BARRY & HENLEY
[2008] FMCAfam 142
•22 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARRY & HENLEY | [2008] FMCAfam 142 |
| FAMILY LAW – Parenting – time spent – disclosure of address – restraints concerning pornography and alcohol use – therapeutic counselling – consideration of risk to children arising out of alleged behaviour of a relative. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 117 |
| Hall & Hall (1979) FLC 90-713 Penfold v Penfold (1980) 144 CLR 311 |
| Applicant: | MR BARRY |
| Respondent: | MS HENLEY |
| File Number: | SYM 6811 of 2006 |
| Judgment of: | Kemp FM |
| Hearing dates: | 4 & 5 October 2007, 5 & 6 December 2007 |
| Date of Last Submission: | 6 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lee |
| Solicitors for the Applicant: | Berala Law Group |
| Counsel for the Respondent: | Mr Foster |
| Solicitors for the Respondent: | Phillip A Wilkins & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr Cook |
| Solicitors for the Independent Children’s Lawyer: | Jennifer Weate & Associates |
ORDERS
That the parents shall have equal shared parental responsibility for decisions about the long term care, welfare and development of the children [X] born [in] 2002 (“[X]”) and [Y] born [in] 2004 (“[Y]”) after this referred to as “the children”.
That each parent shall have responsibility for decisions about the day to day, welfare and development of the children while they are in his or her care.
That the children live with their mother except when they live with their father as follows:
(a)Until 31 March 2008:
i.Every Saturday 9.00am – 5.00pm;
ii.Each Wednesday 4.00pm – 8.00pm, during which the children are to be bathed and fed dinner;
iii.Each fourth Sunday 9.00am – 5.00pm.
(b)As and from 1 April 2008:
Alternating in a two week cycle:-
i.During the first week from 6.00pm Wednesday to 6.00pm Saturday
ii.During the second week from 6.00pm Thursday to 6.00pm Sunday
iii.For one half of the school holidays by agreement and failing agreement the father shall have the first half in odd numbered years and the mother shall have the first half in even numbered years.
iv.In even numbered years from 4.00pm Christmas Eve to 10.00am Christmas Day and in odd numbered years from 10.00am Christmas Day to 11.00am Boxing Day.
That for the purpose of change over for the time the children spend with their father, the mother shall deliver the children to the father’s home at the commencement of time that they spend with him and the mother shall collect the children from the father at the commencement of the time that they spend with her, or otherwise as agreed.
That the father and mother shall keep each other informed of his or her current address and telephone numbers within three (3) days of any change.
That the father and mother permit and arrange for the children to have telephone communication with both parents when in the other parent’s care in a manner and frequency as agreed and that is otherwise age appropriate.
That the father shall within one month of the making of these orders do all acts and things necessary to enrol in a Positive Parenting Program or similar course and when available attend such course to completion.
That the father shall ensure that he does not consume alcohol when the children are in his care or for a period of nine hours prior to spending time with the children.
That the father shall not allow any sexually explicit or pornographic material to be displayed or otherwise accessible at the father’s premises or any place the children are taken by the father.
10.That both parties are restrained from criticising or making derogatory statements about the other parent or a partner of the other parent in the presence or hearing of any of the children or permitting anyone else to denigrate the other party within earshot of the children.
11.That in the event the children are scheduled to be with their father during Mothers Day the father shall deliver the children back to the mother at 9.00am on Mothers Day and similarly in the event that the children are with their mother during Fathers Day the mother shall deliver the children back to their father.
12.That the mother shall within four weeks from the date of these orders obtain a referral and make an appointment to see a psychiatrist and provide the details of that psychiatrist to the Independent Children’s Lawyers and the Independent Children’s Lawyer shall forward a copy of the Report prepared by Dr F to the psychiatrist. The mother after seeing such psychiatrist to undertake and complete such counselling as the psychiatrist advises.
13.That the parties shall, in addition to any other form of communication, communicate with each other, by writing in a communication book to the other party, any matter pertaining to the children including but not limited to:
(a)any medication or management suggestion or prescribed by a doctor for the health and well being of the children;
(b)Any behavioural issue that needs to be addressed;
(c)Any accident that the child experienced whilst in the care of that parent;
(d)Any sporting events.
14.Neither parent shall prevent the other parent from obtaining from any
School or medical practitioner attended by the children information about the children’s illness or progress at and any school activities to which parents are invited.
15.That either party is entitled to attend upon any sporting event for the children and each party is to inform the other in advance of such events.
16.No order as to costs.
17.All exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.
IT IS NOTED that publication of this judgment under the pseudonym Barry & Henley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 6811 of 2006
| MR BARRY |
Applicant
And
| MS HENLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders by the father by way of Application filed on 13 September 2006.
The Respondent mother seeks her own parenting orders in her Response filed 7 November 2006.
When the matter came before me for hearing on 4 and 5 October 2007 various updated parenting proposals were provided to the Court.
The father relied on the following Affidavit evidence, subject to all formal objections as to admissibility:-
a)His Affidavit sworn 4 December 2006;
b)His Affidavit sworn 3 April 2007;
c)The Affidavit of his brother (Mr B – handwritten) sworn 4 October 2007;
d)The Affidavit of the father’s mother (Ms B – handwritten) sworn 4 October 2007.
The mother relied on the following Affidavit evidence, subject to all formal objections as to admissibility:-
a)Her Affidavit sworn 6 November 2006;
b)Her Affidavit sworn 17 January 2007;
c)Her Affidavit sworn 5 September 2007;
d)The Affidavit of the mother’s sister (Ms H) sworn 12 September 2007;
A Family Report was obtained and released by the Court on 10 July 2007. The Report was provided by Dr F and became Exhibit 1 in the proceedings.
Mr Lee of Counsel appeared for the father. Mr Foster of Counsel appeared for the mother. Mr Cook of Counsel appeared for the Independent Children’s Lawyer, appointed pursuant to order of this Court made on 6 December 2006.
