section 60B(2) sets out the principles underlying those objects They are that (except when it is or would be contrary to a child’s best interests):
a)The child has the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)the child has a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their child;
d)parents should agree about the future parenting of their child; and
e)the child has a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests. It should be noted that I am referring to s.60CC(2) prior to the recent amendments because the husband’s Application was filed prior to same.

Section 60CC factors

The two primary considerations are set out in ss.60CC(2) and (3). They are:
”(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.
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.”

The evidence

It is common ground in this matter that the prior Consent Orders of 6 April, 2010 dealt with two of the major of issues in the parenting dispute, the questions of parental responsibility and with whom the children should live. No one sought to revisit these Orders, save for style where the husband wanted to detail what made up parental responsibility but I ruled against such a course, given it could lead to further disputes between the parties.
This current dispute was primarily concerned with competing proposals about the children’s time with their father (including overseas holidays) and with other issues concerning the children’s extra-curricular activities, the children’s expenses and [Z]’s speech and socialisation needs.
When in the following paragraphs I deal with the facts, and proposals and evidence on each issue, I will always be mindful of and apply sections 60B, 60CA, 60CC, 61DA, 65DAA, 6OCG and any other relevant section of the Act particularly 60CA, the paramount consideration will be the best interests of the children.
I will now turn to the facts in issue in relation to the husband’s Amending Application filed 16 July, 2012.

Sub-paragraph 6(a); alternate weekends

It was common ground that the alternate weekends are to be varied to operate from the conclusion of school on Friday until the commencement of school on Monday. What was in dispute is that when that Monday is a public holiday, should the children be returned to the care of the wife at 6.00 pm on that day or remain with the husband until the commencement of school on Tuesday. After reading the parties’ material, considering the Report and their evidence in the witness box, it is my view that they have a relationship that is toxic and confrontational. It is not in the children’s best interests that these parties should come into physical contact. It should be minimised. The wife complained in her evidence of a number of occasions when she felt that the husband was intrusive. In the circumstances of this case, it is my view that the less they see of each other, the less there is opportunity for confrontations or difficulties that may negatively impact on the children’s emotional or psychological welfare. I note that the Report writer recommends a 6.00 pm return with the result that it would be a non-school changeover of care. However, it is my view that when the Monday is a public holiday, the children should be returned to school on a Tuesday and not at 6.00 pm Monday to minimise contact between the parents. This also acknowledges that the children want to see more of their father (see s.60CC(3)(a)). I will also order that the wife ensures the children take with them on the Friday enough clothes and equipment that is necessary for them for school immediately following the weekend with their father.

Sub-paragraph 6(b); school term holidays

There was little evidence on this topic and it was not directly put to the wife in cross examination. It was clear from the evidence that both parents work full-time, both look forward to having a holiday period with the children and the children should have an opportunity to spend holiday time with their parents. I note at paragraph 89 of the Report, the author recommends that the children should continue to spend half of their school holidays with their father during the school term holidays. I suggest (but it will not be in an Order given it was not raised at trial) that should the wife have to work over any school holiday period, that she considers making the children available to the husband to stay with him but only if he is available and is not working full-time, rather than the children attending school holiday programs. If both parents have to work, then obviously the school holiday programs are a fall back position.

Sub-paragraphs 6(c)(d)(e) and (f)

I will deal with the issue of overseas holidays separately and further in the judgment.

Paragraph 19; That both parties will encourage the children (and if necessary transport them) to attend extra out of school hours music, schooling and sporting classes if and when required subject to any other necessary commitments the children have.

This is a fresh Order sought by the husband. The children currently attend significant and regular extra curricular activities. The wife is the primary carer and has historically ensured that when in her care, the children have attended to these matters. The husband in his evidence indicated that he also takes the children to extra curricular activities and historically has attended to this when it has been his role to care for the children. To superimpose an Order on top of current arrangements that appear to be working would suggest to me that there is a risk that it could cause further confrontation between the parties. The style of Order sought by the husband could encourage him to police that Order and in turn cause further disagreement between the parties and even further litigation, which on any view, is not a good thing for the children. Therefore, I believe it is in the best interests of the children not to make this Order, particularly as the current arrangements appear to be working in the children’s interests.

