BAKOWSKI & BAKOWSKI

[2016] FamCA 666

FAMILY COURT OF AUSTRALIA

BAKOWSKI & BAKOWSKI [2016] FamCA 666

FAMILY LAW – CHILDREN – PARENTING ORDERS – Best interests – Where the children  attend boarding school – Application by father to spend more time with the children – Where father has inconsistently spent time with the children –Orders made that the mother have sole parental responsibility for certain matters –Orders made that the children spend time with the father each alternate weekend and during school holidays – Where the mother sought restraining orders against the father – Where the restraining orders were not made – Orders made that the parties pay the fees of the Independent Children’s Lawyer

FAMILY LAW – COSTS – Where the mother seeks a costs order pursuant to s 117(2A) – Where father’s failure to file documents shortened the proceedings – Where the mother was not wholly successful – Application for costs dismissed

Family Law Act 1975 (Cth), ss 61DA, 117(2A)

APPLICANT: Mr Bakowski

RESPONDENT: Ms Bakowski

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: PAC 2917 of 2012

DATE DELIVERED: 16 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 8 August 2016

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms McGee

SOLICITOR FOR THE RESPONDENT: Super & Super Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

Orders

IT IS ORDERED

1. That the mother have sole parental responsibility for  the children B born … 2004 and C born … 2007 (“the children”) in relation to education, enrolment in sporting and extracurricular activities and major medical issues.

2. That in respect of any other major long term issues, the parents have equal shared parental responsibility.           

3. That the mother consult with the father prior to making any long term major decisions pursuant to her sole parental responsibility. Other than in an emergency, the mother shall not make any decision which she is entitled to make until the father has been given the opportunity to respond. If the father does not respond to any email from the mother in relation to a major decision for seven days, then he shall be deemed to have had adequate opportunity.

4. That for the purpose of Order 3, the consultation is to occur by email.

5. That the children live with the mother.

6. That the children are to spend time with the father as follows:

   a.During school terms, on alternate weekends from the conclusion of school on Friday until the commencement of school on Monday, the father being responsible to arrange the children’s collection from school at the commencement of the time and their return to school at the end of the time.

   b.For a total of 4 weeks in each calendar year during school holidays; the father to nominate his weeks by 1 February each even numbered year and the mother to nominate the father’s weeks by 1 February in odd numbered years;

   c.On Father’s Day from 10am to 5pm; and

   d.On special occasions as agreed.

7. That the father’s time in Order 6 is conditional on the father advising the mother of the address at which the children shall spend any overnight time AND on him confirming to the mother by email, 48 hours prior to the commencement of such time, that he will attend  to spend time. If the father fails to do either or both of these things, the mother is at liberty to assume that the father does not intend to collect the children and to make arrangements accordingly. 

8. That the father ensure the children’s attendance at their sporting and other extracurricular activities while they are in his care.

9. That the mother shall be entitled to travel with the children outside of the Commonwealth of Australia in accordance with s 65Y(2)(b) of the Family Law Act 1975 if she provides the father with a full itinerary 6 weeks before the proposed travel.

10. That the parties are to give each other 7 days’ notice of any proposed change of address, phone number or email.

11. That changeover during school holiday time shall occur by the mother delivering the children to the father at the commencement of time and collecting the children from the father at the conclusion of time, at the father’s residence if he lives in the Sydney Metropolitan area or at his mother’s home at Suburb D, whichever the father elects.

12. That the father is permitted to attend all school events at which parents are normally invited to attend, and these Orders authorise the children’s schools to provide the father with all material and communications normally made available to parents.

13. That the father is authorised to request from any school attended by the children copies of documents and publications ordinarily available to parents, including but not limited to copies of the children’s school reports, school photos and newsletters.

14. That the father and the mother shall be restrained from speaking about each other and any member of their household or family in a denigrating, offensive, insulting, or unpleasant fashion in the presence or hearing of the children, and shall use their best endeavours to prevent any other party from doing so.

15. The mother and father are to facilitate phone calls to the other parent at any times the children wish to make such calls.

16. That within 28 days of these Orders, the father pay the costs of the Independent Children’s Lawyer in the sum of $5,482.25.

17. That within 28 days of these Orders, the mother pay the costs of the Independent Children’s Lawyer in the sum of $3,832.25.

18. That the mother’s application for costs is dismissed.

19. That in respect of any application filed in the Family Court of Australia in relation to the welfare of the children, service upon the father shall be affected by delivering the documents to E Street, Suburb D and simultaneously emailing the documents to ...

