Barclay and Menzies and Ors

[2010] FamCA 671

FAMILY COURT OF AUSTRALIA

BARCLAY & MENZIES AND ORS [2010] FamCA 671

FAMILY LAW – CHILDREN – Parental responsibility – With whom children live and spend time– Complicated parenting regime for four children born by one mother to three fathers – Application to adjourn dismissed – Expert evidence of the single expert witness – Failure of second respondent to participate in proceedings – Family violence – Alignment of the children against the mother – Ability to foster and encourage relationship between parents and children

Family Law Act 1975 (Cth)

Aldridge & Keaton [2009] FamCAFC 229
Goode & Goode (2006) FLC 93-286
Potts & Bims & Ors [2007] FamCA 394
Rice v Asplund (1979) FLC 90-725

APPLICANT: Mr Barclay

1st RESPONDENT: Ms Menzies

2nd RESPONDENT: Mr Hoover

3rd RESPONDENT: Mr Dunn

INDEPENDENT CHILDREN’S LAWYER: Ms Neisha Shepherd, Neisha Shepherd Solicitors

FILE NUMBER: NCC 3027 of 2008

DATE DELIVERED: 5 August 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 12, 13, 14 & 15 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Mr Ferry, Ferrys Law Firm

COUNSEL FOR THE 1ST RESPONDENT: Mr Mooney

SOLICITOR FOR THE 1ST RESPONDENT: Ms Munsie, J J Lees & Associates

COUNSEL FOR THE 2ND RESPONDENT: Not Applicable

SOLICITOR FOR THE 2ND RESPONDENT: Not Applicable

COUNSEL FOR THE 3RD RESPONDENT: Not Applicable

SOLICITOR FOR THE 3RD RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Goodchild

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Neisha Shepherd Solicitors

Orders

1. All former parenting orders in respect of the following children are discharged:

   (a)       M Hoover, born on … June 1997.

   (b)       T Menzies, born on … January 2002.

   (c)       A Barclay, born on … September 2003.

   (d)       F Barclay, born on … May 2006.

2. The applicant and first respondent shall have equal shared parental responsibility for the child M.

3. The child M shall live with the applicant.

4. The first respondent and third respondent shall have equal shared parental responsibility for the child T.

5. The child T shall live:

   (a)With the first respondent until 5.00 pm on Friday 6 August 2010,

   (b)With the third respondent, each alternate week, commencing from 5.00 pm on Friday 6 August 2010 and concluding at 5.00 pm on Friday 13 August 2010, and

   (c)With the first respondent, each alternate week, commencing from 5.00 pm on Friday 13 August 2010 and concluding at 5.00 pm on Friday 20 August 2010.

6. The first respondent and third respondent shall take all reasonable steps to ensure that the child T communicates with:

   (a)The third respondent each Tuesday evening when the child is living with the first respondent, between 6.00 pm and 6.30 pm, and for that purpose the third respondent shall telephone the child on the telephone number provided to him by the first respondent, and the first respondent shall ensure that the child is able to receive the third respondent’s calls on that number at that time.

   (b)The first respondent each Tuesday evening when the child is living with the third respondent, between 6.00 pm and 6.30 pm, and for that purpose the first respondent shall telephone the child on the telephone number provided to her by the third respondent, and the third respondent shall ensure that the child is able to receive the first respondent’s calls on that number at that time.

7. For the purposes of implementing the living arrangements for the child pursuant to Order 5 hereof, the first respondent shall cause the delivery of the child to the third respondent’s residence at the commencement of each period that the child is to live with the third respondent, and the third respondent shall cause the delivery of the child to the first respondent’s residence at the commencement of each period that the child is to live with the first respondent.

8. The applicant and third respondent shall take all reasonable steps to ensure that the children M and T:

   (a)Spend time with one another, for not less than three consecutive hours, on weekends when the child T is living with the third respondent pursuant to Order 5(b) hereof.

   (b)Communicate with one another by telephone each Wednesday when the child T is living with the third respondent pursuant to Order 5(b) hereof, between 6.30 pm and 7.00 pm, and for that purpose the applicant and third respondent shall each ensure that the children are able to make and receive telephone calls to and from one another at that time on the telephone numbers notified by the applicant and third respondent to one another.

9. The applicant and first respondent shall have equal shared parental responsibility for the children A and F.

10. The children A and F shall live with the first respondent.

11. The applicant and first respondent shall take all reasonable steps to ensure that the children A and F  spend time with the applicant and M:

    (a)Until the child F commences school:

    (i)During New South Wales public school terms, each alternate weekend from 5.30 pm Friday until 5.30 pm Sunday, commencing on the first weekend in each school term.

    (ii)During New South Wales gazetted school holidays, for those periods of the holidays when the child T is living with the third respondent pursuant to Order 5(b) hereof, commencing and concluding 30 minutes after the times at which T is due to commence and conclude living with the third respondent under Order 5(b).

    (b)       After the child F commences school:

    (i)During New South Wales public school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday, or Tuesday if a long weekend, commencing on the first weekend in each school term.

    (ii)During New South Wales gazetted school holidays, for those periods of the holidays when the child T is living with the third respondent pursuant to Order 5(b) hereof, commencing and concluding 30 minutes after the times at which T is due to commence and conclude living with the third respondent under Order 5(b).

12. The applicant and first respondent shall take all reasonable steps to ensure that the children A and F communicate with:

    (a)The applicant and the child M each Wednesday evening when the children are living with the first respondent, between 6.00 pm and 6.30 pm, and for that purpose the applicant shall telephone the children on the telephone number provided to him by the first respondent, and the first respondent shall ensure that the children are able to receive the applicant’s calls on that number at that time.

    (b)The first respondent each Wednesday evening when the children are spending time with the applicant, between 6.00 pm and 6.30 pm, and for that purpose the first respondent shall telephone the children on the telephone number provided to her by the applicant, and the applicant shall ensure that the children are able to receive the first respondent’s calls on that number at that time.

13. For the purposes of implementing the time spent by the children with the applicant:

    (a)Pursuant to Orders 11(a) and 11(b)(ii) hereof, the first respondent shall cause the delivery and the applicant shall cause the collection of the children at the commencement of the time to be spent with the applicant at the McDonalds Restaurant at H, NSW, and the applicant shall cause the delivery and the first respondent shall cause the collection of the children at the conclusion of the time spent with the applicant at the same place.