Whilst the original Application and Response documents sought both interim and final orders, interim orders were agreed between the parties and were made on 8 November 2006. Those orders were to the following effect:
BY CONSENT AND PENDING FURTHER ORDER:
1. That the children [X] born [in] 2002 and [Y] born [in] 2004 live with the mother.
2. That the children spend time with the father one day per week from 9am to 5pm at the paternal grandparents home at [address omitted] as follows:
(a) Sunday 12 November 2006; and
(b) Then each Saturday unless otherwise agreed.
3. That the father is to ensure that during the time spend with the children, the husband’s brother Mr B is not to be present, without any admission as to any wrongdoing by Mr B.
4. Without admission the father undertakes not to consume alcohol whilst the children are in his care.
5. That liberty be granted to either party to restore the matter on seven (7) days notice.
6. For Order 2, the mother shall drop off and pickup the children.
At the conclusion of the hearing, the parties, by consent sought and obtained an amendment to the above interim orders to the effect that the father is to spend time with the children on Boxing Day 26 December 2007 commencing at 9.00am and concluding at 5.00pm. Otherwise, the interim orders to stand.
The following documents were placed into evidence as follows:-
a)Exhibit 1 – The Report of Dr F dated 10 July 2007
b)Exhibit 2 – [omitted] Hospital Emergency Department Clerical Record
c)Exhibit 3 – Page154 of the NSW Department of Education and Training File – Case Recommendation Review sheet
d)Exhibit 4 – Dr F’s academic transcript from the [omitted]
e)Exhibit 5 – 3 photographs of a head injury to the child [Y]
f)Exhibit 6 – Letter from Phillip A Wilkins acting for the mother to the Berala Law Group acting for the father dated 21 August 2007 and letter in reply from the Berala Law Group dated 27 August 2007.
g)Exhibit 7 – 2 pages from the NSW Department of Education and Training File – Case Recommendation Review sheet being pages 121 and 118 marked by the yellow stickers indicating points of reference on those pages.
h)Exhibit 8 – 20 pages from the NSW Department of Education and Training File – Case Recommendation Review sheet being pages 137 to 118 (which include Exhibit 7).
i)Exhibit 9 – 4 page document headed “Event Reference Number [omitted]” created by Constable [omitted] and updated by Senior Constable [omitted].
j)Exhibit 10 – Draft minute of final order sought by the mother
k)Exhibit 11– Certificate of ERISP transcript together with pages 1-22 of that transcript.
l)Exhibit 12 – 1 page document headed “Summary” dated 14 September 2006.
The matter was part-heard on 4 and 5 October 2007 and stood over for further hearing on 5 and 6 December 2007.
Dr F gave evidence and was extensively examined and as a result, the mother prepared a minute of final orders sought by her (which became Exhibit 10) and the father and the Independent Children’s Lawyer put together a document representing a joint proposal which had within it a number of proposed orders consented to by the mother. By a process of merging the two, the Court had before it the following proposed orders, the ones in bold font being the agreed orders and those in italics being the orders not agreed to by the mother or additional orders proposed by her. Some of the evidence given at trial was referrable to earlier proposed orders and indeed the parties positions evolved somewhat as the evidence fell.
1.The parents shall have equal shared parental responsibility for decisions about the long term care, welfare and development of the children [X] born [in] 2002 (“[X]”) and [Y] born [in] 2004 (“[Y]”) after this referred to as “the children”.
2.Each parent shall have responsibility for decisions about the day to day, welfare and development of the children while they are in his or her care.
3.That the children live with their mother except when they live with their father as follows:-
Alternating in a two week cycle (father’s proposal):-
a.During the first week from 6.00pm Wednesday to 6.00pm Saturday
b.During the second week from 6.00pm Thursday to 6.00pm Sunday
c.For one half of the school holidays by agreement and failing agreement the father shall have the first half in odd numbered years and the mother shall have the second half in even numbered years.
d.In even numbered years from 4.00pm Christmas Eve to 10.00am Christmas Day and in odd numbered years from 10.00am Christmas Day to 11.00am Boxing Day.
In the following stages (mother’s proposal):-
a.Until 31 March 2008:
i. Every Saturday 9am – 5pm
ii. Each Wednesday 4pm – 8pm, during which the children are to be bathed and fed dinner
iii. Each fourth Sunday 9am – 5pm
b.From 1 April 2008 until 24 June 2008:
For each 4 week period
i. First weekend Saturday 9am – 5pm
ii. Second weekend Friday 4pm – Saturday 5pm
iii. Third weekend Saturday 9am – 5pm
iv. Fourth weekend Saturday 9am – 5pm and Sunday 9am – 5pm
v. Each Wednesday 4pm – 8pm, during which the children to be bathed and fed dinner
c.From 25 June 2008 and continuing:
For each 4 week period
i. First weekend Saturday 9am – 5pm
ii. Second weekend Friday 4pm – Saturday 5pm
iii. Third weekend Saturday 9am – 5pm
iv. Fourth weekend Saturday 9am – Sunday 5pm
v. Each Wednesday 4pm – 8pm, during which the children to be bathed and fed dinner.
4.For the purpose of change over for the time the children spend with their father the mother shall deliver the children to the father’s home at the commencement of time that they spend with him and the mother shall collect the children from the father at the commencement of the time that they spend with her, or otherwise as agreed.
5.That the Father and Mother shall keep each other informed of his or her telephone number or her current address (father’s proposal) within three (3) days of any change.
6.That the father shall within one month of the making of these orders do all acts and things necessary to enrol in a Positive Parenting Program or similar course and when available attend such course.
7.That the father shall ensure that he is not affected by alcohol when (father and ICL’s proposal) / has not consumed alcohol at all for 12 hours before (mother’s proposal) the children are in his care.
8.That the father shall not allow any sexually explicit or pornographic material to be displayed or otherwise accessible at the father’s premises or any place the children are taken by the father.
9.That both parties are restrained from criticising or making derogatory statements about the other parent or a partner of the other parent in the presence or hearing of any of the children or permitting anyone else to denigrate the other party within earshot of the children.
10.That in the event the children are scheduled to be with their father during Mothers Day the children be returned to the mother at 9.00am on Mothers Day and similarly in the event that the children are with their mother during Fathers Day, the mother shall deliver the children back to their father.
