Bridge and Bridge

[2014] FamCA 51

FAMILY COURT OF AUSTRALIA

BRIDGE & BRIDGE [2014] FamCA 51

FAMILY LAW – CHILDREN – Best interests of the children – Where the father has failed to participate in the final stages of the proceedings – Where the father has failed to take the opportunity to exercise his time with the children pursuant to interim Orders for some time – Where there is a lack of communication between the parties – To whom parental responsibility for the children is to be allocated – What, if any, time the children should spend with the father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61(C)(1), 61DA
Family Law Rules 2004 (Cth) r 11.03

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

APPLICANT: Mr Bridge

RESPONDENT: Ms Bridge

INDEPENDENT CHILDREN’S LAWYER: Mr Clarke

FILE NUMBER: NCC 2080 of 2011

DATE DELIVERED: 11 February 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 28 January 2014

REPRESENTATION

APPLICANT: No appearance

RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ross A Clarke & Associates

Orders

1. All previous Orders in respect of the children K born … August 2000, J born … February 2002, Z born … May 2004, D born … April 2006 and B born … June 2008, (“the children”) are discharged.

2. The children are to live with the mother.

3. The mother have sole parental responsibility for the children, including all decisions in relation to the children’s education, health, religion, place of residence, passports and travel within and outside the Commonwealth of Australia.

4. The mother is to keep the father informed of all major, long term decisions made in respect of the children pursuant to Order 3 above.  Such notification is to be in writing and made as soon as practicable after such a decision is made.

5. The children are to spend time with the father:

   (a)During school term, one (1) weekend per month, being the fourth weekend in each calendar month, from 4.00 pm Friday to 4.00 pm Sunday.

   (b)During school holidays, for one (1) week in the Christmas school holiday period, such week to commence at 9.00 am on the third Monday of the holiday period and conclude at 4.00 pm on the Sunday following, or at such times as are otherwise agreed between the parties in writing.

   (c)In respect of changeovers, the father is to collect the children at the commencement of each period of time at the Town C Public School, and return the children to the mother or her nominee at the conclusion of each period of time at the McDonald’s Family Restaurant at Town E.

6. The father is at liberty to not take the children to church or sporting activities that they would otherwise be required to attend on the weekends the children are to spend time with him pursuant to Order 5(a) above.

7. The children are to have telephone communication with their father in accordance with their wishes, and the mother is to assist the children, if necessary, in facilitating such communication from time to time.

8. In the event that the father fails to attend on two (2) consecutive times that he is to spend time with the children pursuant to these Orders then all such time periods the father would otherwise spend with the children be suspended.

9. Each party is to keep the other party informed at all times of their contact telephone number/s and address, and are to notify the other party in the event of any change to such contact details within forty-eight (48) hours of such change.

10. Each party is to notify the other party as soon as practicable in the event of any medical emergency involving the children, or any one of them.

11. The mother is to provide such consents and authorities to allow the father to obtain any medical report/s in relation to the children, or any one of them, as required by or provided to any treating medical practitioner/s.

12. The mother is to provide such consents and authorities required by the school/s of the children, or any one of them, to enable the father to receive report/s, school photographs or any other notices relating to the children, or any one of them.

13. All outstanding applications and cross-applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bridge & Bridge 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 PARRAMATTA

FILE NUMBER: NCC 2080 of 2011

Mr Bridge

Applicant

And

Ms Bridge

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction & Background

1. This matter concerns the long term parenting arrangements in respect of K aged 13, J aged nearly 12, Z aged 9, D aged 7 and B aged 5, (“the children”), who are the children of Mr Bridge, (“the father”) and Ms Bridge, (“the mother”).

2. The mother and father (“the parents”) were married in 1997 in the F Religion, separated in August 2010 and divorced in 2011.

3. The family lived on the NSW Central Coast during their marriage.  In September 2009, the mother left the family home with the children to live with her parents at Town C in the Blue Mountains, where they continue to reside.

4. The father continues to reside on the Central Coast with his fiancé (to whom he may now possibly be married) and her seven year old daughter. 