    (b)Pursuant to Order 11(b)(i) hereof, the applicant shall collect the children from and return the children to school at the commencement and conclusion of the time spent by the children with him.

14. The first respondent shall forthwith procure, and both the applicant and first respondent shall thereafter maintain, a communication book to facilitate communication between them in respect of issues related to the children M, A and F, and they shall each relay important information concerning those children to the other by way of written notification in the communication book, which will travel with the children at change-overs.

15. Each party shall forthwith inform the other parties, and keep each other party informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

16. The applicant and first respondent are restrained, without the written consent of the other, from changing the enrolments of the children M and A from their current schools.

17. The applicant and first respondent shall ensure that the child F, when commencing school, is enrolled at the same school that A attends.

18. The first respondent and third respondent are restrained, without the written consent of the other, from changing the enrolment of the child T from his current school.

19. Each party is restrained from denigrating any of the other parties in the presence or hearing of any of the children, and from permitting any of the children to remain in the presence or hearing of another person denigrating any other party.

20. Each party is restrained from causing or permitting the infliction of corporal punishment upon any of the children.

21. Each party is restrained from allowing any of the children to remain in any car, house, or other confined space in the presence of any person who is smoking.

22. Pursuant to s 65LA of the Family Law Act, the applicant and first respondent shall each forthwith enrol themselves to commence, participate in, and complete, a post-separation parenting program, for which program they shall seek and obtain approval from the Independent Children’s Lawyer.

23. The Independent Children’s Lawyer shall forthwith investigate the most appropriate counselling service provider for the child M, to help her repair her relationship with the first respondent, and shall notify the applicant and first respondent within 14 days of:

    (a)The name and contact details of the psychologist or counsellor chosen by her for the purpose of providing therapeutic counselling to M, and

    (b)The date and time of M’s first appointment with that psychologist or counsellor, arranged by the Independent Children’s Lawyer.

24. For the purposes of implementing the counselling pursuant to Order 23 hereof, the applicant and first respondent shall take all necessary steps  to ensure that:

    (a)M attends the appointment arranged by the Independent Children’s Lawyer pursuant to Order 23(b) hereof, and all subsequent counselling sessions recommended by the psychologist or counsellor, for as long as is deemed necessary by that psychologist or counsellor.

    (b)They furnish the psychologist or counsellor with a copy of these orders.

    (c)The applicant meets any cost of the counselling and pays any fees promptly upon request.

    (d)They participate, either individually or with M, or desist from participation, in such counselling at the direction of the psychologist or counsellor.

    (e)They waive confidentiality and irrevocably authorise the psychologist or counsellor in writing to consult freely as the need arises with the psychologist or counsellor appointed to provide counselling to T pursuant to Orders 25 and 26 hereof.

25. The Independent Children’s Lawyer shall forthwith investigate the most appropriate counselling service provider for the child T, to help him adjust to the change of living for equal time between the first respondent and third respondent, and shall notify the first respondent and third respondent within 14 days of:

    (a)The name and contact details of the psychologist or counsellor chosen by her for the purpose of providing therapeutic counselling to T, and

    (b)The date and time of T’s first appointment with that psychologist or counsellor, arranged by the Independent Children’s Lawyer.

26. For the purposes of implementing the counselling pursuant to Order 25 hereof, the first respondent and third respondent shall take all necessary steps  to ensure that:

    (a)T attends the appointment arranged by the Independent Children’s Lawyer pursuant to Order 25(b) hereof, and all subsequent counselling sessions recommended by the psychologist or counsellor, for as long as is deemed necessary by that psychologist or counsellor.

    (b)They furnish the psychologist or counsellor with a copy of these orders.

    (c)They meet any cost of the counselling in equal shares and pay any fees promptly upon request.

    (d)They participate, either individually or with T, or desist from participation, in such counselling at the direction of the psychologist or counsellor.

    (e)They waive confidentiality and irrevocably authorise the psychologist or counsellor in writing to consult freely as the need arises with the psychologist or counsellor appointed to provide counselling to M pursuant to Orders 23 and 24 hereof.

27. The applicant and first respondent shall do all things and sign all documents as may be necessary for the issue of a passport in respect of the child M.

28. The Independent Children’s Lawyer is discharged upon compliance with Orders 22, 23, and 25 hereof.

29. Any and all outstanding applications are dismissed.

30. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3027  of 2008

MR BARCLAY

Applicant

And

MS MENZIES

First Respondent

And

MR HOOVER

Second Respondent

And

MR DUNN

Third Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. This litigation entails the resolution of a complicated parenting regime for four children born by one mother to three fathers. At the time of trial, the mother was pregnant with a fifth child to a fourth father.

2. The four children who are the subject of the dispute are:

   a)M Hoover, born in June 1997.

   b)T Menzies, born in January 2002.

   c)A Barclay, born in September 2003.

   d)F Barclay, born in May 2006.

3. The applicant is the father of the two youngest children A and F.

4. The first respondent is the mother of all four children.

5. The second respondent is the father of the eldest child M.

6. The third respondent is the father of the second eldest child T.

7. The children were all represented in the proceedings by an Independent Children’s Lawyer, who was appointed shortly after the proceedings were commenced.

8. Regrettably, for the life of the proceedings, there was very little agreement between the parties about any issue. Most aspects of each child’s life were the subject of controversy.

9. The disagreement between the parties was compounded by the belated and profound change in opinion expressed by the single expert psychiatrist about the family dynamics.

Adjournment Application

1. Prior to the commencement of the trial, the first respondent (“the mother”) made an application to adjourn the trial, which application was resisted by the other parties and the Independent Children’s Lawyer.

2. The basis of the adjournment application was the mother’s advance knowledge that the single expert psychiatrist had changed his opinion about the ultimate issue in the case. Instead of recommending that the children all live with the mother, as he had said in his report dated 6 December 2009, the single expert decided on the cusp of the trial that none of the children should live with her. He thought that it would be better for T to live with his father, the third respondent, and for the three other children to live with the applicant. The change of recommendation came to the knowledge of the parties following discussions between the Independent Children’s Lawyer and the single expert, and the provision to the single expert of affidavit material recently filed and/or sworn by the applicant and mother. The single expert was informed, by way of those conversations and that material, that the mother had entered into a new relationship with a man to whom she was pregnant. The new relationship and that pregnancy swayed the single expert’s opinion about the parenting outcome in the case.