11.That the mother shall within four weeks from the date of these orders obtain a referral and make an appointment to see a psychiatrist and provide the details of that psychiatrist to the Independent Children’s Lawyers and the Independent Children’s Lawyer shall forward a copy of the Report prepared by Dr F to the psychiatrist (Father and ICL’s proposal).
12.That the mother undertakes therapeutic counselling with the psychiatrist until such time as the psychiatrist with whom she attends has formed the view that it is no longer of benefit to her (Father and ICL’s proposal).
13.That the parties shall, in addition to any other form of communication, communicate with each other by writing in a communication book to the other party any matter pertaining to the children including but not limited to:
a.Any medication or management suggestion prescribed by a doctor for the health and well being of the children.
b.Any behavioural issue that needs to be addressed
c.Any accident that the child experienced which in the care of that parent.
14.Neither parent shall prevent the other parent from obtaining from any school or medical practitioner attended by the children information about the children’s illness or progress at and any school activities to which parents are invited.
15.The father to ensure that Mr B is not present with either child at any time alone (mother’s proposal).
Background
The mother was born [in] 1974 and is aged 33 years.
The father was born [in] 1976 and is aged 31 years.
[Z], child of the mother, was born [in] 1992 and is aged 15 years.
The parties commenced cohabitation in November of 2000.
[X] was born [in] 2002 and is aged 5 years.
[Y] was born [in] 2004 and is aged nearly 3 years.
The parties first separated (three weeks) in October 2005 and then in November 2005 (one week) and finally in February 2006.
Shortly before the parties final separation in February 2006, [Z] ran away and commenced to live with the maternal grandmother. After separation, the father commenced to reside with his parents, brother Mr B and Uncle [omitted] at [omitted].
Between March and April 2006 [Z] returned home and left on a number of occasions.
In May 2006 the mother left the matrimonial home and moved to an undisclosed address.
In October 2006 the mother located [Z] but was unable to speak to her at that time.
In February 2007, the mother was contacted by police concerning [Z] where it was alleged she stabbed someone and bail was initially refused. [Z] was later granted bail and released into the custody of a carer.
On 14 May 2007 [Z] returns to the mother’s home.
Between May and June 2007 [Z] leaves home again after which she comes and goes.
On 22 August 2007 [Z] is bailed.
On 12 September 2007 [Z] was scheduled to be sentenced.
The father is employed as a [omitted] and has worked for that company in various positions for some 12 years.
When the matter resumed on 5 December 2007, the father was still in cross examination. Since the last date in Court, the father’s evidence was that “I have a girlfriend (Ms L) now and I am thinking about moving in with her”. However, the father was still living with his parents as he was in October 2007, due, as he said, to it assisting him in paying off debts and in particular those arising in relation to these proceedings. His evidence was that he may move in with his new girlfriend within the next twelve months.
Issues
As the parties had reached substantial agreement in accordance with the matters set out in paragraph 12, the issues finally left for determination by this Court were essentially:
a)The time that the father would spend with the children;
b)Whether the father should be prohibited from consuming alcohol whilst the children are in his care and for a period of time before that;
c)Whether the father should ensure that his brother not be present when spending time with the children;
d)Whether the mother should reveal her current address to the father; and
e)Whether the mother should attend therapeutic counselling.
Evidence
Dr F, who provided an expert report, was cross-examined by the mother’s counsel, Mr Foster, as to her qualifications on the basis that counsel sought to understand the areas that the Doctor focused on, which may have had a relationship with her study, training, and work experience, to ground a submission based on the “perplexion that this witness gave the report in the final analysis”. There was no challenge to the admissibility of the Doctor’s report. The Court certainly accepts the qualifications and experience of Dr F as a suitably qualified expert for the purpose of these proceedings.
Accordingly, the evidentiary matters set out below will be limited to a consideration of the outstanding matters for decision.
The matters for decision, need to be determined by the application of the relevant principles and procedures.
Principles to be applied and procedure to be followed
The best interests of the child remain the paramount consideration; s.60CA of the Family Law Act 1975 (“the Act”).
The best interests of the child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
(1) The “objects”…are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
Presumption of equal shared parental responsibility
Section 61DA(1) of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child. By virtue of this section, it is presumed that it is in the best interests of the child concerned that his or her parents have “equal, shared responsibility” for the child.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2)) or in the case of an interim hearing the Court considers it inappropriate (s.61DA(3)) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the child for his/her parents to have such equal, shared parental responsibility (s.61DA(4)) [emphasis added].
There is no sufficiently relevant evidence which the Court considers warrants a finding that:
a) it is not appropriate for the presumption to apply because of the factors referred to in s.61DA(2) of the Act; and
b) the presumption is rebutted as not being in the best interests of the child: s.61DA (4) of the Act; and
as the parties have consented to an order for equal shared parental responsibility for the children, which was in accordance with the recommendation of Dr F, the Court will make that order.
Further, under s.60CC(5) of the Act, the Court is not required to have regard to any or all of the matters set out in sub-section (2) or (3), when the Court is considering whether to make an order with the consent of all of the parties to the proceedings.
Time to spend
The making of an order for equal shared parental responsibility is, however not of itself determinative of the amount of time that a child is to spend with his/her parents, but goes to the parent’s decision making responsibilities. It does, however, trigger the operation of s.65DAA (1) of the Act.
If the presumption is applied, certain matters follow by virtue of s.65DAA of the Act and the Court must consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” or some other time with both his/her parents.
To determine what time orders should be made, the Court must look to the best interests of the child and whether the actual spending of such time is reasonably practicable.
The father, however, in these proceedings does not seek equal time. In essence, his proposal seeks substantial and significant time, being both working days and weekends.
Primary considerations
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) which are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In this regard:
a) The primary consideration referred to in s.60CC (2) (a) is supportive of the position that as much time as possible with both parents is in the children’s best interests. The Court accepts that the children have a meaningful relationship with both parents.
As Dr F states in her evaluation, “[X] is very attached to both parents and that despite an interruption to [Y]’s time with her father, that she too is developing strong attachments to both parents”.
Dr F states that the father has “clearly demonstrated his commitment to remaining actively involved in his children’s lives… In general, it is better for young children to spend frequent time with both parents, rather than long periods of time between contact, during which memories could fade”.
