CALLET & BELLANDA

[2011] FamCA 879

FAMILY COURT OF AUSTRALIA

CALLET & BELLANDA [2011] FamCA 879

FAMILY LAW – CHILDREN – parental responsibility and with whom a child shall spend time – agreement for children to live with mother and spend time with father - dispute about venues and times concerning the delivery of children to the father and return of children to mother – where father and his new wife are in a stronger financial position than mother – where the mother experiences financial difficulty in travelling to the mid point between her residence and father’s residence for changeovers to occur –– where father agrees to pay financial assistance to assist mother with travelling costs & agrees to abstain from seeking a variation of his child support liability on account of such payments – order made for mother to deliver the children to the mid point at the beginning of children’s time with father and for father to deliver the children to mother’s locality at conclusion of time

FAMILY LAW – PARENTING ORDERS - orders sought to restrain father’s alcohol consumption – where parties’ separation involved an incident of the father acting violently towards the mother whilst heavily intoxicated – where father has an undertaking to the court to not consume alcohol whilst the children are in his care for a period of 12 months – held no need for court to make orders replicating that obligation – no orders made

FAMILY LAW – COSTS – Independent Children’s Lawyer’s application for costs – no submissions in rebuttal by parties– orders made for parties to contribute equally to costs

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 117

Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184

APPLICANT: Mr Callet

RESPONDENT: Ms Bellanda

FILE NUMBER: SYC 5658 of 2009

DATE DELIVERED: 18 November 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Austin J

HEARING DATE: 24, 25 & 26 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Watkins
SOLICITOR FOR THE APPLICANT:	Greg Morahan & Co

COUNSEL FOR THE RESPONDENT:	Not Applicable
SOLICITOR FOR THE RESPONDENT:	Mr Crawford, Moira Ryan Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	Ms Reynolds
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Mr Samuel, Brian Samuel & Associates

Orders

1. All former parenting orders relating to the children B, born on … 2005, and C, born … 2007, (“the children”) are discharged.

2. The parties shall within 28 days of these orders take all reasonable steps to ensure that the Births, Deaths and Marriages Register kept by the Registrar pursuant to the provisions of the Births, Deaths, and Marriages Registration Act 1995 (NSW) is amended so as to disclose the children’s names as set out in Order 1 hereof and that fresh birth certificates issue for the children in those names, provided the mother bears the cost thereof.

3. The mother shall have sole parental responsibility for the child B in respect of his treatment for the condition of Autism Spectrum Disorder, subject to her consultation with the father and consideration of the views and opinions expressed by the father prior to all decisions made by her in that regard.

4. Subject to Order 3 hereof, the mother and father shall otherwise have equal shared parental responsibility for the children.

5. The children shall live with the mother.

6. The parties shall take all reasonable steps to ensure the children spend time with the father as follows, or as otherwise agreed:

   a)During NSW public school terms, each alternate weekend from 6.30 pm Friday until 2.00 pm Sunday, commencing on the second Friday after the Friday specified in Order 6(b)(iv) hereof in the first school term, and otherwise on the first Friday of the second, third, and fourth school terms.

   b)During the NSW Christmas school holidays:

   i)From 2.30 pm on 29 December 2011 until 2.00 pm on 2 January 2012;

   ii)From 2.30 pm on 23 December 2012 until 2.00 pm on 29 December 2012, and between those same times and dates in each alternate year thereafter;

   iii)From 2.30 pm on 29 December 2013 until 2.00 pm on 4 January 2014, and between those same times and dates in each alternate year thereafter;

   iv)On the third weekend in January each year from 6.30 pm on Friday until 2.00 pm on Sunday.

c)During the 2012 NSW Easter school holidays for four nights.

d)During the 2012 NSW mid-year school holidays for five nights.

e)During the 2012 NSW September/October school holidays for six nights.

f)For all NSW school holiday periods (other than Christmas) in 2013 and thereafter, for seven nights, being the first seven nights in odd numbered years and the last seven nights in even numbered years.

g)On the weekend of Father’s Day from 6.30 pm on Friday until 2.00 pm on Sunday.

1. Order 6 hereof is suspended on the weekend of Mother’s Day from 6.30 pm Friday until 2.00 pm on Sunday.

2. For the purposes of implementing Orders 6 and 7 hereof:

   a)The mother shall cause the delivery of the children to, and the father shall cause the collection of the children from, the McDonalds Restaurant at D Town, NSW at the commencement of each occasion the children are to spend time with the father, and on or prior to each such occasion the father shall pay the sum of $40 to the mother; and

   b)The father shall cause the delivery of the children to, and the mother shall cause the collection of the children from, the McDonalds Restaurant at E Town, NSW at the conclusion of each occasion the children spend time with the father.

3. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

   a)The mother on each Christmas Day the children are in the care of the father, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s call on that number at that time.

   b)The mother on one occasion during each period the children are in the father’s care for a continuous period of seven days, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s call on that number at that time.

   c)The parent with whom the children are not then staying, when requested by either child, and for that purpose the parent with whom the children are then staying shall telephone the other parent on the telephone number provided by the other parent for that purpose.

4. The mother shall forthwith procure, and the parties shall thereafter maintain, a communication book to facilitate communication between the parties in respect of issues related to the children and each party shall relay important information concerning the children to the other by way of written notification in the communication book, which will travel with the children at changeovers.

5. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

6. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

7. Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.

8. The father is entitled to attend at all educational, sporting, cultural, and extra-curricular events in which the children are enrolled or in which the children are due to participate, provided he gives the mother 48 hours notice of his intention to attend.

9. The father is restrained from taking the children to any veterinary practice premises which he conducts, or at which he is employed, or any location at which he affords veterinary services, unless the children’s attendance is:

   a)Confined to a period of no more than 30 minutes;

   b)Not more frequent than once per day; and

   c)Supervised directly by a responsible adult.

10. The parties are restrained from administering to the children any drug other than those prescribed by a medical practitioner and those supplied for human consumption, and the parties shall provide to one another upon exchange of the children between them any medication of prescriptions prescribed for the children by a medical practitioner.

11. The father is restrained from attending the residence of the mother except at the invitation of the mother.

12. The parties are restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.

13. The parties shall forthwith enrol themselves to commence, and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the Independent Children’s Lawyer.

14. The Independent Children’s Lawyer is discharged upon compliance with Order 19 hereof or the expiration of any applicable appeal period, whichever is the later.

15. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

16. The parties shall each pay one half of the Independent Children’s Lawyer’s costs of and incidental to the proceedings in the sum agreed or assessed.

17. Any and all outstanding applications are dismissed.

Notations

A.For the purposes of Order 22 hereof, each party’s share of the Independent Children’s Lawyer’s costs will not exceed $6,500.

B.The father shall not seek to diminish his child support liability in respect of the children by reason of the payments he makes to the mother pursuant to Order 8 hereof.

IT IS NOTED that publication of this judgment under the pseudonym Callet & Bellanda approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5658 of 2009

Mr Callet

Applicant

And

Ms Bellanda

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. For a long time the applicant father and respondent mother remained trapped in dispute about both parenting and property adjustment orders.

2. Commendably, albeit belatedly, the parties reached agreement about orders adjusting their property interests, which orders were ratified by the Court.

3. Although the dispute concerning parenting orders remained, the scope of the dispute was substantially narrowed. Ultimately the controversy was confined to the arrangements for the exchange of the children between the parties and whether the father should be restrained from consuming alcohol at times during and proximate to his care of the children.

Short history

1. The parties commenced their cohabitation in October 2002 and finally separated in March 2009, without marrying. The parties’ separation coincided with a physical confrontation between them, which led to the father’s prosecution for his assault of the mother and the making of an apprehended violence order against him for the protection of the mother.

2. The two children who are the subject of these proceedings were born during the parties’ relationship and are now aged six and four years respectively. They are B, born in 2005, and C, born in 2007. The parties have now agreed to change their surnames from “Callet” to “Bellanda-Callet”.

3. For several months following the parties’ separation the children spent no time with the father, but in June 2009 the children began spending two hours each week with the father at a contact centre.

4. In August 2009 the mother and children vacated the former family home on the southern fringe of Sydney and moved to live with the maternal grandparents in the F Region of NSW.

5. The father commenced these proceedings in September 2009 and, some months after the mother’s move to the southern highlands, arrangements were made for the children to spend time with the father for three hours on each of three weekends per month, which time was supervised by a mutual friend of the parties. That time was slightly expanded in February 2010.

6. On 9 June 2010 the parties reached agreement about interim parenting orders to regulate the parenting arrangements, which made provision for the children to live with the mother and spend more extended time with the father on weekends, without the need for supervision.

7. Since late 2010 the children have spent 24 hours with the father each alternate weekend, and also short periods of consecutive days during school holidays.

8. The parties and children conferred with the Family Consultant in June 2011, and shortly thereafter the Family Report was released to the parties and the Independent Children’s Lawyer.