Paragraph 21; In the event that the husband is available, the children wish to spend time with the husband and the children have no other school or school related activities planned, then the wife shall facilitate the children spending time with the husband during periods when the children would normally be spending time with the wife

This proposed clause is open to manipulation and abuse by both parents. The husband could seek to encourage the children to spend more time with him and the wife the opposite. It is an invitation for difficulties. The wife said she would not want this Order. She said in here evidence that she enjoys her time with the children, they have their own weekend routine and that this style of Order would undermine that. I agree. The children should enjoy the weekends that they have with each parent particularly given that they both work full time. It is not in the best interests of the children to make this Order.

Paragraph 25; The wife shall provide to the husband copies of all non school related expenses referred to in the child support orders, which exceeds $500 (the wife agrees to this part of the proposed Order but not the next) and if a particular expense exceeds $500 then the husband will be entitled to obtain a second quotation prior to payment.

The option of the husband obtaining a second quote in the circumstances of this case is an unattractive proposal, as it could lead to further confrontation given the negative attitude of the parties towards each other.
The wife said in evidence that based on history, she had a problem with this style of arrangement. She gave an example of this in practice in relation to speech pathology, when she offered details of two providers and two quotes to the husband but did not get a response from him. She ultimately had to choose the expert, book it and undertake all the arrangements with no feedback from the husband. In the circumstances, it is not in the children’s best interest to make the Order sought by the husband.

Paragraph 27; all elective health expenses relating to the children are to be discussed and agreed upon between the parties before such expenses are incurred or any appointments made (save for emergency treatment and normal general practitioner appointments)

Again the wife opposed this for the obvious reason that it required the parties to discuss and agree upon all elective health expenses and appointments. This is very unlikely to be successful given the recent history of the parties and the criticism of the parents contained in the Report of Dr W dated 11 July, 2012. The wife however is prepared to agree to an Order that each party shall keep the other advised of any proposal for elective health expenses so that they are aware of any pending issues. I do not propose to make the Order sought by the husband, given it may lead to more confrontation, which is not in the best interests of the children.
The parties should note that to avoid the confusion of working off two separate partial parenting Orders, that is, the earlier ones and these current ones, and to enhance practicality and convenience, I have discharged all prior parenting Orders made on 6 April, 2010 and restated those not in dispute in these current Orders.
I will now deal with the wife’s Amended Response filed 2 August, 2012. In paragraph 1 she sought that the husband’s application the dismissed. This cannot happen, given some of the Orders sought by the husband were agreed to by the wife in the running of this matter.
In relation to paragraphs 2, 3 and 5, being the question of the children and the husband travelling overseas in the long summer vacation, I will deal with later. Paragraph 4 of the wife’s Amended Response I have already dealt with when considering sub-paragraph 6(a) of the husband’s Amended Application above.
In paragraph 6, she sought an Order that both parents undertake a post-separation parenting program. I am prepared to make that Order given that the wife seeks it and the husband may ultimately agree to it. On balance, it cannot do any harm to the parties’ relationship and may improve their parenting skills, which is sadly needed when considering their attitude and behaviour toward each other.
Paragraphs 7 and 8 of the wife’s Amended Response were ultimately agreed to by the husband and so will form part of the Consent Orders.
In paragraph 10, the wife sought that the husband forthwith comply with paragraph 22 of the Orders made 6 April, 2010 and pay within 7 days all moneys outstanding to the wife.
Paragraph 22 of the earlier Orders was a departure Order made by consent of the parties pursuant to the Child Support (Assessment) Act 1989.
It was common ground that in his most recent tax return, the husband set out that he earns $286,000 per annum. The wife earns about $105,000 per annum.
The difficulty in this area was that the husband failed to reimburse the wife all moneys due under the earlier Order because as he said in evidence:
“I’m just refusing to – for that items, I was refusing to pay. If they were legitimate items, I would have – I would have paid for them, but because of issues that have happened over the last few months, I had stopped.”
“…And in your evidence today, you have just conceded a great many of the items ought to be paid, haven’t you?”
“Correct.”
“But you have done nothing since March, when she first brought the matter to the Court’s attention to reimburse her for these moneys?”
“Correct.”
“You’ve refused to comply with a Court order, haven’t you?”
“I wouldn’t say “refused”. Which item in particular?”
“You’ve conceded to his Honour, in my questions, that there are items that are properly paid and you will pay them?”
“Correct.”
“And your wife has been requesting these items since at least May of this year, hasn’t she?”
“Yes.”
“And you’ve just given evidence that you have refused to pay for many of these items?”
“Correct.”
“And you are required by the Court order of April 2010 to pay them, aren’t you?”
“Correct.”
“You have breached that order, haven’t you…?”
“Correct.”
“…wilfully…?”
“Correct.”
“…to hit back at your wife?”
“Correct.”
“You breach court orders to hurt your wife, don’t you?”
“No, it was because I was disputing those – those few items, and there was another – there’s another item on there as well that I’m disputing as well.”