Dr F also states that “It would be beneficial to both children …that time spent with their father increase, provided that the Court finds there is no risk to the children being in Mr B’s presence”.
b) The primary consideration referred to in s.60CC(2)(b) operates in this case, due to the allegations made against Mr B and the exposure of a risk to the children in that regard. There is no allegation made against the father or any other member of the father’s family and there are no Apprehended Violence Order proceedings or orders in place. Further, there is some evidence that the mother has placed her own emotional difficulties on the children (see paragraph 50 below).
Additional considerations
The Court must have regard to the ‘additional considerations’ under s.60CC(3) of the Act, which are set out below:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;
Considering the age of the children, the Court simply notes and accepts the views of Dr F to the effect that given their age, maturation level, and temperament, their opinions were not sought nor expected.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
The father’s evidence was that he was committed to remaining actively involved in his children’s lives, and he had the love and support of his family, who appeared to be close to and supportive of one another. Dr F found that the father had appropriate insight into his children’s temperaments and needs and what was age appropriate for his children.
The mother, whilst no doubt a loving parent, had obvious difficulties in accepting and dealing with the father’s different parenting style and according to Dr F’s evidence, the mother may “be having difficulties tolerating the normal expected differences in parenting styles”. The Doctor further considered that the mother may not have been in the past, able to support the continuing relationship between the children and the father, and that to an extent, the mother “may be using the children to meet her own emotional needs” and as such, the children “…may find her emotionally demanding and spending frequent time with their father and the paternal family may provide them with some respite in this regard”.
The Court finds that the children have a good relationship with both of their parents and their extended family and the provision of the additional time for the father, the subject of the recommendations by Dr F, would allow for these relationships to continue and grow.
Dr F’s recommendations were, inter alia, to the following effect:
a)That if the Court finds that there is no risk to the children being in Mr B’s presence, the children live with their father three nights a week, half school holidays and shared special days.
b)
That, if based on additional information, the Court finds that something did occur between [Z] and
Mr B, then the Court consider the risk to the children.
c)The children have telephone communication with both parents when in the other parents care in a manner and frequency that is age appropriate.
Dr F was extensively cross-examined by Mr Foster as to the issue of overnight time as the following transcript passage reveals:
Now, you know, don't you, that the youngest child, [Y], is not even three? ---Yes, I'm aware of that.
Do you agree with the proposition that it would be a little bit early for [Y] to be having any overnight access until [Y] is a little bit older?---No, I do not.
Why not?---Children of that age, especially since she's in the attachment phase, need much more frequent time, and the attachment is formed best when that occurs over the whole range of care activities between the caregiver and the child, including putting the child to bed and getting them up in the morning and breakfast and all of those kind of normal care giving routines.
In the context of these two young children, would it not be the better proposition for [Y] to wait, say, a couple of months, say six months, before she had an introduced overnight contact and then build it up as opposed to, say, now when she's two years and ten months?---No.
Would there not be a risk that overnight access commencing, say, next week, assume, hypothetically, would be too early?---Not necessarily, no.
Not necessarily. Not necessarily?---An increase in daytime frequency over a very short period of time such as a couple of weeks may be of benefit to her to transition to an overnight.
………………
Is the child ready for overnight? ...Yes
Now, you say to his Honour that, "In my professional opinion" ‑ correct me if I'm wrong, I'm sure you will ‑ "this child is ready for overnight access almost immediately", is that correct?---Yes.
You say that and give that opinion on the basis of your learning and your experience, correct?---And observations.
……………….
The mother, on the other hand, who's known this child since birth, obviously knows this child intimately on an hour‑to hour, day‑to‑day, minute‑to minute basis, says, "I don't want that to happen, not yet". Why do you say that your opinion should be proffered and accepted over the mother's?---My observations of the father with the children indicated to me that she is able to use him as a secure base. She came and went from him during the time that they were in the playroom, which indicates to me that she has a secure attachment to him and he would be able to care for her needs, sooth her if she were upset, et cetera. There were direct statements made to me, which I believe some of which we covered before, about the mother's concerns. I believe some of them relate to the mother's difficulty herself with separating from the children rather than the children going to stay with the father directly.
………………….
Are you asking me when I think she may be ready for overnights?
Yes?---I don't think there should be a very long period of time for her to not have overnights. In terms of a gradual build up in daytime so she sees her father more frequently, she's also with her brother. She would be with her brother. The father has a secure ‑ the child has a secure attachment to the dad. So, other than a few weeks, not more than a couple of weeks in terms of building that up.
………………..
Why do you limit the build up to a couple of weeks? Is there a table that we look at?---No, that's my professional view.
On what do you base that professional view with this child?---With this child I base it on her interactions with her father, on her demonstrating that she is secure with him, that she used him as a secure base in the playroom and feels comfortable with him. She's not a stranger. She's had regular daytime ‑ she knew who he was. Their interactions were appropriate.
…………..
Would it not be better to ensure for the benefit of this child's bonding and care and wellbeing that the changeover a little bit more prolonged than a few weeks?---I don't believe so, no.
The doctor was clear and forceful in the strength of her recommendations and the Court has given weight to those.
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The father’s evidence acknowledged that the childrens’ best interests were not protected by a battle between the parents as to what time should be spent and when. He gave evidence that he had been upset about losing time and wanted make-up time, but when questioned as to why he didn’t ask his solicitors to inquire about such time, he answered:
“I don't know. I didn't feel like I had to. I thought eventually I'll get to see them more often anyway. It's not a game where we play, "Here, you offer me this, I'll offer you that back". It's the children that I'm worried about. I'm not in for a game to and fro or "You take a day off me and then I'll take a day off you".
The mother’s evidence, relevant to an issue concerning [Z], was indicative of her reluctance to facilitate relations with the father. The following exchange occurred:
Do you recall the police contacting you to come to the police station or come to the Court to support [Z]?‑‑‑Yes.
And you refused, is that correct?‑‑‑Not true. They rung me up at three in the morning. I could not leave the children at three in the morning to come down to a station.
Did you nominate someone else who could go?‑‑‑I couldn't.
It is clear from the above that the mother gave no thought to phoning the father, to see whether he could look after the children whilst she urgently attended the police station to support [Z].