3. The communication problems in this case were caused, or at least compounded, by the parties’ failure to comply with the procedural orders made by the Court on 21 January 2010. The applicant and mother did not file affidavit evidence within the time frame ordered by the Court. The belated filing and service of that material meant that it could only be drawn to the single expert’s attention on the eve of the trial and then hastily incorporated into the single expert’s consideration. If the affidavit material had been filed in a timely way, any new issues could have been brought to the Court’s attention by use of the parties’ liberty to re-list the matter for further procedural orders permitting the filing and provision of supplementary material to the single expert for the preparation of an update report.

4. The mother submitted that it would be appropriate to adjourn the trial to enable two things to occur – firstly, the interview of the mother’s new partner by the single expert, and secondly, the provision of an update report by the single expert explaining the reasons behind his change of opinion.

5. The adjournment application was refused with reasons to follow. These are those reasons.

6. The mother was afforded the opportunity to cross examine the single expert about what information he had been provided by the Independent Children’s Lawyer in conversation, and what aspects of both that information and the contents of the fresh affidavit material caused him to so profoundly alter his opinions and recommendations. Disclosure of that information and those reasons orally, rather than in the preferable form of a written update report, did not disadvantage the mother in the trial. The competent cross examination of the single expert by the mother’s counsel proved that she suffered no disadvantage.

7. There was nothing about the mother’s submissions that led me to conclude that the single expert would be so materially assisted by interviewing the mother’s new partner that an adjournment of the trial was necessary to do justice between the parties and to ensure that the children’s best interests were served. The mother did not articulate how such an interview could potentially affect the opinions of the single expert. The mother and her new partner both assert that their new relationship is intended to be permanent, and that they intend the mother’s current pregnancy to proceed to full term so that they raise their child together upon his or her birth. Presumably they would say the same thing to the single expert in any fresh interview. The single expert was informed of those circumstances and they were factored into his oral evidence. The single expert was no better placed than the Court to make predictions about the probability of those intended arrangements enduring successfully. The single expert professed no expertise that would invest his predictions about the permanence of those new arrangements with any more reliability than the Court’s predictions. In the main, they are matters of fact, not questions for expert opinion evidence.

8. Although the identity of the fresh documents furnished to the single expert could be verified, there was no direct evidence of the conversation that transpired between the single expert and the Independent Children’s Lawyer. The parties were not privy to their conversation, and so they were ignorant of what the single expert was told by the Independent Children’s Lawyer. That problem was cured by the parties having the opportunity to interrogate the single expert about it. Nevertheless, the undesirability of that situation should not pass without comment.

1. The Family Law Rules (“the Rules”) provide how parties may interact with a single expert witness outside of the trial process (Rules 15.64B, 15.65, 15.66). The Independent Children’s Lawyer is not a party to the proceedings, despite being treated as one (Rules 6.02, 8.02). The Rules make specific provision exempting the Independent Children’s Lawyer from those Rules restricting the parties’ dealings with single expert witnesses. The Independent Children’s Lawyer may communicate with a single expert witness (Rule 15.41(2)). However, the Independent Children’s Lawyer should not regard that exemption as a licence to interact with the single expert witness at will or whim beyond the knowledge of the parties to the litigation. The integrity of the trial process would be undermined if that were permitted to occur unchecked. The parties are entitled as a matter of procedural fairness at least to know what passes from the Independent Children’s Lawyer to the single expert witness, as that information may influence the opinion of the single expert, as it apparently did in this case.

2. No doubt there will be occasions where, for reasons of avoidance of expense or delay, an Independent Children’s Lawyer should be able to communicate with a single expert to convey information and solicit a response. The recognition of that fact is presumably the reason that Rule 15.41(2) exists. However, that should not be conventional or regular practice. Permission to take that course should not be regarded as an exhortation to always do so. In order for all parties to be appraised of information that passes between the Independent Children’s Lawyer and the single expert it would be preferable for the Independent Children’s Lawyer to either:

   a)     Hold a conference with the expert, which the other parties may attend if they choose to do so. The conference could be telephonic or in person;

   b)     Pose open written questions to the expert, and circulate copies of the questions and expert’s answers to the other parties;

   c)     Provide supplementary material in written form to the expert, and furnish copies of the correspondence that passes between the Independent Children’s Lawyer and the expert to the other parties; or

   d)     Reach agreement with the parties about what additional agreed facts may be submitted to the expert in writing with a request for the expert to factor those additional facts into consideration.

Absence of the Second Respondent

1. The second respondent is the biological father of the eldest child, but he has not participated in the proceedings.

2. The second respondent was joined to the proceedings by being named as a respondent to the Application filed by the applicant on 26 November 2008.  

3. On 6 July 2009 the Court ordered the applicant to serve the second respondent.[1] When the trial commenced, counsel for the applicant confirmed with the Court that the applicant had served the second respondent in compliance with that order. Despite the second respondent’s service, he has not filed any documents in the proceedings.

   [1] Order 2.13

4. Recently, on 12 July 2010, the Newcastle Registrar had a telephone conversation with a person identifying himself as the second respondent. A contemporaneous note of the conversation that transpired between the Registrar and that person is in evidence.[2] I accept that in all probability the person to whom the Registrar spoke was indeed the second respondent, in which case the note proves that the second respondent was aware of the proceedings but unwilling to engage in the litigation.

   [2] Exhibit F2

5. In the circumstances, I was satisfied that the second respondent had knowledge of the litigation, did not wish to participate in it, was disinterested in the outcome, and that it was appropriate for the trial to continue in his absence.

6. At the time the adjournment application was made, there was no evidence in the affidavit material read by the parties of M spending any time or communicating with the second respondent for almost her entire life. Once the trial began it became apparent that M has had some limited interaction with the second respondent, but the evidence was not such as to disturb the integrity of the decision to proceed with the trial in his absence.

Proposal and Primary Evidence of the Applicant

1. Notwithstanding that the applicant was the biological father of only the two youngest children, he initially sought parenting orders relating to all four children – hence his joinder of the second and third respondents to the proceedings. During the trial he abandoned any application in respect of the child T, and his proposals vacillated with respect to A and F.

