Cappetto and Cappetto

[2011] FamCA 68

FAMILY COURT OF AUSTRALIA

CAPPETTO & CAPPETTO [2011] FamCA 68

FAMILY LAW – CHILDREN – interim – child to go to school – limited unsupervised time with the father

Family Law Act 1975 (Cth)
APPLICANT:	Mr Cappetto

RESPONDENT: Ms Cappetto

INDEPENDENT CHILDREN’S LAWYER: Brian Samuel

FILE NUMBER: SYC 7342 of 2008

DATE DELIVERED: 15 February 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 1 February 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

Orders

(orders made 1.2.2011)

1. The mother do all things necessary and sign all documents required to ensure that the child, B, born … September 2005 is enrolled in and commences attendance at W Public School during the 2011 school year and for that purpose, she is to contact the school on Wednesday 2 February to make arrangements so that B commences his schooling at W Public School no later than Monday, 7 February 2011. 

2. The father and the independent children’s lawyer are at liberty to make inquiries with the W Public School, in relation to B’s enrolment and in relation to his progress from time to time, and are at liberty to re-list the matter before me on seven days’ notice, in relation to any issue arising out of any difficulty with B’s schooling.

3. The mother is ordered to seek the assistance of the New South Wales Department of Human Services, for the purposes of the Department arranging for her participation with the Brighter Futures program. 

4. All previous orders in respect of the father spending time with the children, B (DOB ….9.2005) and S (DOB ….7.2007), be discharged. 

5. Pending further order, the father spend time with B and S as follows:

   5.1.From 5 February 2011 until 26 March 2011 inclusive, each Saturday from 12 noon to 4 pm, first such Saturday to be on 5 February 2011. 

   5.2.Thereafter, each Saturday, from 10 am to 4 pm.

   5.3.Telephone communication each Monday and Wednesday for a duration of no more than 15 minutes between the hours of 5 pm and 5.30 pm. 

6. The father’s time with the children, pursuant to the previous order, shall be unsupervised. 

7. The parties effect changeovers at H Mall. 

8. The mother is to ensure a copy of these orders are provided to the medical centres (H Medical Centre and … Medical Centre) to which she normally takes the children to see a general medical practitioner and is to request that these orders be placed upon the medical files of the children at those centres.

9. In the event that either or both the children are sick and unable to spend time with the father, pursuant to these orders, the mother shall:

   9.1.If a doctor is of the opinion that the children are unable to attend a time that I have ordered that they be with their father for a medical reason, the mother shall draw the attention of the medical practitioner who has provided her with that opinion to the requirements of the medical certificate in order 9.2;

   9.2.The father and the independent children’s lawyer are to be provided by the mother a medical certificate which clearly specified in detail the nature of the illness suffered by the children and the reason as to why that would prevent the children spending time with their father.

10. Neither party to these proceedings is to discuss with the children anything to do with these proceedings and to do everything possible to protect them from having any knowledge about these proceedings. 

11. The mother is to do everything that she can possibly do to ensure that the children know their father by the name “dad” and that they call him by that name and the mother is to discourage the children from referring to the father by his given name

12. The mother is to take all steps necessary to have both children medically examined by a paediatrician nominated by the independent children’s lawyer.  The independent children’s lawyer is to prepare a letter to the paediatrician indicating the areas in which the independent children’s lawyer seeks the opinion of the expert, relating to their health generally but in particular, relating to B’s alleged constipation and the children’s alleged eczema. 

13. The father is to pay the costs of the paediatrician’s report. 

14. The mother is to follow all recommendations made by the paediatrician about the medical care of the children.

15. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7342  of 2008

MR CAPPETTO

Applicant

And

MS CAPPETTO

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. An application has been made by the father and the Independent Children's Lawyer for interim orders in relation to two children, B aged five and S aged three and a half. This matter is part heard by me as a less adversarial trial.  The Department of Human Services has now declined my request to intervene in the proceedings. The Department has explained that decision by saying that it is currently of the opinion that the children are not at “significant risk of serious harm”.

2. By way of Application in a Case filed 19 October 2010, the father seeks an order that B attend school in 2011. He also seeks orders that B and S spend time with him unsupervised. The Independent Children's Lawyer supports the father’s interim application and seeks additional orders. The mother wishes to home school B for the foreseeable future. She also made an oral application during the course of the proceedings for all previous orders for the children to spend time with their father to be discharged, and for the children (notwithstanding their age) to make the decision as to when they see and spend time with the father.

