Berrios and Berrios
[2010] FMCAfam 1276
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BERRIOS & BERRIOS | [2010] FMCAfam 1276 |
| FAMILY LAW – Parenting – children aligned with mother – not alienation as some ambivalence present – alteration of property interests. |
| Family Law Act 1975, ss.13C, 60B, 60CA, 60CC, 61DA, 65DAA, 90MT, 106A |
| Applicant: | MR BERRIOS |
| Respondent: | MS BERRIOS |
| File Number: | WOC 50 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing date: | 18 November 2010 |
| Date of Last Submission: | 18 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Friedlander |
| Solicitors for the Applicant: | Fulcrum Legal |
| Counsel for the Respondent: | Mr Maddox |
| Solicitors for the Respondent: | Marsdens Law Group |
| Independent Children’s Lawyer: | Mr Meehan |
ORDERS
The mother pursuant to s.13C Family Law Act within 4 weeks of the date of these orders arrange with Relationships Australia that her, the father and the children will enrol in and attend upon the program known as the “parenting orders” program.
(a)The mother will use her best endeavours to encourage the children to participate in this program and such other counselling and therapeutic interventions as recommended by Relationships Australia.
(b)The mother and the father will share equally any costs associated with the parties and the children participating in the program or other counselling and therapeutic intervention described in (a) above.
(c)The father will enrol in and attend upon the program as and when required by the program’s co-ordinator, including attending upon and participating in such other counselling and therapeutic interventions as described in (a) above.
That for the duration of the parenting orders program with Relationships Australia, the father spend time with the children, namely [X] born [in] 1999 and [Y] born [in] 2000 each alternate Saturday from 9am to 5pm.
(a)Such time is to commence on the 1st Saturday after the date of these orders
At the completion of the parenting orders program in (a) above, the father spend time with the said children as follows:
(a)each Saturday from 9am to 5pm, and
(b)such other times as the parties may agree in consultation with the program co-ordinator or counsellors.
The said children live with the mother.
The parents are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children.
Neither party will denigrate, nor cause any other person to denigrate the other party in the presence of the children.
Neither party will discuss these proceedings or the breakdown of the marriage, nor cause any other person to do the same, with or in the presence of the children.
All changeovers to take place at McDonalds at [N] unless the parents otherwise agree.
On the Father’s Day weekend, the children’s contact with him is to be on Father’s Day in lieu of the Saturday.
Notwithstanding any contrary provision where the contact provided for in these orders does not coincide with these days, the children to spend time with their father:
(a)On Christmas Eve in even numbered years from 3:00pm to 9:00pm; and
(b)On Christmas Day in odd numbered years from 3:00pm to 9:00pm.
That in the event that any of the children suffer any illness requiring medical attention or hospitalisation then the party with whom the children are living shall immediately notify the other party of such illness and the name of the medical practitioner or hospital to which the child or children have been taken.
That the Mother:
(a)Forthwith sign all documents and do all things necessary to:
(i)authorise the school or schools at which each of the children may from time to time attend:
A.to furnish the Father with copies of all school reports, notices and advices concerning the children or each of them, and
B.to make available to the Father copies of any school photographs of the children or each of them at the Father’s expense.
(b)notify the Father immediately of:
(i)any major illness suffered by the children or any of them;
(ii)any hospitalisation of the children or any of them; and
(c)make available to the Father copies of any medical reports that may be provided to the Mother in connection with such illness or hospitalisation, and
(d)authorise any hospital in which the child or children may be admitted and any medical practitioner under whose care the child or children may be to give such information to the Father as the Father may request.
The Court requests the Independent Children’s Lawyer to monitor the parents’ participation in the program referred to in these orders, and the Independent Children’s Lawyer is not discharged until 6 months from the date of these orders.
That within twenty eight (28) days of the date of these Orders or as the parties otherwise agree, the husband and wife do all acts and things and execute all deeds documents instruments and writings necessary to forthwith sell the former matrimonial home known as Property L in the State of New South Wales (hereinafter called "the matrimonial home") by private treaty at a price agreed between the husband and the wife or failing such agreement at a price equivalent to the mean of two valuations by registered valuers being members of the Australian Institute of Valuers, one obtained by and at the expense of the wife and one obtained by and at the expense of the husband, such valuations to be made not more than two weeks apart from each other.
In the event that the property is not sold within four (4) months or such further period as may be agreed, the husband and wife shall do all things necessary to sell the property by public auction including but not limited to:-
(a)place the said property with an auctioneer (hereinafter called "the auctioneers") for sale by public auction at the earliest possible date;
(b)execute all documents requested by the auctioneers
(c)request the auctioneers to recommend a reserve price to be placed on the said property for the purpose of the auction sale and accept such recommended reserve price;
(d)pay the auctioneers any sums requested for advertising expenses in relation to the auction;
(e)attend at the auction sale or sales and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the auctioneers as to the acceptance of a price less than the reserve price;
(f)execute contracts of sale;
(g)co-operate in every way with the auctioneers in relation to the auction of the said property;
(h)execute all other documents necessary to complete the sales.
The nett proceeds of sale be disbursed as follows:
(a)In payment of Agent’s commission and sale costs in respect of the former matrimonial home.
(b)In payment of the mortgage secured over the former matrimonial home.
(c)65% balance to the Wife.
(d)$15,341 to the Wife
(e)35% balance to the Husband.
That, pursuant to paragraph 90MT(1)(b) Family Law Act 1975 whenever the trustee of the [omitted] Super Scheme ("the Fund") Member No.[8] makes a splittable payment from the interest held by the husband, the trustee shall pay to the wife or her administrators, executors, beneficiaries, heirs or assigns , to the extent permitted by law, 71.5% of the interest held by the husband in the Fund and that such entitlement be calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and there shall be a corresponding reduction in the entitlement the husband would have had in the [M] Retirement Plan Fund but for these orders.
That Order 10 have effect from the operative time.
That the operative time of these Orders is four (4) days from the date of service of the Order upon the Trustee.
That the Trustee of the Super Fund, in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of, and make to, the wife in accordance with Order 10 of these Orders.
That the furniture be divided equally between the parties pursuant to the two lists method if they are unable to otherwise agree.
That all other items of property, financial resources, shares. superannuation and liabilities presently in the name, possession or control of the wife shall remain hers absolutely to the exclusion of the husband.
That all other items of property, financial resources, shares, superannuation and liabilities presently in the name, possession or control of the husband shall remain his absolutely to the exclusion of the wife.
In the event that the Wife or the Husband shall refuse or neglect to execute any deed or instrument necessary to give effect to these orders then a Registrar or a Deputy Registrar of the Court shall be empowered pursuant to section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the Wife or the Husband and to do all acts and things necessary to give validity and operation to the said deed or instrument provided that such Registrar or Deputy Registrar shall be satisfied upon affidavit evidence of the party alleging the refusal or neglect that the other party is in breach of these Orders.
That both the husband and wife shall do all acts and things and give all consents and execute any documents in relation to give effect to these Orders made herein.
IT IS NOTED that publication of this judgment under the pseudonym Berrios & Berrios is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 50 of 2009
| MR BERRIOS |
Applicant
And
| MS BERRIOS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, [X], who is 11 years old, and her sister [Y], who is 10 years old. The children are resisting spending any time or communicating with their father. Their father is the applicant in these proceedings and the mother the respondent. As with many cases in the Family Law Courts, the case that started at the time the application was initially filed in January 2009 was quite different to the case that was presented in closing submissions on 11 October 2010. In these reasons, I intend to focus on the latter, and not the former.
Background and history
The mother is 52 years old and describes herself as undertaking home duties, though she is currently also undertaking a TAFE course. The father is 46 years old and describes himself as a [omitted]. They both live in the [C] region, south west of Sydney.
The two children of the marriage live with the mother. She has two other children, [R] and [P]. [R]’s role in these proceedings was minor but, as will be seen, [P] plays a significant role. She is currently 19 years old and is a university student.
The parents met in the Philippines in 1996 and, indeed, the mother is of Filipino background. The father is of Hungarian background. They commenced cohabitation in January 1998 in Australia and married in March 1998. They purchased what became the former matrimonial home at Property L in 2000.
The parents first separated in March 2002, for a period of months. At this time, both [X] and [Y] were very young. On 12 June 2002 the parents entered into consent orders relating to the children which provided for them to live with the father each weekend. There is a dispute about these orders and whether they were voluntarily entered into by the mother. In the end result nothing turns on this. The parents resumed cohabitation.
