Beston and Westlaw

[2013] FamCA 207

FAMILY COURT OF AUSTRALIA

BESTON & WESTLAW [2013] FamCA 207

FAMILY LAW – CHILDREN – Interim parenting orders – Trial part heard – Whether father to spend time with the children prior to final determination of the matter

Family Law Act 1975 (Cth) ss 60CC, 60CA, 61DA, 65AA, 121

Chalk & Plasto [2013] FamCAFC 48
Goode and Goode (2006) FLC 93-286; 36 FamLR 422
Marvel & Marvel (NO 2) [2010] FamCAFC 101
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Beston

RESPONDENT: Mr  Westlaw

FILE NUMBER: BRC 562 of 2011

DATE DELIVERED: 5 April 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 25, 26, 27 and 28 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Looney SC

SOLICITOR FOR THE APPLICANT: Cassandra Pullos Lawyers

COUNSEL FOR THE RESPONDENT: Mr Wilson SC

SOLICITOR FOR THE RESPONDENT: Harrington Family Lawyers

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER

1.That the Mother be restrained and an injunction issue restraining the Mother from in any way:

a.Suggesting, telling, inferring, ‘validating’ (as that concept is explained by the Mother in evidence) or discussing with the children (by word or act) any matters raised in these proceedings save that the Mother be permitted to tell the children that they are seeing Ms B on 5 April 2013;

b.Suggesting, telling, inferring, ‘validating’ (as that concept is explained by the Mother in evidence), or discussing with the children (by word or act) the orders sought by either party or otherwise proposed in these proceedings.

2.That the Mother deliver the children to Ms B at the Family Court of Australia at 2.30pm on Friday 5 April 2013 for the purpose of Ms B providing an explanation to the children of the interim orders of the Court made as a result of the interim application made 28 March 2013 and that, upon delivering the children to Ms B, the Mother vacate the Court premises immediately.

IT IS ORDERED UNTIL FURTHER ORDER

3.That Order 4 of the Orders dated 1 September 2011 be varied by the terms set out below.

4.That in order to facilitate the explanation of the Order by Ms B to the children, Ms B be provided with a copy of the Outline of Submissions relied on by each party for this interim hearing and a copy of the Reasons for Judgment delivered 5 April 2013.

5.That upon Ms B explaining the terms of the Order to the children, the children commence their time with the Father and they be released into his care.

6.That the children C, born … November 1999 and D (“the children”), born … October 2003 live with the Father:

a.        From 3.00pm Friday 5 April 2013 until 5.00pm 7 April 2013;

b.On each alternate weekend, commencing 19 April 2013, from 3pm Friday until 9am on Monday;

c.For the second half of the children’s June/July 2013 and September/October 2013 school holiday periods.

7.That the time the children live with the Father pursuant to clause 6(a) above be suspended during school holiday periods and recommence on the second weekend after school resumes for the term.

8.That for the purpose of changeover for time spent during school term, the Father collect the children from school at the commencement of time and deliver them to school at the conclusion of time.

9.An injunction do issue restraining the Mother from being present or arranging any other person to be present on her behalf, at the school at the times that the Father is collecting them from school at the commencement of the time they are living with him and returning them to school at the conclusion of the time they are living with him.

10.That whilst the Mother lives in the gated H Town community, for the purpose of changeovers during school holidays, the Mother shall deliver the children to the Fathers residence at 5pm on the middle Saturday of the school holiday period and the Father shall deliver the children to school at the commencement of the next term.

11.That, save for responding to a text message sent by the children informing that they have been collected by the Father on the Friday they are living with him, the Mother is restrained and an injunction do issue restraining her from contacting the children by any means, including responding to texts, emails, calls or other communication from the children to her, during the time that they are living with the Father.

12.That by 5pm on Friday 5 April 2013 the Father, via his solicitor, will provide to the Mother, via her solicitor, a list of appointment times for the parents and the children (if directed by the therapist) to attend upon Ms E or such other appropriately qualified therapist available on short notice.