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 2917 of 2012

Mr Bakowski

Applicant

And

Ms Bakowski

Respondent

REASONS FOR JUDGMENT

1. On 11 October 2013, Mr Bakowski (“the father”) filed an application seeking parenting orders in relation to two children B born in 2004 and C born in 2007.

2. The father sought final orders to the effect that the children live with him and spend alternate weekends and half of the school holidays with their mother, Ms Bakowski (“the mother”). In the interim, the father sought orders that the children spend time with him each alternate weekend from after school Friday to before school on Monday, each alternate Wednesday after school to Thursday before school, and half of their school holidays.

3. The mother opposed that application and sought orders that the children live with her.

4. On 12 December 2014, orders were made in the Federal Circuit Court providing for the children to spend time on specific dates with their father during the Christmas period and thereafter each alternate Sunday from the commencement of the school term. The matter was then transferred to the Family Court of Australia.

5. On 2 February 2015, the Court noted the agreement of the parents that B could attend school at F School (“F School”) in Region G as a weekly boarder from Monday to Friday, on the basis that the mother would accept the responsibility for paying the school fees.

6. On 30 March 2015, the matter was listed for a procedural hearing before Registrar McNamara. The father did not attend. Directions were made for the matter to be listed for a first day LAT before a docket Judge and the father was notified accordingly.

7. On 21 September 2015, the matter was listed before me and directions were made, inter alia, that each party file and serve the material upon which he or she sought to rely by 11 December 2015. On that occasion, the Court noted that both B and C were enrolled as boarders at F School commencing in term 4 of 2015.

8. By consent and without admission, the Court also made parenting orders on 21 September 2015. It was ordered that the children were to live with the mother who was to have sole parental responsibility for giving consents and making arrangements in relation to the children’s enrolment in school and in any school, sporting or extra-curricular activities while they are at school or in the care of the mother.

9. Further orders were made to the effect that the children, during the school term, were to spend time with the father each alternate weekend, the father to be responsible for collecting the children from school and returning them to school. The orders also provided that the father be responsible for ensuring that the children attend their scheduled school, sporting, extra-curricular and social activities. The orders permitted the father to attend the children’s school for any activity that a parent would normally attend, provided that he first provides the mother with notice that he intends to attend. Orders were also made which permitted the children to spend time with their father for half of the school holidays.

10. The matter came before the Court for call over on 18 January 2016, when there was no appearance by either the mother or the father. The Independent Children’s Lawyer (“ICL”) appeared. It was noted that the Family Report had not yet been prepared and the matter was stood out of the list.

11. On 2 March 2016, Registrar McNamara made orders to release the Family Report of Dr H.

12. The matter was next listed before me on 23 March 2016. Orders were made on that day requiring the parties to file and serve all affidavit material of themselves and any proposed witnesses by 4.00 pm on 9 May 2016, and standing the matter over for call over on 16 May 2016.

13. On 16 May 2016, there was no appearance by the father. The father had not filed any material in accordance with the directions made on 23 March 2016. Orders were made to the effect that the matter was listed for hearing for two days commencing 8 August 2016, and the father was directed to file and serve any material upon which he sought to rely by 4.00 pm on 14 June 2016.

14. The Court noted, “That in the event that no material has been filed by the father in accordance with this direction then the matter will proceed on 8 August 2016 on the basis only of the evidence to be filed by the mother and the independent children’s lawyer.”

15. No material was filed by the father in accordance with that direction.

16. The father appeared before the Court on 8 August 2016. He was permitted to cross-examine the mother and the single expert and to make submissions.

THE SINGLE EXPERT’S EVIDENCE

1. The Court was assisted by two reports prepared by a single expert Dr H, a psychologist. Dr H first saw the family in August of 2014 and produced a report dated 29 August 2014.

2. At the time of the 2014 interviews with Dr H the father’s position was that he would like to have an equal time shared care arrangement with the mother where the boys spend two weeks with him and then two weeks with their mother.

3. The mother had significant concerns about the father spending any time with the children.

4. Dr H saw the family again in January 2016 for the purpose of preparing an updated report.

5. In that report, Dr H noticed that C and B lived with their mother and were weekly boarders at F School. She further noted that the current orders, made 21 September 2015 permitted the children to spend time with their father each alternate weekend during term time and for half of the school holidays. Dr H noted that according to the orders the father was to be responsible for the children’s collection from school and their return to school in compliance with the school’s leave policies and procedures and for ensuring that the children attend their scheduled sporting activities.