3. At the end of the proceedings on 1 February 2011, I briefly indicated to the parties the reasons I made the orders and that I would subsequently provide a more detailed explanation, which I now do.

DOCUMENTS RELIED UPON

1. The applicant father seeks to rely on the following:

   3.1    Father’s affidavit filed 28 January 2011

2. The respondent mother seeks to rely on the following:

   4.1Mother’s affidavit filed 17 December 2010;

   4.2Mother’s affidavit filed 17 December 2010;

   4.3Mother’s affidavit filed 14 January 2011.

3. The Independent Children’s Lawyer seeks to rely on his Minute of Order handed up in Court on 1 February 2011, as orally amended in Court.

4. A single expert report prepared by Dr R dated 10 November 2010 was in evidence. The Independent Children's Lawyer points to the significant concerns expressed by Dr R as to the mother’s personality and the enmeshed nature of her relationship with the children.

CURRENT PROCEEDINGS BEFORE ME

1. In the course of the hearing of the matter on a final basis before me, I have made a number of interim orders. There have been attempts over a significant period of time now to encourage the mother to allow the children to see their father. Orders were made by me with the intent that the children spend time with their father at a child contact centre, during which time the mother would not be present. Those orders were not complied with by the mother and she subsequently indicated that she could not bring herself to comply with those orders because it meant leaving the children alone with the father in the presence of a stranger. On an interim basis I concluded that, whilst I awaited the provision of expert evidence from a child psychiatrist, the appropriate thing to do would be to make an alternate order with which the mother indicated she might comply. The alternate order required the mother to take the children to a shopping mall where they could have some time with their father with the mother present. On 13 out of 21 occasions, the mother has not arrived with the children but this order has led to the children having some time with their father, on about 8 occasions.

THE FATHER’S APPLICATION FOR FINAL ORDERS

1. Dr R in his report describes the dilemma that he faced when making recommendations. That dilemma arose out of the fact that the father was not providing any viable option because he was not offering that the children primarily reside with him on a long term basis. That position has now changed. The father has indicated that he wishes, on a final basis, to seek that the children primarily live with him and that he intends to file an amended application for final orders in those terms.

THE APPROACH IN CHILDREN’S CASES

1. The objects of Part VII of the Family Law Act 1975 (FLA) are to ensure that the best interests of children are met by:

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and     

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

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

2. The principles underlying those objects (unless contrary to a child’s best interests) are:

   (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)  parents should agree about the future parenting of their children; and

   (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

4. Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a) FLA)

1. There is no evidence before the Court in these interim proceedings to show that the children would not benefit from having a meaningful relationship with each of their parents.

The need to protect children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)

Allegations of family violence by the mother

1. The mother’s case generally is that the father is a “bad man”. Whilst not a focus in the interim hearing, I am generally aware that the mother makes certain allegations of physical abuse by the father during the period of time they were together. Whilst not mentioned in these interim proceedings, I am aware that the mother has made an allegation that the father threatened her with a knife on 9 June 2008. The father denies that any such event took place. The mother has also made a previous allegation that the father threatened to sell herself and her children for prostitution.

2. In the evidence before me in the interim hearing, the focus was on the father physically disciplining B. The mother in oral evidence said that on one occasion the father used his hands to hit B (I note in passing that on a previous occasion the mother in an affidavit indicated that the applicant had hit B with his belt on one or two occasions). The mother in oral evidence also claimed that on one occasion, the father tied a restraint or strap, ordinarily used in the course of keeping a toddler in check, around B’s wrist and dragged him along the floor. The mother’s oral evidence about the last two incidents was not particularly detailed and, when questioned further, she started talking in a rapid speed and was unable to clarify either incident any further. The father denied that he has ever inappropriately behaved in a physical way with B.

3. The mother has raised allegations of inappropriate sexual behaviour by the father. The mother’s allegations are very general and are first raised in an affidavit on 5 March 2010 which is referred to by Dr R in his report. Dr R sets out the extent of those allegations at page 5 of his report.

4. As mentioned elsewhere, the mother refused to comply with an order that the children see their father in a child contact centre. She was prepared to allow the children to see their father in a suburban shopping mall. The mother explained to me during the hearing that she was able to bring herself to do that because she did not believe the father would behave in any inappropriate manner when there were people about.

5. The parties separated in June 2008. The father did not see the children for a considerable period of time. I am unaware of any allegations the mother makes of any actual or threatened incident of physical violence or abuse since the parties separated.

6. The allegations made by the mother in relation to family violence and inappropriate sexual behaviour are yet to be tested at the final stage of the hearing by way of cross examination, and I am mindful of the nature of the allegations and the fact that the father denies that there is any substance in any of those allegations.