13.That in the event that Ms E is not available to see the parties on short notice the Father shall, within 48 hours of her unavailability becoming known, provide to the Mother a list of three (3) other suitably qualified family therapy providers and the Mother shall, within 48 hours of the receipt of such list, select a family therapist and notify the Father of the same and the Father shall, within 24 hours of receipt of the Mother’s selection, make an initial booking with the selected family therapist.

14.That the parents are directed to attend all such appointments as provided by the Father to the Mother and such further appointments as shall be determined by Ms E or such other family therapist.

15.That the Father shall meet the costs of the appointments with Ms E (or such other therapist) at first instance with the ultimate decision as to who or in what proportion such cost is borne by the parties to be reserved to the trial judge.

16.That pursuant to s 121 of the Family Law Act 1975 (Cth) the Father have leave to provide to Ms E, or such other family therapist upon whom the parties and children attend in accordance with this order, the following documents:

a.the two Family Reports prepared by Ms B;

b.the Report prepared by Dr F;

c.the Outline of Submissions made on behalf of each party in the course of the hearing of the Application in a Case filed by leave on 28 March 2013; and

d.these Reasons for Judgment and the Orders made herein.

17.That the parents do all things necessary to ensure that the children attend on Ms E or such other therapist engaged by the parties in accordance with this Order at all such times at Ms E or the therapist may request.

18.That the children are at liberty to continue to attend on Ms G for the purpose of receiving supportive therapy and, in the event that they do attend on her after 5 April 2013, the mother shall have leave, pursuant to s 121 of the Family Law Act 1975 (Cth), to provide to Ms G the following documents:

e.the two Family reports prepared by Ms B;

f.the Report prepared by Dr F;

g.the Outline of Submissions made on behalf of each party in the course of the hearing of the Application in a Case filed by leave on 28 March 2013; and

h.these Reasons for Judgment and the Orders made herein.

and the Mother shall provide Ms G with such documents on the first occasion after 5 April 2013 that the children attend upon her.

19.That neither parent discuss any matters raised or the orders sought in these proceedings with the children unless such discussion occurs at the instigation of the family therapist upon whom the parties and the children shall attend and such discussion occurs during a family therapy session.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 562 of 2011

Ms Beston

Applicant

And

Mr Westlaw

Respondent

REASONS FOR JUDGMENT

1.The final hearing of this matter commenced before me on 25 March 2013. It was adjourned, part heard, on 28 March 2013 and will resume before me on 8 October 2013.

2.On 28 March 2013, the Father sought interim parenting orders. Relevantly, at this stage of the trial Ms B (the Family Report writer) and the Mother had been cross examined but the Father had not.

Brief History

3.The Father is 57 years of age and the Mother is 48 years of age.

4.There are two children of the relationship:

a)C, born in November 1999 and currently aged 13 years, 4 months; and

b)D, born in October 2003 and currently aged 9 years, 5 months.

5.At present C is in Grade 8 and D is in Grade 4. Both attend school at I Town.

6.The parties separated on 16 July 2010. The children have lived with their Mother since that time at the former joint home at H Town.

7.In the period from separation until September 2010, the children spent time with the Father on an ad hoc basis.  In September 2010, with the assistance of Ms G (a counsellor), the parents agreed that the children would spend time with the Father for 2 hours each Tuesday from 5:45pm until 7:45pm and  Saturday from 8.30am until 5.00pm.

8.At the end of May/beginning of June 2011 the children stopped spending time with their Father. On 1 September 2011 Principal Registrar Filippello made orders (amended 13 September 2011) for the Father to recommence spending time with the children as follows:

…

3.The Father spend time with the children at all such times as may be agreed and failing agreement as follows:

a.    for two (2) occasions to be conducted in the same week or less than one (1) week apart if practicable, at the Child Dispute Services area of the Family Court of Australia, within the Family Consultant’s discretion;

b.    at such other times and places as may be requested by the Family Consultant appointed for the purpose of the s 65L Order;

c.    at the conclusion of the two (2) occasions referred to in Order 2(a) from:

i.     after school each Tuesday and Thursday until 7.30 pm with the Father to collect the children from school and the Mother to collect the children from the foyer of the [J Hotel, H Town];

ii.   from 8.30 am to 12.30 pm each Saturday with the Father to collect and deliver the children to and from the foyer of the [J Hotel, H Town] and the Mother to collect the children at the conclusion from the foyer of the [J Hotel, H Town]; and

iii.     such further or extended time as may be recommended by the Family Consultant during the s 65L process.  