9. The trial began on Monday 24 October 2011 and, after some discussion between the parties and the Independent Children’s Lawyer, the Court was informed there was general agreement about the allocation of parental responsibility for the children, that the children live with the mother and spend time with the father on alternate weekends and during school holiday periods, and in relation to a variety of miscellaneous orders. The agreed orders were the subject of a tendered minute.[1]

   [1] Exhibit C.

10. In addition, although not mentioned in the tendered minute, both parties agreed with the Independent Children’s Lawyer’s proposal that they each attend a post-separation parenting program, consistently with the recommendation of the Family Consultant.[2] The parties also agreed the father would not attend the mother’s residence without her invitation to do so.

    [2] Family Report, page 20.

11. Consequently, the only issues which were the subject of residual dispute were:

    a)The time of delivery of the children by the mother to the father on either Friday or Saturday of each alternate weekend during school terms;

    b)The venue of that changeover;

    c)The time of return of the children by the father to the mother on Sunday of each alternate weekend during school terms;

    d)The venue of that changeover;

    e)Whether the father ought be restrained from consuming alcohol during the time the children spent with him, and for a period of 12 hours in advance of those occasions.

12. The father tendered a minute of orders proposed by him in respect of the contested issues,[3] and the orders proposed by the mother were contained within her Case Outline document.[4] The father abandoned reliance upon his Amended Application filed on 5 July 2011 and the mother abandoned reliance upon her most recent Amended Response filed on 19 September 2011.

    [3] Exhibit F1.

    [4] Mother’s Case Outline, Orders 5(a), 10, 16.

13. The trial concluded on Wednesday 26 October 2011, at which time judgment was reserved.

Primary evidence of the parties and the independent children’s lawyer

1. In support of his proposal the father relied upon paragraphs 1-36 of his affidavit filed on 17 October 2011 and the affidavit of his wife, Ms Callet, filed on 17 October 2011.

2. The father sought leave to rely upon a report of his former treating psychiatrist, Dr G, dated 20 May 2010 but was precluded from doing so over the objection of the mother, for which decision ex tempore reasons were delivered. In circumstances where earlier procedural orders made no provision for the evidence to be adduced[5] and the psychiatrist was unavailable for cross-examination by the mother’s legal representative, greater prejudice flowed to the mother in being unable to contest the evidence than to the father by being precluded from adducing the evidence.

   [5] Orders 6-10 made on 6 September 2011.

3. In support of her proposal the mother relied upon her affidavit and financial statements, both filed on 14 October 2011.

4. The Independent Children’s Lawyer relied upon:

   a)The affidavit of the Family Consultant, affirmed on 22 July 2011;

   b)The reports of Dr H, paediatrician, concerning the eldest child dated 11 June 2010 and 23 March 2011; and

   c)The reports of Mr J, psychologist, concerning the eldest child dated 4 June 2010 and 25 March 2011.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

9. The issues of parental responsibility and the time spent living or visiting with each parent, dictated by the statutory provisions of ss 60B, 61DA, and 65DAA, were the subject of sound agreement between the parties and Independent Children’s Lawyer. The residual controversial issues are determined in the context of the considerations manifest in ss 60CA, 60CC, and 65AA.

The venue and time of delivery of the children to the father

1. The issues about the venues and times at which the children are exchanged between the parties arise by reason of the distance between the parties’ households. The mother lives in the southern highlands near E Town and intends to remain there. The father lives at Suburb K in the eastern suburbs of Sydney and conducts his professional practice at D Town in the southern suburbs of Sydney. He intends to remain living and working in those places.

2. The evidence of the parties about the travel times between those places was relatively uncontroversial. Depending upon the day of the week and the time of day at which the journey is undertaken, the evidence disclosed:

   a)The travel time by road between Suburb K and E Town is about 105 minutes, but D Town is not on a direct route between those two places. The parties’ travel time estimates given in evidence were uniformly shorter than the estimate of 120 minutes they each provided to the Family Consultant.[6]

   b)The travel time by road between Suburb K and D Town is about 40 minutes.

   c)The travel time by road between D Town and E Town is about 75 minutes.

   [6] Family Report, par 6.

3. Under the existing interim parenting orders, made in June 2010, the changeover venue is the McDonalds Restaurant at E Town. The father both collects the children from, and returns the children to, the mother at that location.[7]

   [7] Father’s affidavit, par 5.

