Beale and Beale
[2013] FCCA 809
•28 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEALE & BEALE | [2013] FCCA 809 |
| Catchwords: FAMILY LAW – Parenting – where children are resisting contact – Family Consultant’s evidence is that they are estranged not alienated – orders in best interests in these circumstances? |
| Legislation: Family Law Act 1975, Part VII, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS BEALE |
| Respondent: | MS BEALE |
| File Number: | SYC 7444 of 2011 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 27 and 28 June 2013 |
| Date of Last Submission: | 28 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2013 |
REPRESENTATION
| The Applicant (self-represented) |
| Counsel for the Respondent: | Mr Blackah |
| Solicitors for the Respondent: | Watson & Watson Solicitors |
ORDERS
All previous orders are discharged.
The Mother have sole parental responsibility for the children X born (omitted) 2001 and Y born (omitted) 2003 (“the children”).
Notwithstanding order 2 above the Mother is to notify the Father at least 14 days in advance and in writing or by electronic communication of any decision she intends to make about the children in relation to major long-term issues about health, education, religion, the children’s surname and any overseas or interstate travel (that would hinder the children spending time with the Father pursuant to these orders) or relocating where the children live (if that would make impractical the children spending time with the Father pursuant to these orders).
The children live with the Mother.
There be no time or communication between the Father and the children for a period of four (4) months from the date of these orders except as initiated by the children themselves and with the Mother to actively encourage them to do so.
The Mother shall do all things necessary to cause the Father to be provided with copies of the children’s reports by the school and school photos, to facilitate his ability to attend at parent teacher nights separately from the Mother and to keep him informed of important events in the children’s lives including details of significant medical treatment being received by the children.
Each party shall keep the other advised of their respective contact details.
The children are permitted to travel internationally, and the Minister is requested to do all things necessary to facilitate the issue of Australian passports for the children and to provide them to the Mother without the necessity for the consent of the children’s Father.
Commencing from the third (3rd) Sunday of January 2014 (and continuing on each third Sunday of the month unless the parents otherwise agree) the Father to spend time with the children between 10am and 2pm (unless the parents otherwise agree) with changeover to be effected by the parents at the railway station closest to where the children reside.
Commencing from January 2014 the Mother is to do all things she can to encourage and facilitate (but not hinder) the children communicating with their Father by telephone, in writing, or by any electronic means.
The Father is restrained from:
(a)Communicating with the children in any age-inappropriate manner;
(b)Discussing these proceedings or the parental relationship with or in the presence of the children;
(c)Denigrating the mother, or allowing any other person to denigrate the mother, in the presence or to the knowledge of the children;
(d)Consuming alcohol or being under the influence of alcohol while the children are in his care;
(e)Recording the children’s conversations with him or any other person in any way.
The Mother is restrained from:
(a)Discussing these proceedings or the parental relationship with or in the presence of the children;
(b)Denigrating the father, or allowing any other person to denigrate the father, in the presence or to the knowledge of the children;
The parties must within 14 days contact Relationships Australia on (omitted) to arrange an appointment as soon as practicable for an initial post-separation parenting assessment as to suitability for a post-separation parenting program.
In making their appointment, parties are to state that their attendance is pursuant to an Order of the Federal Magistrates Court.
Parties are to cooperate with providing intake information and details to Relationships Australia and must attend the intake appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
If assessed as suitable and Relationships Australia nominates counselling, mediation including child inclusive mediation or a post-separation parenting course to attend, the parties must attend (as the provider directs) as soon as practicable.
The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
The parties must within 14 days contact the Family Relationship Advice Line on (omitted) to arrange an appointment to undertake a Supporting Children after Separation Program.
The parties are permitted to provide to the organisations or persons providing the services referred to in these orders a copy of the reports provided to the court by Dr G.
IT IS NOTED that publication of this judgment under the pseudonym Beale & Beale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7444 of 2011
| MS BEALE |
Applicant
And
| MS BEALE |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about whether, and if so under what circumstances, two children should spend time with their father. X was born (omitted) 2001 (12 years old) and her sister Y was born (omitted) 2003 (10 years old). The applicant is their father. He is 44 years old, describes himself as a (occupation omitted), and lives in (omitted), an inner city suburb of Sydney. The children’s mother is the respondent. She describes herself as a (occupation omitted), is 40 years old and lives with the children in (omitted), a suburb immediately to the north of Sydney. The parents and children are (omitted) by birth and relocated to Australia in 2009. The evidence indicates that all members of this family consider Australia to be their permanent home.
The parents consider themselves to have been separated from February 2010, though they continued to occupy the same property for a period that may have ended as late as February 2011. All of the evidence indicates that even before separation the parental relationship was an unhappy one. In February 2011, the parties divorced in (omitted) and entered into consent parenting orders in (omitted). Apparently property proceedings in (omitted) remain outstanding.
Background
This is a case where the evidence indicates that the children are resisting spending time with their father and, arguably, have rejected him in terms of their relationship with him. Indeed, the mother’s proposal advanced at the final hearing, and somewhat reluctantly advanced it would seem, is that the only contact that the children have with their father is in accordance with their wishes. The father’s proposal, by contrast, is that his time with the children be defined and occur at least weekly as well as during special days and in school holidays.
The orders sought by the mother were set out in her counsel’s case outline document. These orders are reproduced in the first schedule to these reasons, but they were modified during the course of the hearing, to reflect a suggestion made by the family consultant, Dr G, that if the children should express the view to spend time or communicate with their father, that the mother do all things to facilitate this. The mother embraced this proposal.
The father’s proposal at final hearing was set out in an annexure to his affidavit affirmed 20 June 2013. His proposal is also reproduced in the second schedule to these reasons. As will be seen from a comparison of the orders, the issues that the court has to decide include:
a)whether the mother should have sole parental responsibility for the children, and if so on what terms, as opposed to whether there should be an order for joint parental responsibility;
b)whether there should be an order for the children to spend time and communicate with their father, and if so on what terms;
c)if there is an order for the father to spend time with the children, at what location should changeover occur;
d)whether, and if so on what terms, the mother should be restrained from doing and saying things in relation to the children;
e)whether, and if so on what terms, there should be any restriction on the children travelling overseas and having passports;
f)whether, and if so on what terms, there should be any restraint on the mother relocating from Sydney;
g)whether, and if so on what basis, either the parents or the children should attend in courses of education, or counselling, as part of or following the making of final orders.
It is clear that there are certain issues not in dispute. Thus, even the father agrees the children should continue living with the mother. Both parents agree that whatever final orders are made, there should continue to be a sharing of information in relation to the children.
The mother in this case was represented by her solicitor, who instructed Mr Blackah of counsel to appear at the hearing. Her evidence consisted of the affidavits filed 25 May 2012, 24 August 2012 and 19 June 2013. The father was represented by a solicitor, and indeed counsel, during the proceedings but not at the final hearing. He represented himself at the final hearing. He is clearly an intelligent and articulate man. He struggled at times to understand what was relevant in terms of helping the court to make its decision, and what was not. He relied on his affidavits filed 7 December 2011, 28 August 2012, 7 June 2013 and 20 June 2013. Mr O gave evidence in the father’s case based on his affidavit filed 28 August 2012. A family consultant, Dr G, prepared two family reports dated 26 October 2012 and 13 June 2013. The reports became exhibits R1 and R2. All of the persons abovenamed gave evidence and were cross-examined. Indeed Dr G gave evidence twice – once at the commencement of the hearing and then again immediately before final submissions.
These reasons for judgment will adopt the following format. The applicable law will be set out. The evidence of Dr G will then be considered, including her cross-examination. The rest of the evidence will then be considered using the primary and additional considerations set out in s.60CC of the Family Law Act 1975, where applicable, as a template. Issues of parental responsibility and any necessary presumption will then be explored. The order that is in the best interests of the children will then be discussed and promulgated. All of the above will take place by reference to the evidence before the court.
The applicable law (at the time of filing of father’s application)
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part 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) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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 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 the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(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
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the court must then go back to consider s.60CC which specifies what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the 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;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) 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;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The evidence of Dr G
In her first report, Dr G correctly sets out the history of the parents’ relationship, marriage and subsequent separation. The court observes that both parents appear to be high achievers in terms of their employment. The family has lived and worked in different countries though they clearly regard Australia as their home now. Dr G makes the observation that “from both accounts the marriage was troubled for several years.” That is consistent with the evidence filed by both parents, and the legacy of these troubles continues to be apparent today. The parents entered into parenting orders in (omitted) in February 2011 which provided for the children to live with their mother but to spend regular time with their father.
Dr G observes that “it has been a difficult separation.” All of the evidence confirms this. It is common ground between the parties, as well as plainly evident to the court, that they cannot communicate in a functional manner. There is little trust between them and any parental alliance between them is fractured. The mother complained to Dr G, and expressed concern in her own evidence, in relation to her fears of violence from the father, but he strenuously denies that there is any basis to such fears pointing to the fact, for example, that any AVO proceedings initiated by or on behalf of the mother were ultimately either dismissed or withdrawn.