In January 2009, [P] made certain disclosures about what I will describe as the father’s inappropriate conduct towards her. This is described at length in [P]’s affidavit sworn 21 July 2010. The father did not require [P] for cross-examination. That is not to say that he did not dispute the accuracy of all of the assertions made by [P]. However, in cross-examination he conceded that many of his comments to [P] were inappropriate.
[P]’s disclosures had a significant impact on the relationship between the parents. This is summarised, for example, at paragraph 18 of the first family report, prepared by family consultant Ms S:
Ms Berrios said that she believes [P]’s allegations (specifically [P]’s allegation that Mr Berrios proposed to teach her how to keep a boyfriend; told her that he fantasises about seeing her naked; and that he loves her more than he loves her mother). Ms Berrios said that [P]’s disclosure has caused her to reflect on previous behaviour of Mr Berrios towards [X] and [Y] in a new light. She said that Mr Berrios always sought affection from the girls, including regularly grabbing them for cuddles and putting them on his lap, kissing and tickling them on the arms and licking [X]’s feet and legs while she was in the pool. She believes that he might be “grooming” the children.
I was left in no doubt whatsoever that the mother’s belief about [P]’s allegations overwhelmingly influenced the mother’s views about the father and the nature and extent of his relationship with the other children until quite late in these proceedings. Indeed, this is again summarised quite neatly at paragraph 38 of the first report:
It is assessed that the mother’s acceptance of the alleged sexually inappropriate behaviour of Mr Berrios towards [P] has had significant effects on her relationship with Mr Berrios. Her now negative perception of his role in the children’s lives includes him being a possible perpetrator of sexual assault against the children. She is assessed as having a minimal capacity to promote the children’s relationship with their father. [Y] and [X] are likely to be influenced by the mother’s apprehension of them spending time with their father and this is assessed to be, at least in part, reason for their views of not wanting to spend time with him.It does need to be noted, however, that by the end of these proceedings, I detected a significant amelioration in the mother’s concerns arising out of [P]’s disclosures.
As a result of [P]’s disclosures, the mother and father in these proceedings separated on a final basis on 7 January 2009. Various complaints and reports were made to the New South Wales police, and to the New South Wales Department of Community Services, arising out of these disclosures. No action was taken by these authorities arising out of this.
On 23 March 2009, Brewster FM made a series of orders in relation to the children. On this date, the parents agreed, by consent, that the children would spend time with their father at a supervised contact centre at [C], and that, until such time as places became available, he would have time with the children supervised by a number of stated persons, to take place at McDonald’s at [N].
On 19 August 2009, the first of three family reports prepared by family consultant Ms S was released. This was during the time that the children were spending supervised time with their father, each alternate weekend for two hours. At this time, the father’s application was that he have sole parental responsibility for the children, that they live with him and spend supervised time with the mother. The family report records that on the day of the interview, the father’s position appears to have abated somewhat in that he was contemplating equal shared parental responsibility, and that he would consider working towards an arrangement whereby the children lived mainly with their mother.
At this time, the mother’s position was that she have sole parental responsibility, and that the children live with her, and spend supervised time with the father, as is currently occurring. The observation of the father’s interaction with the children is set out at paragraph 32, and the mother’s interaction, at paragraph 33:-
In the informal observations the children consistently refused to say hello to, or approach their father in the waiting area. [X] and [Y] were observed to interact freely with their mother and with Mr W (who was supervising the children on the day of interviews) on occasions hugging their mother and sitting close to her. In the formal observation, the children were initially reluctant to participate in the observations with their father, however after discussions regarding the boundaries and expectations of the observation they participated. On meeting their father neither [X] nor [Y] greeted him, there was minimal eye contact and the children were observed to briefly retreat to the corner of the room. After the children and father were asked to complete a structured activity they all sat at the table together and were able to complete the activity with some dialog occurring between them. As the observation continued the children settled into the interaction and there was more communication between the children and father. They included their father in their imaginary play. The children continued to avoid physical contact with their father and eye contact remained minimal.
The mother was introduced to the observation. Neither parent acknowledged the other and the children appeared to become tense, (more quiet, stood together and appeared unsure of what to do). As the observation continued the children appeared more relaxed and [X] and [Y] showed their mother what they had been doing with their father. Mr Berrios and Ms Berrios spoke to each other and even laughed together about the children’s play. When the father left the observation [X], [Y] and Ms Berrios appeared at ease and they communicated with a familiarity and consistency that would be expected from their reports of a close relationship with her.
The family consultant assessed that the children’s closest relationship was with their mother, and with their sister [P]. At paragraph 37, the family consultant notes:-
[X] and [Y] appear to have suffered the loss of the significant role of their father in their lives. Even if, as Ms Berrios asserts,
Mr Berrios was an uninvolved parent, it is presumed that his daily time with the children pre-separation would have enabled him a more significant role in their lives than what has occurred since the parental separation. It is of concern that the children are reporting views that include not wanting to increase this time. Despite the possible negative effects associated with the loss of a parental figure in the children’s lives, both children were reported to be ideal and settled students.In relation to the father’s stated concerns to the family consultant that the mother had mental health issues, the family consultant noted that there was no indication that the mother was unable to appropriately and adequately care for the children, though she did acknowledge the need for a further assessment of the mother’s mental health.
In relation to [P]’s disclosures, without commenting on the truthfulness or otherwise of the same, that otherwise based on what the father said to the family consultant, she concluded that:-
It is of concern, however, that Mr Berrios thought it appropriate to have a conversation with the child, whom he considered his own, regarding his sexual relationship with her mother. This indicates poor assessment, on his behalf, of appropriate boundaries, and raises questions about his general ability to abide by appropriate boundaries.
The family consultant recommended in her first report that there be equal shared parental responsibility, that the children live with their mother, that the children and the parents engage in family counselling, and that in the meanwhile, the children spend time with their father, for up to eight hours a day each fortnight, either supervised or unsupervised, depending on the progress of the family counselling.
Subsequently, Ms D was appointed to provide the therapeutic counselling to the children referred to in the report, and an order was made on 21 October 2009 that a copy of the first family report be provided to Ms D. In the meanwhile, a second family report had been ordered.
The second family report was released on 5 November 2009, but this time included [P] in the interviews and observations. This report sets out some of [P]’s disclosures in relation to the father’s inappropriate conduct. [P] was observed to have a very close interaction with [Y] and [X], and to be a central and significant person in their lives. At paragraph 9 and 10 of the report, the family consultant notes, as follows:-
[P] is a central and significant person in [Y]’s and [X]’s lives. [P] offers the children a sibling relationship as well as, due to her age, the ability to provide a greater care and guidance role. It would be in [Y]’s and [X]’s best interests for them to continue to experience their sister’s central role in their lives.
[P] is undergoing a stressful and complicated time in her life. She is attempting to come to terms with her sense of betrayal and abused trust as a result of her father’s alleged behaviour. As a consequence she is continuing to grieve her sense of loss of her father figure and understandably, she is concerned about her sisters being treated as she alleges she has been treated. In addition she is attempting to successfully complete her Higher School Certificate. It may assist [P] to seek the assistance of a professional counselor should she continue to have concerns that her past is impacting on her ability to healthily and happily negotiate her future.
By the time the proceedings concluded, there remained an issue as to the extent to which, if at all, [P] had been undermining the father’s relationship with [X] and [Y].
On 8 February 2010, orders were made facilitating the parents and children attending at LifeCare for the purposes of therapeutic counselling and providing for a copy of the family report to be released for that purpose.
The hearing commenced before me on 3 May 2010 with evidence that was given by the father, by the family consultant, Ms S, and by Mr and Ms W. The hearing continued until 4 May 2010. Evidence was given on that day by the mother, by Ms C, the paternal grandmother, and by Dr H, a psychiatrist.
In relation to the evidence of Mr and Ms W, all I need to say is that, whilst their involvement with this family was well-intended, they probably did not play a constructive role in assisting the ultimate resolution of the issues before the court. I need no longer refer to their evidence in these reasons.
Dr H gave evidence. She is a consultant adult psychiatrist at [omitted] Hospital and [omitted] Hospital in [B]. Her affidavit of 12 April 2010 annexes a medical report, dated 19 March 2009, relating to the mother. It confirms that the mother does not suffer from any form of schizophrenic illness but that she did suffer from an adjustment disorder with anxiety and depression caused by marital conflict, which was currently in remission.
She was cross-examined but there was nothing in the cross-examination that detracted from her evidence. Dr H’s evidence assists me to find that there are no issues about the mother’s mental health or psychological wellbeing that are in any way relevant to these proceedings.