6. In the course of the January 2016 interviews, the mother told Dr H that she would like the children to live with her and proposed that she have sole parental responsibility for them. The mother proposed that the boys continue to be weekly boarders at F School and continue to spend time with their father every second weekend. The mother stated that since the father has never chosen to spend time with the boys in the school holidays it was difficult for her to put forward any clear suggestion with regard to this time.

7. The father stated that he would like the children to live in an equal shared time arrangement. He said that he was not now opposed to the boys remaining at F School as weekly boarders as long as the mother was able to pay the fees. The father proposed that the boys spend equal time with each parent in a two week about arrangement and that he have equal shared parental responsibility for them.

8. The mother told Dr H that she was unsure exactly where the father lived. The father had consistently during the proceedings given his address as his mother’s house, but he had not taken the boys there. The mother told Dr H that every time the children have stayed overnight with the father they have stayed in a hotel or some other place. The mother told Dr H that despite orders stating that the father can spend more time with the boys they have never really spent more than one night at a time with him. The mother told Dr H that the father’s time with the boys had improved and become more consistent since the making of the consent orders in September 2015, and that he had spent time with the boys on alternate weekends as provided by the orders. She also told Dr H that on the weekend prior to the interviews the father had not collected the boys as he was supposed to do and had not responded to her attempts to communicate with him.

9. The mother told Dr H that both boys enjoy spending time with their father.

10. The father told Dr H that he was in a relationship now but had not introduced the boys to his girlfriend. The father told Dr H that he continues to live with his mother. When asked by Dr H whether the boys had actually spent time at his mother’s house, the father acknowledged that they had not. The father did not provide any reason for this. When asked by Dr H why, when the mother had gone to the home of the paternal grandmother in December 2014 to deliver the children and had spoken to the father’s mother, she had reportedly denied that he lived there, the father stated that this was because his mother dislikes the mother and wishes to have nothing to do with her.

11. The father told Dr H that if the Court were to make orders that the boys could live in an equal shared time arrangement he would get his own apartment suitable to their needs. He said that some of the time when the boys have been with him they have stayed at a friend’s apartment, and when he has taken the boys to Canberra they have stayed at a hotel. The father said that he had never been able to spend any more than a night or a weekend with the boys and that the mother always sabotaged any potential plans that he had to take the children away on holidays.

12. The father stated that collecting the boys from school is very difficult for him because F School is a two hour journey by car from his place of work and he would need to leave work early on Friday in order to collect them. He stated that things are also complicated by the boys sporting schedules.

13. The father told Dr H that he had not liaised with the school over the transport options that are provided with the school. He implied to Dr H that he is not allowed to do this, although the orders of 21 September 2015 suggest otherwise.

14. The father’s preferred position was that the mother would collect the children from school and drop them off at his home.

15. Dr H noted that the father appeared quite preoccupied with describing all of the things that he perceived the mother had done to undermine his spending time with the boys or speaking to them on the phone. He acknowledged that F School has an arrangement whereby parents can telephone the children at school at a set time each evening.

16. When Dr H spoke to the children, C told her that he really enjoyed attending F School. C told Dr H that since being at F School he has been spending time with his father every second weekend and he enjoyed that time. C stated that, as far as he could recall, he had not been to his grandmother’s house with his father or to anywhere his father actually lived. Notwithstanding that, C told Dr H that he would be happy to go on a one or two week holiday with his father.

17. B spoke enthusiastically to Dr H about his school and how much he enjoyed the activities on offer. B described the weekends that he spends with his father as “pretty good” and told Dr H that they had recently gone to Canberra and stayed in a hotel which he had enjoyed. B said that he sometimes goes to visit his paternal aunt but that he has not seen his paternal grandmother for a while.

18. B told Dr H that he was meant to spend more time with his father in the summer holidays but that, in the end, his father had just taken him and C out for the day a few times.

19. Dr H reported:

    Both boys appeared happy and settled in their mother’s company. [C] and [B] both appeared happy to see [the father] and were quite affectionate in their interactions with him. [C] appeared, at times, to try and reassure his father, for example when he told his father that [the mother] had bought him a bike for his birthday and [the father] appeared upset by this and started to complain to him that he had too. [C] suggested that maybe [the father] could buy him some bike accessories instead.