5. In February 2012, the father commenced parenting proceedings in the Federal Magistrates Court, as it then was.  In his Initiating Application the father sought final orders that the children live with the mother, that the parents have equal shared parental responsibility for the children and that the father spend time with the children for one weekend each month and for block periods of 14 days in the July and January school holiday periods and on other special occasions.

6. In April 2012, Orders were made in the Federal Magistrates Court, as it then was, for the children to live with the mother and spend time with the father on specified weekends in the Blue Mountains and one weekend in Newcastle.  It appears that the children had spent no time with their father after the separation and the Orders that were made in April 2012, for the children to spend time with their father, provided an opportunity to rebuild their relationship at first in their local area and then at the father’s home in the Newcastle area.  The proceedings were then transferred to another registry of the Federal Magistrates Court, as it then was.

7. Initially, following the interim Orders, the children spent time with the father on a few occasions both in the Western Sydney/Blue Mountains area and also in the Newcastle area, but it appears that the father did not take up each opportunity for time as provided in the Orders.

8. The proceedings were then stalled by the parties being ordered to attend family counselling and whilst a family report was prepared.  That report was released in April 2013, and when the matter was back before a Judge of the Federal Circuit Court following its release, the father did not appear and the matter was adjourned for possible undefended hearing.

9. On the next occasion, an order was made for an Independent Children’s Lawyer to be appointed to represent the children and the proceedings were transferred to the Family Court.  At that time, that is August 2013, the Court noted that the father was not spending time with the children despite the interim Orders in place.  It appears the children’s time with the father had ceased a whole year earlier, in around August 2012.

10. The matter first came before me for mention in late September 2013 and the father appeared, but had not complied with directions to file material in support of his case.  The parties agreed the children were still not spending time with the father, but agreed to thereafter comply with the interim Orders.

11. Despite this, the mother says the father did not attend to spend time with the children on alternate weekends following that Court event, and it appears has not done so to date. 

12. Therefore, the children have spent no time with their father since August 2012, nor communicated with him by telephone since mid 2012, other than seeing him in the waiting room when they attended for interviews with the Family Consultant in April 2013. 

13. The father has not appeared on the last two Court events, including most recently when the matter was listed for a first day of the Less Adversarial Trial.  I am satisfied that the father is aware that the matter would proceed on an undefended basis in his absence, as this was foreshadowed in Orders made on the last Court event, which have been sent to him at his last known address.  The Independent Children’s Lawyer was also ordered to notify the father of the situation, which I understand was done.

14. The mother makes a number of complaints about the father, which are uncontested due to the father’s failure to attend the conclusion of these proceedings.  In summary, firstly, she complains about the father’s unreliability, in respect of failing to attend changeover, and generally such as taking the children to sporting activities late, or not at all.  One of her primary complaints is the father’s disregard for the children’s religious beliefs in general but particularly in respect of refusing to take the children to church on a Sunday during their time with him.  The mother makes various complaints about the father’s communication with her.  It appears the father’s SMS communications to the mother have been more about his grievances about the marriage breakdown than in respect of the children and their needs. 

15. Further, the mother makes complaint about the father not adequately meeting the children’s needs when they have spent time with him, such as not providing the younger children with appropriate car seats, not adhering to their dietary needs (such as D’s reaction to dairy products) and not providing adequate bedding for the children at his home.  Finally, the mother complains about the children being upset following time with their father and reporting he has been angry with them, and also the children’s reporting that the father has denigrated her to the children.

Orders sought

1. In his Initiating Application filed in February 2012, which has not been amended, the father sought equal shared parental responsibility for the children, for the children to live with their mother and for the children to spend time with him one weekend per month during school term and for some block time during school holidays.

2. The orders sought by the father are opposed by the mother, who seeks an orders in accordance with her Amended Response, which provide that she have sole parental responsibility for the children, that the children live with her and spend time with the father and have telephone communication with him as they request from time to time.

3. The Independent Children’s Lawyer seeks orders providing that the parents have equal shared parental responsibility for the children, that they live with the mother and spend time with the father for a weekend once a month and for one week in the Christmas school holiday period.  The Independent Children’s Lawyer also seeks a self-executing order to the effect that if the father fails to attend at the commencement of the children’s time with him on two consecutive occasions then the orders in respect of his spending time with the children are to be suspended.  The Independent Children’s Lawyer also seeks an order that the father be granted a liberty to apply to the Court in relation to these orders on seven days’ notice.