The hearing was not concluded by the end of 4 May and, hence, was adjourned to 11 October for a final day of hearing. The parents entered into consent orders on 4 May 2010, and for present purposes the relevant ones are orders 5-9 which are reproduced below:
5. The children namely [X] born [in] 1999 and [Y] born [in] 2000 (“the children”) live with the mother.
6. That the children spend time with the father as follows:
a. Each Saturday from 8 May 2010 until and including 5 June 2010, for a period of 2 hours on each visit, to be supervised;
b. Each Saturday from 12 June 2010 until and including 10 July 2010 for a period of 4 hours at each visit, to be supervised;
c. Each Saturday from 17 July 2010 up to and including 14 August 2010 for a period of 4 hours on each occasion, unsupervised;
d. For each Saturday thereafter from 9am to 5pm, such time to be unsupervised.
7. That for the time with the father which is to be supervised under Order 6 above, the supervisor is to be Ms M , or if she is not available, Ms H or if both are not available, Ms V.
8. Neither party will denigrate, nor cause any other person to denigrate, the other party in the presence of the children.
9. The mother will do all that is necessary to ensure that the children will not have contact with the following persons:
a. Mr and Ms W;
b. Mr and Ms L.
It is significant to note that the mother agreed that whilst the father’s contact would commence as being supervised, it would move to unsupervised. The father agreed that the children would live with the mother. Both parents agreed that there would be no denigration of the other in the presence of the children. Both parents agreed that the children’s contact with certain named persons would be restricted.
Moreover, the court noted that the mother would do all things necessary to encourage the children to have the father and paternal grandparents involved in their counselling with LifeCare.
On 4 May 2010 I ordered an updated family report.
The third and final family report is dated 6 October 2010. The family consultant records the father’s perception that, despite the passage of time and participation in counselling, there had been little improvement in the children’s ability to spend time with him. Nonetheless, he reported (and the mother subsequently confirmed, with limitations) that the parents had been communicating somewhat better in that period. The father maintained his belief that an equal time parenting arrangement was best for [Y] and [X] because this would reduce [P]’s influence over the children and, thus, enable them to show their positive feelings towards him.
The report notes the mother’s continued belief that the children do not want to spend time with their father and, in effect, a growing resentment by the children towards her that she was encouraging and facilitating that ongoing contact. The mother appeared acutely conscious of the father’s belief that she was coaching the children against him but gave numerous examples of how she, in fact, sought to facilitate this time.
Both parents agreed that the counselling with LifeCare did not proceed beyond May 2010. From the father’s perspective, he does not know why. From the mother’s perspective, she asserts that the LifeCare counsellor had indicated that there was no benefit in continuing.
When the children were interviewed, [X] expressed the view that her time with her father had worsened over the previous year. [Y] presented as consistently negative about her father, whilst acknowledging some positive experiences with him.
The family consultant’s observations of the parents and the children are set out at paragraphs 37 and 38; -
Observations were undertaken with Mr Berrios, Ms C, Mr C, [X] and [Y]. The girls were reluctant to participate but did so after boundaries were put in place similar to the original observation with their father. The observation appeared strained and [X] and [Y] appeared mechanical – rarely giving answers or, when they did, monosyllabic responses and displaying minimal emotion.
Mr Berrios attempted to engage the children in conversation while the maternal step grandfather made a comment to this author about how this is typically how the children behave while with them. The observation was painful to watch. In the waiting area, the children refused to say hello to their father and grandparents and had to be coaxed by the mother to say goodbye to their father before they left.The observations between Ms Berrios, [P], [X] and [Y], were similarly at ease and comfortable as was observed previously. [P] was attentive to the children, and they interacted with her with a rhythm as expected given the reported close relationship that they share.
The evaluation contained in the third family report, demonstrates the complex issues that arise in this family, and in this case. It is useful to set out the family consultant’s evaluation at paragraphs 39 – 47 inclusive as reference will be made to this in my reasons below.
It is assessed that there has been minimal change since the previous family report. The family continues to be experiencing a complex set of issues which have impacted on [X]’s and [Y]’s current capacity to maintain a meaningful relationship with their father. These include: a likely historically more distant relationship between the girls and their father; a previous and currently close relationship with their mother; the allegation of sexual misconduct from the father towards [P]; the father’s assessed minimal insight into the children and age and stage of development and the issue of whether the children are being “coached” against their father. Additionally the children’s relationship with their paternal grandparents is assessed as poor.
There is a dispute between the parents about the historical closeness of the relationship between [X], [Y] and their father. It is believed that the mother was primarily responsible for the provision of care to the children and that this relationship has been the children’s primary relationship. Whatever relationship they did have with their father, pre-separation, has now largely been lost. Despite attempts to improve the father/daughter relationships via graduated increments of time, coupled with counselling, the relationship currently appears irreparably broken. It is also assessed that the children attribute mainly negative associations with the time that they spend with their father. It is difficult to see how this benefits either child or, sadly, how it can be improved.
Of concern is that the children did not continue with their counselling past the Interim Orders in May 2010. The mother and father gave no indication about why the counselling ceased. This is likely to have meant a lost opportunity for [X] and [Y] to work through their relationship issues with their father. For [X] and [Y], and indeed the parents, the difficulties appear to have stagnated. If counselling were to occur at a later date, it is likely that the process will face greater difficulties from the prolonged negative association [X] and [Y] have to their father. Ms Berrios’ failure to continue to ensure that counselling occurred is a cause for concern, particularly in terms of her capacity to promote [Y]’s and [X]’s relationship with their father.
Mr Berrios is a father who has, by his reports, made significant efforts to make the children’s time with him more positive. That said, he is assessed to demonstrate minimal capacity to understand the complex issues from the children’s perspective. Examples include his continuing attempts to insist on greetings, hugs and photographs of them when they express reluctance. Such behaviours are likely to have placed the children under undue pressure to behave in a way that is incongruent with their feelings. While the father is certain that the children’s behaviour is solely the result of the mother’s and or [P]’s coaching of them, his failing to understand that [X] and [Y] may have separate feelings of their own is also likely to hamper their relationship with him. Not surprisingly, the children feel that the father is insensitive to their feelings and that he does not listen to, or understand them.
Mr Berrios alleges that [P] and Ms Berrios are coaching [X] and [Y] against him. Of note is the unusual nature of the children’s negative comments regarding their father and paternal grandparents. This is, at times, extended to rudeness towards them. Such an intense emotional rejection of their father is at odds with the mother’s and [P]’s reports of a historically distant relationship between the father and the children. It would be expected that children who have experienced only a distant relationship with their father would not muster the emotional intensity that [Y] especially, and [X] displayed towards their father and paternal grandparents. It might be an indication of the children being influenced by an underlying alienation dynamic. Ms Berrios was previously assessed as having a negative perception of Mr Berrios that had, at least in part, impacted on the children’s relationship with their father. Although this current assessment indicates that she has made efforts to improve her promotion of the children’s relationship with their father, she continues to view him as a possible sexual perpetrator of [X] and [Y] and minimises the children’s relationship with him prior to the separation. She is assessed as having limited insight into the importance of the children’s relationship with their father. Further evidence from the Court is required to clarify this issue.
On the material obtained for this report and previous reports, there is no indication that [P] has actively discouraged [X]’s or [Y]’s relationships with their father.
Despite the father acknowledging that [X] and [Y] have difficulties spending time with him, he proposes to have an equal time parenting arrangement. His rationale is that via equal time there will be reduced opportunity for the children to be coached or influenced by their sister [P]. An equal time parenting arrangement, however, is one of the most difficult parenting arrangements to successfully implement for children. For children the ingredients for a successful equal time arrangement include: positive relationships between the children and each parent; a co-operative co-parenting relationship; the children to have the emotional capacity to cope with the practical demands that an equal time parenting arrangement may require; geographical proximity between the two homes and the financial capacity to afford the costs of such an arrangement. Unfortunately, none of these factors appear to be present in this family.
Due to the children’s currently difficult relationship with their father, it is difficult to recommend what time with their father would be in their best interests and what time would best serve to promote the possibility of a meaningful relationship with him. If the Court were to consider that the children were to spend time with their father then that may need to occur under the guiding safety net of professional assistance. This could include the reintroduction of supervised time for the children to spend with their father, for which the children felt their time with their father was more positive, and / or ongoing counseling for the children including, when deemed appropriate by the counselor, one or both parents. If the Court decides that the children were to spend no time with their father, then consideration ought to be given to other means for the children to be able to maintain a link to their father and paternal family. This may include the father providing the children with special occasion cards and presents, the father receiving school reports and correspondence. It is assessed as suitable that there be no increase in the time that the children spend with their father than is currently occurring. The issue of whether the children ought to spend time with their father at all, whether this time ought to be supervised, or decreased, requires further clarification from the Court.