9.From January 2012, the parties implemented a regime whereby the children spent each Thursday overnight (from after school until school on Friday morning) and from 8.30am until 5pm on Saturdays with their Father.

10.On 18 December 2012 the matter came before his Honour Justice Forrest. On that occasion, his Honour commented, inter alia, that, as a thirteen year old girl, C would soon be able to make the decision (about whether she would spend time with her Father) herself.

11.On 20 December 2012, both C and D told their Father, at the Hotel foyer which had previously been used as the changeover point, that they did not want to spend time with him. The Mother said during cross-examination that she had not told C of the comments set out in paragraph 10 above and that it was coincidental that the first occasion since about 23 January 2012 that the children refused to spend time with their Father came but 2 days after the matter was before the Court on 18 December 2012. I am not persuaded that this is the case.

12.In any event, the children have not spent any time with their Father since early December 2012.

13.Rather, since then, they have gone through what I consider to be a farce on each occasion they are due to spend time with their father – that is, they have attended at the foyer of the Hotel used for changeover, told their Father amongst other things, that they didn’t want a relationship with him and left: on occasion they have caught up to their Mother who, having walked them to the hotel, was walking home. Their Mother has listened to them express how they felt but has done nothing to return them to the foyer or to insist that they spend time with their Father.

14.I consider that the Mother (having herself sought, on 28 March 2013, an order that the children spend overnight time with their Father each alternate weekend from Friday afternoon until Saturday afternoon and for 1 week of the June/July 2013 school holidays) is confident that such comments and behaviours on the part of the children, as are briefly summarised above, can be properly managed by her such that they will recommence spending time with their Father immediately. I accept, at this stage, that, in positively seeking an order that the children spend time with their Father, the Mother is confident that she possesses the parenting skills necessary to ensure that the children immediately recommence spending time with their Father.

15.The parties together sought an Order that the interim Orders should be explained to their children by Ms B. I consider that this is in the children’s best interests as it ensures that the children will be made aware that both parents seek that they spend time with their Father overnight each alternate weekend and that both parents agree that they should spend half of their school holiday periods, commencing in June 2013, with their Father.

16.As discussed with Senior Counsel who appeared for each party, I have made an order that Ms B be provided with a copy of these Reasons for Judgment and the Outline of Submissions relied on by each parent at the hearing of this interim application. I consider that this is information which, should she consider it appropriate, Ms B can use to ensure that the children are left in no doubt whatsoever that both their parents are clearly persuaded that it is in their best interests to spend time with their Father and that both parents consider that such time should commence immediately and encompass overnight time and include block holiday time.

17.I agree with the conclusion reached by the children’s parents that it is in their best interests that they recommence spending time with their Father immediately and that this time include overnight time. It is not beneficial for the children that the current hiatus in the time they had previously been spending with their Father be allowed to continue any longer. The children are entitled to an opportunity to continue in their respective relationships with their Father and to develop these over time. They are entitled to the opportunity to spend time with their Father and to determine, for themselves, his positive qualities and weakness, in the same way that they will, inevitably, come to determine the same about their Mother.

Parental responsibility

18.Neither parent sought that I make an interim order in respect of parental responsibility.

19.However, in Goode and Goode[1], the Full Court said at para 51:

We see little purpose in this debate which is essentially about terminology. As we have already indicated, it is not necessary to seek an order for equal shared parental responsibility to trigger the presumption in s 61DA. All that is required is that the Court be making a parenting order. Thus, it does not matter whether the issue of equal shared parental responsibility was put in issue by the parties, or either of them, as the Court is required to apply s 61DA in any case in which a parenting order is to be made.

[1] (2006) FLC 93-286; 36 FamLR 422

20.Further, in Marvel & Marvel(No 2)[2]  the Full Court of the Family Court said:

75. In this case his Honour was asked by both parties to make an interim parenting order about the child.  In making such an order he was required to regard the best interests of the child as his paramount consideration (see s 60CA).  He was not asked on an interim basis to make an order for equal shared parental responsibility. 