Dr G observes that the first interim orders between the parents were made on 20 April 2012. These were interim consent orders that provided for the children to live with the mother, and spend time with their father from 10 am to 5 pm each Sunday, and at other times as mutually agreed between the parents. Changeovers were to occur at (omitted) Railway Station. On 8 November 2012 further interim consent orders were made after an interim hearing at which both parents were represented by counsel. The orders made on that date continued to provide for the children to live with the mother, but to spend time with their father from 9 am to 1 pm each Sunday and additional day only time during the school holidays as agreed. Changeover was to take place at (omitted) Railway Station. As some of the details in this order become relevant, the order made 8 November 2012 is reproduced in the Schedule C to these reasons. It is important to note that the orders of 8 November 2012 were made after, and were clearly informed by, Dr G’s first report that had been released on 29 October 2012.
At paragraph 9 of Dr G’s first report she makes this observation which clearly identifies the dispute in this case:-
X and Y are strongly aligned with their mother. They are expressing wishes to spend little or no time with their father.
Indeed, at least in accordance with the mother’s evidence, that has been the case since the beginning of 2011. In summary, the father’s case is that there is no basis for the children refusing to spend time with him, or reject a relationship with him, and that any such attitude on behalf of the children has been influenced by the mother. Indeed, his case is that she has “brainwashed” the children. In her first report, Dr G observes at paragraph 14:-
Mr Beale and Ms Beale have a passively hostile relationship with one another. They do not speak with one another and do not exchange information about the children. Mr Beale claims that Ms Beale blocks his emails. Solicitors’ letters are their only means of communication with one another. Ms Beale claims to be intimidated by Mr Beale and hold fears for her safety, especially in the event that she visits (omitted). Handovers are done in person at a public place, but one of the children commented that there is no eye contact between the parents during these exchanges.
The court observed that as at the date of the hearing little had changed, eg, the parents remained passively hostile towards each other. The evidence was replete with examples of dysfunctional communication. The father’s assertion that the mother blocked his emails to the children is in fact confirmed by the evidence. The children’s observation about the tension at changeovers, when there was a changeover, is plainly correct.
In the report, Dr G records the allegations that the parents make against each other about violence, abuse and intimidation. The mother alleges, the father denies. As it turns out it is not possible for the court to make finding about the mother’s allegations of violence, abuse and intimidation. Regrettably, the relevant evidence was not sufficiently tested in cross-examination to enable the court to make any finding. Either the mother is making false allegations, or the father making false denials or there is some truth to both the allegations and denials. The court does not have the evidence before it to make any such finding.
The father’s perception and understanding of the dispute is accurately reflected at paragraphs 22-25 of Dr G’s first report:-
22. After the observation of the girls with their father, an observation in which the girls did not co-operate, Mr Beale explained that he has no doubt that the girls are ‘playing a role’ to please their mother. He believes this for a number of reasons. Firstly he has noticed the girls’ behaviour with him is very different when they are being observed compared to when they are alone. Mr Beale claims that the girls are happy to hold his hand, but when they get close to the station where their mother is waiting, they refuse to hold his hand. Recently they have also objected to having their father take photos of them.
23. Mr Beale explained that he believes that the children’s’ behaviour is a direct result of their mother’s influence because (omitted) women have a reputation for seeking ‘revenge’ after a separation. He explained, ‘The mother’s motivation is she’s (omitted). It is their mentality.’
24. He believes that Ms Beale is also motivated by money. He explained that if she wins ‘full custody’ she will have more money. This motivation is evidenced, in his view, by the fact that Ms Beale does not object to the children having day-only contact with him, but she is opposed to overnight visits (that have implications for child support assessment.)
25. He also believes that Ms Beale is afraid of him having a good relationship with the girls because she fears that when the girls are older he will tell them that their mother was unfaithful in the marriage. For the mother to remove the father altogether from the children’s lives ensures that the girls will never know this.
After hearing the father’s evidence at the final hearing the court finds that the father’s views and attitudes are unchanged.
At paragraphs 27-30 the family consultant records her observations of the mother, as well as the mother’s report of violence, abuse and intimidation she suffered at the father’s hands. As indicated above, however, no findings can be made either way. The uncertainty about the mother’s allegations are by no means assisted by a number of factors. Firstly, the mother’s reports of the alleged abuse and violence are much more detailed in the family report than they are in her own affidavits. Secondly, on the mother’s versions as set out in the family report, there is clearly corroborative material that was not adduced. Thirdly, the mother refers to email correspondence, including abusive emails which, again, she fails to adduce at the hearing. The finding the court makes is that no finding about abuse, violence and intimidation is possible on the evidence. That is not to say that the court is not sceptical about whether the allegations made by the mother are truthful.
Paragraph 32 of the first family report appears to summarise the mother’s views about the children spending time with their father:-
Ms Beale feels very conflicted about the girls spending time with their father. On the one hand she believes that the girls have a right to have a relationship with their father, and that if she does not facilitate this, they may regret it when they are older and may even blame her for obstructing it. Also, as a single parent, she would like to have some child-free time. On the other hand, she is aware that the girls have conflict with their father. She believes that Mr Beale cannot have the girls in his care for more than a couple of hours before conflicts arise. She fears that this has the potential to endanger the girls. She is aware that the girls often want to come home when they are with their father. She believes that Mr Beale locks his apartment door from the inside when the girls are with him and keeps the keys in an attempt to restraint he girls from leaving. The girls tell her that their father drinks at times when they are in his care. She claims that during the marriage she found him on the floor so many times after drinking strong (omitted) spirits, and that she could not lift him. She believes the children’s reports about the father drinking. As a compromise, and to maximise the girls’ safety, she proposes that the children spend a few hours with their father every Sunday to preserve their relationship and for them to do some enjoyable activities together. She is satisfied with handovers at (omitted) Station.
The mother therefore presents as somewhat torn between what she says she would like to happen (that the girls ought to have a relationship with their father) and, the consequences to her if this does not take place, but finally the consequences and risks to the children if it does take place. As for her concern about the father locking the children in, even the father conceded that he did this once in order to prevent the children returning to their mother before the conclusion of his agreed time with them. In relation to the girls’ reporting of their father drinking, no finding is possible, again because of inadequate cross-examination of the husband in this regard.
Dr G reported that the mother is strongly opposed to overnight time between the father and the children.
For the purposes of the first report, Dr G interviewed the children on two separate occasions, one in a short play session with their mother, and another in a short play session with their father. She described X as a “confident, sociable young adolescent girl.” In terms of her views about spending time with the father, Dr G reports at paragraph 39 of the first report:
X asked early in the interview whether she had to keep seeing her father on a Sunday. She asserted that she ‘do(es) not really like’ her Dad. Using projective techniques she characterised him as ‘an evil crocodile’ who ‘usually hates me and my sister. We always fight each Sunday and he is really angry.’ X proclaimed that she would be happy if she never saw her father again. She complained that he had threatened that he would throw her sister over the balcony if she did not listen to him or did not eat the food he had prepared for her. She claimed that her father usually drinks a bottle of wine each time they go to his place and that after this ‘he gets really different and aggressive and angry. He keeps shouting and hurting our feelings.’ She is also worried about her father inviting friends over after he has been drinking. She recalled an occasion when he invited a few men friends over and they were staring at her, which made her feel very uncomfortable.
At paragraphs 40-43 Dr G records in relation to X:-
40. X was asked to recall Christmas Eve when she decided she could not sleep at her father’s place and asked to return home to her mother. From X’s recollection her father did not accompany the girls downstairs and home, but she thought he may have supervised her and her sister from his balcony. When challenged about the accuracy of her memory, X said that it was a ‘bit confusing’ as ‘it was a long time ago’.
41. When X was asked which person in the family she worries about the most, she nominated her sister ‘because she is really scared of my Dad.’ X explained that on those occasions when her father has visited them at school, Y has become ‘frozen’ ‘because she’s scared’ and ‘she does what he says’. X is afraid that her father could hurt Y.
42. X alleged that her father hits her and Y and that this has occurred both before and after the separation. She recalled that once in (omitted) she hit her father by accident and that in retaliation ‘he beat me up; he kept hitting me everywhere. My Mum tried to stop him but she couldn’t.’ She estimates that she would have been hit by her father ‘about five times’ since the separation.
43. When asked if she had ever witnessed her mother being hit by her father, she replied that she had not, but asserted that she is sure that someday it will happen if they are together, for instance at a school function.
These are important paragraphs. As it turns out, and after considering all of the evidence, the court is unable to make finding about the children’s allegations of violence and abuse by their father, but the court is somewhat sceptical of the same. It is interesting to observe, for example, that in paragraph 40 X was talking about an event that occurred on Christmas Eve 2011 (ie the last Christmas before this interview) and she was clearly confused. In paragraph 42 X refers to an incident that, curiously, is not referred to in the mother’s evidence at all. Moreover, the statement by X at paragraph 43 that “she is sure that some day it will happen if they are together” referring to violence between her parents, is hard to understand on the basis of the evidence actually before the court.