The issue of equal shared parental responsibility is problematic given that the parents are unable to communicate at least in terms of routine matters regarding the children. Having said that it may still be possible for them to negotiate those issues that arise less often and are more frequently associated with equal shared parental responsibility. It is noted that to the best of Family Consultant’s knowledge, disputes associated with equal shared parental responsibility have not arisen.
The family consultant recommended that there be equal shared parental responsibility, that [Y] and [X] live with their mother, and that the father be able to provide the children with cards and presents of days relating to special occasions. It is clear that the family consultant, with some reluctance, raised the possibility of the children spending no time with their father and ultimately makes this recommendation. When she gave oral evidence however, it was clear that whilst this was an option for the court to consider, there were other options.
As it turns out, neither the mother, nor the Independent Children’s Lawyer, proposed that the father have no contact and communication with the children. And, on this basis, the family consultant’s recommendation for no contact becomes academic. It is, however, yet another indication of the complex dynamics operating in this family.
The proposals
The detailed minutes of orders sought by the father, mother, and the Independent Children’s Lawyer, are reproduced in the first schedule to these reasons.
As at the closing submissions on the final day of the hearing on 11 October 2010 the father’s proposal was that in effect, that there be equal shared parental responsibility, that the parents and children attend on a psychiatrist or psychologist with expertise in parental alienation syndrome, and that the children live with the father on a gradually increasing basis commencing from 9 am to 5 pm each Saturday for three months, increasing to 9 am Saturday to 6 pm Sunday for a further three months, and then alternate weekends from after school on Friday to before school on Monday for a further period of three months, then from after school on Thursday to before school on Monday for a further three months, and thereafter each alternate weekend from the end of school on Thursday to the beginning of school on Monday in one week, and from the end of school on Tuesday, to the beginning of school on Thursday, in the following week.
I note that the father’s position at the commencement of these proceedings was that the children should live with him, but he then contemplated an equal shared care arrangement and that is the effect of his final proposal to the court, albeit introduced over a period of
12 months, and in the context of therapeutic intervention to deal with what he considered to be parental alienation syndrome.
I will deal with the Independent Children’s Lawyer’s proposal now, because the mother had substantially adopted parts of it. The Independent Children’s Lawyer proposed that the parties and the children attend on Relationships Australia for a parenting orders program, and that for the duration of the program the children spend time with their father each alternate Saturday from 9 am to 5 pm. On completion of the program the father’s contact with the children would be each Saturday from 9 am to 5 pm, and such other times as the parties may agree – as the parents may agree in consultation with the program co-ordinator or counsellors.
By the time of final submissions, the mother’s proposal was that she have sole parental responsibility, that the children spend time with their father in accordance with the independent children’s lawyer’s proposal, and that the father be restrained from taking the children out of Australia, as well as their names being placed on the watch list. The one significant variation to the Independent Children’s Lawyer’s proposal was that contact should be each Saturday from 10 am to 2 pm, instead of 9 am to 5 pm, during the course of attendance at Relationships Australia. The mother proposed that changeover be at McDonalds in [N].
It is interesting to note that the mother’s final proposal is considerably different to her initial proposal, which was for the father to spend supervised contact with the children at a children’s contact centre.
The issues
Having regard to the competing proposals, a number of issues arise. There is a dispute about the form of the most appropriate therapeutic intervention for this family. There is an obvious conflict between the parents about how the children’s time with their father should be structured. Each of these issues will need to be determined having regard to the primary, and additional considerations referred to in section 60CC. The relevant ones in this case include the benefit to the children of having a meaningful relationship with their father, whether there is any need to protect them from any form of harm, the role of the children’s views, and the weight to be given to them, the nature of the children’s relationship with their father, the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and their father, the likely effect of changes in the children’s circumstances, issues of practical difficulty and expense, a consideration of the capacity of each parent to meet the needs of the children, an examination of issues about the parents’ and children’s cultural backgrounds, an exploration of the parents’ attitudes to the children and to the responsibilities of parenthood, and then attempting to craft an order that is least likely to lead to the institution of further proceedings.
As the father is seeking an order for substantial significant time, building up to equal time, I will need to consider whether either proposal is reasonably practical for the purposes of section 65DAA.
There is a dispute about whether there should be equal shared parental responsibility, or sole parental responsibility. Again this will be determined having regard to the matters referred to above.
Applicable Law
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 the new 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, I am 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 I must then go back to consider s.60CC which specifies how I must determine 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.
Observations about witnesses.
The main witnesses in this case were the family consultant, the father, and the mother. They each gave evidence twice, the second time being on 11 October during the final day of the hearing.
The family consultant was extensively cross-examined on two occasions. Her reports, and her oral evidence, were measured and carefully considered. As I have indicated above whilst the family consultant did raise the option of there being no contact, that is not the option pursued by either the mother or the independent children’s lawyer. This does not detract from the family consultant’s evidence in any way. There was nothing in the cross-examination of the family consultant which detracts from the weight that I would otherwise give to her evidence. I therefore accept the family consultant’s evidence, including her evidence about and observations of each parent which were almost universally borne out by the evidence that the parents each gave.
The father gave evidence. I accept his honesty and candour. In particular I accept that, with the benefit of hindsight, he appreciates that he probably had inappropriate discussions with [P]. Whilst I do not need to actually make findings of fact in relation to precisely what took place between him and [P] on the evidence before me I feel confident in saying that it falls in to the category of inappropriate rather than abusive. This is consistent with the mother’s own actions in not, for example, insisting on supervised contact. In the father’s honest response to questions put of him, however, it became quite obvious that he lacked insight in to the needs of his children, the complexities that confronted the family, and the challenges confronting them in the process of, in effect, healing or restoring broken relationships. This lack of insight was demonstrated several times during his cross-examination. This lack of insight was also manifested in his inflexible approach to the orders sought by him. He sometimes came across somewhat self-centred. Nonetheless, I accept his evidence.
By contrast, I found the mother’s evidence more problematic. She was unresponsive at times. She did not remember matters even though they were of recent history. She gave oral evidence in relation to potentially important matters (if accepted) not referred to, in any way, in her affidavit. At several times in her cross-examination she demonstrated the same level of insight that the father demonstrated about the children’s needs to have a relationship with the father, and the paternal family, particularly given the cultural issues in this case. She was plainly unconvincing in some of her answers to questions put in cross-examination, particularly by the Independent Children’s Lawyer. In short, she was an unimpressive witness whose evidence on parenting matters needs to be carefully assessed by reference to other evidence.
My overall impression of both the mother and father, after having seen them give evidence on two separate occasions, is that they both lack insight about the needs of their children, though in different ways. I was left with more than a lingering impression that there is unresolved emotional business between the mother and father. I also sensed divided loyalties in terms of the mother and her relationships with her older children, who are not biologically related to the father in these proceedings.
The best therapeutic intervention for this family
The mother and the independent children’s lawyer propose that the parents participate in the Relationships Australia parenting orders program. By contrast the father proposes that the children attend
upon a court appointed psychiatrist or psychologist, who is a recognised expert in the area of parental alienation syndrome, and that the mother and father follow all reasonable directions of this psychiatrist or psychologist.
This difference in approach reflects a fundamental difference in the cases of the mother and Independent Children's Lawyer on the one side, and the father on the other. Whilst all parties acknowledge the existence of fractured relationships between the children and their father, there is a clear difference of opinion as to why this has occurred, and what is the most appropriate response.
The father’s case, clearly put to the family consultant in cross-examination, and also to the mother and her witnesses, was that the children were, in effect, alienated from their father. The father’s counsel described parental alienation syndrome as “the child’s campaign of denigration against a parent, a campaign that has no justification. Results from the combination of the programming or brainwashing of the parents indoctrination, and the child’s own contributions to the vilification of the target parent.” Counsel for the father was, apparently, quoting from Alan Cowling but, for some reason, did not tender any of the social science material from which she freely quoted, during cross-examination.
Counsel for the father further described parental alienation syndrome in the following terms:
The mother plays as a victim, and the child – this turns the child even more against the father as they see the mother as a victim. Hence she has involved and continues to involve the child in her battle with the child, and the process of programming, and brainwashing the child, until the child sees matters as she does, and so turns the child against the father.
The family consultant, however, advanced her own definition of alienation based on the work of Dr J. At page 17 – 18 of the transcript of the family consultant’s cross-examination she describes alienation as follows:
One who persistently expresses strong negative feelings such as anger, hatred, contempt and fear, and beliefs that appear to be irrational, distorted or exaggerated and are significantly disproportionate to the child’s actual experience with the target parent. It’s quite an entrenched view, and there is no ambivalence.