The mother also responded to Dr F ‘I don’t want him [the father]… to help me raise [the children]. He’s an idiot’.
The Court finds that the father is willing and able to facilitate and encourage a close and continuing relationship between the children and the mother. A similar position should apply to the mother once she has obtained the benefit of further counselling.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The Court accepts and gives significant weight to the recommendations of Dr F noting that they were the subject of lengthy cross-examination and none of the facts upon which her report were based have been found inconsistent with the body of evidence before this Court. The Court has had regard to the general observations set out by the Full Court of the Family Court in Hall & Hall (1979) FLC 90-713 at p.78,819 to 78,820.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There do not appear to be any relevant matters under this head of consideration.
(f) the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The Court accepts that both parents have capacity to provide for their children.
The father at the time of the hearing lived with his parents, brother Mr B and his Uncle [omitted] at [address omitted] in a 3 bedroom, one bathroom brick house with swimming pool. The father’s mother, Ms B, gave evidence that if the father was for some reason unavailable during times when he was to spend time with the children, she would be happy to look after the children. This was not contested.
The mother deposes to her present accommodation as having 2 bedrooms and a granny flat. The granny flat, the mother says, is for [Z] in the event that she returns to live with her. The mother’s evidence was that on 14 May 2007, notwithstanding that she was aware that [Z] had been charged with stabbing someone, she still allowed [Z] to come home with her that day. The mother’s evidence today is that [Z] is drug and alcohol dependent and the Court would have some concern if the children were to reside with the mother in those circumstances. This is more so on the mother’s own evidence that [Z] had been involved in posting nude photographs of herself on the internet and had been involved in self-mutilation. In fairness to the mother, her evidence was that if [Z] returned she would not now know whether she would permit [Z] to live with her and the children.
The father gave evidence that he was, more likely than not, to move in with his girlfriend (Ms L) of some six months within the next twelve months. However, Ms L had only spent time with the children twice, and had not given any evidence in these proceedings.
The father says, whether he was living at his parent’s home or not, his proposal for the care of [Y] (whilst [X] was at school), necessarily involved his mother, who was willing to look after the child on those occasions.
The capacity of the father’s parents was not the subject of any contest.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
These factors do not apply here.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order will have on that right;
These factors do not apply to these children.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
It is accepted, subject to the following, that both parents have demonstrated appropriate attitudes to the children and to the responsibilities of parenthood.
The issue of the husband keeping pornography was extensively ventilated. Whilst one of the children appears to have observed some offensive video material, it also appears that this was done without the father’s knowledge and in circumstances, where he had thought the children were sleeping. The father admitted this possibility but his evidence was clear that he would not watch such material knowing the children to be there at the time. The computer itself was not accessed by the children, they being too young. The magazine material (even if one accepted that it was pornographic, which Dr F did not, when reference was made to the specific titles of the material concerned) was on the father’s evidence locked in the garage. It would appear that [Z] may have gained access to the garage and to alcohol stored there.
Whilst the pornography issue was the subject of intense cross-examination, it did indicate an inconsistency in the mother’s evidence to the effect that the mother said in her affidavit that on various occasions when pornographic images and videos were found by [Z] on the computer, and whenever [Z] told the mother of them, she would delete the material. This gave the impression that the mother’s knowledge of this material came about by the intervention of [Z]. However, when she was cross-examined as to whether [Z] may have put the images there, she answered ‘I’ve witnessed Mr Barry download them, I’ve witnessed Mr Barry watch them’. The father’s counsel then asked ‘why didn’t you put that in your affidavit?’ and her response was ‘I’d forgotten’. The Court is left with the distinct impression that this issue has become more important in the mother’s mind after the parties relationship had broken down.
The order consented to by the father and agreed to by the mother in respect of the pornography issue is in the Court’s view an appropriate way of dealing with this aspect of the case.
The mother also alleges that the father’s supervision of the children is less than adequate. The two principal examples of this before the Court were, the lump to [Y]’s head and more recently, a sunburn exposure to [X]. The father sought to treat the lump on the head with ice and was subjected to some criticism in cross-examination concerning his failure to take the child to the [omitted] Hospital being, on the father’s evidence, only 5 minutes away. The mother, in fact, took the child to hospital where she was examined in the emergency department and released with a fact sheet to be placed under observation. This was said to be a fortunate outcome as the child could have been more seriously injured which would have been unknown to the father as he had failed to have the matter adequately investigated. The other incident related to the child [X] who was sunburnt to such an extent that he was unable to sleep for 2 nights. The father’s evidence was that he had appropriately dressed (hats and rashies/t-shirts) and put sunscreen on the child during a pool party. However, whilst the Court accepts the sunburn incident occurred and consequently the father’s actions were insufficient to protect the child, more than likely, because the sunscreen had not been sufficiently repeatedly applied, whilst the child was in and out of the water, (even though the father’s evidence was that he had done so every two hours) the mother’s evidence as to her treatment was in line with not treating the matter too seriously, as children often experience injuries of this nature. Nevertheless, as Mr Cook submitted: “it appeared insufficiently serious to take the child to seek any medical care, is somewhat inconsistent that it is brought up before this Court as being most serious, but is not serious at the time.”
The parents must be alert to the risks of serious injury which can arise but in disputed parenting matters, injuries of the nature referred to, do more to injure the parents own issues as to parental responsibility and communication than they actually do to the children concerned.
(j) any family violence involving the child or a member of the child's family;
This factor does not apply to these children.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
This factor does not apply to these children.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The Court finds that its proposed orders are those least likely to lead to further proceedings.
(m) any other fact or circumstance that the court thinks is relevant.
The Court finds that there are no other facts or circumstances relevant to its determination.
Matters in s 60CC (4) & (4A):
The Court must, without limiting its consideration of the factors in s.60CC(3)(c) and (i) of the Act, consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent (and in the case where the child’s parents have separated, having regard to the events and circumstances since separation) and in particular the Court must consider the matters set out below:
(a) [The extent to which each of the child’s parents] has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and
(b) [The extent to which each of the child’s parents] has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and
(c) [The extent to which each of the child’s parents] has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
The Court finds that the mother has to a large extent in her desire to protect the children and in dealing with the issues surrounding the break up of the relationship between herself and the father, excluded the father from opportunities to participate in decision making concerning the children, spending time with them and communicating with them. Because of this, the father has had little opportunity to involve the mother in similar decision making.