Dr G described Y as “a quiet young girl whose appearance indicated an artistic flair.” Clearly she is an insightful girl, as is evident by what she told Dr G at paragraph 45:-
Y does not know why her parents separated or who caused the separation. When asked what her mother says about her father, Y replied that her mother does not talk about her father. When asked what her father says about her mother, Y replied that her father tells her that her mother is ‘dumb’. When asked whether she would want to ‘turn back the clock’ and stop the separation, Y replied that she would not because she perceived that her parents were not happier before the separation, that her parents did not speak with one another and that her father ‘always shouted’ and ‘started fights’. Y said that she likes now being in an ‘only girl family’.
Y’s perception of her father is that he “always shouted” and “started fights”, which is quite a different perception to that of X and, as it turns out based on all the evidence before the court, a much more accurate one. Her views about the matter before the court are recorded at paragraph 47:-
Y is not happy spending Sundays with her father. She said that her father shouts at her, whereas her mother never shouts at her. She does not know why he does this. She claims that he has also called her ‘a liar’ or more than one occasion. She alleges that he has threatened to throw her over the balcony if she is not nice. When asked if she thinks that her father would really do this, Y replied ‘a little bit. He has said it twice.’ It frightens her because when she looks down over the balcony ‘the people look like ants.’ She explained that she is happy when her father does not turn up on Sundays because then she can do something with her sister and her mother. When asked what her father could do to make Sundays better for her, she replied, ‘There is nothing he can do.’
There is no evidence that would justify a finding that the father did in fact threaten to throw Y “over the balcony if she is not nice.” It is curious that this is not referred to anywhere else in the evidence. It was not put to the father in cross-examination.
Dr G of course arranged to observe the children interacting with each of their parents. The children’s interaction with their mother was fine, Dr G observing at paragraph 50 that “the group was happy, sociable and chatty.” By contrast the observation at paragraph 51 in relation to the father says:-
The girls’ observation with their father was in stark contrast to this. The children were reluctant to do it, in the event they did not co-operate, and appeared to make every attempt to sabotage the game. X in particular was quite cheeky and oppositional with her father. For instance, she told him that if he didn’t know the rules of the game then it was pointless playing it. Each of the girls had brought a small, noisy McDonalds toy to the session and made loud disruptive noises throughout the whole of the game. Mr Beale coped patiently. He did not challenge the girls, and acted as if nothing unusual was happening.
Dr G’s evaluation is a comprehensive one, and commences at paragraph 52 of her first report. She describes the Beale family as presenting “with complex family dynamics.” Indeed, that is the case. Dr G refers at length to what she considers to have been a problematic “clash of traditional (omitted) and modern western cultural values.” The evidence before the court does not suggest that this was a major operative factor in the legal dispute presenting between the parents and, accordingly, nothing else will be said about this.
Dr G refers to the mother’s allegations against the father of violence, abuse and intimidation and links this to the issues of cultural values. As identified above, however, the evidence before the court does not enable it to make any findings on these issues and the court is, in any event, somewhat sceptical about the mother’s evidence in this regard.
At paragraph 57 Dr G states:-
This assessment finds that Ms Beale has not spoken about her fears with the children. However, almost certainly, the children have picked up on the mother’s anxiety from her demeanour and body language in the later stages of the marriage and also now at handover. For instance, X commented that her mother does not make eye contact with her father at handover.
This is an important finding by Dr G. It is consistent with the absence of any evidence before the court to suggest that the mother has actively discussed her fears with the children. Importantly, the evidence before the court is consistent with the children having picked up their mother’s anxiety.
Dr G concludes that “both X and Y are estranged from their father.” The father perceives this as alienation, a formulation that Dr G rejects. At paragraph 58 she says:-
Parental alienation refers to a situation when a parent sets out on a campaign to discredit the other parent and sabotage the child’s relationship with that parent. A child’s alienation or estrangement is quite different and comes about largely through the actions of the estranged parent himself or herself. There is ample evidence that, from the girls’ perspective, their father’s actions have led to their estrangement from their father.
The distinction that Dr G thus draws between alienation and estrangement is that the former is often the product of a campaign by one parent to discredit the other and sabotage the relationships, whereas the latter is often attributable (at least in part) to the actions of the estranged parent himself. Indeed, the thrust of Dr G’s report in this regard is that the father needed to look more at his own actions and relationship with the children, as an explanation for their estrangement from him, rather than the mother’s actions.
At paragraph 59 Dr G states:-
It is difficult to see what benefit there would be to X and Y in extending the time they spend with their father under the current circumstances. Mr Beale does not appear to be able to take any responsibility for the part his actions have played in the girls’ estrangement from him, instead putting the blame entirely with Ms Beale. X and Y cannot suggest anything that their father could do at this stage to make their time spent together more enjoyable for them. While Mr Beale denies drinking alcohol while the girls are in his care, this issue was raised by X as a problem for her. She claims that when her father has been drinking his mood changes and he becomes aggressive. The recommendation is made that neither parent drinks alcohol while the children are in their care.
Dr G observes that whilst the children prefer no contact with their father that is not their mother’s preferred position, though the mother is clearly concerned about the girls’ safety.
Dr G concludes at paragraphs 61-66 as follows:-
61. Despite the difficulties and the estrangement, this assessment finds that the children should maintain a relationship with her father but that the times spent with him should be shorter and more manageable for both the father and the children. The rationale for preserving the spending time arrangement is for both developmental reasons (with implications for the girls’ future intimate relationships, having a male role model, having two parents that love them and are interested in them), and for reasons alluded to by the mother (that the girls don’t have regrets later). If the girls stop spending time with their father now, the prognosis for resuming that relationship before they are adults is very poor.
62. This report supports Ms Beale’s view that the periods of time that the girls spend with their father should optimally be restricted to up to four hours. There seems no good reason to change the day the girls see their father from Sunday. It is recommended that X and Y spend every Sunday afternoon with their father for four hours, from midday until 4pm. It is stating the obvious to say that no overnight stay can be supported at this time.
63. While no restrictions should be placed on Mr Beale’s activities with the girls, this assessment advises against the father locking him and the girls inside his apartment while the girls are in his care, if it is his practice to do so.
64. On the question of counselling, no recommendation is made for the girls to engage in counselling at this time. However if Ms Beale feels counselling would assist her parenting and assist the girls, I can give her some referral names. There are a number of suitably qualified counsellors at (name omitted) at (omitted). This assessment finds that Mr Beale could benefit from coaching (as distinct from counselling) to assist him in the management of his daughters while they are in his care. If his relationship with X and Y continues along the same trajectory as it has since the separation, he will almost certainly lose his relationship with his daughters during their teenage years. This is by no means a hopeless situation, but Mr Beale must be prepared to be strategic and sometimes take the one-down position. This can be done without him abdicating his parental authority, but he needs coaching to teach him the skills to do this.
65. Direct handovers between the parents is not an optimal arrangement. Centre based handovers were considered by this assessor, but (omitted) Station does impress as being convenient for all parties. Making the handover arrangements more complicated could also compromise compliance. Both parents seem somewhat reassured by handovers being in a public place. It is recommended that the handovers continue at (omitted) Station.
66. How the spending time with arrangements will progress in the future will depend largely on how Mr Beale is able to manage himself. He should be careful not to say anything negative about the mother to the girls. He should avoid allowing himself getting into arguments with the girls, particularly X, who may try and provoke him. There are strategies he could learn to do this while at the same time retaining his parental authority and maintaining the girls’ respect. It is strongly suggested that he has some post separation parenting coaching with someone who has read this report. There is a Reg 7 Family Consultant from a (omitted) background who has both social work and legal qualifications who would be suitably qualified to assist him. If he is unable to find someone suitable, I may be able to assist him, although this is not my preferred option as it is not my core work.
Finally, Dr G’s recommendations are contained at pages 26-27 of her first report:-
It is recommended that Ms Beale have sole parental responsibility of X and Y.
It is recommended that X and Y spend every Sunday afternoon with their father from 1pm until 5pm.
It is recommended that handovers continue at the (omitted) Railway Station.
It is recommended that X and Y spend some additional day-only time with their father in the school holidays by arrangement between the parents.
No overnights are recommended at this stage.
It is recommended that if either parent is unable to attend a handover they SMS the other parent by the previous Saturday night.
It is recommended that neither parent consume alcohol which the children are in their care.
It is recommended that neither parent denigrate the other parent wile the children are in their care.
It is recommended that Mr Beale seek some coaching to assist him in the management of X and Y while they are in his care.
It is recommended that consideration be given to X and Y receiving some counselling to assist them in their post-separation adjustment and in managing safety issues.
It is important to note that Dr G’s report clearly informed the interim orders made by this court on 8 November 2012. The father was represented at the time. He had ample opportunity to reflect on and consider the report’s recommendations.
Before considering Dr G’s second report, it is important to highlight a concern she expressed at paragraph 21 of the first report. In referring to an incident at Christmas 2011 (an incident that will be described in much more detail below) Dr G said: “This raises one of the central issues in this case, ie the potential for the children to endanger themselves if they are made to stay with their father against their wishes.” This theme will be revisited below.
Dr G’s second report is dated 13 June 2013 and was released to the parties on 17 June 2013. At the time of the second report interviews the children were spending four hours with their father each Sunday in accordance with orders made by this court. The father’s proposal appears to be reflected in his final proposal to the court, outlined above. The mother’s proposal was that the girls spend one four-hour period with their mother each month.