4. For the future, the father instead proposed the mother deliver the children to him or his wife at the commencement of the time the children are to spend with him. His proposal was that the exchanges occur at the McDonalds Restaurant at D Town, near to his place of work.[8] It was implicit that the father proposed the same changeover venue for time spent by the children with him during school holidays.

   [8] Exhibit F1, Orders 1-2.

5. The father envisaged that the children be delivered to that venue on Fridays at the commencement of their weekend time with him, at some designated time between 5.00 pm and 7.00 pm, whereupon they would be driven directly home to Suburb K.

6. The mother’s proposal was that the father or his wife should continue to travel to collect the children in E Town. However, the mother’s proposal was made in the alternative. Her preference was for the father to collect the children during school terms directly from school on Friday afternoons,[9] but alternatively from the McDonalds Restaurant at E Town on Saturday mornings, which would also be the changeover venue during school holidays.[10]

   [9] Mother’s affidavit, par 70.

   [10] Mother’s Case Outline, Orders 5(a), 10.

7. The Independent Children’s Lawyer supported the father’s proposal.

8. The father and Independent Children’s Lawyer advanced a number of reasons to support their proposal.

9. Principally, it was contended, the children would emotionally benefit from their perception of active participation by both parents in facilitating their interaction with the other parent. That submission had a solid foundation in the evidence of the Family Consultant, whose evidence I accept. The Family Consultant asserted it would send a “good message” to the children for both parties to be seen participating equivalently in the travelling, and it was more important to the children for the mother to be responsible for the delivery of the children to the father at the commencement of their time with him because that exchange was liable to be more unsettling for the children than the exchange when the children are returned to her.

10. In her cross-examination the mother said she had gleaned the impression the children did not enjoy the time they spent with the father, even though she acknowledged the importance of their relationship with him. The mother was asked to consider whether the children might enjoy their time with the father more if they were aware she positively encouraged their interaction with him, and whether she could demonstrate that encouragement by undertaking the travel necessary to deliver the children to the father. Regrettably, the mother’s unenthusiastic response was simply that the children would “make their own opinions”, implying they would do so irrespective of her own negativity about the father. The mother also said she did “not make it impossible for [the children] to enjoy their relationship with [the father]”. Indeed, that is so, but desisting from “mak[ing] it impossible” falls a long way short of making it a positive experience for them.

11. The mother said she had a “non-existent” relationship with the father. They do not even speak when in each other’s physical presence.[11] Although the mother claimed she was uncertain whether the children are aware of the antipathy between them, it is inevitable they eventually will be, if not already. Comments made by the children to both the father[12] and the Family Consultant[13] imply their awareness of the disharmony between the parties.

    [11] Mother’s affidavit, par 60.

    [12] Father’s affidavit, par 26.

    [13] Family Report, par 40.

12. The mother said she understood her obligation to facilitate the relationship between the children and the father, but in view of her other comments it is difficult to accept as correct her protestation that she was “doing the best [she] can”. The Family Consultant considered the mother’s attitude makes it difficult for her to be positive about the time spent by the children with the father.[14]

    [14] Family Report, par 56.

13. I accept the submission that the obligation of the mother to deliver the children to the father at the commencement of the time they are due to spend with him is a powerful consideration in the determination of the changeover venue.

14. The father is a self-employed professional. He works long hours in his pracrice. Friday afternoons are the busiest time of the week in the practice and he usually does not finish work until around 7.00 pm. He contends his obligation to work precludes him from travelling to E Town on Friday afternoons to collect the children. The Family Consultant considered it would benefit the children if the father could have more interaction with them on Friday afternoons and evenings,[15] but the father asserted it was impractical, contending his work commitments sustained the income of him and his wife, child support payments for the children to the mother, and the proposed fuel reimbursements to the mother. The mother did not refute the efficacy of the father’s evidence, but envisaged the father could garner his wife’s assistance to achieve Friday collections.

    [15] Family Report, par 54.

15. The father’s wife does not work on Fridays. She is available to travel to E Town and collect the children on Friday afternoons, but is reluctant to do so. The mother seemingly expected the father to obligate his wife to intercede in the parties’ affairs in that way, but I do not accept that submission. Each party is in a similar predicament. The mother’s parents live only 350 metres from her home.[16] The mother said she has asked her parents if they will assist her to convey the children to D Town and they refused. The mother did not suggest that they were unable, simply that they were unwilling. The father’s wife and the mother’s parents are not parties to the proceedings and cannot be bound by an order of the Court. It may be that the parties will be able to rely upon those third parties for occasional assistance, but that possibility is not a proper basis for making orders mandating arrangements that assume the permanent availability of such assistance.