76. The significance of the presumption of equal shared parental responsibility (see s 61DA below) is readily apparent from a reading of that section.  A court must when making a parenting order, as was sought in this case, unless there is child abuse or family violence or the presumption is rebutted as it is not in the best interests of the child, presume that the parents are to have equal shared parental responsibility for the child.  However, s 61DA(3) contains a qualification in that it gives recognition to the fact in some interim parenting proceedings it may not be appropriate to apply the presumption.

……..

78. At paragraph 56 in Goode the Full Court explained: 

In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).

79.The Full Court also discussed s 61DA(3) in Goode and concluded at paragraph 78:

The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. In this case for example, we respectfully agree with his Honour’s decision that this consideration meant it was inappropriate to apply the presumption.

[2] [2010] FamCAFC 101

21.And further, at para 86:

On the material we have read there were so many factual matters in dispute and little uncontested evidence, it could well have been appropriate for his Honour to have found that:

·          he was being asked to make a parenting order;

·          the presumption should apply (as it was not rebutted or not in the child’s best interests); but

·          because of the nature of the material before him it was inappropriate to apply the presumption and that s 61DA(3) should apply.

22.The Full Court goes on to say at para  107:

Although s 61DA(3) should not be applied in a broad exclusionary manner in interim proceedings, it appears to us that it is likely to have greater relevance in matters where a narrow issue is in dispute in interim proceedings, particularly if equal time or substantial and significant time orders are not in issue.  The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing.  The practical effect of the application of s 61DA(3) is that the task and complexity of decision making on a narrow issue or issues is reduced.  However the task still requires some reference to s 61DA(1) and (2) and the giving of reasons, which may be very brief, why it is considered appropriate for the exception in s 61DA(3) to be applied.  We accept the task involved in a final hearing when only narrow issues are to be determined, nevertheless requires the legislative path in all its complexity to be followed if an order for equal shared parental responsibility has been or is to be made.

23.In the present case, there remain ‘numerous and complex factual issues’ in dispute which are ‘incapable of determination’ at this interim hearing. Further, given the stage the proceedings have reached (where the Mother but not the Father has been cross examined) and that neither party has sought that I make an interim order in respect of the allocation of parental responsibility, I consider that it is inappropriate in the circumstances to apply the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them when making the interim parenting order: s 61DA(3) of the Act.

24.It follows, from the finding that it is inappropriate in the circumstances to apply the presumption of equal shared parental responsibility, that the Court’s power to make parenting orders pursuant to s 65D is “at large” but subject to the best interests of the children being the paramount consideration :  see s 60CA; s 65AA.[3]

[3] See: Chalk & Plasto [2013] FamCAFC 48 at par 15-22; MRR v GR (2010) 240 CLR 461

25.In determining what is in the children’s best interests I must consider the primary and additional considerations set out in ss 60CC(2) and 60CC(3) : s 60CC(1).

the competing proposals for interim orders

26.Senior Counsel for the Father submitted that it is in the best interests of the children that they spend time with their Father and that there be a cessation of their involvement in the parental conflict in order to protect them from psychological harm from being exposed to abuse, neglect or family violence.

27.The children’s Mother agrees that they should spend time with their Father but does not agree as to the duration of the alternate weekend time.

Duration of time that the children spend with their Father

28.The Father seeks that the children live with him each alternate weekend from after school (3.00pm) Friday until the commencement of school on Monday morning.

29.The Mother seeks that the children spend time with their Father each alternate weekend from after school Friday until 5.00pm Saturday. She accepts that the children should spend ‘equal time’ with the Father during school holidays.

30.Senior Counsel for the Father submitted that the Father proceeded on a ‘conservative’ basis in his proposals for interim orders and that the time sought by the Mother was, simply put, too short to enable the children to have the opportunity to maintain and/or develop a meaningful relationship with their Father.