The mother was reported as becoming increasingly concerned that X would, in effect, take things into her own hands and simply run away from the father, if she was forced to spend time with him. The mother, moreover, reported to the family consultant that the children had been telling her about the father’s discussions with the children in relation to the family report.
At paragraph 17 of the second report, Dr G records the mother’s communication with her after the report interviews (but before the report was prepared) in relation to a contact visit between the father and the children on 13 June 2013. The court prefers to deal with the evidence in relation to this event, as a discrete issue, and will do so below.
The father reported to Dr G that since the previous family report he had seen Ms T four times (though, as it turns out, it could have been five times – nothing turns on this) to gain some assistance with communication issues with his children. He told the family consultant that “he has now modified his behaviour in no longer criticising their mother to the children because he has realised that this puts the children in a position of having to make choices and makes them feel unsafe and insecure.” The father reported that the children were now enjoying his time with him and described some of the activities they undertake. Nonetheless he expressed frustration about the shortness of a four-hour contact visit, particularly taking into account travel. The father expressed a number of concerns in relation to the mother’s parenting of the children, which are of no consequence in terms of the present issues before the court. The father also sought to clarify and correct matters that the family consultant raised in her first family report.
Dr G spoke with the children. In relation to X, she records at paragraphs 29-34 as follows:-
29. She was asked how things had been for her after the last report meeting. X replied that she thought I must have told her father that she said he drinks because he became ‘really angry’ and called her and her sister ‘liars’. Her father had apparently told her that if she does not grow up with her father she will not have any family in her life. X replied that she does not care, she still does not want her father in her life. She claimed that her father kept saying that he would return to (omitted) if the girls did not wish to spend time with him.
30. X said that two weeks previously her father had hit her. They were apparently arguing about whether her mother loves her daughters or not. X alleges that her father was saying that her mother did not love them. It was in this context that X claims she was hit on the hands on five separate occasions during this argument.
31. When asked what Y was doing at this time, X replied that she was just looking and listening and that she looked very scared.
32. X said that if she had to attend her father’s home again she will run away because she has a GPS, money and her keys. She would catch a train.
33. X does not like having to be with ‘strangers’ at her father’s home. She said that she has encountered two ‘girls’ and ‘a boy’ there.
34. When asked how X would feel seeing her father once a month, she replied that she would still run away, as she does not wish to see her father.
In relation to Y, Dr G records:-
35. Y (10 and 3 months) when asked how things had been going during the previous few months replied ‘bad’. She gave graphic accounts of the anger her father had expressed towards both girls and specifically the arguments that he had had with X. Y claims that her father hit X on the face when she was in the back seat of the car at the end of the visit. Y wept when she recalled this. Y claimed that her father had also hit X on the hands on the same day.
36. When the observation was made that Y is not the child who gets into trouble, Y replied that the reason for this is because she purposely does not speak to her father. She explained that she is ‘scared’ of him because he is so ‘mean’.
37. Y declared her wish to not ‘go back’ to her father next scheduled visit because he is likely to be very angry.
38. Y also expressed alarm at the people apparently living at her father’s home. She said that the lady’s boyfriend had asked X for her email, but X ignored him and kept playing the computer game.
This is important evidence of course. The children continue to report conflict in their time with the father. They continue to report that the father is having inappropriate discussions with them. The evidence about the hitting ie the alleged assaults on the children continues to be problematic in that it is vague, inconsistent, is not reported by the mother in her evidence, and in any respect the father was not challenged about these assertions. As indicated above, it is not possible to make a finding about these assertions.
Dr G’s evaluation commences at paragraph 39. Thus she concludes that based on the information before her it was apparent that the parental conflict, and the conflict between the father and the children, persisted. That is clearly the case. At paragraph 40, Dr G appears to be expressing the concern that, indeed, the rift between the girls and their father appears to have deepened. The court finds, based on all the evidence before it, that that is probably the case but not necessarily because of the asserted violence between the father and the children.
At paragraph 42 Dr G rejected, once again, the father’s assertion that the mother is turning the girls against him. Her impression was that the mother “genuinely wants the girls to continue seeing their father once a month for four hours, to maintain their relationship with him, until they are older and can participate in a more equal relationship with him.” Dr G accepts, however, that “it is possible that Ms Beale is giving mixed messages to the girls and that they feel they have the mother’s tacit approval to reject their father.” Based on all the evidence, the court again accepts this proposition.
At paragraphs 44-46 Dr G states:-
44. However there continues to be marked conflict between X and her father. It appears that when Mr Beale questions the girls inappropriately or says something provocative, X challenges him and there is an escalation that sometimes results in X being hit. This is a very unsatisfactory situation for both girls.
45. X seems to have taken matters into her own hands. She is of an age where she should be able to travel safely on public transport under normal circumstances, but not necessarily when she is distressed. She cannot be expected to be responsible for her younger sister under these circumstances. The safest course of action would be to suspend the children spending time with their father until they express an interest to resume contact with him.
46. Although Mr Beale will be very disappointed at this, he may also be able to think of this recommendation strategically as a way of preventing an irreversible rift between him and the girls at a time when they are not receptive to him, thus leaving the door open for him to resume a relationship with X and Y when they are a little older.
A number of important issues arise from this evidence. As it turns out the court accepts that the father continues to have inappropriate discussions with the children and continues to have conflict with his daughter X which he does not seem to be able to handle. There is no evidence, however, to support a finding that the father has hit X. As it turns out the court accepts that there is a real risk that, particularly in the case of X, that she will take matters into her own hands.
Dr G’s recommendations are set out at paragraphs 48-53:
48. That no Spending Time order be made and that any time that X and Y spend with their father be as initiated, or agreed to, by them.
49. That the mother has sole Parental Responsibility of the children.
50. That Mr Beale continue to receive school reports and notices, and is at liberty to attend parent teacher nights separately from Ms Beale.
51. That the father be at liberty to contact the girls on their birthdays and special occasions and the mother is to facilitate this contact.
52. That if the girls express a wish to see their father, the mother facilitate this.
53. That the parents be provided with contact details for each other.
Dr G was cross-examined, firstly at the commencement of the evidence. Her explanation for suggesting that the father undertake “coaching” as opposed to “counselling” was elegant, persuasive and appropriate. She clearly felt that labelling this intervention “coaching” might work better for the father. As it turns out, events subsequent to the coaching suggest that the coaching may not have gone far enough. Indeed, as a general observation about the father’s evidence in relation to his involvement with Ms T, he was not particularly convincing and able to articulate the changes he had made, or the benefits he had derived, as a result of this intervention.
Dr G was appropriately examined about the mother’s contribution to the children’s estrangement from their father. She described the mother as being anxious, and having an excitable temperament. She conceded that she is possibly influencing the children, but if this is the case it is more by her demeanour, rather than what she actually says to the children. As it turns out, based on all the evidence, that is the finding that court makes about the mother. Her failure to support the father’s relationship with the children is not active, it is passive. It is nonetheless real.
Dr G’s oral evidence confirmed that her greatest concern continues to be about the children’s safety, particularly if they run away from their father in a distressed state.
Dr G acknowledged that the events that took place on 13 June 2013 (which will be discussed below) indicate that the father has learnt little or nothing from the coaching. She agreed and suggested that it was, indeed, disappointing. She agreed that that father did not appear to be learning the lessons from the history of his relationship with the children, nor being able to implement whatever he may have learnt in his coaching sessions.
She characterised the father’s relationship with the children as “broken down at the moment.” She emphasised that if the children expressed the desire to spend time or communicate with their father, that the mother should do all things to facilitate this. Indeed, she seemed confident that the mother would in fact do this.
The father cross-examined the family consultant. It was not necessarily the most effective cross-examination but it was possible to discern the thrust of what the father was putting to Dr G. In substance, his relevant cross-examination of her attempted to put the following issues to her. Firstly, that an objective view of the evidence in fact suggests that Dr G’s benevolent view of the mother’s attempts to facilitate the girls’ relationship with the father was quite inconsistent with some of the mother’s communications with the father. The father also challenged Dr G’s interpretation and seeming acceptance of the violence, abuse and intimidation allegations made by both the mother and the children. Thus, his contention that the mother brainwashed the children is much more plausible in a case where there is evidence of the mother not supporting the girls’ relationship with him, and where allegations of violence, abuse and intimidation may have been manufactured.
Dr G skilfully acknowledged the possibility of all that the father was putting to her but kept returning to some fundamentals which were far less open to interpretation. She emphasised the fact that the father’s relationship with X had appeared to have all but broken down, and that she in particular was a very independent girl who the father seemed unable to control. She repeatedly urged the father to reflect on his own contribution to the breakdown in the relationship with his children and the extent to which he might have contributed to this by, for example, denigrating the mother in the presence of the children and discussing these proceedings with them.