    [16] Mother’s affidavit, par 29.

16. The mother also advanced cogent reasons for her proposal.

17. Presently, although the mother is not in paid employment and has the time to drive the children to D Town, she is actively seeking full-time work within her local area in office administration. She expects to ultimately gain employment which requires her devotion to occupational duties until 5.00 pm on weekdays.[17] She contends such an eventuality would preclude her from being able to deliver the children to D Town on Friday evenings until at least 6.30 pm. That may be so, but that is not an unreasonable time to deliver the children, even though the children currently retire to bed at 7.30 pm because of their young ages.[18] It is still a delivery time within the closed period proposed by the father and Independent Children’s Lawyer. Although the Family Consultant preferred changeovers occur no later than 6.00 pm, I am not satisfied that a changeover some 30 minutes later than her recommendation renders the idea of a Friday evening exchange untenable.

    [17] Mother’s affidavit, par 65.

    [18] Mother’s affidavit, par 70.

18. The mother is also concerned about the expense she will incur driving her vehicle on the return journey between E Town and D Town, estimating it will cost her one-third of a tank of fuel.[19] To alleviate that burden the father is willing to compensate the mother by payment of $40 for each return journey she is required to make, and further, to abstain from seeking a variation of his child support liability on account of such payments.[20]

    [19] Mother’s affidavit, par 75.

    [20] Exhibit F1, Order 3.

19. Apart from the direct cost of each return journey, the mother is concerned generally about the reliability and roadworthiness of her car. It is currently in need of repair,[21] which the mother asserted she is unable to afford. Although the mother will shortly receive a total of $80,000 from the father by way of property settlement,[22] the mother contended nearly the entire amount would be expended on liabilities, leaving her with only a few thousand dollars for discretionary spending. Her liabilities were asserted to be her legal costs in respect of these proceedings, a credit card liability, a debt to her sister, and her liability to the Independent Children’s Lawyer for costs. It is the mother’s desire to improve the impoverished living conditions for her and the children[23] before renewing her car.

    [21] Mother’s affidavit, pars 73-74.

    [22] Exhibit B.

    [23] Mother’s affidavit, pars 29, 39, 40, 67, 73.

20. The mother’s asserted apprehension about road travel to D Town in her car was also the reason she proposed travelling to L Town Railway Station on Sunday afternoons to collect the children from the father at the conclusion of their weekends with him. She acknowledged the need for her to share the travelling, but contended it was more practical for her to travel on Sunday afternoons rather than Friday evenings due to her reliance upon rail transport.[24]

    [24] Mother’s affidavit, pars 77-78.

21. The father did not accept the contended necessity for the mother to rely upon public transport. He also gave evidence about the mother’s car, with which he is familiar because it was owned by the parties during cohabitation. The wife said it is a 2002 model,[25] but the father said it was a 2003 model. Either way, it is not too old. It has about 150,000 kilometres on the odometer, which the parties appeared to agree was not a particularly onerous mechanical load for a car of that engine capacity. The father believed the car was sufficiently reliable and safe to enable the mother’s return journey to D Town as he proposed, and that the mother would have enough money from the property settlement to effect necessary repairs.

    [25] Mother’s affidavit, par 73.

22. The evidence concerning the parties’ irreconcilable beliefs about the roadworthiness of the mother’s car and the mother’s financial capacity to repair it was left in an unresolved state, precluding firm findings of fact. There was however no dispute about the disparity in the parties’ financial circumstances. The father is in a significantly better financial position than the mother. While that consideration is influential, it is not determinative.

23. I am not inclined to accept the mother’s protestations in cross-examination that she was “financially unable” to fulfil an order requiring her to deliver the children to the father in D Town by reason of the condition of her car. Similarly, I am not inclined to accept her solicitor’s submission that “financial necessity” precludes the mother’s delivery of the children to the father at D Town. I accept the mother’s relatively poor financial circumstances may cause her some degree of inconvenience in complying with such an order, but it is hyperbole to assert or imply impossibility of compliance for that reason.

24. I am also persuaded that it would be better for the children to be conveyed by car between the parties’ households on Sundays, rather than having that journey broken into separate car and rail journeys. An aggregated journey by road and rail will likely lengthen the overall journey for the children and risk introducing complication through occasional unreliability of the rail services. In situations where a party experiences unforeseen delay in making an appointed changeover there is likely to be less vexation if the changeover venue is close to one party’s residence than if at a location geographically removed from both party’s residence.