Family Consultant’s Report

1. The Family Consultant interviewed the parents and children in April 2013 and observed the children with the adults in the waiting area for the purposes of preparing a family report.

2. According to the consultant, the obvious dispute between the parties continued to be associated with the issue of religion.  The consultant said that, according to the father, the family and especially the maternal grandmother hold extreme fundamentalist views and has attempted to indoctrinate the children by portraying him as a sinner against God.  In the father’s opinion, this was the main reason for the breakdown of the interim contact arrangements.

3. The consultant said that while the religious issue is paramount for the mother, she also alleged that the father is not a suitable parent and lacks the necessary skills to care for the children, even for short periods.  She also told the consultant that none of the children like their father or wished to spend time with him.  The mother also maintained that the father has an alcohol problem, which is denied by the father.

4. At the time of the interview, the father appeared to the report writer to be resolute in wishing to re-establish some type of contact with all children and the mother declared her total opposition to the children having any contact with their father.

5. At the interview with the consultant, the mother is said to have expressed her strong belief that the father had forfeited all right to have contact with the children because of his behaviour and, particularly, his infidelity, which was inconsistent with the F Religion faith and had resulted in him being “[Type A Disciplined]”, apparently a step short of ex-communication.

6. The mother said that the father had continued to deny the children the right to live according to the dictates of their religion by refusing to take them to church when they stayed with him last year, and also defiled the Sabbath by taking the children to a Macdonald’s Family Restaurant on a Sunday.  According to the mother, the children were greatly distressed by these actions of the father.  The mother also told the consultant that the three eldest children had withdrawn from any contact with the father at an early stage and the youngest two had also not wished to go with him.

7. Whilst acknowledging to the consultant that the father did most of the cooking when at home, the mother said he had generally not participated and left all the parenting to her, he had not bonded with the children and that the children did not have a current attachment to him.  The consultant was of the view that the mother did not value the father as being of any importance in the children’s lives.  The mother could see no benefit for the children in spending time with their father and suggested that she might change her view if various conditions were met, including if the father were not to drink alcohol and were to take the children to the F Religion service on Sunday as well as in all other ways observing their religious requirements.  Overall, although the mother raised several aspects of the father’s inadequate parenting with the consultant, her main argument seemed to stem from her belief that the father posed a substantial threat to the children’s moral development.

8. The father strongly objected to the claim that he had not participated with the children during the marriage, telling the Family Consultant that he shared most responsibilities with the mother and believed that he had established firm attachments with each of the children, although he thought the older ones were now withdrawn due to pressure from the mother and the maternal family.  In this regard, the father was very critical of the maternal grandmother, whom he claimed dominates the rest of the family with rigid religious views.  To the consultant, the father was not critical of the mother and described her as “a good and loving mother” to whom he considered the children were emotionally very close.

9. The father told the consultant that the interim Orders had been working well until he took the children to Newcastle, where they first met his fiancé.

10. The father said that he would agree to refrain from consuming alcohol when the children spent time with him and would not discuss religion, the mother or her family with them, but said he would not take them to church.

11. The father told the consultant that he was not seeking for the children to spend time with him on alternate weekends as he believed that arrangement would be disruptive to their religious and sporting commitments, and the distance over which they would be required to travel would be a restricting factor.

12. The Family Consultant was of the opinion that the father appeared genuine in his intention to resume contact with his children and was cognisant of the issues affecting them and appeared, during interview, to be considerably more reasonable than the mother, displaying a greater acceptance of her continuing importance to the children than she did of his.

13. The consultant interviewed the two eldest children together and then the three youngest children together.  When asked about their father, K, who is 13 years of age, replied “he is not a good person” and told the consultant that he did not believe in their religion.  Although neither child made statements about the father ill-treating them, they said he had made denigrating remarks about the F Religion and refused to take them to church on Sunday despite their asking.  The girls said they did not enjoy seeing their father and neither child wanted to have contact with him, but said they would obey their mother’s instructions if she told them to go.