Dr G again gave evidence at the conclusion of the evidence of the parties, and before submissions. This was at the court’s request. The court explained to Dr G that, after hearing the evidence of the parties, it might be that a number of findings were possible, and the court was desirous of understanding whether any of these possible findings would change Dr G’s recommendation. The possible findings outlined to Dr G included the following:-
i)That there was no acceptable evidence of the violence and abuse that the mother alleged against the father.
ii)That there was no acceptable evidence of the violence and abuse that the children allege against the father.
iii)That the mother had either been indifferent to, or had actively undermined the children’s relationship with the father.
iv)That the parents were quite incapable of any form of constructive communication between them.
v)That the parental relationship was quite dysfunctional.
vi)That both parents had in fact discussed the separation and the litigation with their children.
These matters were put as possible findings to Dr G but, as it turns out, with the benefit of reflecting on all the evidence and having heard the submissions as well, they are in fact the findings that the court makes.
Dr G gave evidence that, from her perspective, the allegations of family violence and abuse were not determinative, and the real concern was the risk to the children if they chose to run away from their father in emotionally fraught circumstances, in circumstances where the parents are unable to communicate constructively. The same could be said in relation to the children’s allegations against their father. Indeed, she conceded that she had noted some of the inconsistencies in the children’s evidence, but the fact remains that the relationship between the father and the children, particularly X, seemed to be deteriorating, not improving. Moreover, her role as family consultant was to accept what the children said at face value. She was, nonetheless, inclined to accept what the children said because of their affect at the time they said it.
In relation to the court’s concerns about the mother’s indifference in terms of facilitating the children’s relationship with the father, she acknowledged that there could be a difference between what the mother says or does not say to the children, and how she behaves. She pointed out that, in all likelihood, the mother’s change in position as at the final hearing was influenced by her own ie Dr G’s recommendations, given that the mother’s consistent stance had been that the father should spend time with the girls.
Dr G indicated that she accepted that other possible findings referred to.
When asked whether there were other possible options for the family, she said that it was not in the children’s best interests to have limited contact on special days, but said that the children did seem open to the idea of contact less regularly, perhaps once per month, though this might only mean that the risks that she referred to arose less frequently. She maintained the view that counselling would not necessarily be of assistance to the children. However, if the court were to make an order for contact, a different dynamic would apply. In those circumstances counselling might assist the children to cope with this.
Conclusions about Dr G’s evidence
Dr G was undoubtedly correct in referring to the complex family dynamics in this case. Based on all the evidence before the court, and not just Dr G’s evidence, the court accepts that the girls are estranged from their father. The court accepts that there are risks to the children if they choose to unilaterally end their time with the father, and make their own way home. As it turns out, however, the court does not accept that the only option available in the circumstances is that the only contact and communication between the girls and their father be that which they initiate, and which the mother facilitates.
The evidence of the parents
In this section the court would like to discuss aspects of the evidence of both parents, focusing on just a few events that provide insight into the issues that the court needs to determine. In many respects, the evidence of both parents was unsatisfactory. The mother’s evidence needed to be rigorously, and robustly, tested in cross-examination but the father did not have the skills to do so. There were aspects of the father’s evidence that needed also to be rigorously, and robustly, tested in cross-examination. This did not take place. The court can only infer that this was a conscious decision made by the mother, and those who advised her. If the preceding sentences suggest a level of frustration by the court that is quite correct. One example will suffice. The mother’s evidence is that over a period of 18 months she had an informal arrangement with the father for him to spend time with the children each Sunday from 10 to 5. This was subsequently embodied in consent orders. Her evidence, however, is that the father had only spent 10 Sundays with the children over an 18 month period. Her contention, therefore, was that in the post-separation period the father had taken little interest in the children. By contrast, the father’s evidence is that between 10 April 2011 and 28 August 2011, it was the mother who failed to deliver the children to the collection point so that he could spend time with them. The father’s evidence is that, in effect, the mother has denied him a total of 44 Sundays. Was there any cross-examination about this issue? None. Extraordinary. It is impossible to make findings about what actually took place in this period.
An incident occurred at Christmas 2011. Both parents referred to this incident in their evidence, albeit in unsatisfactory ways. In fact, there is more information about this incident in the family report, than there is in the parties’ affidavits, particularly the mother’s. For example at paragraph 21 of Dr G’s first report she records:-
The 2011 Christmas incident was discussed with Mr Beale, who explained that ‘out of the blue’ he received a letter from Ms Beale’s solicitor offering an overnight visit with the girls on Christmas Eve. According to Mr Beale at that time he had not seen the girls for six weeks, and so was surprised at this offer. The handover took place uneventfully at 2pm on Christmas Eve. From his recollection the girls seemed happy to go with him. At that time he was living in a different apartment but still in (omitted). He had prepared the girls sofa beds in the living room for sleeping. At midnight X woke saying that she could not sleep there because she was missing her room. As he did not wish to force the children to remain with him, he agreed to the girls going home. He estimates that it was a 700 metre walk to their home from his apartment block. He accompanied them on foot to the front of their school at the traffic lights. He left the children at the lights when he saw their mother waiting for them on the other side of the road. (Ms Beale and X have a different version of events, specifically whether Mr Beale accompanied the children or not. This raises one of the central issues in his case, i.e. the potential for the children to endanger themselves if they are made to stay with their father against their wishes).
At paragraph 40 the family consultant records X’s recollection of this event:-
X was asked to recall Christmas Eve when she decided she could not sleep at her father’s place and asked to return home to her mother. From X’s recollection her father did not accompany the girls downstairs and home, but she thought he may have supervised her and her sister from his balcony. When challenged about the accuracy of her memory, X said that it was a ‘bit confusing’ as ‘it was a long time ago’.
At paragraph 48 of the said report Dr G records what Y said about this event:-
When Y was asked about returning home to her mother last Christmas Eve, Y recalled that their father had taken them to the railway station for handover.
The mother’s evidence about this incident is contained at paragraph 25 of her affidavit filed 25 May 2012. She says:-
On Christmas Day 2011, I and Mr Beale had arranged for the children to spend time with Mr Beale for that evening. Mr Beale left the children at approximately midnight to walk home alone on Christmas night. The children had telephoned me to ask me to pick them up at 11:30pm as they did not want to sleep there. They said their dad wanted them to sleep on sofas, one in living room and one in bedroom and they did not want to stay. They also said they were hungry and wanted to come back and eat at home. I told them to talk to their dad to see if he can manage to get them sleep together and have glass of milk. X called me again crying and saying that they did not wanted to stay there. I told her to ask her dad to bring them back then. She said “dad says tell your mother to pick you up if you want to go home.” I don’t have a car and I don’t like being outside at that time of the night myself either. So I told X to tell dad to drive them home and I was going to wait in the reception downstairs. She then called me saying they were walking home. I went in front of the building and saw my two daughters walking home alone in their pajamas. They were across from the (omitted) Highway. I had to wait a few minutes for the traffic lights to change before I could cross the road. By the time light was green, the children had reached the traffic lights on the other side. We met in the middle of the (omitted) Highway. I was terrified to see them walking alone. I asked where their dad was. X said “he turned back a while ago when he saw you in front of the building”. The side of the (omitted) Highway where the children had been left alone to walk home is completely dark and I consider it is dangerous at night as it is by the school backyard. It was not acceptable to me for my children to be left alone in the middle of the night.
The father’s version of this event is contained in his affidavit filed 7 June 2013 at paragraph 13 and his annexure B page 19 containing notes from his electronic diary.
The critical issue appears to be precisely how the children went from the father’s home to the mother’s home in the early hours of Christmas Day 2011. He says that he walked with them up to the traffic lights across the road from that apartment block in which the mother lived. Based on the mother’s own evidence she first saw them when they were across the road from her home, and she met them in the middle of the road.
The mother raised this as a safety issue and, indeed, as an example of the father’s inability to protect the children from the risks of harm. No doubt this incident is an example of the reason why Dr G is so concerned about the children’s safety should they decide to terminate their time with the father. The absence of cross-examination on this event makes it difficult to make what the court considers would otherwise have been important findings about whether, and if so to what extent, the father accompanied the children on their way back to the mother’s home. It is significant, however, that even on the father’s evidence he did not take them to the point where they were back in their mother’s care. At the very least that suggests limited insight on his part. The children were probably not subjected to the risk of harm that the mother contends for, but the father’s behaviour was clearly inappropriate. Perhaps the most significant aspect of this evidence, however, is that on Christmas Eve 2011 the father was unable to control the children, was far too ready to accede to their wishes, and was quite incapable of convincing them to stay.
Let us now fast-forward to an event on 13 June 2013, shortly before the hearing. At paragraph 17 of Dr G’s second report she records what the mother told her about this incident:-
On 13th June 2013 Ms Beale informed the reporter by email that she had made the girls available to Mr Beale on the Sunday after the report interviews. Mr Beale allegedly asked the girls what they had said in the report interviews, resulting in a misunderstanding. The girls were apparently confused by their father asking what they had told ‘Dr G’, when they knew the reporter as ‘Dr G’ and did not know who ‘Dr G’ was. A heated argument apparently ensued. It appears that the girls conferred with one another by text message, stood up from the table (it is assumed of a local family restaurant) left their father and walked home. The visit with their father was reported by the mother to last less than half an hour. Ms Beale claimed to be genuinely surprised to see the girls return home.