31.Senior Counsel for the Father further submitted that the Father’s proposal adopted what Ms B had thought appropriate and also removed the potential for conflict between the parents as it provided for changeovers at school for all occasions other than holiday time. He also submitted that the Father’s proposal for time should be considered in light of the Mother’s proposal that the children spend half of the holidays, commencing in June 2013, with their Father.

32.Senior Counsel for the Mother submitted that it was not a ‘cautious’ approach for the Father to seek 3 nights per fortnight, particularly in circumstances where such proposal made no provision for any contact between the Mother and the children during that time.

33.He submitted that caution would favour a return to the children spending one overnight with their Father per fortnight in the manner proposed by the Mother.

34.He submitted that an order which saw the children spending from Friday night to Monday morning with their Father was longer than Ms B suggested.

35.In reply, Senior Counsel for the Father submitted that Ms B’s evidence was to the effect that it was not helpful nor in the children’s best interest to ‘go back to the beginning’ in terms of the time they are to spend with their Father and that an order which provided the children with the opportunity to spend the entire weekend with their Father is in conformity with the Objects and Principles of the Act.

36.Further submissions were made in reply that, as the Mother was saying that, as early as June 2013, the children should spend a week (7 consecutive nights) with their Father, there was no valid reason to restrict the alternate weekend time to one night only.

37.Senior Counsel further submitted that the Father was attempting to balance the position for D (for whom Ms B recommended four nights per fortnight with his Father) and C (for whom Ms B recommended at least 2 nights per fortnight) in a manner that ensured that the children were not separated.

38.Whilst it is arguable that the Mother’s proposal would provide the children with time within which they can continue to develop a meaningful relationship with their Father and would minimise any risk associated with his asserted misuse of alcohol, I am not persuaded that such a restricted period of time affords them sufficient opportunity within which to experience his parenting of them. I consider that the alternate Friday afternoon to Monday morning time period will give the children an opportunity to experience their Father as the parent who is responsible for collecting them from school and ensuring that they are prepared to return to school the following week. I consider that they will also benefit from the opportunity this potentially affords to their Father to be involved in their school activities.

39.I consider this to be particularly important for C who expressed to Ms B during the interview for the first Family Report that her Father ‘doesn’t act like a Father’ as her expectation for someone who does is that they ‘have dinner with you, tuck you in at night, help with homework and come to school activities.’

40.The additional time sought by the Father will enable him to ‘act like a Father’ and I consider it is beneficial for both children that they have the opportunity to experience their Father undertaking activities like those particularised by C to Ms B.

41.I am not persuaded, on the evidence before me, that the Father poses any risk to the children should they spend three nights per fortnight rather than one night per fortnight in his care. Further, the Mother herself cannot hold any significant concerns as to any potential risk given that she seeks an order that, from June 2013, the children spend a continuous 7 night period (half of the school holidays) in the care of their Father.

42.I take into account C’s age and her views. I note that when Ms B spoke with C for the preparation of the second Family Report C presented as ‘more vocal’ about her opposition to spending time with her Father and became disproportionately distressed when telling Ms B about certain matters that had occurred in her time with her Father. Ms B considered that C ‘appeared to lack a realistic perspective about her identified issues, making them more catastrophic that they were likely to be.’  Further, Ms B considered that part of the problem in C’s relationship with her Father is that she feels that he abandoned her as a result of his decision to separate from her Mother.

43.I am not persuaded, in the circumstances of this case, that it is beneficial for C that she be allowed or further empowered to continue in the belief that she possesses all of the maturity and life experiences necessary to form a conclusion about her ‘willingness’ to have a relationship with her Father. It is, I consider, imperative for her future development as an individual that she spend time, of sufficient length, with her Father so that she can truly experience his parenting and, no doubt, come to view it as different (but not necessarily inferior)  to that provided by her Mother.

44.It is not beneficial for C to feel at any time that she is able to have a relationship with only her Mother. It is beneficial for her to be placed into a situation where her Father can demonstrate to her, by his actions in spending time with her on weekends and holidays and caring for her at such times, that he has not ‘abandoned’ her and that the separation of her parents is not an event which need necessarily impact negatively upon her life into the future.