2. The applicant did not rely upon the orders set out within his Application filed on 26 November 2008. He began the case pressing for the orders set out within a document annexed to the Case Outline document prepared by his counsel which, allowing for the later abandonment of the application in respect of T, essentially provided as follows:

   a)     He and the mother have equal shared parental responsibility for the two youngest children (Orders 1-3)

   b)     The two youngest children live for equal time with him and the mother, subject to arrangements for special days (Orders 4-5).

   c)     The eldest child live with him (Order 6).

   d)     The eldest child spend time and communicate with the mother as agreed between him and the mother (Order 7), acknowledging that the child presently has no inclination to do so (Order 8).

   e)     The children communicate with the mother in writing (Order 11) and by telephone at reasonable times (Order 12).

3. During the applicant’s evidence he tendered a revised schedule of the time that he proposed that the two youngest children should be within the care of the mother.[3] The effect of that proposal was to curtail the time. Instead of living with her for equal time, the applicant proposed that they spend time with the mother for 5 nights per fortnight, split into two tranches.

   [3] Exhibit F1

4. During final submissions, the applicant produced a revised Minute of Orders, which was tendered.[4] It proposed even further curtailment of the time spent by the two youngest children with the mother, but in the alternative, somewhat surprisingly proposed that the two youngest children live with both he and the mother for equal time.

   [4] Exhibit F3

5. In support of his case the applicant read the following affidavit material:

   a)     Affidavit of the applicant filed on 26 November 2008.

   b)     Form 4 Notice of Child Abuse or Family Violence filed by the applicant on 8 December 2008.

   c)     Affidavit of the applicant filed on 2 September 2009.

   d)     Affidavit of the applicant filed on 16 June 2010, which affidavit the applicant was permitted to read with the consent of the mother and Independent Children’s Lawyer, over the objection of the third respondent.

Proposal and Primary Evidence of the First Respondent

1. The mother pressed for orders set out within her Amended Response filed on 19 February 2010, which essentially provide as follows:

   a)     All four children live with the mother (Order 2(a))

   b)     Mother has sole parental responsibility for the eldest child (Order 2(b)).

   c)     Mother and third respondent have equal shared parental responsibility for T (Order 2(c)).

   d)     Mother and applicant have equal shared responsibility in respect of the two youngest children (Order 2(d)).

   e)     The two youngest children spend time with the applicant on a graduating basis, culminating in a regime of alternating weekends (Orders 2(e) – 2(f)), which regime was consistent with the contents of the single expert’s report.

   f)   T to spend time with the third respondent each alternate weekend, for half of school holiday periods, and on special days (Order 2(g)).

   g)     T to spend time with the applicant on a graduating basis, culminating in one weekend per month (Order 2(h)).

2. During the course of the trial, the mother abandoned any application for any parenting order in respect of the eldest child M.

3. Allowing for the applicant’s abandonment of any application for a parenting order in respect of the child T, that made the order proposed by the mother concerning interaction between T and the applicant superfluous.

4. In support of her case, the mother read the following affidavit material:

   a)     Amended Affidavit of the mother filed on 30 March 2010.

   b)     Affidavit of the mother filed on 29 June 2010, which affidavit the mother was permitted to read with the consent of the other parties and the Independent Children’s Lawyer.

   c)     Affidavit of Mr L, which affidavit the mother was permitted to file in Court on 9 July 2010 and then read, with the consent of the other parties and the Independent Children’s Lawyer.

   d)     Affidavit of HB filed on 11 September 2009.

   e)     Affidavit of MH filed on 11 September 2009.

   f)   Affidavit of MS filed on 11 September 2009.

Proposal and Primary Evidence of the Third Respondent

1. The third respondent was interested in the proceedings only to the extent that they affected the child T.

2. Previous proceedings were commenced in 2002 between the mother and third respondent concerning T, following the breakdown of their relationship. That litigation was finalised when the parties compromised their dispute. Terms of Settlement were recorded in writing, but never consummated by orders of the Court.[5] The parties thereafter simply adhered to the agreement that they commendably reached.

   [5] Third respondent’s affidavit, Annexure A

3. The agitation for parenting orders in respect of T in these proceedings by the mother and third respondent indicated that neither is prepared to abide by the agreement that they formerly achieved. The absence of past formal orders means that the principles developed in Rice v Asplund (1979) FLC 90-725 present no impediment to the litigation in so far as they relate to T.

4. The third respondent filed his Response on 18 September 2009, in which he proposed orders to the effect that he and the mother be allocated equal shared parental responsibility for T, and that T spend equal time in each of their households. It was not until the trial commenced that the third respondent announced that those were not the orders for which he now pressed.

5. The third respondent prepared and tendered a Minute of Orders which he proposed.[6] The third respondent still seeks that he and the mother be allocated equal shared parental responsibility, but that T live with him and spend time with the mother on alternate weekends, on Mother’s Day, and for half of only the Christmas school holidays.

   [6] Exhibit R1

6. The third respondent proposes that T not spend time with the applicant unless agreed between the third respondent and the mother. Given that the applicant abandoned any application for T to spend time with him, that aspect of the case became superfluous.

7. In support of his case, the third respondent read the following affidavit material:

   a)     Affidavit of the third respondent filed on 18 September 2009.

   b)     Affidavit of Mr G filed on 18 September 2009.

Proposal of the Independent Children’s Lawyer

1. The Independent Children’s Lawyer did not begin the case with any settled position on the proper outcome.

2. At the conclusion of the evidence, during final submissions, the Independent Children’s Lawyer tendered four separate Minutes of Orders proposed by her.

3. The first Minute pertained to M.[7] It proposed that the applicant and mother have equal shared parental responsibility for M, and that she live with the applicant. In view of the fractured relationship between the mother and M, no order was sought providing for M to spend time with the mother, leaving that entirely to the discretion of the child. The Independent Children’s Lawyer proposed that M participate in counselling in an effort to repair her relationship with the mother.

   [7] Exhibit ICL2

4. The second Minute pertained to T.[8] It proposed that the mother and third respondent have equal parental shared responsibility for T, that he live with the third respondent, and that he spend time with the mother on alternate weekends, for half of school holiday periods, and on special occasions.