Reasonably practicability of ‘spending time’
The Court in determining the reasonable practicability of the child spending time with the parents pursuant to s.65DAA(1) of the Act, must have regard to the following matters set out in s.65DAA(5):
(a) how far apart the parents live from each other; and
The Court finds that the distance between the parents does not impact on the reasonable practicalities of spending time.
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
The mother’s evidence was that after one of the children had a vomiting incident she had taken the child to the doctor who had advised to keep the child’s fluids up. The mother admitted that she had informed the father that the child had to be given water, but did not inform him it was the doctor’s recommendation to do so. The communication book, the subject of proposed order 13, should go some way to overcoming these issues.
The father does not seek equal time, but rather time that would be substantial and significant.
The mother’s evidence is that she has attended counselling and the father’s evidence is that he would be prepared to do a Positive Parenting Program.
The Court finds that whilst the parties have experienced communication problems, they are not so great as to impact on their capacities to implement arrangements for the children to spend time with each of the parents.
(d) the impact that an arrangement of that kind would have on the child; and
The Court finds that the orders proposed by the father and the Independent Children’s Lawyer are more likely to foster a strong and continuing relationship with both parents than the orders proposed by the mother.
(e) such other matters as the Court considers relevant
One matter here, is the position of Mr B. Mr Foster submits that his position should be analysed as a matter of “practicality” because he says in spite of any undertakings that he would move out, even for a week at a time, over the holidays, the Court should have regard to the reality and likelihood of that being implausible given the evidence that on a number of previous occasions when the children were delivered to the father’s home, Mr B was there and remained there for some hours whilst the children were taken next door. The Court, however, finds as referred to below that Mr B is not a risk to the children and as such, this issue does not, otherwise, arise.
Conclusion
The Court is of the view, having considered the mother’s proposal and the proposal of the father and the Independent Children’s Lawyer, that great weight should be given to the recommendations of Dr F which are embodied in the latter proposal as it seeks to build a close and supportive relationship between the father and the children whilst at the same time, ensuring the mother’s protective concerns are adequately and appropriately met (see other parenting orders below).
Other parenting orders
(a) Prohibition on the consumption of alcohol
The father gave evidence that he drank excessively during the relationship but says that since separation he has only been a social drinker and disputes he has a drinking problem. His evidence was that he does not now drink any alcohol whatsoever whilst the children are in his care. The mother’s evidence was that for some 8 years whilst she worked weekends the father had looked after the children and this was so, notwithstanding, that she had observed at the time his excessive drinking.
Accordingly, the Court will order that the father not consume alcohol when the children are in his care. The Court will not adopt the father’s proposal, namely, that he be not affected by alcohol. The Court will include orders in accordance with the mother’s proposal which requires no consumption of alcohol for a number of hours before spending time with the children, but will adopt 9 hours rather the 12 hours proposed by the mother. This is in accordance with the father’s own evidence of his current position, in accordance with the parties agreement to interim orders made on 8 November 2006 and further, it is in accordance with the father’s concession given during cross-examination as the following transcript reference reveals:
Mr Foster: All right. You do agree, don’t you, to an order that you would not – you would tell His Honour that you would have no problem with an order such as this, that you would not consume alcohol in the twelve hours prior to or during any period of contact with the two children?
Father: Yes, I agree.
Mr Foster: Even though it’s twelve hours even before your contact starts?
Father: Yes
Mr Foster: And none at all while you are having contact?
Father: Not a problem
Mr Foster: And if that contact went for days at a time?
Father: Yes, that’d be not a worry.
Mr Foster: You’d have no problem with that?
Father: No.
Mr Foster: And you say that sitting there fully understanding the importance of those reasons?
Father: Yes, I do.
The Court is of the view that if no alcohol is consumed for 9 hours before spending time with the children, that time period would be sufficient in the circumstances as if the father was to spend time commencing at say 9.00am on Sunday, no alcohol could be consumed beyond 12 midnight, the Saturday night before. That time, the Court believes will afford sufficient protection in the best interests of the children and is reflective of a more realistic position, the Court must give regard to the practical reality of the enforcement of its orders, prior to making those orders as to do otherwise, may expose a party to being in breach and the subject of contravention applications.
(b) The presence of Mr B
If overnight time is to be ordered, the mother’s concern in this regard as to the safety of the children should be examined and dealt with.
The mother’s evidence was that she believed that the father’s brother,
Mr B had either touched or raped [Z]. During the course of the hearing Mr B denied these matters. Dr F’s report at paragraph 26 details comments made by [Z] to the Doctor in an interview which were to the effect that “nothing untoward had occurred between her and Mr B” although [Z] acknowledged “that she had had a crush on him and had indicated this to her mother”. The mother’s evidence confirmed that [Z] had said to her “I had a crush on him and probably led him on. I don’t want him charged. I just want it to be forgotten”. Mr B’s evidence, was that he had taken [Z] to the beach and to the movies. He denied any girlfriend/boyfriend relationship, and said he treated [Z] like his ‘niece’.
The Court accepts the evidence of Dr F when she records [Z] as saying nothing really happened. The Doctor notes that this was a striking proposition given that [Z] had recanted the allegations made whilst back in her mother’s care and in circumstances where [Z] had informed Dr F that her mother and aunt had made her say things and that they were “heaps mad with” the father. The Court accepts that whilst the relationship between [Z] and her mother was not then, good, there was no suggestion that [Z]’s statements to Dr F were motivated by any desire to harm her mother. The mother did not in her evidence suggest any basis for [Z] changing her story, apart from her being then drug and alcohol dependent.
The material produced by the joint investigation response team and the Department of Community Services (“DOCS”) and the Department of Education and Training (“DEAT”) indicate that the only incident referred to against Mr B and the subject of investigation was the one involving [Z] and whilst that material related to the breast touching allegation (there being no other matter investigated and the father in his evidence denied saying to the mother and her sister words to the effect that a girl at his brother’s school had tried to charge his brother with rape, but nothing had come of it), the rape allegation made by the mother, the beach incident and the Christmas incident were all common to [Z]. DEAT’s investigation concluded that Mr B was no risk to other employees, with a low assessment, and its recommendation was that as the allegation was unsubstantiated, no disciplinary action was warranted. The Court does not have to determine the matter conclusively either for or against Mr Barry but must analyse the risk to the children..