45.It is beneficial for C that she afford to her Father the opportunity to make all of the mistakes which parents almost inevitably from time to time make and that she have demonstrated to her, by the actions of both of her parents, the reality that relationships between people, including one’s parents, require effort on the part of all parties to the same. I do not consider it beneficial for C to be allowed, or in any way empowered, to hold or continue to hold the view that spending time with her Father is optional – it is, at this time, something which is as non-negotiable for her as her attendance at school.

46.When Ms B spoke with D for the preparation of the second Family Report, she considered that his objections to spending time with his Father appeared to be less robust than those of his sister. She considered that his narration of ‘vague concerns’ about his Father had a ‘sense that he is only narrating a familiar story heard rather than voicing a genuine worry about issues.’

47.Further, Ms B said that, during a visit on 27 September 2011, D appeared to be experiencing a pleasant time with his Father and became annoyed at C for her ongoing refusal to join in their activities. Ms B opined that D exhibited ‘oscillating behaviour’ which reflected an ‘internal conflict between his loyalty to his sister (and his Mother) and his desire to maintain a relationship with his Father.’ She reiterated this view during her cross-examination.

48.I take into account Ms B’s opinion, as expressed in the second Family Report, that ‘forcing’ C to spend time with her Father may only alienate her from him further. However, I also take into account Ms B’s evidence that it important for C to spend time with her Father to ensure that she has the opportunity to obtain a ‘balanced’ view of him rather than one that is ‘entirely shaped by her Mother.’ I consider that the second imperative outweighs the first concern.

49.I note that Ms B recommended, in the Second Family report, that C should spend  time with her Father at least each alternate weekend (in addition to half school holidays) and that D should spend time with his Father no less than four nights per fortnight (in a block) in addition to half holidays.

50.I take into account Ms B’s recommendation that D spend four nights per fortnight in the care of his Father. However, I consider that it is not beneficial for either child, at this stage, that there be any differentiation between them in terms of the time that they spend with their Father.

51.I accept that the children have previously had a relationship with their Father and that they will benefit from an opportunity to continue to develop this. I accept Ms B’s evidence to the effect that the children’s time with their Father must recommence immediately and that, given their ages, there is no particular benefit to them in a staged increase in such time. I take into account also that the children have previously spent overnight time in the care of their father.

52.Whilst I accept that an order requiring the children to spend time with their Father each alternate Friday to Monday morning will represent a change for them, I am confident that, when supported by the family therapy their parents have agreed should commence immediately, this is something that will afford them the benefit of additional time with their Father. It will also, I consider, send a clear message to C, in particular, that her Father continues to love her and wants to spend time with her (and D too, of course) irrespective of the parental separation. His leaving the relationship with her Mother should not be allowed to continue to be seen by C as a leaving of her.

53.I consider that there are additional benefits associated with the Father’s proposal which involves collection of the children from school and their return to school. The most obvious of these is that it removes completely the risk that the children will be in any way exposed to parental conflict at this time. A further benefit is that it enables the children to have the opportunity to experience their Father as the parent who has to ensure that they are collected from and returned to school in a timely and prepared fashion. They will have the opportunity to experience him undertaking the routine, day to day activities previously carried out by their Mother. Further, the Father will have the opportunity to be involved in the children’s homework and the children will have the opportunity to experience this assistance.

54.I consider, therefore, that the Father’s proposal, which ensures that the children spend time with him each alternate weekend from Friday afternoon until Monday morning is that which is in their best interests.

Where is changeover to occur?

55.It follows from my determination as set out in the paragraphs above, that the only changeover with which I am now concerned is that which occurs during the June/July and September/October school holiday periods. I am asked to determine that means of changeover which is in the children’s best interest for these two occasions.

56.Senior Counsel for the Father submitted that changeovers during school holidays should occur at the Father’s residence as this would send a clear message to the children that their Mother supported them spending time with their Father.

57.Senior Counsel for the Mother submitted that there was no need for the return of the children to their Father to occur at his residence and that the hotel foyer was suitable as it was a neutral place and there was some evidence before me that there had previously been some conflict at the Father’s residence.

58.I consider it is in the children’s best interests that their Mother drop them to their Father’s residence at the commencement of school holiday time and that he return them to school at the conclusion of such time (i.e. on the day that school recommences for the Term).