   [8] Exhibit ICL3

5. The third and fourth Minutes concerned both A and F, and were presented as alternatives, depending upon the findings of the Court.[9] The first alternative was that those children live with the applicant and spend time with the mother for 4 nights each fortnight, for half of school holiday periods, and on special occasions. The second alternative was effectively a mirror image of that arrangement. In either case, the Independent Children’s Lawyer proposed the allocation of equal shared parental responsibility to the applicant and mother for those children.

   [9] Exhibits ICL4 and ICL5

Background Facts

1. The following recitation of facts is largely uncontentious. To the extent that it departs from the evidence of a party, the narrative represents findings of fact.

2. The eldest child was born to the mother and the second respondent in June 1997. The mother and second respondent separated when the child was only 5 months of age and the child remained living with the mother. The second respondent has been virtually non-existent in M’s life ever since.

3. The mother later formed a relationship with the third respondent, and the child T was born to their relationship in January 2002. Although the mother and third respondent retained their relationship for about 5 years, they did not cohabit at any stage.

4. Proceedings were commenced between the mother and third respondent in respect of T following the breakdown of their relationship, but those proceedings were concluded by agreement between the parties. Although no parenting orders were formally made by the Court, the mother and third respondent agreed that the child would live with the mother and spend time with the third respondent on an escalating basis as the child aged. From the time T began school, the agreement provided that he spend time with the third respondent on alternate weekends and for three consecutive days in each school holiday period. The mother and third respondent have always enjoyed an amicable relationship which has enabled them to introduce a high degree of flexibility into their parenting arrangements for T.

5. The mother began her cohabitation with the applicant in July 2002. Their cohabitation continued until 2008. The applicant alleges that their separation occurred in October 2008, but the mother maintains that the separation occurred in January 2008. She moved with the children into an apartment that she rented individually, but the applicant moved into that apartment also and lived with the mother and children under the same roof until October 2008. The difference of opinion as to the time of separation is of no moment.

6. The two youngest children were born to the mother and applicant during their cohabitation. A was born in September 2003 and F was born in May 2007.

7. The four children remained living with the mother following her separation from the applicant, but the applicant remained in regular contact with both the mother and the children.

8. On 11 November 2008 there was an argument between the mother and applicant about the applicant taking the children on an outing. The eldest child intervened in the argument and was insolent to, and defiant of, the mother. As a consequence, the mother lost control and assaulted the child. The applicant took all four children and departed the mother’s household. He took the eldest child to the police to report the incident, which resulted in the mother’s subsequent prosecution for the assault upon M.

9. Early on the morning of 12 November 2008 the mother telephoned the applicant asking that he bring the children back to her. The applicant went to the mother’s home, but without the children. Another argument developed and culminated in a physical altercation between them. The applicant was subsequently prosecuted by police for that assault, but the charge was ultimately dismissed. Nonetheless, an apprehended violence order was imposed upon the applicant for the protection of the mother. That order was made before the NSW Local Court on 18 December 2008 for a period of two years.

10. The applicant prevented the children from seeing the mother for some weeks following those two incidents in mid November 2008, even though the youngest child was then aged only 18 months and was still breast feeding.

11. The applicant instructed solicitors to commence these proceedings on his behalf. His Application was filed on 26 November 2008 and his solicitors wrote to the mother’s solicitors on 28 November 2008 advising that the proceedings were listed before the Court on 9 December 2008.

12. The applicant’s solicitors informed the mother’s solicitors that the applicant would not permit the children to spend time with the mother unless the mother signed an undertaking admitting that the two youngest children had been in the applicant’s care since 11 November 2008, and confirming that the children would be returned by the mother to the applicant within two days of their delivery to her. The mother signed such an undertaking to ensure that the children could spend time with her.

13. The matter came before the Court on 9 December 2008 for consideration of the applicant’s application for interim parenting orders. On that day interim orders were made by consent, the effect of which was to have:

    a)Equal shared parental responsibility for A and F allocated to the mother and applicant (Order 1).

    b)A live with the applicant for a total of 5 nights per fortnight, and otherwise with the mother (Orders 2 and 3).

    c)F live with the applicant for a total of 4 nights per fortnight, and otherwise with the mother (Order 4).

    d)T spend time with the applicant for 3 consecutive nights per fortnight, and otherwise live with the mother (Orders 5 and 7). The third respondent, who is the biological father of that child, also consented to that order.

14. The Court noted on 9 December 2008 that the applicant and mother would both attend a post-separation parenting program at Relationships Australia (Acknowledgement 2), but neither ever did.

15. The three youngest children then resumed their primary residence with the mother pursuant to the interim orders.

16. There was an issue at trial about the extent to which the mother and applicant thereafter voluntarily departed from the interim orders. The applicant contends that the children spent much more time with him than the orders provided. The mother conceded some flexibility between them, but denied any significant shift from the orders. She contended that the applicant often unilaterally decided to ignore the orders and, for example, collect the children from school and take them to extra-curricular activities. Although the applicant telephoned the mother to advise her, it was not to solicit her consent, but rather to advise her of what he had already done. The applicant asserted that he so acted with the mother’s consent. I much prefer the evidence of the mother.

17. No interim parenting order was made in respect of M. Notwithstanding, she continued to live with the applicant, as she had done since separation between the mother and applicant.

18. On or about New Years Day in 2009, M returned to live with the mother and other children. That arrangement continued until about mid March 2009 when the arrangement broke down. M had become progressively more defiant of the mother, and was acting aggressively towards the younger children. At the mother’s invitation, M packed her belongings and left to live with the applicant, with whom she has lived ever since. M has refused to either spend time or communicate with the mother since then.

19. The prosecution of the mother for the assault upon M, which occurred in November 2008, was finalised before the NSW Local Court on 22 June 2009. Despite entering a plea of “not guilty”, the offence was found proven. No conviction was entered against the mother, although she was required to enter a good behaviour bond for a period of 6 months. An apprehended violence order was also imposed upon the mother for the protection of the child. The bond and the apprehended violence order both expired on 22 December 2009.

1. The mother and third respondent filed their Responses in these proceedings in September 2009.

2. The matter came before the Court for the first day of trial pursuant to Rule 16.08 on 21 January 2010. The trial then resumed on Monday 12 July 2010 and concluded on Thursday 15 July 2010, at which time judgment was reserved.