Curiously, in the mother’s affidavit sworn 18 June 2013 she makes no reference to this event, as significant was it was, despite the fact that it occurred just a few days earlier.
The father gives evidence about this in his affidavit of 20 June 2013 at paragraph 14. He asserts that when the children arrived X told him that they could only stay an hour and that her mother couldn’t text him to say this because it cost her 25 cents. He says that X told him that the mother had shown her the phone bill. The father records at paragraph 14:
We went to a nearby cafe in (omitted). There I asked X ‘why they didn’t come to Dr G as I couldn’t see them on that day.’ X got angry on my question and after doing something on her phone she said ‘we are going home.’ I walked with (followed) them until across (omitted) until I saw Ms Beale waiting about 30 metres ahead of us.
Again, what is clear based on the father’s own evidence, is that he could not control the children, or convince them to stay. By his own evidence he concedes that he was having an inappropriate conversation with the children (the reference to Dr G is an agreed reference to Dr G). Even he records that his daughter got angry with whatever it is he asked for. In cross-examination the father confirmed they were together for 41 minutes.
There is another incident of concern that took place on or about 8 July 2012. At paragraph 22 of his affidavit filed 7 June 2013 the father alleges that when the children arrived to see him on 8 July 2012 they said that they will stay with him for one week. The father said he did not know anything about this. He says that he returned the children at 5 pm to (omitted) Station in accordance with the arrangement in place at the time. Indeed, to corroborate his assertion that he was at (omitted) Railway Station at 5 pm on 8 July, he annexed a number of photos of the (omitted) Station clock. He says he attended the station and the mother was not there. He was concerned about the mother not collecting the children and the possibility that he was being “set up” by the mother. The mother says that the father failed to return the children at 5 pm when she attended at (omitted) Railway Station to collect them. She then reported to (omitted) Police at 7.25 pm on Sunday, 8 July 2012 that that father had failed to return the children on time. The father told the police, however, that he had already been at the police station earlier that evening to tell them that the mother had failed to collect the children at 5 pm.
The father’s electronic diary record of 8 July 2012 is quite detailed. The court accepts that it is a contemporaneous record in the sense that, more likely than not, it was prepared on the same day. The relevant part of the extract states as follows:-
Today children told me that they will stay with me this week. I said I have asked for it at the Family Court, but there is no such agreement in place. According to the interim orders I have to return them to the station at 5 pm. My daughters insisted that they cannot return. My little one said her mother is on holiday. The elder one denied that idea. My little said if I take them back home, then the police will arrest me. I asked X to call her mother to confirm. On the phone she said the children will stay with me this week and she will not come to the station, and we don’t need to go there. I asked her to send an email. ... Apparently she told X that she will collect them next week at 5 pm or 10 am.
His diary entry goes on to say that he went to the station at 5 pm but the mother was not there. He took the children to dinner and after dinner took them to the police station to make a statement.
It is extraordinary that this incident was not the subject of cross-examination. Nonetheless, it is possible to make findings based on what evidence there is. The evidence the father gives is much more detailed and, indeed, compelling than the mother’s. Even if it were submitted that the father is, in effect, simply making up what he contends the girls told him when they arrived that morning, the court could not accept that submission. It would be an extraordinary tale for the father to make up in the circumstances of a case where the father’s credit was not put in contention. It is somewhat implausible, on the facts of this case, that the mother would seemingly “out of the blue” offer the father a week’s contact with the children, but experience in this jurisdiction teaches one that fact is often stranger than fiction. It is strange that the mother would send the children to spend a week with their father without providing a change of clothes. And yet, the most likely thing that occurred is that the children did in fact tell the father what he records, as strange as that may be. The response of both parents, apparent from the evidence, manifests once again their singular inability to communicate and resolve issues about the children. Both resorted to the police.
Another disturbing issue arising from the above incident, but which is probably pervasive, is the extent to which both parents are prepared to unquestioningly accept what it is the children tell them, even though the children are, and the parents know that the children are, very much aware of the conflict that surrounds them. What the mother’s motives really were is yet another unknown fact in this case. It is not beyond the realms of possibility that the father’s fear was in fact correct – that she was setting him up. The father’s actions that day are clearly consistent with a parent who knew nothing about a proposal for extended contact, and who was consciously trying to comply with the court order for return at 5 pm. The mother’s actions demonstrate an indifference about the impact on the children of the events in question.
Meaningful relationship
All of the evidence before the court demonstrates that the children have a meaningful relationship with their mother, but a quite tenuous relationship with their father. They are estranged from him. The evidence suggests that he has actively contributed to this situation, though he is not the sole cause of the estrangement. The complex family dynamics apparent in this case suggest that it is a combination of parental and children factors that have contributed to the estrangement. X, in particular, seems to have an exceptionally strong will for a child her age. Y, by contrast, seems to simply go along with what her older sister says and wants. The father’s parenting capacity is limited and the mother’s ability to encourage the girls’ relationship with their father is affected by a dissonance between what she says, and what she does, with her demeanour and attitude often revealing an indifference about the children’s relationship with the father that is quite inconsistent with what she has told Dr G, and the court. The fact remains the children’s meaningful relationship with their father is tenuous. On the mother’s proposal, the most likely outcome is that it would be lost. Even if the order in effect empowered the children to initiate contact, given the mother’s passive resistance the most likely outcome is that no contact will take place. The father’s proposal is equally problematic in that it simply ignores the difficulties in the relationship. The only way to preserve the prospects for a meaningful relationship is to keep the opportunities for contact and communication open, as tenuous as they are. The fact is in this case that despite all the difficulties that have been adverted to and discussed in the evidence, these children manage to spend time with their father, albeit for 41 minutes only, as recently as two weeks before this hearing. That fact itself is hardly conducive with a finding that there is no meaningful relationship, and that therefore no orders for contact should be made.
Risks of harm to the children
There is insufficient evidence to lead to a finding of unacceptable risk of harm or abuse to these children arising from family violence, abuse or neglect either as regards the mother, or the children. Indeed, the court has expressed some degree of scepticism about the mother’s evidence in this regard and even the children’s evidence needs to be looked at carefully. If there is a risk to the children it is that identified by Dr G ie that if they choose to terminate the time they spend with their father, unless the parents are better able to manage the transition from the father’s care to the mother’s care, they may be exposed to a measure of risk, especially if they are leaving the father’s care in an emotional state. But this does not result in a finding of no contact given the consequences of a loss of relationship between the father and the children. It just means that a greater effort has to be made to create an environment in which contact can still take place, and in which contact can be terminated by the children in a safe fashion.
The children’s views
The evidence unequivocally points to the children’s resistance of the idea of spending time with their father, more pronounced in the case of X than Y. But the children have held this view since at least 2011 and they have nonetheless managed to sustain contact with their father, albeit problematically at times. The children’s views cannot be viewed in isolation of the parental conflict of which they are well aware and in the more important context of their mother’s passive resistance, or at least ambivalence about, their relationship with the father. This is a case where the children’s views need to be given weight to, but not insofar as it would result in a conclusion of no contact.
Nature of children’s relationships
There is no doubt on the evidence that the children have a much stronger relationship with their mother, than they do with their father. As indicated above, however, there is still a tenuous relationship with him and, on balance as it turns out, there is no reason to terminate this relationship by, in effect, making an order for no contact. There may be a way in which the tenuous relationship may be maintained, or possibly even improved. The mother’s penultimate proposal before the court was for contact once a month, for four hours. Another option she herself raised in cross-examination was the possibility of giving contact a break for a few months, if for no other reason than to take the pressure off the children. The court also sees the benefit of suspending contact for a few months as providing closure to concluded litigation, and preparing for the next step which is a longer term relationship with the father albeit on a tentative and limited basis. The father in his evidence and proposals referred to courses of education and counselling that might support the children in terms of a continued relationship with him. Even Dr G conceded that if the court were inclined to make an order for contact, then in that circumstance ongoing counselling to assist the children to adjust to the fait accompli of the order, would be of assistance to them. Whereas the mother’s proposal would see the end of what relationship there is between these children and their father, and the father’s proposal is an unrealistic attempt to sustain the same, an order that would see limited and less frequent contact after a short break and supported by counselling, might provide the best circumstance in which the father’s relationship with the children can be sustained.
Willingness and ability to facilitate and encourage relationships
There is ample evidence for the court to find that both parents have been inappropriately involving these children in discussion relating to these proceedings and to one’s denigration of the other, subtle and not so subtle. For the father, this reflects very poorly on his attitudes and responsibilities as a parent, but does not go so far as to lead to a finding that he is unable to support the children’s relationship with their mother. The opposite is not true. Some of the mother’s actions, and some of her communication with the father, suggests that there is a dissonance between what she tells the court and Dr G, and what she actually does. For example, some of the emails to the father from the mother annexed to his affidavit of 5 December 2011, as well as her action in blocking the father’s email with the children, strongly suggests that certainly in the past she was active, but more recently she has become passive, in her lack of willingness to facilitate the children’s relationship with him. Whilst it must be acknowledged that every time the children have spent time with the father since separation it has been because of the mother’s actions, it is more likely than not that the mother’s passive resistance, manifested in subtle ways, is at least a partial contributor to the children’s resistance of spending time with their father.