The following exchange between Mr Lee and the mother, supports the Court’s view:
You now know they've pretty well been discounted?‑‑‑What do you mean?
There's been no charges laid?‑‑‑Only because they need [Z] to continue with the investigation.
And the brother‑in‑law is still working as a [omitted]?‑‑‑I guess so.
So there doesn't seem to be any‑ ‑ ‑?‑‑‑I guess not.
MR LEE: So you're not aware of any further investigations or anything resulting from this at all?‑‑‑No, because they need [Z] to continue.
MR LEE: You know that [Z] will say one thing, will you agree that she says something and you've already agreed that something was incorrect?
‑She does now.She does lie?‑‑‑She does now, not before, not when she was living at home with me.
Now?‑‑‑She is alcohol and drug dependent now so there's nothing I can do about what she says and lies about now.
Notwithstanding the mother’s view as to [Z] being drug and alcohol dependent, she was nevertheless prepared to have her appear before Dr F to give evidence supportive of the mother’s position referable to the garage and [Z] helping out with the children because of the father’s ‘garage drinking’. That is what she believed [Z] was being called down to speak to Dr F about. The mother appeared annoyed in that as she said ‘…she never asked any of those questions to [Z] to [her] knowledge’.
The beach incident involved an allegation that Mr B had tried to fondle [Z]’s breasts, tried to kiss her and to look up her skirt using the rear view mirror as she was sitting in the rear of the car. Mr B admitted taking [Z] to the beach and driving her home where he said she sat in the front passenger seat. He denied the other matters. The Christmas incident involved an allegation that Mr B had sat close to [Z] away from other members of the family and [Z] had rubbed his thigh. This was denied by Mr B. It was observed on the evidence of the mother’s sister, Ms H, but at the time nothing was said by the sister to Mr B. Ms H gave evidence that it was also observed by a Ms M, but when put to her that as there was no affidavit from her, the incident did not happen, she responded ‘…it did happen. She wasn’t asked to come forward’. The Court is not satisfied that anything of an untoward nature occurred at either of these times.
The mother’s evidence was that [Z] had “agreed to accompany” her to the police station. After [Z] had spoken to the police she and the mother later went to JIRT (and the Court has had regard to the contents of the JIRT interview). During the course of the interview, it also became apparent that [Z] had given a statement to the Police which had been written down in the presence of the mother and which appeared to be on [Z]’s evidence (everything… told… to JIRT) but the matter was not taken any further as on the mother’s understanding that would require [Z]’s further involvement and as she had then disappeared with her own problems, the matter had proceeded no further. Mr Lee submitted that [Z]’s attendance at JIRT was “not a voluntary thing. The suggestion is that in fact she has been caught in a lie and stuck.” [Z] had been charged and convicted of stabbing a person. At the time of the hearing, [Z] was in detention and the mother’s own evidence was that she was working with Juvenile Justice. The mother’s evidence as to what she was in fact doing was entirely unclear.
The mother gave some evidence as to [Z]’s current position, which was to the following effect:
Would you say that [Z] was an EMO?‑‑‑Yes.
Is she still an EMO?‑‑‑No.
What is your understanding of an EMO?‑‑‑Well, it stands for emotional, children ‑ the New Age Gothic that listened to a certain type of music, wears certain clothes, acts in a certain way, wears make‑up. It's a depressing stage for children.
So you say?‑‑‑It stands for emotional. They're emotional.
But you say it's a depressing stage?‑‑‑Well, I've searched it and that's what it means.
So you say. The thing is [Z] used to cut herself as well?‑‑‑Yes, she did.
That was also an emotional stage?‑‑‑‑I couldn't ‑ I can't answer that.
The mother was further cross-examined by Mr Lee, to the following effect:
Has it ever been suggested to you that [Z] is afraid of you?‑‑‑No.
She's never mentioned the fact that she thought you might bash her?‑‑‑Yes, to DoCS when she had run away and didn't want to come home.
So she says a lot of things?‑‑‑Yes, she does.
The mother’s evidence was further, that she had left the two children with [Z] when [Z] was only 13, and had been advised by the police that this was unacceptable, and that a DOCS report would be made. It was put to the mother that this was unacceptable, but she answered initially ‘I left them with my eldest daughter’. When pressed, she admitted that she now understood it to be unacceptable because ‘of what happened’.
The mother was cross-examined about receiving a phone call from a policeman, who asked her who Mr B was. The mother’s response was ‘I was unable to answer, because the father was standing next to me’. Mr Lee asked ‘But surely the only answer required, would be, the father’s brother?’ The mother’s response was ‘I was stunned, I told you that’. The mother’s evidence was then to the effect that because she was silent, the policeman had realised that she was unable to speak and then asked if
Mr Barry was there. There was then the following exchange between Mr. Lee and the mother:
So you [he] knew Mr Barry?‑‑‑He doesn't know Mr Barry, but he knew that Mr B was Mr Barry's brother.
Already?‑‑‑From speaking to [Z]'s friends.
So the policeman knew all of this?‑‑‑Yes, that's why he wanted to make sure I knew, I guess.
If the policeman knew who Mr Barry was, and that Mr B was his brother, then this conversation appears quite at odds with the mother’s evidence that when he first rang and spoke to the mother, he said the words ‘… who is Mr B?’
The Court is left with the impression that the mother has sought to incorporate into her evidence, telephone conversations with the police, to elevate her concerns regarding Mr B.
The Court notes that [Z] is not the subject of any application and as Mr Cook questioned Dr F to the following effect:
Given that she's 14 or 13 and we're talking now about two and four year olds, is there any necessary link or greater risk - is there any distinction in risk because of the age difference between [Z] and the two younger children?
Dr F responded:
It doesn't follow that if something untoward occurred between Mr B and [Z] that the two young children would be placed at risk.The Court is of the view that having heard the evidence of Mr B in circumstances where he voluntarily exposed himself to lengthy cross examination, the Court is of the view that the evidence does not support there to be any risk that Mr B poses to these children.