However, the family consultant was firmly of the view that these children were not alienated and as such she explains in the same passage referred to above, and in other places in her evidence. Because the children did express ambivalence, they were not alienated against their father. In a passage at page 18 of the transcript of the family consultant – states:
You also have a mother who has been making some attempts, and I could be critical and say they are superficial. I believe they are from a lack of understanding or insight in to the importance of the children’s relationship with their father, and minimising the history of the relationship that they have had with him, as well as her belief about what would happen if the safety issues. I don’t think this case is – sorry – this case I clearly think is not complete alienation. I think there are alienated, as I said, traits, that have developed, and I am concerned about – especially in the past – the mother’s negative attitude towards the children, and I expressed that in the previous report. I do think she has taken some steps, but I do also think more can be done. I also have some concerns about the father’s capacity to emotionally understand where the children are at. He has experienced all the children’s behaviour as influences from the mother or [P]. The children’s feelings in their own right have been invalidated by him.
In her evidence the family consultant described the children as being aligned to their mother. She was asked in cross-examination to explain the different phenomena at page 18. She responded as follows:-
They are different phenomena in – as far as counselling approaches are concerned, and it makes a difference as to which diagnosis, if you like, or assessment is made as to what type of counselling ought to occur. I think that it is a continuum going from positive relationships, an affinity, alliance, estrangement, to alienation. I think that – I think that there are often hybrid cases where there are cases where you might have some traits of some and different traits of another, and it is unusual to have a complete case where it is just alienation. However, it is common to see the traits, and I think they do exist here. I think they are developing here, and I think that if things were not to improve, and the children were forced to continue to spend time with their father given the current scenario, and with their father given the current scenario, I would be concerned about where the kids would be with their father in another year’s time.
Clearly, the family consultant’s view is that these children are aligned, and not alienated, and that is because they were able to demonstrate ambivalence in relation to their father. It is, according to the family consultant, the absence of ambivalence that often characterises alienation. I accept the family consultant’s evidence in this regard. The children are aligned with their mother and against their father and, at most, there are some traits indicating alienation but the matter has not reached that point.
In terms of the best response, this is contained in an extract at page 19 of the transcript:
So the two best options, unfortunately, are either children do not spend time with their father, or that the children and parents engage in family counselling that is about post-separation issues, somebody who has enough knowledge in which to understand the dynamics that are going on, and I think one counsellor is not enough. It needs to be more than one person to – because there are quite compelling and complex issues here, that work with a family to improve the relationship so that the children can spend more positive time with their father.
Now, the family consultant goes on to explain the outcomes of counselling compared to an outcome of maintaining the status quo, and finally compared to an outcome where there children were to spend no time with their father.
Having regard to the matters referred to above the father’s proposal for a therapeutic intervention is inappropriate. On the evidence before me these children are not alienated. To proceed with therapy on the basis that the children are alienated would not only not assist, but also possibly greatly exacerbate the problems that the children and this family face. I therefore accept the proposal of the mother, and independent children's lawyer, and I have no doubt that the program in question would not have been proffered by the independent children's lawyer had not inquiries first been made about its appropriateness on the facts of this case.
Meaningful relationship
Is there a meaningful relationship between the children and their father? The family consultant’s evidence indicates, in effect, that there is but only by the proverbial thread. In exploring the possible outcomes and options available to these children the risk of a total loss of any meaningful relationship was apparent. This would probably be manifested by no contact with the father. Clearly the family consultant was of the view that the family counselling option was the best one, in order to preserve and hopefully improve on the meaningful relationship between the children and their father. The consequences of the loss of this relationship was also clearly articulated. It must be recognised that it was by no means out of the question that the family counselling would not succeed and that this may well result in the loss of the meaningful relationship between the children and their father.
The family consultant frankly conceded that the past history of family counselling has not worked. However, all parties in this case acknowledge the need to undertake some therapeutic intervention, and most significantly, the mother has committed herself to this in the form of her proposals. In short, there is a meaningful relationship between the children and their father, but it is a tenuous one at this stage.
Risks of harm to the children
To the extent that the father’s case was that the children were at some risk of harm in their mother’s care because of some form of mental illness, Dr H’s evidence put an end to this. I am satisfied there are no risks of harm in the mother’s household.
To the extent that the mother’s case was that there is an unacceptable risk of harm in the father’s household based on what I have described as his inappropriate discussions with [P], I find that the evidence does not support this contention. The father’s actions with [P] were clearly inappropriate, but I am unable to find, on the evidence, that it was abusive and that it would, in any event, create a risk situation for the children. The most significant factor, however, is that from the mother’s perspective she seeks no orders for supervised contact. True it is that she has not proposed overnight a time and that might be seen as reflecting some lingering concerns on her part. Based on all the evidence before, however, I simply do not accept that this case is about any risk of harm to the children. It is actually far more complicated than that, as is reflected in the matters that have been discussed above.
The children’s views
There is abundant independent and expert evidence from the family consultant which leads me to conclude that the children would actually prefer not to spend time with their father. However, this needs to be understood in the context of their alignment with the mother, and with the family consultant’s evidence that there remains ambivalence towards the father. Moreover, the father’s evidence is that even though the children may well be saying certain things to the mother and the family consultant, this is not what they say to him, and he describes what limited interaction there has been with the children as being quite positive.
In a case where the children are aligned with a parent it would be most unwise indeed to make a determination simply by reference to views which, like in this case, will clearly affect the alignment with one parent. Moreover, each of the parents have committed themselves to some form of therapeutic intervention with a view to repairing fractured relationships. This in itself contraindicates giving too much weight to the children’s views. Thus, I acknowledge the children’s reluctance to spend time with their father but, ultimately, I believe it is in their best interests that there are other considerations that prevail in this case. Now, I fully recognise, as did the family consultant, that not placing significant weight on the children’s views brings with it certain risk. In cross-examination she describes this in these terms:
They would prefer not to go, and if an order was made for that to continue I imagine they would feel unheard and unsupported by that. The mother reports, and the children report, that they actually are feeling some negativity towards their mother because she is encouraging them to go, and because she is the one sending them to bed earlier at night, and there are issues that are definitely there that surely would continue if an order was that the status quo for now were to continue….I think in the shorter term the children would feel relieved if they weren’t to spend time with their father.
Nature of relationships
The evidence presents a clear picture of the close relationship between the children and their mother, and the children and their sister, [P]. The focus, in the present context, is on the children’s relationship with their father. In cross-examination the family consultant described the children’s relationship with their father in the following terms:
The children only associated mainly negative things with their father, and their time with their father, including leading up to that time, relief once it’s finished, and pre-occupation with is coming around again in the next week. The father is alleging that he has always had a positive relationship, and I do not think there is any doubt that it has been more positive in the past. The degree of that is in question, and is disputed between the parents….Now, from the children’s perspective they see the father as – all of the issues that they have raised in there. They see him as unsupportive of their feelings, as invalidating them, and as in sensitive to them.
Later in her cross-examination the family consultant once again reiterates that the children did have a significant relationship with their father prior to the separation but that after separation there has been an alignment with the mother and some understanding by them of the mother’s feeling and attitudes towards the father. This alignment has not been dealt with as well as it could have been by either parent, and this has contributed to the hardening of the alignment, if not some alienation traits.
The nature of the relationship is described in a further passage:
I think that it is hopeful, and the thing that I noticed with the children is when I spoke to them, they brought up some issues with their father that they – that were assessed as needing some validation. Now, those things were around feelings that their father was insensitive, or pushing them to do things they didn’t feel like they wanted to do, like the cuddles and the hellos, and that they felt – and it was almost like a negative sense of empowerment. If they could say no, that would give them a sense of control, and that appeared to be important for them, but in the process felt quite invalidated and distant from their father. The other things about being boring when they spent time with the father; obviously their father has gone to great efforts to try and do entertaining things with the kids, and to give them a positive experience…The children did have a tendency to sort of minimise their enjoyment of those processes…And that is why I have a paragraph in there about the issue of whether there are some underlying alienation traits developing, because there is some sense of distorted reality coming from the children.
Whilst on one level the evidence does suggest that the children’s alignment with their mother’s feelings towards their father has certainly been a contributor to the current poor relationship that exists between father and the children, this needs to be balanced with an appreciation that the father’s insensitivity towards the children, and his lack of insight about their experience of the whole separation, and his own role in his inappropriate conduct with [P], all contributes to the current unfortunate situation.
Notwithstanding the unsatisfactory and poor relationship that currently exists between the children, all parties are committed towards seeking to repair the fractured relationships.