14. When interviewing the younger children, B, who was 4 years of age, spontaneously said “my mum doesn’t want us to see him”, meaning the father, and she and D, who was 6 years of age, told the consultant that they wanted to spend time with their father and go to his place.

15. Z, who was 9 years of age, was very concerned about religious issues and became very distressed about the episode of not being taken to church by the father despite the children’s wishes, saying “he doesn’t want the Gospel in our lives”.

16. The consultant’s observation of the children in the waiting room was that they were remarkably well-behaved and polite, and appeared to be excellently well looked after in a material sense.

17. In evaluating the family and making recommendations, the consultant said that religious differences are significantly influencing the parents’ dispute over the children.  The consultant said that the three older children displayed negative perceptions of the father, but these were based more on his rejection of their faith than on any allegations of ill-treatment from him.  The consultant was of the view that several of the children’s statements reflected adult influence, which may not be surprising given the nature of the mother’s family and religious views and her openly declared position.

18. However, the Family Consultant was of the view that the father’s ill-conceived comments to the children about the mother’s family and their religion has helped to increase their negative opinions and reinforce the image of him as a wrong-doer.  He also said that the father’s refusal to take the children to church continues to be most distressing for the older children.  He felt that, despite these problems, the children should be given the opportunity of having a relationship with both parents without being undermined by either one. 

19. The consultant regarded the mother seeking no contact for the children with their father as an extreme position and not in their best interests.  On the other hand, he felt that the father needs to realise that, even though he has left the church, his children are still members of the F Religion faith and are likely to grow up with their mother’s religious values.

20. The consultant felt that if the father is to improve his relationships with his children, he must show them he is not a threat to their view of the world.  He considered that the children’s time with their father needs to be balanced with their religious expectations and recommended that weekend contact be confined to monthly, as proposed by the father, which would mean that the missing of a Sunday church service would occur once every four weeks.  The consultant suggested that an alternative may be for the father not to have the children on Sundays and suggested that this could involve extra contact to be implemented during the three minor school holiday periods not involving weekends of two or three nights.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in section 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that the best interests of children are met, including 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

   …

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. 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).

4. According to section 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations

1. The primary considerations (under s 60CC(2)) 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. 

2. This is not a matter where there are allegations of the children being exposed to abuse, neglect or family violence, but is one in which the issue of the children having a meaningful relationship with both parents is of great importance.

3. The meaning of the phrase “meaningful relationship” is not defined in the Act itself. However, the Full Court in McCall & Clark[1] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[2] and has also agreed with the reasoning of Bennett J in G & C[3].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

   [1] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [2] (2007) Fam LR 518

   [3] [2006] FamCA 994

4. Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”

5. I am of the view that there would be a positive benefit to the children having a relationship with both of their parents.  Whilst I note the mother’s views expressed to the Family Consultant that the father has forfeited his right to his children’s love, she does not seem to accept the children’s right to the benefit of a relationship with their father.

6. Only the orders proposed by the father and the Independent Children’s Lawyer will provide for that relationship with the father to be fostered and the children to receive the benefit from it.  Leaving the decision as to time with the father up to children of this age, as proposed by the mother, is not, in my view, age-appropriate, especially as their views, in the Family Report writer’s opinion, reflect adult influence.  It appears on the basis of the mother’s evidence and the Family Report that if this decision is left to the children themselves, they will chose to not spend time with their father, which will effectively deny themselves a relationship with him.

Additional considerations

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

2. As to any views expressed by the children and any factors underlying those views (subparagraph (a)), the older two children have expressed firm views that they do not wish to see their father, whilst the younger three children, especially D and B, seemed to be interested in spending time with him.  Taking into account the children’s age, the Family Consultant’s opinion as to evidence of adult influence, and the particular position taken within the maternal home about the importance of the single issue (religion), I do not attach much weight to the views of the children.

3. I have already addressed the issue of the children’s relationship with each of their parents (subparagraph (b)) under the primary considerations.  It also appears that they have a well-established relationship with their maternal grandparents, which will be fostered by all proposed orders. 