(c) The mother’s current address
As to the mother’s address details, the mother deposes to not wishing to provide such information for reasons of her own safety. There is no objective evidence of any risk to the mother. The mother gave evidence of feeling at some risk when she was stared and smirked at by the father’s friends ([names omitted]) (not the father) when she arrived at his home to deliver/pickup the children and that she deliberately parked a little distance away to avoid that issue. In the circumstances, the Court is of the view that that address details of the mother should be provided to the father as he should be in a position to know the whereabouts of the children at all times. This is a matter which is clearly in the best interests of the children.
(d) Therapeutic counselling
As to the mother attending therapeutic counselling, this was a recommendation by Dr F, who suggested that it be “preferably individual and long-term”. Her recommendation flowed from her evaluation that the mother “may be using the children to meet her own emotional needs”, as the children may find her emotionally demanding.
Dr F was cross-examined to the following effect concerning her views regarding the mother and the need for further counselling as follows:
Why do you say that?‑‑‑During the interview with Ms H she was quite teary, very upset and the interview was ceased temporarily for her to be able to collect herself and at that time she was quite agitated and quite insistent on wanting to see her children. She said:
I just want to see my kids now. They'll make me feel better.
In speaking with her later on about the children spending overnight time with their father she became upset again and was crying and said:
I just want know what happens when they're there.
I asked her if she found ‑ she said she feels sad when the children are not with her. She finds that hard. She said:
I spend time with mum so I don't feel so alone and they're in their beds every night. If they're not there I'll be alone.
Now, how accurate is your note‑taking?‑‑‑Very.
……………………
Based on my interview with Ms H, she has indicated that she will be and is distressed at the thought of the children going overnight.
And the only way of alleviating that?---Alleviating her distress? That's an issue for her. She will have to address that issue.
Is that why you suggested - - - ?---Therapeutically.
That's why you're suggesting counselling?---Yes.
……………….
So those were, perhaps, you spoke of her separation anxiety from the children and perhaps that she had been abused herself. Are they the matters that have not obtained prominence in your report that may have been more depth in your notes?---Yes.
Dr F informed the Court that if anything, she had been more gentle to the mother or had understated some of the difficulties she considered the mother had.
The mother’s evidence, was that she did not remember saying ‘I have to leave now. I’m saying stupid things. I just want to see my kids now, They’ll make me feel better’. Her evidence however, was that she did cease the interview because she said Dr F was upsetting her, and her own answers seemed to be met with excuses for the husband.
The Court accepts Dr F’s evidence as to what was said at the time. The mother’s evidence was to a large extent one-sided. For example, when
Dr F reported that [Z] had run towards the father and hugged him, and indicated that she would like to see him if she could, when the mother was asked whether she believed this to be true, she responded ‘I don’t know, I didn’t see it myself’. Tellingly, she was asked ‘if you don’t see something, are you prepared to accept the word of other people or not?’ and she responded ‘depending’. The ‘depending’ seemed to be if the version supported the mother’s view.
The Court is of the view, that therapeutic counselling is likely to assist the mother in reconciling her view that the children should see and have time with their father, with her stated position that what time he should have is what she offers and no more. When asked whether she understood Dr F’s evidence, she responded ‘yes’, but ‘that’s her opinion’. The mother did not believe that the father should participate in the long term issues in relation to the children, yet she consented to an order for equal shared parental responsibility. When asked: ‘So you don’t believe he should have any input as to their schooling’, she responded ‘I don’t see why’.
The mother’s evidence as to her current counselling, was that she had attended about seven sessions, and that it was ‘okay’. She also responded affirmatively, that she was benefiting from it.
There is no doubt, that the mother feels that she had a very hard time following the parties separation, particularly as she said, dealing with issues surrounding [Z]. Her evidence was:
I mean I had to organise myself with the rest of the family so I could work, put food on the table and pay the rent, so it made matters worse.
…. And feeding the children, you need to put a roof over the children's head.
… It's more important to feed them and have a roof over their head, I believe.
The mother’s answers to the following questions arising in Mr Cook’s cross-examination are telling:
Given you have difficulties speaking to Mr Barry unless you have to, given you consider him an idiot, given you see that he has little or no role in determining the school that the children go to, how can this Court be satisfied that you would foster a relationship between the children and their father?
She responded:
That's something that I have to work on. It's something that needs to be done and it - what the children deserve and that's what I have to do.
Mr. Cook then asked ‘what steps have you taken to improve the situation?’, and the mother responded ‘I haven't’.
The Court is of the view, that the mother will be assisted by an order that therapeutic counselling occur in all the circumstances of this case, but will not order that she so attend until such time as the psychiatrist has formed the view that it is no longer of benefit to her, but rather that she will complete such counselling as the psychiatrist advises.
(e) Other matters
The Court has included a requirement that the parties communicate about sporting events in its proposed order 13 and order 15 to the effect that it is clearly in the children’s best interests that each party be entitled to attend their sporting events and to be informed in advance of the happening of such events.
(f) Costs
Mr Cook on behalf of the Independent Children’s Lawyer sought costs in the sum of $7,315.00 to be paid equally between the parties. The mother it was conceded is receipt of Legal Aid and not working. There is no evidence before the Court of the father’s financial circumstances. Mr Cook very fairly indicated that whilst this application was being made formally, the Independent Children’s Lawyer recognised that the Court may not have sufficient evidence before it to make such an order. The father submitted that the length of the hearing was not of his doing, as he had very much conducted the case on the basis of accepting the recommendations of Dr F. In all the circumstances of this matter, the Court is of the view that as a preliminary matter (see Penfold –v– Penfold (1980) 144 CLR 311), there are no justifying circumstances to ground an order under s.117(2) and accordingly, the usual provision under s.117(1) of the Act will apply to the effect that each party will be responsible for his/her own costs and to that effect there will be no order as to costs.
The Court is satisfied, on balance, that the proposed orders are in this child’s best interests and accordingly, will so order.
I certify that the preceding one-hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Kemp FM
Associate:
Date: 22 March 2008
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