    At the beginning of the observation of [the father] with the boys, the Regulation 7 Family Consultant had to remind [the father] on a couple of occasions not to bring up adult things in relation to his conflict with [the mother] in front of them. There were times when he appeared to be subtly trying to encourage the boys to report negative things about their mother, for example by asking what food their mother gives them and how much she has left them alone.

20. Dr H noted that the parents appeared to be slightly less preoccupied with their conflicts with each other than they were when she had seen them in 2014. She noted that the boys appeared to have benefited from the structure and stability offered by being weekly boarders at F School. The routine of school life and the focus on sport and outdoor activities has worked well for B. Dr H noted that being at boarding school also serves to protect the boys from some of the potential conflicts their parents continue to have.

21. In relation to the children’s education Dr H noted:

    It is evident that [the father] and [the mother] have not got to the point where they are able to calmly discuss and agree on the boys’ educational needs. It is therefore recommended that [the mother] continue to have sole responsibility for the boys in this area to avoid additional conflict when it comes to a choice of schools for [B] in 2017. [B] is also approaching the age at which he may have his own opinions about the school he would prefer.

    [F School] has clear structures in place which allow [the father] to telephone the boys at set times without difficulty and it provides a clear structure around which their time with him can be organised. It is recommended that, on the weekends the boys are with [the father], he takes responsibility for their transport to and from school and also the boys’ sport attendance.

22. Dr H noted:

    Although [the father] has also stated that he lives at his mother’s house, the boys assertions that they have not seen their grandmother for a very long time and that they do not spend time with their father at his home lends support to [the mother’s] concerns about where he is actually living. When interviewed for the family report in August 2014, [the father] maintained that he would be able to find suitable accommodation in which he could accommodate the boys. However to date he appears not to have done so and the boys appear to have never stayed with him at his actual place of residence.  Although he seeks to blame [the mother] for not allowing him to spend time with [B] and [C] in the school holidays, if her account is seen to be reliable by the court then this would support her assertion that he is in fact avoiding doing so.

1. Dr H recommended that the parents have equal shared parental responsibility except in the area of the children’s enrolment in school and any sporting or extra-curricular activities for which the mother should have sole parental responsibility. She recommended that B and C spend time with their father each alternate weekend during term time, the father being responsible for the children’s collection from school and their return to school, and that the father have the option of spending time with the children for four weeks each year in total during school holidays. In relation to the holiday periods, Dr H recommended that the father, by the end of February each year, nominate the holiday periods which he wishes to spend with the children and that in the absence of nomination they spend their time with their mother.

THE PARTIES’ EVIDENCE

1. The mother relied upon a Response filed on 30 March 2016 and an affidavit sworn by her on 21 January 2016. Without objection, the mother also filed in Court an affidavit sworn by her on 7 August 2016, detailing the time the children had spent with their father since the affidavit sworn in January and some changes in the proposed arrangements for their education and their housing.

2. In her affidavit sworn on 7 August 2016, the mother deposed that the father had spent time with the children on the weekend of 20 and 21 February 2016, when he collected the children from school, took them to Canberra for the weekend and returned them to school.

3. On 20 April 2016, the father collected B from the mother’s office at 1pm and returned him at 2pm.

4. On 24 April 2016, the father collected both children from the mother’s home and took them out to lunch.

5. On 14 May 2016, the father collected B and one of his school friends after sport from school and returned B to the mother’s home.

6. On 13 July 2016, the father collected both of the children from the mother’s house at Suburb I and took them to dinner.

7. Save for collecting B from sport on 14 May 2016, the father has not attended any school events since 21 January 2016.

8. The mother deposed to a change in the arrangements for the children. She and the children have moved from Suburb I to Suburb J. One of the main reasons for the move to Suburb J was that B could attend in 2017 as a day student at the K School at Suburb L. A bus is available for B to and from school from Suburb J.

9. B has a confirmed position for year 7 at the K School. C will be offered a position at the K School in year 7. It is the present intention of the mother that both children will continue at F School until the end of the 2016 school year and that in the 2017 school year, C will continue at F School and B will attend K School.

10. The father filed no affidavit material and no documents setting out the orders which he sought.

11. The mother was cross-examined by the father and the ICL. Dr H was cross-examined. The father was not required for cross-examination.