59.I reach this conclusion because I consider that:

a)the Hotel foyer can no longer be regarded as a ‘neutral’ place as it is a venue at which the children have persistently previously said to their Father that they do not want to have a relationship with him;

b)by delivering the children to their Father at the start of their holiday time with him, the Mother will demonstrate her support for and complete acceptance of the importance for them of spending block holiday time with him – as she herself proposes;

c)delivery of the children to their Father’s residence removes the necessity of them having to carry into a public place bags and any other items that may accompany them for a holiday.

Notification by parents to each other of ‘disclosure’ made by children

60.The Mother sought, in paragraph 16 of the Outline of Submissions relied on by her at the interim hearing, an order that should the children make any ‘disclosure’ to either parent about the conduct of the other parent, such ‘disclosure’ be notified to the other parent and the family therapist by text or email and the matter be explored further by the family therapist as that person sees fit.

61.Senior Counsel for the Father submitted that I should not be persuaded to make an order in such terms because of the probability that it would either cause or lead to conflict and, rather than confining or restraining discussion with the children about matters from which they are best sheltered, would have the potential of escalating matters.

62.Senior Counsel for the Mother advised during submissions that the Mother did not press the making of an order in terms of paragraph 16.

63.However, cognisant as I am that professionals explaining the Orders to the children and those providing therapeutic support to the parties and children may read these Reasons, I make the following observations:

a)I am troubled by the use of the term ‘disclosure’ in the Outline of Submissions. One can imagine many ‘disclosures’ that may be made by children of C and D’s ages about the ‘conduct’ of the ‘other parent’ when they are spending time between the two households. Many such ‘disclosures’ may amount to little more than dissatisfaction with the parenting regime being implemented by a parent in their household or an attempt on the part of the children to manipulate their already distrustful parents for their own ends;

b)I would not have been persuaded that such an order is in the children’s best interests. As agreed by their parents, the parents and children will be engaging forthwith in a course of family therapy and I am confident that such engagement will provide the appropriate forum in which any such ‘issues’ can be ventilated and discussed;

c)I would have been concerned that enshrining such a process in an Order is something that is more likely than not to lead to a regime of constant and never-ending informing by the children of events in each parent’s household. Rather than cocooning them from the conflict between their parents, I consider that it would, more likely than not, place them squarely within it. It is likely to lead to an never-ending set of ‘the children told mes’ – in any case this is unlikely to be helpful and in the present situation, one struggles to think of a process that could be more open to misunderstanding.

Children continuing with Ms G for individual therapy

64.The Mother seeks that the children continue to attend on Ms G for their own individual therapy on the bases that:

d)she ‘anticipates’ the children requiring support to ensure that they immediately spend overnight time with their Father as recommended by Ms B – and, I note, supported by her at the time of the interim hearing;

e)the existing relationship between Ms G and the children ‘suggests that she is best placed to positively influence the children to spend time with their Father.’

65.The Father opposes the making of such an order, pointing out that, given the children ceased spending time with him in December 2012, Ms G has not demonstrated any ability to influence them to spend time with him.

66.Senior Counsel for the Father submitted that there were two ‘problems’ with the children’s continued attendance upon Ms G:

a)there was a potential that it would lead to conflict between the two therapists the children would be seeing (namely, the family therapy provider and Ms G); and

b)it was preferable to allow the provider of family therapy to deal with the issue of the children attending for therapy in the manner that therapy provider considered appropriate.

67.In addition, he submitted that the difficulty with the contents of paragraph 8(a) [on page 2 of the Mother’s Outline of Submissions] was that, notwithstanding Ms G’s continued involvement with the children, they had refused to spend time with their Father since December 2012.

68.I consider that all steps should be taken to ensure that the children spend time with their Father. As noted elsewhere in these Reasons, this is not an ‘elective’ for the children but an imperative. Whilst it does not, at this stage, appear to me that Ms G has been able to ensure that the children spend time with their Father since December 2012, I do not want a prohibition on them seeking assistance from her, if needed, to be something that is later advanced as a reason for, or explanation, why they have not spent time with their Father in accordance with the Orders I make today.