Evidence of the Single Expert Witness

1. Dr R was appointed as the single expert witness in the proceedings in September 2009. Dr R is an experienced psychiatrist and nobody doubts his qualifications. He consulted with the parties and the children in October 2009 and produced a written report dated 6 December 2009.

2. The evidence of the single expert comprised both the contents of his report and that given orally in his cross examination.

3. The single expert’s opinions and recommendations contained within the report were substantially different from the opinions and recommendations he expressed in oral evidence. The reasoning behind the single expert’s seismic shift in position was the subject of his cross examination.

4. Firstly, it is instructive to record the salient opinions and recommendations contained within the single expert’s report.

5. The single expert noted the mother’s belief that the applicant was manipulating the children against her.[10] Her belief was corroborated by other interested parties, who are not either overtly aligned with the mother or against the applicant. The third respondent told the single expert that he knew that M had turned against the mother and lost her previously close relationship with the mother, implying that was the fault of the applicant.[11] The maternal great grandmother also told the single expert that she believed that the applicant had influenced M’s attitude towards the mother.[12]

   [10] Single expert report, page 6.8

   [11] Single expert report, page 11.5

   [12] Single expert report, pages 12.4, 17.4

6. Following his discussion with the applicant, the single expert formed the same view.[13] The single expert thought that the applicant was happy to be supporting M against the mother and was using M as leverage in the litigation,[14] in order to gain some form of advantage, or to retaliate against the mother, due to his difficulty in accepting the breakdown of their relationship.[15] The single expert considered that the applicant was devastated by the loss of the relationship.[16] The single expert concluded that the applicant was “very clever at manipulation”,[17] having “sophisticated and manipulative powers”.[18]

   [13] Single expert report, page 10.6

   [14] Single expert report, page 14.5

   [15] Single expert report, pages 16.2, 17.8, 20.2

   [16] Single expert report, pages 18.9, 20.3

   [17] Single expert report, page 14.6

   [18] Single expert report, page 22.1

7. To have attributed a motive to the applicant, the single expert must implicitly believe that the applicant’s alienating behaviour is deliberate. The single expert expressed that view with more clarity later in his report.[19] However, the applicant’s motive, if he has one, is really irrelevant. The important issue is the effect of his behaviour upon the children. Arguably, the applicant’s behaviour is even more insidious if it is inadvertent rather than deliberate. That is because the applicant would find it more difficult to desist from conduct which is unintentional, particularly if he is ignorant of the repercussions.

   [19] Single expert report, page 20.1

8. Although the manipulation of M was the most acute, the single expert concluded that the three younger children were also being influenced and affected, and were being drawn towards the applicant and away from the mother.[20] The trend was so pronounced that even T was making statements about wanting to live with the applicant, in preference to his own mother and father.[21]

   [20] Single expert report, page 17.6

   [21] Single expert report, page 17.7

9. Despite his conclusions about manipulation, the single expert was still prepared to describe the applicant as a capable caring parent.[22] It is very difficult to understand how such an observation is compatible with the single expert’s clear opinion about the applicant’s alignment of the children against the mother, unless it is assumed that the single expert’s opinion about the caring capability of the applicant is confined to his attention to the physical needs of the children. 

   [22] Single expert report, page 16.3

10. By contrast with the preponderance of adverse comments about the applicant, the single expert offered positive affirmation of the mother and her parenting capacity. He opined that the mother was a capable caring parent,[23] with whom all four children had a close loving relationship,[24] and in whose care the children were all developing normally.[25]

    [23] Single expert report, page 15.5

    [24] Single expert report, pages 15.5, 16.5

    [25] Single expert report, pages 15.6, 16.4

11. The only caveat expressed by the single expert concerning the mother’s attributes was that she had strong dependency needs which led her to quickly form relationships and become pregnant.[26] The single expert expressed concern for the mother forming another relationship, which may break down and cause further instability for her and the children.[27]

    [26] Single expert report, page 15.6

    [27] Single expert report, page 15.7

12. Notwithstanding that brief note of caution, the single expert expressed strident support of the mother’s position in the proceedings. He recommended that all of the children live with the mother, including M, despite the fracture of her relationship with the mother.[28] He thought that the children would continue to develop normally within her care, but not with the applicant.[29]

    [28] Single expert report, pages 19.8, 20.3, 20.7

    [29] Single expert report, page 19.8

13. The single expert regarded the risk of the applicant’s continuing alienation of all four children from the mother as being “extremely high”.[30] The single expert went so far as to ponder the dilemma of whether it was even possible for the children to maintain any contact with the applicant in the face of such risk of alienation.[31] He concluded that the children should spend time with the applicant, but subject to a graduating regime,[32] and conditional upon the cessation of the applicant’s alienating behaviour.[33]

    [30] Single expert report, page 17.9

    [31] Single expert report, page 20.5

    [32] Single expert report, pages 20.7, 21

    [33] Single expert report, page 21.9

14. When he was cross examined, the single expert conversely recommended that none of the children should live with the mother. He recommended that M and the two youngest children live with the applicant, and that T live with the third respondent. The mother’s counsel described that opinion as a “complete U turn”, with which description the single expert was impelled to agree. The single expert also conceded that his opinions appeared “contradictory” and “radically different”. He simply said in explanation that his new opinion was a response to the development of new circumstances.

15. The cross examination revealed that two facts caused the single expert to reverse his opinion – firstly, the mother’s formation of a new relationship with Mr L, and secondly, her pregnancy to Mr L. The single expert only learned of those facts shortly before the trial in discussions with the Independent Children’s Lawyer, and revised his opinion accordingly.

16. The single expert asserted that those facts changed the situation “dramatically” and “exponentially”. He regarded the development of those circumstances as a continuation of a pattern in the mother’s life of forming new relationships and falling pregnant early in those relationships, of which he had made mention in his report. As was pointed out in cross examination by the mother’s counsel, and necessarily admitted by the single expert, that mention in the report was confined to a few sentences in a report of 22 pages, which was otherwise strongly supportive of the mother and critical of the applicant.

17. The single expert asserted that, in his opinion, the mother would be unable to cope with the load of the four children, her newborn baby, and her new relationship with Mr L. The single expert did not articulate the nature of the risk then faced by the children, but I impute it to be the risk of emotional harm. It could not logically be a risk of physical harm. The single expert had previously ruled out the prospect of the mother presenting any risk of physical harm to the children,[34] and despite the applicant giving evidence to the contrary, neither did any party ultimately submit that the mother presented a risk of physical harm to the children. It was also conceded by all parties that they were each capable of catering to the physical needs of the children.