Willingness to facilitate an on-going relationship
There seems no issue about the father’s willingness to facilitate an ongoing relationship between the children and their mother. The father raises as an issue the extent to which [P] has contributed to the poor relationship he has with the children, and the extent to which the mother has failed to protect them from this. [P] was not cross-examined, a choice made by the father, and quite appropriately so. What seems to have impressed the family consultant is the lack of any knowledge that the children had in relation to [P]’s allegations towards the father. This does tend to indicate that [P] has not been overt in seeking to undermine the relationship between the father and her sisters.
The father trenchantly criticised the mother for her failure to support the children’s relationship with him. Implicit in this must be an assertion that she has contributed to the children’s alignment with her, and against the father. Even the family consultant acknowledged this in her evidence. Clearly, in the family consultant’s opinion, the mother could have, in the past, done much more to facilitate the father’s relationship with the children but, on the other hand, there was probably much the father could have himself done to mitigate the impact of alignment.
The evidence indicates that the mother has sought to improve her relationship with the father, and thereby the children’s relationship with the father, in more recent times. The family consultant acknowledged this in her evidence. Indeed, as previously mentioned, the fact that the mother was seeking to encourage the children’s contact with the father is indicated by some of the concerns that the children expressed to the family consultant about pressure to do something they do not want to do.
I share the family consultant’s view that although the mother has taken practical steps to improve the children’s relationship with their father, she still lacks insight, and could do more to support the children’s time with their father. It is not so much the practical issues of facilitating time, as it is the more subtle emotional support for the relationship that is important. One of the purposes of the therapeutic assistance that the family will receive will be to work on this aspect.
The likely effect of change
It must be recognised that change is an ever present feature in the lives of children. Indeed these children are about to enter a developmental stage which will involve a potentially dramatic change in the way in which they relate to their world with less dependence on internal family relationships, and greater dependence on peer and social interactions. The increasing autonomy of these children must be recognised in the years to come, and there is a limit to what court orders can do in any event. Even if the family counselling succeeds, the father must recognise and respect the growing autonomy of these children, particularly as regards how they use their weekend time.
The father’s proposal for equal time, and/or substantial and significant time, presents a very significant change for these children who have not experienced this level of contact with their father for many years. The family consultant clearly articulated the concern that an equal time arrangement will place the children under quite significant stress, particularly in circumstances where there are no issues about the mother’s capacity to adequately parent the children. The father’s proposal is, therefore, too much change too quickly and, regrettably, again demonstrates his insensitivity about their needs, as well as a minimisation of the complex issues confronting this family.
Issues of practical difficulty and expense
Fortunately, there are no obvious issues arising in this case with the parents living within a reasonable geographical proximity to each other. I must say I did have some concerns about the mother’s evidence in relation to her ability to get herself to family counselling if, for example, that had to occur in Wollongong as opposed to the [C] area, but I am satisfied that these practical difficulties can be overcome with the assistance of a family and/or friends, and I am left in no doubt that the mother will comply with any orders I make, even if they involve her in considerable inconvenience.
Parental capacity
The evidence raises no issues about the mother’s parenting capacity but does raise concerns about the father’s. Most of these issues have been raised in the context of discussing the nature of the children’s relationship with their father, above. In the third family report at paragraph 26 the family consultant records [X]’s observation in relation to her father. This paints a rather sad picture of a father who is out of touch with his daughter’s needs, and who is not listening. [Y] expresses similar sentiments to the family consultant. I agree with the family consultant’s observation about the father’s:
assessed minimal insights in to the children and age and stage of development of them.
He clearly is able to meet the physical needs of the children, but not their emotional needs. His proposal is, therefore, highly problematic in that regard.
Attitudes to the children and to the responsibilities of parenthood.
Many of the matters that I have referred to above in relation to the father could apply with equal force in the context of this additional consideration. This does need to be balanced, however, by the father’s admirable determination to seek to maintain and build on his relationship with the children, notwithstanding historical issues. His inappropriate conduct with [P] reflects poorly on him in terms of responsibilities of parenthood.
The mother is certainly not free of criticism in this regard. She has her own problems with lack of insight, particularly in terms of the medium to long-term importance of the children having a relationship with their father. She clearly could have done more to facilitate this, though there are more recent promising signs of an improvement in this regard. While she clearly could have done more, it must be recognised that, on balance, she does appear to be trying and is acting responsibly in that regard.
Cultural issues
The mother is of Filipino cultural background, and the father of Hungarian cultural background. These children are very privileged to be able to enjoy the benefits of both ancestries in the context of a multi-cultural and tolerant society like Australia. The father believes that to maintain a link to his Hungarian heritage is important. Whilst the same applies to the mother, I did not detect the same sense of priority, as with the father. Maintaining contact with the father provides him with the opportunity to expose the children to his culture, especially if the father can learn some sensitivity in relation to this, and to do it at a pace that is acceptable to the children. The involvement of his parents, i.e., the paternal parents, is probably an integral part of this, but in the short to medium term the more important priority is to simply restore fractured relationships and thus to provide the platform from which these important cultural issues can be addressed.
The order least likely to lead to further proceedings
This case has more than its fair share of complexities. There is a risk of further litigation whatever order I make. The proposal of the mother and the independent children's lawyer is, on balance, a more measured, sensitive, sensible and constructive approach to deal with the issues. It is possible that counselling will fail, and the father may then seek to re-litigate these proceedings.
By contrast, the father’s proposal is, in my opinion, insensitive, ill-considered, and clearly minimises the complex issues that need to be addressed by this family in the course of counselling. If I were to make the orders sought by the father, even on the graduated basis sought by him, or even on a much more conservative implementation of graduated increased contact, there is the real risk that the children would not only continue to resist contact, but perhaps overtly reject their father. The risk of litigation on the father’s proposal is far greater not just because he might seek to enforce the orders, but because of the possibility that the mother would seek to vary the orders to reflect any resistance by the children about contact.
Parental responsibility
The father seeks an order for equal shared parental responsibility. The mother seeks an order for sole parental responsibility. The independent children's lawyer’s closing submission was that equal shared parental responsibility was probably better for the children as it maintains the relationship between the father and the children. That is consistent with the views expressed by the family consultant in the family reports.
The mother’s case for sole parental responsibility was poorly articulated. She did not provide evidence of any specific examples where, for example, because of the communication difficulties that exist between the parents, decisions could not be made about the children in a timely manner. Nor did she advance any cogent evidence that would lead to the statutory presumption of equal shared parental responsibility either not applying, or having been rebutted. Indeed, my own view on all the evidence is that it is in the best interests for the presumption to apply, particularly in circumstances where the children’s relationship with their father is presently so fragile.
Section 65DAA issues
As the presumption of equal shared parental responsibility applies, I am required to consider the children spending equal time or substantial and significant time with each parent. For the reasons that I have set out above, and consistent with the family consultant’s strong views on this matter articulated in the reports, equal time is neither in the best interests of the children nor is it reasonably practicable. The family consultant gave clear evidence about the stress that the children would experience in an equal time environment, even one that gradually evolved over time. In any event equal time would not be reasonably practicable. The clear communication difficulties that these parents experience mean that they do not have a current, and in my opinion future, capacity to implement an arrangement for equal time. Moreover, they neither have a current nor in my opinion future, capacity to communicate with each other and resolve difficulties that might arise in implementing an equal time arrangement.
I come to the same conclusion as regards substantial and significant time, and for many of the same reasons. As I have indicated elsewhere in my reasons the father’s proposal fails to recognise the fragile relationship that exists between the children and himself, the complex family dynamics, and the significant challenges that they will all confront in attempting to deal with this in a therapeutic setting. For the reasons that I have articulated above, even a substantial and significant time arrangement is not in the best interests of the children.
The most appropriate orders
Having regard to all of the evidence, in my opinion the orders proposed by the Independent Children's Lawyer represents what is in the best interests of the children, and is the best hope that this family has for restoration of the relationships between the children and their father. I am satisfied that the parenting orders program will provide this family with the therapeutic assistance that it needs.
The Independent Children's Lawyer proposes that during their attendance at the parenting orders program (a period of four or five months) the father’s time with the children be each alternate Saturday from 9 am to 5 pm and, after the completion of the program, it be each Saturday from 9 am to 5 pm together with such further time as may be agreed in consultation with the program co-ordinator.
The mother proposes that the time should only be 10 am to 2 pm on the days proposed by the independent children's lawyer. Nowhere in the mother’s case could I discern the rationale for only four hours of contact. Indeed, the impression formed from the evidence is that even if I accept the mother’s evidence about the children’s reluctance to go with their father, when they attend contact with their father he makes a lot of effort to have interesting and stimulating activities for the children. In a situation where, hopefully with the assistance of the family counselling proposed by the orders, there will be a gradual improvement in the father’s relationship with the children, at times needed for this to take place.