4. The next relevant consideration is the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent (subparagraph (c)).  Although the mother takes what the Family Consultant describes as an extreme position (and I agree with this characterisation) that there are no benefits to the children in having a relationship with their father, the mother has shown a willingness to comply with the Court Orders to prepare the children and make them available to the father to spend time with him, which is to her credit.  However, the mother’s proposed orders, leaving it up to the children to decide whether to contact their father, does not show a willingness to encourage any relationship with the father. 

5. On the other hand, the father impressed the Family Consultant with his view to pursue time with the children once a month, rather than more frequently, and his general attitude towards the mother and her parenting capacity was most positive.

6. The father did express concern about the maternal grandmother to the Family Consultant about the extremity and rigidness of her views, but his failure to participate in the hearing of the application meant this contention was not explored.

7. As to the likely effect of any change in the children’s circumstances (subparagraph (d)), the orders sought by the Independent Children’s Lawyer and the father provide for the children to spend limited time with their father.  It is likely on the basis of past experience that if the children are not taken to church during the weekend time with their father, they will experience some distress, although the weekend time will be limited to one weekend per month.

8. The practical difficulty and expense of the children spending time with their father (subparagraph (e)) is of significance in this case.  The parties live some three to three and a half hour’s drive apart.  The mother and the children live in Town C in the Blue Mountains, and the father lives on the Central Coast.  Previously the father has spent time with the children both in the Blue Mountains and the Newcastle areas, and changeovers have taken place at the Town E McDonald’s Family Restaurant.  If the father’s time with the children were to be monthly, as opposed to more frequently, this would reduce the amount of travel involved for both the father and the children, and the expense involved in such travel for the father. 

9. The next relevant consideration is the capacity of each parent to provide for the needs of the children, including emotional and intellectual needs (subparagraph (f)).  The mother has demonstrated that, other than understanding the children’s need to see their father, she is very capable of meeting all their needs.  They are described by the Family Consultant as remarkably well-behaved and polite and excellently looked after in the material sense.  There is no evidence to suggest that the father cannot meet the children’s needs in the limited time he spends with them, except to understand their psychological need to attend church and the distress he caused to them in failing to meet this need.

10. The significant issue of culture or lifestyle (subparagraph (g)) for these children is their faith, which is central to the dispute in this case.  Prior to the parties’ separation, both parties were members of the F Religion church and their clear intention during the marriage was to raise their children within that faith.  The father now has no religious affiliation, but the mother continues to raise the children in that faith.  The Independent Children’s Lawyer’s proposed orders would, in all likelihood, involve some small limitation on the practice of that faith (missing one church service per month).  In my view, I should give significant weight to the role religion plays in these children’s lives.

11. The next consideration is the attitude to the children and the responsibilities of parenthood demonstrated by each parent (subparagraph (i)).  The mother has demonstrated that she is a responsible parent and, in the context of the proceedings, it is noted that she has complied with Court Orders, even though she does not agree with them.

12. The father has, in my view, shown a poor attitude to the responsibilities of parenthood in recent times in these proceedings.  He presented to the Family Consultant as keen to pursue Orders so that the children could spend time with him, but when Orders were put in place the father failed, without explanation, on a number of occasions to attend for that purpose.  He has also failed to participate in these proceedings which were initiated by him and contact he has had with the mother in recent times appears to demonstrate more a sense of his own grievances and offer excuses for his own reliability than facilitating the children spending time with him for their benefit.  I have real concerns about him prioritising his own needs over those of his children.  

13. The failure of the father to make himself available when the children were to spend time with him, without explanation, has caused some impact upon the children, especially as they had to be prepared by their mother for that time and, at least the eldest two children were opposed to that time.  In my view, the Independent Children’s Lawyer’s proposed order, which provides for a self-executing order if the father fails to attend on two consecutive occasions, will address this issue.

14. There is some risk that a self-executing order, resulting in a suspension of the children’s time with the father, will lead to further proceedings because the father will inevitably have to initiate further proceedings if the suspension is to be lifted (subparagraph (l)).  However, this risk needs to be weighed against the certainty for the children in circumstances where the father has not continued to press his application in these proceedings.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Where the Court is to determine parental responsibility, the starting point is section 61DA.  This section provides that 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.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

3. In this matter, the mother seeks sole parental responsibility and the father seeks equal shared parental responsibility (other than for day to day decisions when the children are in their respective care).  The Independent Children’s Lawyer did not ultimately oppose sole parental responsibility to the mother in all the circumstances of this case.