69.I consider it in their best interests that they have available to them the assistance of Ms G but that, should they attend upon her, the Mother do all things necessary to ensure that Ms G is provided with a copy of the Outline of Submissions relied upon by each party at the interim hearing before me, a copy of the Family Reports prepared by Ms B, a copy of Dr F’s Report and a copy of these Reasons for Judgment.

70.I am confident that, if the children seek out Ms G’s assistance and she has available to her the information detailed above, she will be well placed to assist them to appreciate that the requirement that they spend time with their Father is a decision taken and supported by both parents (to the extent that the time is from after school Friday to Saturday afternoon each alternate weekend and for half of the school holidays) and by this Court which is charged with the obligation to determine what is in their best interests at this point in time – to reiterate, it is not an optional extra but a requirement that the children spend time with their Father because such time provides them with benefits.

Prohibition on consumption of alcohol

71.The Mother seeks an order that the Father not consume any alcohol during any time the children are in his care.

72.The Father opposes the making of such an order.

73.Senior Counsel for the Father submitted that there was no evidence before the Court to support the need for such an order and that it was an order which would likely lead to the children being involved in reporting back to their Mother about the Father’s level of alcohol consumption – in this way, rather than being shielded from these proceedings and conflict, they would continue to be very much a part of it and active participants.

74.Senior Counsel for the Mother submitted that Ms B recognised that avoidance by the Father of alcohol consumption during the few days per fortnight that the children would be spending time with him was a good thing and that, for the children, the concern about his alcohol use may be an actuality.

75.He also submitted that it was clear on the evidence before the court that alcohol use had, in the past, been an ‘issue‘ for the Father and that he had presented, both before and after the two Driving under the Influence convictions, to a medical practitioner and raised issues about his level of consumption and that I should be concerned about the inter-relationship between the reported depression and anxiety issues and the Father’s use of alcohol.

76.Senior Counsel for the Mother also submitted that this evidence, when combined with that given by Ms B to the effect that abstinence from alcohol consumption would not be a bad thing to do, should persuade me to make the order sought by the Mother. Further, he submitted that, if the Father had no problem with the management of his alcohol intake, he should be prepared to abstain from consumption on an interim basis.

77.Senior Counsel for the Father submitted, in reply, that:

a)I would not be persuaded on the evidence before me that there was a need for such an order;

b)there would be difficulty in enforcing such an order,

c)if such an order was made, it was likely that the children would be engaged in evidence gathering;

d)it would be foolhardy in the extreme for the Father, who clearly knows that his consumption of alcohol is a ‘live’ issue in these proceedings to be intoxicated at any time the children are in his care;

e)there is no objective evidence before me that the children have, in fact, a ‘problem’ with their Father’s use of alcohol;  and

f)the last (of two) Driving under the Influence conviction occurred in 2009 and visits to a medical practitioner in the aftermath of separation in July 2010.

78.I do not intend to make such an order because I am not persuaded that it is supported by the evidence. I am not persuaded that it in the children’s best interests. I reach this conclusion for the following reasons:

a)I consider that such an absolute prohibition is, in the circumstances of this case, more likely than not to continue to involve the children in a type of ‘fact-finding or reporting back’ mission rather than leaving them free to enjoy the time they spend with their Father;

b)I consider that it is appropriate that the children have an opportunity to experience time with their Father in the manner and circumstances which he determines, noting as I do, that there is no evidence whatsoever before the Court which could lead to any conclusion that, at present, the Father is unable to control his alcohol consumption;

c)I consider that it is a matter for the Father’s judgment to determine how he will manage this “issue”, knowing as he must from the evidence already given by Ms B that his consumption of alcohol may be ‘an issue’ for the children – I leave it to him, at this stage of the proceedings, to determine and demonstrate whether his appreciation of the possibility of the children having ‘an issue’ (however arrived at) about his alcohol consumption is more important than a desire to either consume alcohol or to ensure that the Mother does not control whether he is able to consume alcohol when the children are in his care.

I certify that the preceding seventy eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 5 April 2013.

Associate: 

Date:  5 April 2013