12. At the commencement of submissions the ICL handed up a minute of the orders which were sought in the following terms:

    1.That the parties are to have equal shared parental responsibility for  the children [B] born … 2004 and C born … 2007 (“the children”)  apart from  the following matters for which the mother shall have sole parental responsibility;

    A.Education

    B.The children’s enrolment in extracurricular and sporting activities

    C.Major medical issues

    D.The children’s passports and travel visas

    2.The mother is to consult with the father prior to making any long term major decisions pursuant to her sole parental responsibility.

    3.The children are to live with the mother.

    4.The children are to spend time with the father as follows:

    a.On alternate weekends from the conclusion of school on Friday until the commencement of school on Monday.

    b.For 4 weeks in each calendar year, the father to nominate his weeks by 1 February each even numbered year and the mother to nominate the father’s weeks by 1 February in odd numbered years.

    c.On Father’s Day from 10am to 5pm

    d.On special occasions as agreed.

    5.     The father’s time in order 4 is conditional on the father advising the mother of the address at which the children shall spend any overnight time.

    6.    The Father’s time in order 4 is conditional on him confirming to the mother 48 hours prior to the commencement of such time that he will attend to spend time.

    7.     The father is to ensure the children’s attendance at their sporting and extracurricular activities while they are in his care.

    8. The Mother shall be entitled to travel with the children outside of the Commonwealth of Australia in accordance with s.65Y(2)(b) of the Family Law Act 1975 if she provides the father with a full itinerary 6 weeks before the proposed travel.

    9.    The parties are to give each other 7 days notice of any proposed change of address, phone number or email.

    10. Changeover for each spend time occasion in school holiday time  shall occur by the Mother  collecting the children from the Father at the commencement of time and delivering the children to the Father at the conclusion of time, at the  father’s residence if he lives in the Sydney Metropolitan area or at his mother’s home at [Suburb D], whichever he elects.

    11. The father is permitted to attend all school events at which parents are normally invited to attend, and these order authorise the children’s schools to provide the father with all material and communications normally made available to parents.

    12. The Mother is to provide copies of the children’s school reports and school photos to the Father.

    13. The Father and the Mother shall be restrained from speaking about each other and any member of their household or family in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the children, and shall use their best endeavours to prevent any other party from doing so.

    14. The mother and father are to facilitate phone calls to the other parent at any times the children wish to make such calls.

13. The father indicated to the Court that he agreed with all of the orders proposed by the ICL except order 1.D which purported to allow the mother to obtain passports for the children without his consent.

14. In the course of submissions the father specifically told the Court that he agreed to orders that would have the effect that the children live with him every second weekend and that he be responsible for collecting them from their school and returning them to school.

15. The orders sought by the mother contained many similar provisions to those sought by the ICL and the father so it is necessary to examine the points of difference.

PARENTAL RESPONSIBILITY

1. The mother, the father and the ICL all agreed that the mother should have sole parental responsibility for long term decisions relating to education, extracurricular and sporting activities and health. The father did not agree that the mother should be solely responsible for making decisions about the children’s passports and overseas travel.

2. The mother sought a specific order which authorised the relevant authorities to issue a passport for the children without the father’s signature.

3. In so far as s 61DA of the Family Law Act 1975 (Cth) (“the Act”) imposes the presumption that it is in the best interests of children for their parents to have equal shared parental responsibility, that presumption is rebuttable. Section 61DA(4) provides that the presumption can be rebutted where equal shared parental responsibility is not in the best interests of the children.

4. The fact that both the parents and the ICL have all agreed that the mother should have sole parental responsibility in relation to some aspects of the children’s lives, is sufficient to rebut the presumption.

5. There is no evidence in the mother’s affidavits of any difficulties between the parents in relation to passports or proposed overseas travel. The mother gave evidence of occasions when the father proposed to take the boys overseas but did not follow through with his proposal. It cannot be assumed that, because the parents did not reach agreement in relation to other matters, they will not be able to co-operate sufficiently to have passports issued for the children or to agree on overseas travel.

6. If such an issue arises, it should be considered on the merits of the competing proposals.

CONSULTATION 

1. The order sought by the ICL and the father required that the mother consult the father before making any long term decision in relation to those matters where she has sole parental responsibility. The mother opposed the making of that order.

2. Matters such as education and health are very significant in the lives of children. Although I accept that these parents have had difficulties in the past putting aside their animosity and concentrating on the welfare of the children, nothing in their history suggests that the father should be excluded from the decision making process.