4. In light of the significant lack of communication between these parties in the past and at present, it would not be in the best interests of these children for their parents to be making joint decisions in respect of them.  Accordingly, I am satisfied that their primary carer should have sole parental responsibility, and that is the mother.

5. I will make an order, however, for the mother to notify the father of significant decisions she makes in respect of the children’s education, health, religion and other issues regarding their welfare.

6. As I have indicated, I am satisfied that it is in the best interests of these children to have a relationship with both parents.  I am further satisfied that an appropriate amount of time would be for the father to spend time with the children one weekend every month, or every four weeks.  This would accommodate the practical difficulties and expense involved in the travel between the parties’ residences, and would also accommodate, without too much disruption, the children’s weekend religious and sporting commitments, the former in particular being an important component of these children’s lives.

7. As to changeovers, previously the Orders have provided for changeovers to take place at Town E McDonald’s Family Restaurant at both the commencement and conclusion of the children’s time with their father.  However, the Independent Children’s Lawyer has put forward Town C Public School as the pickup location for the commencement of time.  I am satisfied that this is an appropriate pickup location as some of the children are of school age and the time is to commence at 4.00 pm on a Friday.  I am further satisfied that Town E McDonald’s Family Restaurant is an appropriate changeover location at the conclusion of the father’s time in light of such changeover occurring on a weekend when the children are not at school.

8. The father sought that the children spend a block period of fourteen days with him in each of the Christmas and July school holidays, whilst the Independent Children’s Lawyer proposed one week during the Christmas school holidays only.  In my view, in light of the period of time since these children have spent any time with the father, and as the time will be fairly limited if it is taken up by him, pursuant to these Orders, a fourteen day period would be too long to spend with the father with whom they have an undeveloped relationship.  However, I am of the view that one block period of time per year would be appropriate and in their best interests.

9. In respect of any telephone communication, I am minded to make an order in accordance with that sought by the mother, that is, that the children are able to have telephone communication with their father from time to time in accordance with their wishes.  The mother will be required to assist the children in facilitating this communication, upon them making such a request.  I am not of the view that specified days and times for telephone contact is appropriate in this case, as was sought by the father.

10. Further, I will make orders providing for the mother to authorise the father to receive medical information and school reports, photographs and notices in respect of the children. 

11. Despite the mother seeking an order authorising her to apply for passports for the children without being required to obtain the father’s consent, I am not minded to make such an order.  In accordance with the orders I will make, the mother will have both the father’s residential and telephone contact details and can therefore arrange for him to execute passport applications for the children.

Conclusion

1. Having regard to all of the factors in relation to the best interests of these children, I will make orders largely in accordance with the Independent Children’s Lawyer’s proposal.  Despite the mother’s proposal for the children to only spend time with and communicate with their father at their request and the father’s failings to date in taking up his time pursuant to interim Orders and failing to attend to press his application, I am satisfied that these children should be given the opportunity to have the benefit of a relationship with their father.  However, I am of the view that it is appropriate for the father’s time to be suspended if he fails to attend on two consecutive occasions.  It would not be in the best interests of these children, in light of the father’s history to date, to prepare to spend time with their father and then the father fail to attend, disrupting their routines and perhaps creating disappointment, at least for the younger children.

2. In light of the parties’ lack of communication, and the practical difficulties that would be involved if the father’s time were suspended and the parties were not to come into any face-to-face contact, I am satisfied that an order allocating sole parental responsibility to the mother is appropriate in this case.  I will therefore make an order in accordance with that sought by the mother in respect of parental responsibility.

3. Whilst I note the Independent Children’s Lawyer’s submissions that it is common in undefended matters for an order to be made granting on short notice liberty to the party who has not appeared to press their application, having regard to the relief available to the father under Rule 11.03 of the Family Law Rules 2004 (Cth), I am not minded to make such an order in this case. It is in these children’s best interests for the proceedings to be finalised, and I have considered the father’s application on the evidence of the mother and the Family Consultant.

4. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding seventy-eight (78) are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 11 February 2014.

Legal Associate:       

Date:    11 February 2014