The moneys owing as claimed by the wife were set out in a statement, which was made ‘Exhibit 4’ during the hearing.
To be practical, I will separate the holiday program costs and deal with them subsequently. In relation to the other costs, which relate to school shoes, books, uniforms, bags, an umbrella for the children, dental costs and speech pathologist, it is in the children’s best interest that the husband comply with the earlier Order that he consented to, notwithstanding his complaints about the wife purchasing extra bags, an umbrella and dress without first consulting him. I will order that he reimburses the wife for these.
There are three lots of holiday program costs, namely $565 for the [omitted] holiday program, $350 for the [omitted] holiday program and $1,144 for [omitted]. Given the evidence was that one of the parties received a government rebate of 50% of the costs of these programs, I will order that the husband repay the wife 100% of these expenses if he received that Australian Government rebate but if the wife received the 50% government rebate, then the husband should pay to the wife 50% of all of these costs.

Long summer vacation and overseas travel

The husband seeks in his Amended Application filed 16 July, 2012 the following Orders:
a)The children spend time and communicate with the husband during the 2012/2013 long summer school holidays, from 3.00 pm on 25 December until 3.00 pm on 2 February; and
b)The children spend time and communicate with the husband during the 2014/2015 long summer school holidays from 3.00 pm on 25 December until 3.00 pm on 31 January:
It was his proposal that the children are with the husband on a trip overseas during these two periods.
In sub-paragraphs 6(e) and (f) of his Amended Application as I read it, he otherwise seeks in even years commencing 2016/2017 one half of the long summer holidays, at times as agreed and failing agreement from 3.00 pm on 26 December until 3.00 pm on 15 January and during odd-numbered years commencing 2017/2018 for one half of the long summer school holidays, at times to be agreed and failing agreement from 3.00 pm 10 January until 3.00 pm 31 January. He was silent on the 2013/2014 and 2015/2016 periods but said in Court in effect that the wife was to have these periods as a “mirror image” of ‘his’ in 2012/2013 and 2014/2015 periods.
The wife in her Amended Response filed 2 August, 2012 on this topic sets out the following in paragraph 9:
“That there be no overseas travel between the Husband and the Children until: (a) the Husband has attended counselling to gain insight into the Children’s needs as provided for in paragraph 5 hereof; and (b) the parties participate in a further Family Report by Ms W within 12 months of today’s date and consider her recommendations as to overseas travel and that the issue of whether the Children be further interviewed be at the sole discretion of the Report writer”
There was a dialogue at the trial between the parties and the bench about a further report, which I did not favour. I wanted the litigation to cease and a further report in my view had the potential to keep many issues alive between the parents causing further difficulties for them and the children. This was ultimately accepted by the parties.
The major difficulty in accepting the husband’s proposal is that he did not cross-examine the author of the Family Report, Dr W. Her comments, assessment and recommendations were unchallenged by both parties, and clearly were at odds with what the husband sought.
I have referred to some of the paragraphs in the Family Report earlier in this judgment and now refer to the recommendations. At paragraph 88 of the Report, it says this:
“On the basis of the information available, it is recommended that the children remain residing primarily with their mother; and on the basis that the father engages with a psychologist who is experienced in the family law area, it is recommended that the children spend time with their father every second weekend…”
Notwithstanding this recommendation, the wife does not seek to make this conditional. In relation to weekend time at paragraph 2 of her Amended Response, she proposes that the current time with provided in paragraph 4 of the Consent Orders made 6 April, 2010 remain full force and effect.
At paragraph 90 of the Family Report dated 11 July, 2012 the author says as follows:
“It is also recommended that if the father agrees to provide all relevant information regarding his proposed trip to the mother; and that if he agrees to organise, facilitate, and finance the children having phone or Skype contact with the mother every second day whilst they are away; and that if he agrees to attend upon a psychologist who has experience in the family law area, on a regular basis as directed by same psychologist, for at least 6 months prior to this proposed trip; that the children be allowed to travel overseas with their father on the proposed dates later this year, but for no more than 5 weeks”.