I am not satisfied that four hours is sufficient in this regard. In many ways four hours would send the wrong message to the children about the importance of time with their father. On balance, I accept the Independent Children's Lawyer’s proposal of 9 am to 5 pm on the basis that it is sufficient time for the father and children to be involved in varied activities and to repair and to build relationships, whilst not being too long.
The mother proposes that changeovers be at McDonald’s at [N], and this is consistent with the father’s proposal, so I will accept the same.
The father sought orders for school holidays, but in the circumstances of this case there is much more work to be done in terms of repairing relationships before the children will be ready to spend extended periods with their father during school holidays, or at other times.
The father seeks orders for special occasions including Christmas and Father’s Day as well as the children’s birthday. After the conclusion of the parenting orders program he will spend time with the children each Saturday. The orders that I will make will provide that on the Father’s Day weekend, his contact should be on the Sunday instead. He will be able to celebrate the children’s birthdays on the Saturday closest to those days. The children should also be able to spend additional time with their father over Christmas so I will make orders providing for time on Christmas Eve, alternating with Christmas afternoon.
The father seeks orders about the provision of information in relation to the children, for example, in relation to medical matters and schooling. I think this is appropriate in the circumstances of the case and will accordingly make orders to that effect.
I propose not to discharge the independent children's lawyer for a period of six months, so that he may oversee the parties’ progress in the parenting orders program.
Property settlement
As will be seen by reference to the orders sought by each of the parties in the schedule to these reasons, each sought orders in relation to property settlement. It was common ground that the former matrimonial home at Property L should be sold and the net sale proceeds divided in accordance with the percentage allocated by these orders.
The father’s proposal in relation to property settlement is that there be a 60:40 split in favour of the mother on the basis that contributions should be assessed in his favour as to 55 per cent, and then a 15 per cent adjustment made in the wife’s favour for section 75(2) considerations.
The wife’s position was that there should be a 70:30 split in her favour on the basis that contribution was equal up until the date of separation, but that in the post-separation period she made an additional contribution that should be assessed at 5 per cent and thereafter there should be a 15 per cent adjustment in her favour pursuant to section 75(2).
The pool of assets was agreed as follows:
a)Pool 1:
i)Jointly owned former matrimonial home – approximately $235,000.
ii)Furniture and household effects – joint - $3000
b)Pool 2:
i)[Z] account – husband - $15,000.
ii)IAG shares – husband - $2600.
iii)Camry motor vehicle – husband - $2000.
iv)[S] Bank account – wife - $1481.
v)Add-back legal fees – husband - $6000.
vi)[omitted] – husband - $1800.
c)Liabilities
i)[Z] bank Visa card – husband - $3000.
d)Superannuation
i)[M] Super – husband - $35,464.
ii)[A] Super – husband - $3579.
I have created a separate pool for the former matrimonial home and the furniture and household effects as I believe it will ultimately simplify the alteration of property interests. The parties have agreed that the family home should be sold and, of course, the mortgage secured over the property (agreed balance as at date of hearing $59,234.65) will be paid on settlement. The remaining monies can be divided in accordance with the percentage that I will determine in these reasons. Also, the furniture and household effects are agreed to be split equally between the parties and if there is any dispute about this I will make an order about division based on picking a list.
I have put all remaining assets, including superannuation, in to the one pool because neither counsel for the parties suggested I should treat it differently.
The husband’s case for a greater contribution was based upon assets bought in to the relationship at co-habitation. In his affidavit he asserts that he had savings of $7000, a motor vehicle valued at $2000, and $3000 worth of superannuation. There is no serious contest about these matters. Ultimately, it is a question of how much weight I place on this initial contribution. The parties co-habited for over 10 years. It is a modest pool of assets. It was clearly implicit in both the father and mother’s case that a contribution during the marriage would otherwise be assessed as equal, and the only issue I have to determine is whether this initial contribution would disturb that outcome?
Having regard to the length of the marriage and the diverse contributions made by each of them, albeit in different ways, I think it would be unjust and inequitable to the wife to give to the husband credit for a relatively minor initial contribution which was brought in such a long time ago. I think the only just and equitable conclusion about contribution in this case, up until the date of separation, is that it should be assessed as equal.
The mother seeks an adjustment of 5 per cent for post-separation contribution, primarily arising out of her care of the children. The parties separated in January 2009. On separation the father remained in occupation of the former matrimonial home but of course was responsible for paying the mortgage and all other outgoings. The wife moved in to other accommodation where she was paying quite modest board. The husband pays child support. The husband has a modest income and the assets of the parties are modest. Even in the post-separation period I am satisfied that the father was doing what he could to provide financially for his family. I do not think that the mother’s claim for a post-separation contribution is made out.
Even though the wife’s counsel in closing submissions described the husband’s assessment of need under section 75(2) at 15 per cent as being conservative, it is nonetheless consistent with the final position that he put to the court. Putting aside that, in the circumstances of this case it is, in my opinion, an appropriate adjustment to make. As I have indicated before the income of the father is modest. The assets of the parties are modest. In my opinion 15 per cent adequately recognises the differences in earning capacity and the mother’s additional needs to care for the children. Now that these proceedings are finalised I am confident that the mother will be able to get in to the work force, if she so desires.
Accordingly, I assess contribution and future needs at 65 per cent in favour of the wife and I believe that is as just and equitable as the circumstances of this case permit. Accordingly, I will make orders the effect of which are that the former matrimonial home be sold and that once the expenses of sale and the mortgage are paid the wife receive 65 per cent of the net sale proceeds, and the husband the balance.
I will make an order for the furniture and household effects to be divided between the parties equally, as they agree or failing agreement using the pick-a-pile method.
I will make a superannuation splitting order so that the wife receives 65 per cent of the husband’s superannuation entitlements but paid out of the larger fund so as to avoid splitting two funds. Notice has been given to the Trustee of the [M] Fund only. The superannuation totals $39,043 and 65 per cent of this is $25,377. Expressed as a percentage of the [M] Fund only, this becomes 71.5%.
In relation to the remaining assets, the father will need to make a cash payment to the mother, but I am prepared to give him the opportunity, if he so desires, to pay her out of his share of the sale proceeds of the former matrimonial home.
Excluding the family home, furniture and superannuation, the remaining assets comprise:
| Assets | ||
| [Z] bank account | H | 15,000 |
| IAG shares | H | 2,600 |
| Camry motor vehicle | H | 2,000 |
| [S] bank account | W | 1,481 |
| Agreed add-back legal fees | H | 6,000 |
| [omitted] | H | 1,800 |
| 28,881 | ||
| Liabilities | ||
| [Z] Visa card | H | 3,000 |
| Net assets | 25,881 | |
The wife is entitled to 65 per cent of this, or $16,822. She already has her [S] account, hence the payment due to her is $15,341. As indicated above, this can come as an additional payment out of the husband’s share of the sale proceeds of the home.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 3 December 2010
Schedule
Minute of Order sought by the Father
That all previous parenting orders in relation to the children be discharged.
That the parties have shared parental responsibility for the children.
That the Mother and Father do all acts and things to facilitate the children attending upon a court appointed psychiatrist or psychologist, who is a recognised expert in the area of Parental Alienation Syndrome, and that the Mother and Father follow all reasonable directions of this psychiatrist or psychologist, within 2 weeks of the date of the Court appointing said psychiatrist or psychologist.
That the children live with the Father:
4.1.From the date of the Orders until 3 months after the date of the Orders:
4.1.1.From 9am to 5pm each Saturday.
4.2.From 3 months after the date of the Orders until 6 months after the date of the Orders:
4.2.1.From 9am each Saturday until 6pm each Sunday
4.3.From 6 months after the date of the Orders until 9 months after the date of the Orders:
4.3.1.Each alternate weekend from the end of school on Friday to the beginning of school on Monday, or in the case of a long weekend, to 6pm on Monday.
4.3.2.The first half of each term school holiday period from 9am Saturday immediately following the conclusion of the school term to 6pm on the second Saturday after the conclusion of the school term.
4.4.From 9 months after the date of the Orders until 12 months after the date of the Orders:
4.4.1.Each alternate weekend from the end of school on Thursday to the beginning of school on Monday, or in the case of a long weekend, to 6pm on Monday.
4.4.2.The first half of each term school holiday period from 9am Saturday immediately following the conclusion of the school term to 6pm on the second Saturday after the conclusion of the school term.
4.5.From 12 months after the date of the Orders and thereafter:
4.5.1.Each alternate weekend from the end of school on Thursday to the beginning of school on Monday, or in the case of a long weekend, to 6pm on Monday.
4.5.2.In the other week, from the end of school on Tuesday to the beginning of school on the following Thursday.