Likely effect of change
The orders proposed by the mother would, for all practical purposes, see an end to the father’s relationship with the children. As has been acknowledged, whilst the relationship is problematic, stressed, and tenuous, it is nonetheless a very significant, indeed drastic change in the children’s lives to have their father excluded. The evidence does not justify this, particularly in circumstances where other things may be done with a view to re-orienting, and re-adjusting the circumstances of the father’s time with the children.
Issues of practical difficulty and expense
There are no significant issues in this case. The court does not accept that the mere fact that the parents live in suburbs on opposite sides of Sydney Harbour mean that the geographical and logistical issues raise insurmountable problems in this regard.
Parental capacity
Apart from the concerns the court has expressed about the mother’s subtle resistance to the children’s relationship with their father, there is no question that she is able to provide all of these children’s needs, and exceptionally so. There are real concerns, however, about the father’s capacity to provide the children’s needs, especially their emotional needs. He is not attuned to their needs. The evidence indicates that he does not understand, despite the coaching sessions with Ms T, the importance of not involving the children in the parental conflict or of having inappropriate discussions with them. He does not appear to understand that he has a legitimate role as a father which might involve, for example, quietly reality testing with X the issues that she raises, and her oft demonstrated willingness to simply terminate her time with the father. The father needs to work more on his parenting skills, especially as the two girls progress into their teenage years when managing autonomy and individuation will become an even greater challenge for him. The father is an intelligent and articulate man who, if prepared to recognise the nature and extent of his deficits, is equally capable of doing something about the problem. Despite the concerns that the court has about the father’s capacity to parent, again there is no justification for severing the parental relationship.
Issues of maturity, sex, lifestyle, background and culture
On whatever scenario confronting these children, they will always have the ability to continue to identify with their (omitted) culture and background as well as with their (omitted) faith.
Parental attitudes
Much of what has already been said above could easily be repeated in the context of a discussion of parental attitudes. The court urges the mother to consider the subtle but nonetheless devastating impact of how her attitudes and demeanour convey to the children that she does not wish to support their relationship with the father. This subtlety is as insidious as the active brainwashing which the father asserts, but which is clearly not happening in this case. The mother had ample opportunity in this case to demonstrate to the court that there was a basis of her concerns about the children’s welfare which would, once established, explain the attitude of resistance that is being discussed here. For whatever reason, the mother’s case did not take advantage of the opportunity to demonstrate that there were legitimate reasons to be concerned about violence, abuse and intimidation directed by the father either towards her, or the children.
The father’s attitude is equally problematic. There are parts of his evidence which exudes the clear impression that the father simply does not understand the extent to which his own actions and attitudes have actively contributed to the very circumstances that exist today. Dr G’s first family report provided him with an all too rare opportunity in litigation to address the fundamental problems that existed in his relationship with the children, but he has not demonstrated that he has taken these issues on board and made the necessary changes. And yet the court is hopeful that in the changed circumstances contemplated in these reasons there will be less pressure on both the father and the children, as well as opportunities to mend and build on the tenuous relationship that exists between the father and the children. He has to stop blaming the mother for all the problems that exist today and earnestly look in the mirror and work on those aspects of his character and personality that would make a big difference.
Family violence
The risks to the mother and children in the context of alleged violence, intimidation and abuse has been adequately discussed above. It is not an operative, let alone determinative, consideration in this case.
Order least likely to lead to further litigation
The order least likely to lead to further litigation is probably that proposed by the mother though it in itself might be problematic in the sense that disputes might arise about whether, and if so precisely what, are the views expressed by the girls about spending time with their father. The court recognises that in making an order for ongoing contact there is the risk of litigation including, for example, contravention applications. That is a risk the court is prepared to take in circumstances where the only alternative would be to, in effect, end the children’s relationship with their father.
Parental responsibility
The mother proposes sole parental responsibility, and this is supported by Dr G. The father proposes joint parental responsibility provided the mother have sole parental responsibility in matters of health, education and religion save for urgent medical treatment. The father’s order is unworkable. In a situation such as this one where communication is problematic, trust non-existent, and there is ongoing parental conflict, it is necessary for the mother to have sole parental responsibility. This can be fettered by imposing a number of reasonable restrictions, some of which are proposed by the father. For example, he proposes that the mother notify him in writing prior to making decisions about major long-term issues in relation to their health, education and religion. That is appropriate. Both parents agree about the provision of information in relation to the children. The father would like a restraint on the mother changing the children’s surname. Whilst on the one hand there is no evidence to suggest that she proposes to do this, the fact of the matter is that once she receives sole parental responsibility, she will be able to do so without reference to the father. On balance, the court prefers the middle ground of imposing a restriction on the mother changing the children’s surname without first giving the father one month’s notice, thus giving him the opportunity to bring the matter back to court if he so desires.
The father proposes a watch list order, as well as an order restricting the grant of passports for the children. The father also seeks an order that the mother be restrained from taking the children outside of New South Wales without his consent. All of these matters are restraints on the mother’s prerogative pursuant to an order for sole parental responsibility. There is no evidence to justify a restriction on the issue of passports or travel. This was an issue before the court. There is ample evidence for the court to conclude that even if the mother did travel to (omitted) with the children she would return to Australia which they clearly consider to be their home and the place which offers them the best future prospects in life. On the evidence before the court there is no reason to restrict the ability of the mother and the children to travel, and there is no evidence that would suggest that conditions need to be imposed such that, for example, if they do travel to (omitted) that they should spend time with the father’s family. In relation to relocation, whilst there is no evidence to suggest the mother has any desire to relocate, an order for sole parental responsibility will allow her to do so. In the circumstances of the tenuous relationship between the children that is sought to be maintained by these orders, it is important that the mother not remove the children to a place where it becomes impractical for these orders to be implemented. In these circumstances an appropriate restriction would be for the mother to advise the father on 14 days’ notice of any proposal to relocate the home of the children which would adversely affect the children’s ability to spend time and communicate with the father, in accordance with these orders.
The mother’s proposed order for sole parental responsibility is otherwise in the best interest of the children, in the circumstances of this case, and based on the evidence that is discussed in these reasons.
Order in the best interests of the children?
Whilst there is no compulsion by law to consider equal time or substantial and significant time, the court records that it would consider neither to be in the children’s best interest, or reasonably practicable, for the reasons outlined and which should be apparent from a reading of this judgment.
On balance, and having regard to all of the evidence, and with due deference to Dr G, the court will make an order that takes up some of the suggestions made by both parents, as well as by Dr G, with a view to attempting to sustain, and if not improve, the tenuous relationship that exists between the children and their father.
Effective from the date that these orders are made the father’s time with the children is suspended for a period of four months. The court hopes that this will act as a circuit-breaker for this family. It will mark the end of the litigation. It will be, in part, something the mother wanted. The break will be something that, in the court’s opinion, the father will be able to cope with. Most importantly, the court believes the children will benefit from a break in their time with the father, but in the expectation that it will resume, albeit on a different basis. During this period of suspension of any time the mother must nonetheless do all things to facilitate any desire expressed by the children to either spend time or communicate with their father.
During this four month period the parents and the children are to attend the Keep in Contact program, and the Supporting Children After Separation program, and in the latter case on the basis that the father bears the cost. This is, in part, the father’s proposal. Dr G could see the benefit of such an intervention in circumstances where the court decides to make an order for contact. The court has no doubt that the mother would comply with an obligation to attend and participate in such a program, and facilitate the children attending. The children will, at the very least, cope but stand to benefit enormously. Should the providers of these programs consider it helpful, the parties will have leave to provide to them a copy of these reasons for judgment, as well as a copy of Dr G’s two family reports. Participation in these programs may well be part of the re-orientation of this family, and its relationships, that is sought to be achieved by these orders, and by the break in contact. Neither the parents nor the children will have completed the program by the time contact is resumed, but the court certainly hopes that the programs will have commenced, though this is not a precondition to the resumption of contact.
After four months the father is to spend time with the children for four hours once each calendar month. If the parents are unable to agree on a date and time it will be the fourth Sunday of each month between the hours of 10 and 2. Changeover is to be at a public area in the railway station closest to where the children are living. In addition, the mother is to do all things necessary to facilitate the children communicating with their father by text, email, Skype or any other electronic medium as frequently as initiated by the children. An order will be made directing the father to ensure that all communication with the children is age-appropriate and both parents will be restrained from discussing the proceedings, or the breakdown in the parental relationship, or any aspect thereof, with or in the presence of the children or allowing any other person to do so. In addition, the parents will be restrained from denigrating each other with or in the presence of the children, or allowing any other person to do so.
There is evidence that the father has been recording discussions with the children or parts of his time with the children. This must forthwith cease and the father is restrained from doing so in the future. He is also required to ensure that nobody else does so, in his presence or to his knowledge.
The mother seeks an order that the father be restrained from consuming alcohol whilst in the presence of the children. Because of the poor state of the evidence it is not possible to make a finding as to whether or not her concerns, and the concerns expressed by the children to the mother and to Dr G, have any basis. Out of abundant caution, and given that the father’s contact with the children, when it resumes, will be once each calendar month, it is hardly an onerous requirement on the father not to consume alcohol whilst the children are with him, or to be under the influence of alcohol at that time.