25. I accept the Family Consultant’s evidence to the effect that it is preferable for the children for the travel arrangements to be as simple as possible. Routine is important for the children, especially the eldest child, who it is acknowledged suffers from Autistic Spectrum Disorder.[26] Logic suggests simplicity is also better for the parties, particularly if they continue to encounter difficulty usefully communicating with one another.

    [26] Family Report, par 39.

26. The mother’s alternate proposal was that the father should collect the children from E Town on Saturday mornings to implement the children’s time with the father on weekends during school terms. She asserted that was a preferable alternative to her driving the children to D Town on Friday evenings.

27. Although her alternate proposal did offer some advantage, it would cause greater disadvantage. It should also be observed that, in attempting to demonstrate the virtues of a weekend changeover on Saturday mornings, the mother was paradoxically detracting from her primary proposal of a weekend changeover on Friday afternoons.

28. The father said both to the Family Consultant[27] and in cross-examination that he had made arrangements to cease working in his practice on Saturday mornings, and employ another veterinary surgeon to work in his place, in order to spend more of the weekend time with the children. The mother suggested the father could watch the children’s participation in Saturday morning sport if he collected them from E Town on Saturday mornings.[28] Although there is some uncertainty about the current extent of the children’s participation in sporting or extra-curricular activities on Saturday mornings,[29] I accept such participation is more likely as they age.

    [27] Family Report, par 11.

    [28] Mother’s affidavit, par 86.

    [29] Mother’s affidavit, pars 38, 47-50.

29. The Family Consultant said in cross-examination it is generally beneficial for children to know that their non-residential parent is sufficiently interested in them to attend their sporting and extra-curricular activities “on occasions”, but she acknowledged such an outcome depends upon the proximity of the parties and is not always possible. The geographic separation of the parties is a complicating feature of this case and was the subject of a more salient observation by the Family Consultant about the duration of the journeys between the parties’ households.

30. The Family Consultant considered the current young age of the children caused the journey between the parties’ residences to be tiring for them. In her view, it was better for the journeys to be separated by two nights rather than only one. Saturday morning exchanges would represent a significant curtailment of the weekend time spent by the children with the father. The Family Consultant therefore strongly recommended changeovers occur on Friday evenings, rather than Saturday mornings, with returns on Sunday afternoons. She considered that regime better promoted the children’s best interests.

31. After weighing the competing considerations, I am persuaded that the mother should deliver the children to the father at D Town at the commencement of the time the children are to spend with him. The competing considerations favour D Town over E Town as the changeover venue, and Friday changeovers are the preference of both parties, the Independent Children’s Lawyer, and the Family Consultant. An order is made to that effect.

The venue and time of return of the children to the mother

1. The father proposed that he continue to return the children to the mother at the McDonald’s Restaurant at E Town at the conclusion of any time spent by the children with him, both on Sunday afternoons at 2.00 pm on weekends during school term and on occasions during school holidays. He recognised the importance of the parties sharing the responsibility for travel.

2. Given the mother’s preference for the children to be collected from E Town by the father at the commencement of the time spent by the children with him, the mother proposed that she travel to L Town Railway Station to collect the children from the father at the conclusion of the time spent with him by the children. She too acknowledged the need for her to bear some of the travel burden. However, in the event the Court ordered the mother to undertake the travelling at the commencement of the children’s time with the father, she proposed that the father return the children to her at the McDonalds Restaurant at E Town, consistently with the father’s proposal.

3. The Independent Children’s Lawyer again supported the father’s proposal.

4. For reasons demonstrated by the mother in evidence, it would be reasonably practicable for the father to return the children to her at L Town Railway Station on Sunday afternoons of the weekends on which the children spend time with the father. But other considerations militate against that.

5. If the children’s best interests demand the mother’s delivery of the children to the father in Sydney at the commencement of the time they spend with him, then the father ought return them to the mother in E Town at the conclusion of such time. That is also the outcome desired by the mother in the event of a determination that she initially convey the children to the father.

6. Although the mother posited the return of the children to her by the father on Sundays at either 1.30 pm or 3.30 pm,[30] that was upon the basis of the changeover venue being L Town Railway Station. Those times were stipulated so as to correlate with the train timetables.

   [30] Mother’s Case Outline, Order 5(a).

7. In the event of an order requiring the father to return the children to the mother in E Town, there was no apparent dispute about the changeover occurring at 2.00 pm. That time conforms to the existing interim orders, and is designed to accommodate the father’s travel directly from E Town to M Town to visit his other children from 3.30 pm on the weekends when that is stipulated to occur.