4.5.3.The first half of each term school holiday period from 9am Saturday immediately following the conclusion of the school term to 6pm on the second Saturday after the conclusion of the school term.
4.6.The first half of each term school holiday period from 9am Saturday immediately following the conclusion of the school term to 6pm on the second Saturday after the conclusion of the school term.
4.7.Each alternate Christmas school holiday period (commencing the 2012 Christmas school holiday period):
4.7.1.from 9am on the Saturday immediately following the conclusion of the school term to 12noon on 24 December; and
4.7.2.from 3pm on 25 December to 6pm on the fourth Saturday following the conclusion of the school term.
4.8.Each intervening Christmas school holiday period (commencing the 2011 Christmas school holiday period):
4.8.1.from 12noon on 24 December to 3pm on 25 December, and
4.8.2.from 9am on the fourth Saturday following the completion of the school term to 6pm on the Saturday immediately before the commencement of the next school term.
4.9.From 9am to 6pm each Father’s Day when such day does not occur during a period when the children are living with the Father;
4.10.From 3pm to 6pm on each of the children’s birthdays when such day does not fall during a period when the children are living with the Father;
4.11.At any other times as agreed between the parties.
That the children otherwise live with the Mother.
That in the event that any of the children suffer any illness requiring medical attention or hospitalisation then the party with whom the children are living shall immediately notify the other party of such illness and the name of the medical practitioner or hospital to which the child or children have been taken.
That the Mother:
7.1.Forthwith sign all documents and do all things necessary to:
7.1.1.authorise the school or schools at which each of the children may from time to time attend:
7.1.1.1.to furnish the Father with copies of all school reports, notices and advices concerning the children or each of them, and
7.1.1.2.to make available to the Father copies of any school photographs of the children or each of them at the Father’s expense.
7.2.notify the Father immediately of:
7.2.1.any major illness suffered by the children or any of them;
7.2.2.any hospitalisation of the children or any of them; and
7.3.make available to the Father copies of any medical reports that may be provided to the Mother in connection with such illness or hospitalisation, and
7.4.authorise any hospital in which the child or children may be admitted and any medical practitioner under whose care the child or children may be to give such information to the Father as the Father may request.
That other than when changeover takes place at the children’s school or schools, the Father collect the children from the McDonald’s Restaurant at [N] at the commencement of each live with period with the Father and the Mother collect the children from the McDonald’s Restaurant at the conclusion of each live with period with the Father.
That Orders 4.3, 4.4 and 4.5 are suspended during all school holiday periods and recommence at 6pm on the first Friday of the school term.
10. That in the event that Mother’s Day occurs during any period the children are living with the Father that the children shall be returned to the Mother from 9am to 6pm on that day.
11. That in the event that any of the children’s birthdays occur during any live with time with the Father then the children shall be returned to the Mother from 3pm to 6pm on that day.
Proposed Parenting Minute of Order (mother):
That all previous Orders be discharged in relation to [X] born [in] 1999 and [Y] born [in] 2000 (herein after referred to as “the Children”)
That the Children live with the Mother.
That the Mother have sole parental responsibility of the Children.
That the Mother pursuant to Section 13C of the Family Law Act within four (4) weeks of the date of these Orders arrange with Relationships Australia that her, the father and the children to enrol in and attend upon the program known as “The Parenting Ordered Program”:
a.The Mother will use her best endeavours to encourage the children to participate in this program and such other counselling and therapeutic interventions as recommended by Relationships Australia;
b.The Mother and the Father will share equally any costs associated with the party and the children participating in the program or other counselling and therapeutic intervention described in subparagraph (a) above;
c.The Father will enrol in and attend upon the program as and when required by the program’s coordinator, including attending upon and participating in such other counselling and therapeutic interventions as described in (a) above
That for the duration of The Parenting Orders Program with Relationships Australia, the Father spend time with the children each alternate Saturday from 10.00am to 2.00pm:
a.Such time is to commence on the first Saturday after the date of these Orders.
After completion of The Parenting Orders Program in (a) above, Father spend time with the said children as follows:
a. Each Saturday from 10.00am to 2.00pm; andb.Such other times as the parties may agree in consultation with the program coordinator and counsellor.
That the changeovers be at McDonalds, [N].
That within twenty eight (28) days of the date of these Orders, the husband and wife do all acts and things and execute all deeds documents instruments and writings necessary to forthwith sell the former matrimonial home known as Property L in the State of New South Wales (hereinafter called "the matrimonial home") by private treaty at a price agreed between the husband and the wife or failing such agreement at a price equivalent to the mean of two valuations by registered valuers being members of the Australian Institute of Valuers, one obtained by and at the expense of the wife and one obtained by and at the expense of the husband, such valuations to be made not more than two weeks apart from each other.
In the event that the property is not sold within four (4) months or such further period as may be agreed, the husband and wife shall do all things necessary to sell the property by public auction including but not limited to:-
8.1place the said property with an auctioneer (hereinafter called "the auctioneers") for sale by public auction at the earliest possible date;
8.2execute all documents requested by the auctioneers
8.3request the auctioneers to recommend a reserve price to be placed on the said property for the purpose of the auction sale and accept such recommended reserve price;
8.4pay the auctioneers any sums requested for advertising expenses in relation to the auction;
8.5attend at the auction sale or sales and negotiate with the highest bidder in the event that the reserve price is not reached and accept the advice of the auctioneers as to the acceptance of a price less than the reserve price;
8.6execute contracts of sale;
8.7co-operate in every way with the auctioneers in relation to the auction of the said property;
8.8execute all other documents necessary to complete the sales.
The nett proceeds of sale be disbursed as follows:
9.1In payment of Agent’s commission and sale costs in respect of the former matrimonial home.
9.2In payment of the mortgage secured over the former matrimonial home.
9.370% balance to the Wife.
9.430% balance to the Husband.
That, pursuant to paragraph 90MT(1)(b) Family Law Act 1975 whenever the trustee of the [M] Retirement Plan Fund Member No. [8] (hereinafter referred to as “the Super Fund”) makes a splittable payment from the interest held by the husband, the trustee shall pay to the wife or her administrators, executors, beneficiaries, heirs or assigns 70% of the interest held by the husband in the Super Fund and that such entitlement be calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, and there shall be a corresponding reduction in the entitlement the husband would have had in the [M] Retirement Plan Fund but for these orders.
That Order 10 have effect from the operative time.
That the operative time of these Orders is four (4) days from the date of service of the Order upon the Trustee.
That the Trustee of the Super Fund, in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of, and make to, the wife in accordance with Order 10 of these Orders.
12. That the furniture be divided equally between the parties.
13. That all other items of property, financial resources, shares. superannuation and liabilities presently in the name, possession or control of the wife shall remain hers absolutely to the exclusion of the husband.
14. That all other items of property, financial resources, shares, superannuation and liabilities presently in the name, possession or control of the husband shall remain his absolutely to the exclusion of the wife.
15. In the event that the Wife or the Husband shall refuse or neglect to execute any deed or instrument necessary to give effect to these orders then a Registrar or a Deputy Registrar of the Court shall be empowered pursuant to section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the Wife or the Husband and to do all acts and things necessary to give validity and operation to the said deed or instrument provided that such Registrar or Deputy Registrar shall be satisfied upon affidavit evidence of the party alleging the refusal or neglect that the other party is in breach of these Orders.
16. That both the husband and wife shall do all acts and things and give all consents and execute any documents in relation to give effect to these Orders made herein.
Minute of Order (ICL)
The mother pursuant to s.13C Family Law Act within 4 weeks of the date of these orders arrange with Relationships Australia that her, the father and the children will enrol in and attend upon the program known as the “parenting orders” program.
a) The mother will use her best endeavours to encourage the children to participate in this program and such other counselling and therapeutic interventions as recommended by Relationships Australia.
b) The mother and the father will share equally any costs associated with the parties and the children participating in the program or other counselling and therapeutic intervention described in (a) above.
c) The father will enrol in and attend upon the program as and when required by the program’s co-ordinator, including attending upon and participating in such other counselling and therapeutic interventions as described in (a) above.
That for the duration of the parenting orders program with Relationships Australia, the father spend time with the children, namely [X] born [in] 1999 and [Y] born [in] 2000 each alternate Saturday from 9am to 5pm.
a) Such time is to commence on the 1st Saturday after the date of these orders
At the completion of the parenting orders program in (a) above, the father spend time with the said children as follows:
a) each Saturday from 9am to 5pm, and
b) such other times as the parties may agree in consultation with the program co-ordinator or counsellors.
The said children live with the mother.
Neither party will denigrate, nor cause any other person to denigrate the other party in the presence of the children.
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