Both parents need to understand that the court considers this the last resort. In other words this is a last ditch effort to seek to maintain what is a tenuous relationship between the father and the children, and hopefully create the circumstances in which it might grow. The court recognises there are many variables. The circumstances of the parents might change. The father might give up. The father might choose to work outside of Australia, or outside of Sydney. The children’s reluctance to spend time might become a refusal to spend time and might not be amenable to any form of therapeutic or legal intervention. A quite likely scenario is that as the children get older, individuate, and become increasingly autonomous in terms of decisions about their lives, they will decide whether, and if so on what basis, their relationship with their father is manifested by spending time and communicating with him. The court thus recognises there is much uncertainty that surrounds the decision in question. Notwithstanding that the court is satisfied that this decision is the least of the worst alternatives, and is better than an order for no contact.
I certify that the preceding one-hundred-and-fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 28 August 2013
Schedule A
Orders sought by the Mother
That the mother shall have sole parental responsibility for the children X born on (omitted) 2001 and Y born on (omitted) 2003
The mother shall do all things necessary to cause the father to be provided with copies of the children’s reports by the school and school photos, to facilitate his ability to attend at parent teacher nights separately from the mother and to keep him informed of important events in the children’s lives including details of significant medical treatment being received by the children.
The children shall spend time with the father at times that are agreed between the parties.
The children shall communicate with the father on their birthdays and other days of special significance, with the mother to initiate the communication.
Each party shall keep the other advised of their respective contact details.
The father is restrained from consuming alcohol in the period of 12 hours prior to communicating with the child and during times that he is communicating with the children.
That the children are permitted to travel internationally, and the Minister is requested to do all things necessary to facilitate the issue of Australian passports for the children and to provide them to the mother without the necessity for the consent of the children’s father.
Schedule B
Orders sought by the Father
That the parties are to have joint parental responsibility of the marriage provided the mother have sole parental responsibility for matters relating to the health, education, and religion of two children of the marriage X born (omitted) 2001 and Y born (omitted) 2003, save for any urgent medical treatment that either of the two children may require whilst in the care of the father.
a.The mother shall notify the father in writing prior to making decisions about major long term issues in relation to the children’s health, education, and religion.
The children live with the mother.
Children to have their own room.
The applicant Father spend time with the two children of the marriage X born (omitted) 2001 and Y born (omitted) 2003 as follows:
a.Each alternate Sunday from 10.00am until 5.00pm. If it falls onto mother’s day, then it will take place on the previous day (Saturday).
b.Each alternate Thursday; from 6.00pm until 8.00pm for dinner during school terms, and 10.00am until 8.00pm during school holidays.
c.Saturday following children’s birthday from 10.00am until 5.00pm
d.Saturday following father’s birthday from 10.00am until 5.00pm
e.Father’s day from 10.00am until 5.00pm.
f.During school holidays and public holidays as agreed by the parties.
That the Mother will deliver the children to the Police Station closest to Father’s home at the commencement of the children’s time with the Father, with the Father delivering the children to the Police Station closest to the Mother’s home at the conclusion of the children’s time with the Father. Thursday dinner handovers will take place at the Police Station closest to the Mother’s home.
a.In the event that either party is unable to attend the changeover, they shall advise the other party of the inability to attend by SMS on the Friday preceding the Sunday contact and children/Father will spend time together next Saturday or next Sunday from 10.00am until 5.00pm. Father will advise his availability by Wednesday.
The mother is restrained from using or attempting to use any surname other than the surname “Beale” in respect of the children, either formally or informally for any purpose whatsoever.
The mother and father do all such things and sign all such documents as are necessary so as to authorise the schools attended by the children to give each parent information about the children’s educational progress and any other related activities and supply them with copies of reports, photographs, certificate and awards obtained by the children (at each parent’s own costs) and failing provision of such authority this order shall of itself operate as such authority in each case.
Each party be and is hereby restrained from harassing, criticising or denigrating the other parent, the other parent’s family or any person the other parent is in a relationship with to or in the presence of the children and shall use their best endeavours to ensure that no other person criticise or denigrate the other parent, the other parent’s family or any person the other parent is in a relationship with to or in the presence of the children.
The mother is restrained from controlling the activities and places while the father is spending time with the children.
10.The mother is restrained from emotionally and psychologically abusing the children and aligning the children against the father or any person the father is in a relationship with.
11.The father is restrained from aligning the children against the mother or any person the mother is in a relationship with.
12.The father may contact the children via email, telephone, and Skype (and similar facilities). Mother to facilitate such media to children and do not result in such communication blocked between the children and father. The mother shall provide the children with privacy at the time they have any communication with the father.
13.Each party shall keep the other party informed of any change to his/her/children’s residential address, email, Skype, and telephone contact number no later than 7 days of such change.
14.The children’s names to be placed on the Airport Watch List also known as the PACE alert system, at all points of arrival and departure in the Commonwealth of Australia.
Each party is restrained from making application for the issue of a passport for the children, without the written consent of the other party or by order of the Court.
That both parents be restrained from taking the children outside the state of NSW permanently without the written consent of the other parent or further court order.
That in urgent situations or when needed, the parties shall communicate with each other in relation to matters affecting the child as follows unless otherwise agreed upon between them:
a.By email, or SMS text
b.If urgent, by mobile phone
Any agreed alterations to these Orders shall be reflected between the parties in writing for which purposes email or SMS message shall be acceptable.
The mother and the father are to provide each other with the names and contact details of any medical practitioners treating the child as soon as possible and shall keep each other informed of any planned or emergency medical treatment received by the child as soon as practicable.
The mother and father be entitled to receive at their own request and expense any and all information relating to the health, education and welfare of the children including but not limited to any details of any illness suffered by the children and treatment required, any school reports, newsletter, notification of parent/teacher interviews, photograph order forms and details of any disciplinary matters. This order shall constitute an authority to each of the children’s medical practitioners, allied health professionals and schools to provide the information outlined in this order.
The mother and the father shall each separately attend and complete the parenting after separation course at Family Relationships Centres every calendar year (at each parent’s own costs) and provide a copy of completion certificates to each other until the end of year 2019.
The Father, the children, and the Mother shall attend and complete The Keeping Contact Program in Sydney.
The children shall attend and complete Supporting Children After Separation Program every calendar year until the child’s 16th birthday, with the father to be responsible for the program costs.
SCHEDULE C
FAMILY LAW ACT 1975
IN THE FEDERAL MAGISTRATES
COURT OF AUSTRALIA FILE NO: (P)SYC7444/2011
BETWEEN:
MS BEALE (Applicant)
AND:
MS BEALE (Respondent)
BEFORE: FEDERAL MAGISTRATE ALTOBELLI
DATE: 8 November 2012
MADE AT: SYDNEY
UPON APPLICATION MADE TO THE COURT by Ms N as Counsel for the Applicant and Mr Blackah as Counsel for the Respondent.
The child X born (omitted) 2001 and the child Y born (omitted) 2003 (“the children”) live with the Respondent Mother.
The children shall spend time with their Father from 9:00 am to 1:00 pm each Sunday.
The children spend additional day only time with their Father during school holidays as agreed between the parties.
For the purposes of changeover:
a.At the commencement of the Father’s time with the children, the Mother is to deliver the children to (omitted) Railway Station for collection by their Father.
b.At the conclusion of the Father’s time with the children, the Father is to deliver the children to (omitted) Railway Station for collection by their Mother, unless otherwise agreed.
In the event that either party is unable to attend changeover they shall advise the other parent of their inability to attend by SMS on the Saturday preceding.
Each of the parties will notify the other of their current residential address and current mobile telephone numbers and will notify each other of any change to these details within 48 hours of such change.
Neither party shall consume alcohol when the children are in their care.
Both parties enrol in and complete a Parenting after Separation course.
Neither parent denigrate the other in the presence of the children or allow any other person to do so.
10.Neither parent discuss these proceedings with the children or allow any other person to do so.
11.Both parties be restrained from removing the children from Australia without the written consent of the other party.
12.Until further order the Applicant and the Respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the children X born (omitted) 2001 (female) and Y born (omitted) 2003 (female) from the Commonwealth of Australia.
13.The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the said children from the Commonwealth of Australia.
14.Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said children’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
15.The Father do all things necessary to undertake the coaching that is described at paragraph 64 of Dr G’s report.
16.Leave be granted to the Father to provide a copy of Dr G’s report to such person undertaking the said coaching role.
THE COURT FURTHER ORDERS THAT:
17.The matter be set down for 2 day Final Hearing on 27 and 28 June 2013 at 10am.
18.The parties are to file and serve any further material on which they seek to rely no later than 7 June 2013.
19.The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Magistrates Court Regulations 2000 or as otherwise directed by the Registry Manager by the date of filing of further material.
20.No later than three (3) working days prior to hearing each party forward to my Associate a document setting out:
a.The affidavits on which each party will rely at hearing; and
b.The Orders sought at hearing.
21.The matter be adjourned to 28 March 2013 at 9:30am for mention.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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