3. If they do not reach an agreement within an appropriate time, the mother will make the decision.

SELF EXECUTING SUSPENSION OF SPEND TIME ORDERS

1. The mother sought orders which would have the effect that if the father cancels a weekend with the children on short notice; is more than an hour late to collect them; is more than an hour late in returning them; or fails to ensure that they attend activities, then his time with the children is cancelled until the second weekend of the following term.

2. The orders sought by the ICL and the father are less draconian, requiring the father to confirm 48 hours prior to the commencement of time with the children, that he will be collecting them.

3. The evidence of the mother, in her updating affidavit, does not suggest that the father’s inconsistent adherence to the schedule of time with the children imposed by the orders of 21 September 2015 has caused her great inconvenience. His inconsistent attendance is, as Dr H told the Court in cross-examination, something to which the children have adjusted, and they have come to accept.

4. Whilst it may be that the orders sought by the mother would alleviate the constant difficulties which are no doubt caused to her by the father’s failure to abide by the orders which have been made, and the inconsistent and erratic nature of his time with the children, nothing in the evidence suggests that an arrangement such as that proposed by the mother, would assist the children to have regular time with the father.

5. The orders will reflect the proposal of the ICL.

SCHOOL HOLIDAYS

1. The father is entitled to four weeks of holiday each year. The children would like to spend some holiday time with him although he has not been able to arrange for that to occur in the past.

2. The mother does not oppose the children spending holidays with the father, although she is wary about the prospect of overseas travel in circumstances where the father has not been frank about his address and living arrangements.

3. The orders sought by the ICL and adopted by the father do not contain provisions for overseas travel with the father but permit such travel with the mother.

4. All parties agree that the father should be required to nominate his preferred holiday time with the children in advance. The form of orders put forward by the mother is unnecessarily restrictive although I accept that it is designed to make her arrangements easier.

5. The orders will mandate notice according to the proposal of the ICL.

6. The mother also seeks self-executing orders suspending holiday time with the children if the father cancels or is late collecting or returning them. There is no evidence that such orders would benefit the children.

FATHER’S ATTENDANCE AT SCHOOL

1. The mother seeks orders which would restrain the father from attending at the children’s schools except for sporting fixtures, extra-curricular activities, concerts and lays, parent teacher interviews and changeovers.

2. The mother’s proposal would prevent casual attendance on the children’s schools by the father. In support of this application she relies on the fact that on 11 September 2013 the mother’s child minder told her that the father was at the school but had left after a few minutes.

3. The child minder told the mother that the father attended at the school on a few more occasions in September 2013.

4. There is no evidence that the father has attended inappropriately at the children’s current school.

5. Ultimately, the attendance of a parent at a school is a matter for the school and the school authorities will determine if a parent’s attendance is acceptable or not.

6. There is no evidence to justify the orders sought by the mother.

RESTRAINING ORDERS

1. The mother seeks 11 restraining orders. All of these orders are sought as final orders. A permanent restraining order is a serious matter and should not be made lightly. It is necessary to consider whether there is evidence which justifies the making of such an order.

2. The categories of the restraining orders are:

   ·    Attending the mother’s residence or place of work.

3. In the affidavit of the mother sworn 7 August 2016 she deposes to a number of occasions where the father, apparently by agreement, collected or returned the children at her home in 2016. There is no complaint about the father’s behaviour at those occasions.

4. Apprehended Domestic Violence Orders (“ADVO”) were made after separation which were in force until August 2015. There is no evidence that the father breached those orders.

5. There is no evidence that the father, since the expiration of the ADVO, has attended at the mother’s residence, other than by arrangement in relation to the children. There is no evidence that he has attended at her place of work.

6. Tendered in the mother’s case is an email exchange on 14 May 2014 asking that the father not contact her using her work email address.

7. The evidence does not support the making of the order sought by the mother.

   ·    Contacting any family member of the mother or attending at the residence or place of work of any family member.

8. There is no evidence that the father has, inappropriately or at all, contacted any of the mother’s family members or attended at their place of work.

9. The evidence does not support the making of the order sought by the mother.

   ·    Contacting the mother’s employers, colleagues or former colleagues and

   ·    Contacting five named persons (not members of the mother’s family) and their family members.

10. Tendered in the mother’s case were two emails sent by the father in May 2014 to two of the five named persons that the mother seeks the father be restrained from contacting.

11. There is no evidence of any other relevant contact.

12. The evidence does not support the making of the order sought by the mother.

    ·    Assaulting or threatening any person with whom the mother is in a domestic relationship.