    [34] Single expert report, page 18.1

18. The single expert failed to adequately explain how that emotional harm might manifest itself. There was no explanation has to how such harm could be causally linked to the mother’s predicted failure to cope.

19. The single expert also failed to adequately explain his prediction about the mother’s incapacity to cope. The single expert did not expressly say whether his concern was about the mother’s capacity to cope with the load emotionally or physically. If the prediction was about the mother’s inability to cope with the load physically, that is a prediction of fact, about which the single expert has no special expertise, and is a factual question for the Court to decide. If the prediction was about the mother’s inability to cope emotionally, which view he formed on the basis of his expertise as a psychiatrist, the single expert did not rationally or adequately explain the deductive reasoning behind his conclusion. He simply repeated the conclusion that he believed she would not cope with such a heavy load without adequately explaining why or how.

20. The single expert also failed to adequately explain why he held that view in the face of the mother’s proven capacity to cope with the load of primary care for four children in the past. She did that satisfactorily whilst cohabiting with the applicant, who was then working long hours outside of the home, and also after her separation from the applicant. Nobody has complained about the quality of the mother’s past parenting capacity. Nor did the single expert make mention of the maternal great grandmother’s opinion that the mother had done “extremely well” coping with the care of young children as a young mother.[35] Nor did the single expert explain how he considered that the load of caring for only the younger children would be too great for the mother if M lived with the applicant and/or T lived with the third respondent. In those circumstances she would be caring for no more children then she is caring for presently.

    [35] Single expert report, page 11.8

21. I do not readily accept that the mother’s emotional investment in a new relationship with Mr L so dramatically alters the dynamics. The formation of fresh relationships and the loss of relationships are facts of life for everyone, not just the mother. She has formed and lost relationships with the applicant, second respondent, and third respondent in the past whilst still caring ably for the children. As the single expert poignantly observed, the children have all still developed quite normally in her primary care, both cognitively and emotionally.[36] The single expert did not explain why he thought the mother’s history of those failed relationships was more disadvantageous than the applicant’s curious absence of any relationships other than the one with the mother,[37] and his prolonged inability to emotionally cope with the loss of that relationship.[38] The single expert merely said that he thought that the mother’s new relationship with Mr L was liable to fail, as that is what had occurred to her relationships with the applicant, second respondent, and third respondent. I do not find that a compelling consideration.

    [36] Single expert report, pages 15.6, 16.4

    [37] Single expert report, page 16.1

    [38] Single expert report, pages 18.9, 20.3

22. Despite the changed circumstances of the mother, the single expert conceded that his opinion about the applicant remained unchanged. He agreed that the Court would still need to weigh, what he described as, the “great danger” for the children if the applicant did not desist from his alienating behaviour. He said that he still had “major worries” about the applicant. The single expert was also prepared to acknowledge that his hope that the applicant would now desist from such alienating behaviour was perhaps naïve.

23. Ultimately the single expert opined that the Court would need to carefully consider his residual concerns about the applicant. He believed that the task for the Court was to balance, on the one hand, the “strong” risk that the applicant would continue to alienate the children from the mother, and on the other hand, the risk to the children of remaining in the care of the mother when probably unable to cope.

24. I remain gravely troubled by the single expert’s analysis of the new factual circumstances affecting the mother. The polarised views expressed orally and in his report are not easily reconciled, even with the benefit of his explanation. I have concluded that significantly less weight should be attributed to his recent opinions about the mother’s inability to cope, than should be attributed to his consistently expressed and explained opinions about the impairment of the applicant’s parenting capacity by reason of his tendency to alienate the children against the mother.

Summary of Parenting Law

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the children (s.60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). That parental responsibility pertains to the major long-term issues concerning the child (ss 65DAC, 65DAE), being matters such as education, religion, culture, health, name, and living arrangements (s 4).

5. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286.

Children’s Best Interests – Primary Considerations

Section 60CC(2)(a)

1. M does not have a meaningful relationship with the second respondent. She barely knows him. The applicant gave oral evidence that, after his separation from the mother, he located the second respondent at M’s request so that she could spend time with him, which then happened on only a limited number of occasions. Since then they have had only intermittent communication by telephone and email and not spent any more time together. The second respondent still does not play any significant role in M’s life. The Court need not contemplate the development of M’s relationship with the second respondent if he is insufficiently interested in her to participate in these proceedings.

2. M’s relationship with the mother is complicated.[39] They previously enjoyed a strong relationship with one another, but things changed following the mother’s assault of M in November 2008.[40] M has refused to interact with the mother at all since March 2009. The tension between them was observed by the single expert.[41] Although she expresses anger, M presents as being upset about the damage to the relationship.[42]

   [39] Single expert report, page 16.7

   [40] Single expert report, page 12.3

   [41] Single expert report, page 13.2

   [42] Single expert report, page 13.5

3. The single expert concluded at the time of the interviews in October 2009 that M, like the other children, had a close and loving relationship with the mother.[43] Since then, many more months have passed, devoid of interaction between the mother and M. They have now been completely estranged for nearly 18 months. That makes recovery of their relationship difficult, but not impossible, because their relationship was a strong and meaningful one for many years before that. Although her age and the potency of M’s resentment practically precludes the Court from making an order compelling her to spend time with the mother, the circumstances warrant orders for M to undertake counselling in the hope of repairing the relationship. The parties and the Independent Children’s Lawyer all agree about that.

   [43] Single expert report, page 15.5

4. The relationship between M and the applicant is not a primary consideration bearing upon her best interests. That is because s 60CC(2)(a) of the Act deals with the child’s relationship with her parents. The applicant is not M’s parent, albeit that he is the adult with whom she lives. Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to parties or third parties who are not parents of the subject children (see Aldridge & Keaton [2009] FamCAFC 229 at [44-48, 65, 74, 109-112, 119]; Potts & Bims & Ors [2007] FamCA 394 at [8-9]).

5. It is uniformly conceded that the three youngest children all have meaningful relationships with their parents, which relationships should be cultivated.