8. Accordingly, an order is made requiring the father to return the children to the mother at the McDonalds Restaurant in E Town.

Restraint upon the father’s consumption of alcohol

1. The father’s position was that he should not be restrained in any way from consuming alcohol, but if a restraint was imposed upon him whilst the children were in his care, it should only restrict the volume and rate of his consumption.[31]

   [31] Exhibit F1, Order 4.

2. The mother’s position was that the father should be restrained from consuming any alcohol at all whilst the children were in his care.[32] That proposal was orally expanded to include the period of 12 hours immediately preceding any time spent by the children with the father. The mother moderated her proposal during final submissions, so that the restraint was capped at five years and was not indefinite.

   [32] Mother’s Case Outline, Order 16; Mother’s affidavit, par 87.

3. The Independent Children’s Lawyer adopted what was described as a “compromise” position, proposing the restraint of the father remain in place for a fixed period of two years.

1. The issue was contentious largely because of the circumstances surrounding the acrimonious separation of the parties. The mother deposed to those circumstances, which entailed the father acting violently towards her whilst heavily intoxicated.[33] The father conceded in cross-examination he had been intoxicated at that time and the mother’s version of the event was “close enough” to correct. The contrition he expressed to his wife and the Family Consultant[34] about his past behaviour was also convincingly demonstrated in his cross-examination.

   [33] Mother’s affidavit, pars 26, 94-109.

   [34] Family Report, pars 17, 29.

2. Although the mother also deposed to the father’s history of excessive alcohol consumption during their cohabitation,[35] the father denied the extent of that consumption.

   [35] Mother’s affidavit, par 118.

3. The mother conceded, as she was bound to do, she had no knowledge of the father’s pattern of alcohol consumption in the years elapsed since separation.[36]

   [36] Mother’s affidavit, par 120.

4. The father’s uncontradicted evidence was to the effect that his reprehensible behaviour at separation caused him to take stock. He consulted both a psychologist and psychiatrist for therapy over a period of time and abstained from alcohol consumption for a period of nine months. He resumed consuming alcohol socially with his wife, but only in moderate amounts, and they now choose not to consume alcohol at times when the children are in the father’s care. The father does not anticipate consuming alcohol in the presence of the children in the future, but does not wish to be precluded from doing so on special occasions or when occasionally entertaining friends. The father’s evidence was consistent with what he reported to the Family Consultant[37] and was corroborated by his wife.[38]

   [37] Family Report, par 17.

   [38] Family Report, par 36.

5. The mother did not overtly suggest the evidence of the father and his wife should be disbelieved. Rather, the mother’s solicitor submitted that her apprehension about the father’s possible continued excessive use of alcohol and consequent intoxication was genuine, even if not objectively reasonable, and the imposition of the proposed restraint upon the father would be a reassurance to the mother.

6. I do not accept that submission as a valid reason for the imposition of an injunction. The mother said in cross-examination that even if bound by an injunction she feared the father would flout it, and further, that the father would deceitfully deny his breach of the injunction to her in the event of her inquiry of him. The mother’s evidence was consistent with the concerns she reported to the Family Consultant.[39] Her evidence ably demonstrated that an injunction would not serve to reassure her and abate her concerns about the father. The symbolism of such an order would achieve nothing.

   [39] Family Report, par 28.

7. The Family Consultant was reluctant to embrace the mother’s proposal about the imposition of such an injunction, stating her “main concern” was the prospect of the children becoming caught between the parties in their conflict over the issue. Although not articulated precisely in this way, the Family Consultant was clearly concerned the mother would interrogate the children about their experiences with the father to ascertain whether the father had been compliant with the injunction, thereby alerting the children to the controversy and exerting pressure upon them to align themselves with one parent or the other. It would not of course matter whether such pressure was exerted deliberately or accidentally. It would be adverse for them either way.

8. That issue was taken up with the mother in her cross-examination. She denied she would interrogate the children in that way, but she conceded that was the only method by which she could learn whether the father was compliant with an injunction. If the mother’s evidence that she would desist from such interrogation of the children is accepted as correct, then it follows the injunction would be superfluous because she would never know whether the father was compliant or not.

9. The mother accepted the logic of that deductive process but explained the parties had to demonstrate trust in one another, implying the father would do so by agreeing to the injunction she desired. Indeed, the mother is correct about the need for the parties to be more trustful of one another. But the demonstration of trust can just as easily flow from the mother accepting the veracity of the father’s evidence that he will not consume alcohol excessively when the children are in his care as it can from the father’s agreement to an injunction which would be unenforceable and therefore meaningless at best, and a trigger for emotional distress to the children at worst.