13. The mother is not in a domestic relationship.

14. There is no evidence that the father has assaulted or threatened any person which whom the mother has been in a domestic relationship in the past.

15. The evidence does not support the making of the order sought by the mother.

    ·    Discussing travel arrangement with the children until the arrangements have been agreed by the mother.

16. The father has told the children in the past that he would take them to the United States and, more recently, that he would take them to Europe, for a holiday.

17. None of the father’s plans have come to fruition.

18. No doubt the children have been disappointed that the holidays did not eventuate but, as Dr H explained, the children have become accustomed to being disappointed by their father. Sadly, the children have come to understand that their father is not reliable.

19. Restraining the father from discussion of proposed holidays would shield the children from disappointment, but they need to know their father as he is. This order will not be made.

    ·    Publishing defamatory material about the mother.   

20. One of the emails to which reference has been made earlier in these reasons refers to documents which the father sent, in May 2014, to a person associated with the mother’s employment “…that will out line (sic) my reasons and i know that when I found out about [the mother] and [a named person] is what (sic) disturbing”. The documents referred to were not in evidence.

21. By inference, an email from the father to the mother in May 2014 refers to a complaint to the OLSC which I infer to be the Office of the Legal Services Commissioner. The nature of the complaint is not specified.

22. There is no evidence that the father has published defamatory material about the mother. If he should do so, her remedies lie elsewhere.

23. This order will not be made.

SUBSTITUTED SERVICE

1. The mother seeks an order that she be entitled in future to serve documents upon the husband at the address which has, in the past, nominated as his residential address, that is his mother address.

2. The father from the bar table, said that he has very recently moved to a shared house in Suburb M.

3. Dr H in cross-examination said that she had no idea where the father actually lived.

4. The orders dated 21 September 2015 required the father to advise the mother of any change in his address. He did not advise her of this recent change.

5. The father’s place of residence has been an issue in these proceedings since their inception.

6. There is no current Notice of Address for Service on file for the father. The Notice of Address for Service, filed by the father’s former solicitors, gives the father’s address as “Not known”.

7. It is not unreasonable that the mother should be enabled to serve documents upon the father and the orders will specify both a postal and an email address for such service. The email address was confirmed as correct by the father from the bar table.

COSTS OF THE ICL

1. The ICL sought costs of $5,482.25 from each parent, noting that the mother has already paid $1,650 towards that amount.

2. Both parents agreed that the ICL’s costs should be paid but the mother submitted that her share should be paid by the father.

COSTS

1. The mother sought an order that the father pay her costs of the proceedings, including any costs which she is required to pay to the ICL.

2. Both the mother and the father made submissions in relation to costs.

3. The mother’s application falls to be determined according to the provisions of s 117(2A) of the Act.

4. The mother earns $220,000 per annum as a base salary and also receives bonus payments in sums not disclosed.

5. The father, according to the most recent determination of the Child Support Agency, earns $147,000 per annum.

6. The children live primarily with the mother and spend little time with the father. She is responsible for their upkeep but receives child support from the father of $1,215 per month. The mother pays the private school fees but this is a discretionary expense. The father agreed to the children attending private schools only on the condition that she would be responsible for the fees.

7. Counsel for the mother submitted that the father’s conduct, in not filing any affidavit material, should be taken into account. However, the practical effect of his failure to file any evidence was that the proceedings were shortened and able to be completed in a day, rather than the two days which had been allocated.

8. The mother has not been wholly successful.

9. The mother relied on offers of settlement made by her. On 11 May 2014, the mother made an offer to settle the proceedings and enclosed a Minute of Orders of 38 paragraphs (not including sub-paragraphs), including an order that the father pay her costs. A number of the orders proposed by the mother are orders that I have declined to make.

10. On 29 July 2016, the mother, in response to a request from the father, forwarded a further settlement proposal. This proposal also contained a number of orders that I have declined to make and an order that the father pay her costs.  

11. The father responded on 3 August 2016 indicating that he did not agree with the mother’s proposals, specifically in relation to the issue of passports and overseas travel without his consent; that he did not agree with her proposed restraining orders which he proposed should bind both parties and that he required an order that the mother be responsible for private school fees.

1. None of the matters to be considered favours the making of an order for costs in favour of the mother.

2. The mother’s application for costs will be dismissed.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 16 August 2016.

Associate: 

Date:  16/8/2016