Section 60CC(2)(b)

1. The applicant said repeatedly in cross examination that he still harbours a fear for all of the children when they live with the mother. His fear is that they will be physically abused. He holds that fear because of the mother’s assault upon M in November 2008, which he described as a “bashing”. The applicant said that he did not believe that the incident was isolated and, in his view, it was part of a wider pattern of aggression displayed by the mother towards the children. The applicant said that he honestly believed that the children should not spend time with the mother alone, because he felt that the risk of one of them being assaulted again was too great.

2. The inconsistency between the applicant’s expressed belief and the parenting orders he proposes is patent. His attention was drawn to the inconsistency. He explained that the only reason he had been prepared to propose parenting orders that were inconsistent with his belief about the risk to the children was because he had been advised to take that course. By his own admission, the parenting orders proposed by the applicant are disingenuous. The orders do not represent his true belief about a proper parenting regime.

1. The orders require the mother and applicant to effect the changeover of the children at a neutral and public venue before the youngest child starts school. That is because of the terms of the existing family violence order binding the applicant, which preclude his entry upon the premises in which the mother lives. For that reason I reject the proposal of the applicant that, on occasions, changeover occur at the mother’s residence.[74] For uniformity it should occur at the same place. Once the youngest child commences school, changeovers during school terms can be effected at school without the applicant and mother having to interact.

   [74] Exhibit F3, Order 13

2. No orders are made to accommodate special days such as birthdays, Christmas Day, Mother’s Day, and Father’s Day for any of the children. That would introduce an element of confusion and inconvenience between three different households, which is unwarranted. The parties are of course free to reach mutually acceptable arrangements about those occasions, but no order is made regulating arrangements on those days. Although some of the tendered Minutes of Orders proposed orders for such special occasions, no evidence was adduced, and no submissions were made, about the issue. The Court should not be expected to treat the issue with importance if, in the absence of consent orders, the issue is not the subject of mention in either the evidence or submissions.

3. As might be expected, with equal shared parental responsibility allocated in respect of each child, and with interaction to be facilitated between the two eldest children, the orders require each party to keep the other parties advised of their current residential address and contact details.

4. The orders require the parties to maintain the children’s enrolments at their current schools. All parties agreed to do so when giving evidence. Because the youngest child does not yet attend school, the orders require him to be enrolled at the same school as the next youngest child. That will easily be achieved since the two youngest children will live together with the mother.

5. The Court was petitioned to impose an injunction upon the mother restraining her change of residence with the children beyond what was loosely described as a “reasonable” distance from the children’s school. There was no agreement upon what a “reasonable” distance was. The applicant conceded that there was no “magic” about the arbitrary area or radius proposed by him.[75] There was no evidence adduced that bore upon that issue. The disagreement was not broached at all until submissions. The evidence of the mother is that she intends to move into a new residence with Mr L sometime soon. She was unsure as to the location, although it would certainly continue to be on the Central Coast, and in reasonable proximity to the children’s schools. The evidence of the applicant was that he too intended to find a new residence for himself, although he also intended to remain on the Central Coast. The third respondent does not currently contemplate a change of residence.

   [75] Exhibit F3, Order 5

6. I am not persuaded that an injunction should be ordered. The injunction requiring the children’s school enrolments to be retained will prevent the parties from moving too far afield on the Central Coast, and compliance with the parenting orders will have the same effect.

7. The orders require use of a communication book by the applicant and mother. The idea was proposed in the applicant’s Minute of Orders,[76] and adopted by the mother.

   [76] Exhibit F3, Order 11

8. The single expert recommended that the mother and applicant undertake a post-separation parenting program. Having regard to the respective failure of those parties to make good on their mutual undertaking in December 2008, I accept that recommendation. The applicant was prepared to consent to such an order,[77] and so was the mother. Pursuant to s 11E of the Act, I record that I considered but dispensed with the need for specific advice from a Family Consultant about the justification for that order because it was consistent with the advice of the single expert and was made consensually.

   [77] Exhibit F3, Order 10

9. The applicant proposed that he and the mother also attend counselling and mediation, in addition to the post-separation parenting program.[78] The order to attend a post-separation parenting program is supported by the provisions of s 65LA of the Act. The applicant’s counsel was unable to identify the statutory basis upon which any final order could be made obliging parties to attend counselling and/or mediation once the proceedings were concluded by the making of final parenting orders. Even if such a power exists, I decline to exercise it. If the parties are genuine about their participation in other forms of counselling they will seek it out voluntarily.

   [78] Exhibit F3, Order 9

10. An order has been made restraining the parties from denigration of any other party, and from permitting the children to remain in the presence of any other person indulging in such denigration. As I understood the submissions, such an order was consensual. If not, there could be no sensible controversy about the appropriateness of such an order.

11. An order has been made precluding any corporal punishment of the children. The evidence of the applicant and mother was a little vague about their past punishment of the children in that way. Each currently disavows administering physical punishment to the children, in which case there can be no argument about the propriety of the order. It represents present practice.

12. Although they did not concede being smokers, all parties consented to an order restraining them from allowing the children to be in the presence of smokers in confined spaces, due to one or more of the children exhibiting symptoms of asthma from time to time.

13. M has talent as a dancer. She was offered the opportunity of overseas travel to further her interest in dancing. She was unable to avail herself of the last opportunity that arose because she has no passport to enable her international travel. The applicant seeks an order that he and the mother take steps necessary to have a passport issued for M. The mother does not apparently oppose such an order, in which case the order is made.

14. The applicant also sought a similar order in respect of the two youngest children for the issue of passports. There was no evidence adduced about any intended overseas travel for either of those two children in the foreseeable future. I decline to make a passport order in respect of those children. That is a matter for the exercise by the applicant and the mother of their equal shared parental responsibility if and when the issue arises.

15. The applicant sought against himself an injunction precluding him from contacting the mother more than once per week in ordinary circumstances.[79] That proposal arose out of the mother’s evidence in cross examination to the effect that she would like to curtail the amount of telephone calls made to her by the applicant, but that she does not want any restriction upon the nature of the matters that they are able to discuss. As was indicated during submissions, I see no need for any order of the type proposed by the applicant. He is still bound by the family violence order that prohibits him from harassing the mother. That is sufficient.

    [79] Exhibit F3, Order 12

16. I am satisfied that the orders set out at the commencement of these reasons are made in the best interests of the children.

I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  5 August 2010