10. I accept the contention of the father that an order restraining his use of alcohol, either indefinitely or for a finite period of years, is an unreasonably disproportionate reaction to the mother’s subjective fears. Alleviation of the mother’s anxiety is not of itself, at least in the circumstances of this case, sufficient reason to make the injunctive order she proposes. Limiting the injunction to a period of five years, as the mother alternately proposed, or two years, as the Independent Children’s Lawyer proposed, would be entirely arbitrary. There was no evidence from which a proper foundation for either alternative could be conjured.

11. The father was prosecuted for his assault of the mother in March 2009, which resulted in his conviction and his placement on a good behaviour bond.[40] It was a condition of the bond that the father seek counselling over his alcohol use, and the father stated his probation officer was satisfied with the progress he made with his psychologist and psychiatrist. An apprehended violence order was also made against the father for two years for the protection of the mother.[41] That order expired on 25 March 2011.[42] An application was made by police on behalf of the mother for the apprehended violence order to be extended,[43] but the extension was not granted in consequence of the father providing an undertaking about his behaviour to the Local Court of NSW at N Town on 11 May 2011.[44]

    [40] Father’s affidavit, Annexure A.

    [41] Mother’s affidavit, par 26; Father’s affidavit, par 10.

    [42] Mother’s affidavit, Annexure A.

    [43] Father’s affidavit, Annexure E.

    [44] Father’s affidavit, par 22.

12. In cross-examination the father confirmed that his undertaking to that court included a commitment not to consume alcohol whilst the children were in his care, or for a period of 12 hours preceding them being in his care, for a period of 12 months. The father asserted he intended to abide by that undertaking, by which he is bound until 11 May 2012. There is no need for this Court to make an order replicating that obligation, which is sufficient.

Parenting orders

1. Order 1 is self-explanatory. Existing interim orders need to be discharged.

2. Orders 2-7 and 9-16 inclusive adhere to orders agreed between the parties and Independent Children’s Lawyer. There are some changes in format and syntax but no change to the substance of the proposed orders.

3. Order 8 represents the determination of the Court in respect of changeover venues and the times at which changeovers should occur.

4. During the trial the parties agreed to a conditional order restraining the father’s attendance at the mother’s home. It was agreed the absolute form of the order initially proposed by the mother[45] should be supplemented by the suffix “except at the invitation of the mother”. Order 17 is made in that form.

   [45] Exhibit C, deleted Order 12.

5. Order 18 was not the subject of any agreed proposal, but it could not stimulate any sensible dispute. The parties should not permit the children’s exposure to denigration of the parties.

6. Order 19 embodies the agreement reached between the parties and Independent Children’s Lawyer.

Costs

1. During final submissions the Independent Children’s Lawyer made an oral application for costs against both parties, proposing that each party be liable for one half of his costs. The costs were not accurately quantified, but were estimated not to exceed $13,000.

2. Neither party made any submission in rebuttal of the Independent Children’s Lawyer’s application, from which I impute an absence of objection.

3. As for the father, the Independent Children’s Lawyer confirmed that he had already paid the sum of $1,650 towards his share of the costs. The father’s financial circumstances are sufficiently comfortable to enable his payment of the residual half of the Independent Children’s Lawyer’s costs. He is self-employed. His personal income for the financial year most recently completed was approximately $96,000. He employs his wife and her income is approximately $55,000.[46]

   [46] Father’s affidavit, par 36.

4. The mother’s financial circumstances were significantly worse.[47] However, on the first day of trial the parties agreed to property settlement orders which entail the father’s payment to the mother of lump sums totalling $80,000 within two months.[48] In cross-examination the mother accounted for the manner in which she expected to spend those lump sums, which included her intended payment of her half-share of the Independent Children’s Lawyer’s costs.

   [47] Mother’s Financial Statement.

   [48] Exhibit B.

5. In such circumstances I am satisfied the parties should contribute equally to the costs of the Independent Children’s Lawyer, as it was not contended the provisions of s 117(4) of the Act applied, and the Independent Children’s Lawyer afforded the Court with an advantage in judging what the best interests of the children objectively required, as distinct from what the parties urged, coloured by their own interests and perspectives (see Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 203).

6. Order 22 makes provision for the parties’ payment of the Independent Children’s Lawyer’s costs.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 18 November 2011.

Associate:

Date:  18 November 2011