The author of the Report goes on to say at the start of paragraph 93 the following:
“I think it is important for the Court and the father to understand that I’m extremely concerned about the father’s actions and undermining behaviour, and that there could be consequences to him not changing this behaviour, such as reduced or even no contact with the children until he does address this issue.”
The wife, in the running on day 2 through her Counsel, put the following in open Court:
“This matter is proceeding?”
“Yes, it is proceeding, your Honour. There have been discussions. A proposal was put by the wife which wasn't accepted by the husband. Your Honour, I'm instructed to take a somewhat unusual course of action at this point, and that is to make an open offer in Court as to how this matter might be resolved.”
“All right. Well, let me note it.”
“But, your Honour, if it is not accepted by the husband my instructions are to proceed with the application, or the amended response as filed.”
“I follow that.”
“And the reason for that, your Honour, is that a rejection of this offer would raise further concerns in my client as to the husband's attitudes in this matter and the necessity for counselling.”
“I follow that.”
“The offer is, your Honour, in general terms, that the husband be permitted at the end of this year to take [W] and [X] for four weeks from Boxing Day, and that be subject to him undertaking a parenting course and undertaking fortnightly counselling of the type recommended by the report writer for a period of three months, but no necessity for there to be a report, a top-up report, your Honour. And also, your Honour, it would be on the basis that the other arrangements, itinerary, telephone, etcetera, were in place.”
“Yes.”
“So that is the wife's proposal, your Honour, and in relation to the other two children she would consent to similar arrangements in two years' time when they are of a similar age to [W] and [X].”
“I follow that. Good. Thank you for that. Mr Ansen, what's your attitude to that?”
(Husband)“No, I'm not in favour of that.”
“Well, what's wrong with it? Tell me what aspects of it you don't like.”
(Husband) “Taking only two of my children first, and leaving the other two here and taking the other two in two years' time. If it's going to be a holiday it's going to be – it's either going to be all of us or I just won't go and make other arrangements over the summer.”
“It will be your choice, you see. Tell me, in terms of counselling, is it still your view that you won't do a parenting course?”
(Husband) “Correct.”
“Still your view that you won't have any counselling as recommended by the report writer?”
(Husband) “Correct.”
There were discussions between the different proposals for overseas travel between the bench and the wife’s Counsel during his final submissions. Moreover I queried whether the wife was still adamant that any overseas travel should be conditional on counselling and was clearly told the following:
“My client has given serious consideration to the factors that your Honour has just addressed, and having done that, her instructions are that she would prefer a conditional Order.”
I have thought long and hard about the wife’s open offer. I have looked at all options in terms of what is in the best interest of these children. It is clear from the evidence that the husband is not in favour of splitting the children and taking them on separate holidays and more importantly, I have not had the benefit of the Report writer being called and otherwise giving evidence on this proposal or making any recommendations about this proposal.
Therefore, in all the circumstances it is my view that given the unchallenged Report and no consideration by that writer of the wife’s split holidays for the children, the only reasonable course available to me that best promotes the best interests of the children is to adopt the recommendation of the Report Writer at paragraph 90 of the Report.
However, given 6 months of counselling cannot occur before the 2012/13 holidays, this will have to be changed to 2013/14 and 2015/16.
At other times when the children are to spend the long summer vacation with their father in Australia, given the husband’s proposal was not criticised by the wife, I shall adopt that with continuation of the proviso contained in the earlier Consent Order of 6 April, 2010.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Curtain FM

Associate:

Date: 8 November, 2012