7. In the context of this interim hearing, of course, I can make no concluded findings in relation to those allegations.

8. I have, however, two pieces of evidence which allow me to assess the weight that I should place upon the allegations on an interim basis.

9. The first is that there is evidence before me that last month the New South Wales Local Court dismissed an application that an ADVO be made in the mother’s favour protecting her against the father. That application was dismissed in circumstances where there had been a defended hearing where the mother’s position was presented by a police prosecutor. Both the mother and the father were cross-examined during those proceedings. The Magistrate also had presented to her in evidence a copy of Dr R’s report. Given the order that the Magistrate made, I infer that the Magistrate found after a defended hearing where both parties had been cross examined, that there was no reasonable basis upon which the mother could assert that she might fear that the husband would commit a family violence offence against her.

10. The second piece of evidence I have is the opinion that has been reached by Dr R, having read all of the mother’s allegations and having interviewed both of the mother and father, that little weight should be placed upon those allegations.

11. I find that Dr R’s opinion in relation to the allegations of abuse should be accepted on an interim basis. The mother indicated to Dr R that she thought the father’s facial expression indicated intent of future physical harm to the children. The mother confirmed to me that she had that thought.

12. Dr R formed the view ‘that there was no substance to any of the allegations of abuse’, that the allegations of sexual abuse appeared to be ‘extremely whimsical and vexatious’, and that the mother appeared to have ‘fantasies that abuse may be an intention of the father’. I give significant weight to that opinion in the context of this interim hearing.

13. The father has, so far as I am aware, no history of any charges being made against him of an anti-social nature. He appears on the face of it to be a stable and steady person. Dr R opined that there was no indication that he had any personality disorder or mental illness of any type or was a person who was likely to abuse or be violent towards anybody.

14. When assessing the weight to be placed upon the mother’s allegations in relation to the father being “a bad man” and about his past behaviour, I take into account Dr R’s comments about the mother’s mental status, the nature of other statements made by the mother both in writing and orally and her presentation before me. On an interim basis, I can place little weight upon those allegations. The mother will have an opportunity at a final hearing to have any allegations about family violence which she wishes to press against the father fully ventilated and tested. I will attempt to arrange for the listing of the final hearing as soon as is practicable.

The additional considerations

Children’s views (s60CC(3)(a))

1. One example of the enmeshment between the mother and the children is the mother’s belief expressed in this interim hearing that both her children have the mental capacity to articulate an opinion about their future relationship with their father, that is, they don’t want to see him, and the mother submits that their views should carry significant weight.

2. When asked directly by me whether she really thought a three and a half year old was old enough to make a decision about what time she should spend with her father, the mother responded ‘definitely’. In her view, the children’s feelings in relation to the father are clear cut and the Court should accept her evidence in relation to these feelings. The mother’s evidence does not accord with the observations of Dr R. Dr R wrote in his report that the children ‘appeared very pleased and comfortable with the father’. When questioned about her claims in light of Dr R’s report, the mother said that she tells the children to be ‘nice and friendly’ towards the father and that they are friendly children who will talk to anyone, but in fact, seeing the father is a terrible experience for them and although ‘age-wise they are small but maturity-wise in terms of what they want, they know very well’.

3. Even if the children are saying things to the mother that have encouraged her to take the view she expressed, I do not accept that the children are old enough to make a decision for themselves as to how much time they should spend with the father. More importantly, I prefer the evidence of Dr R in relation to how the children responded to the father, and therefore do not accept that, even if the children were old enough, their true feelings are that they do not want to see the father.

Relationships of the children with the parents and other persons (s60CC(3)(b))

1. It is not in dispute that the children have a very strong relationship with the mother. Dr R comments that “they both appeared to have both [sic] a strong positive attachment with the mother”. He believes that the children are young enough that they have not as yet been adversely affected by the mother’s enmeshment.

2. The mother’s presentation before me is consistent with Dr R’s opinion that she has a dependent, suspicious personality style and that she is not able to separate from her children. Dr R opines that this anxious dynamic will potentially be quite damaging for the children, should it continue, and it needs to stop as soon as possible. The children need to be allowed to venture out. It flows from what I am saying, and given the mother’s personality problems and her stated attitudes today, that this is not going to be an easy process.

3. Despite the mother’s evidence to the contrary, Dr R is of the view that ‘both children also appear to have a strong relationship and regard for the father’. For the purposes of this interim hearing, I accept Dr R’s assessment of the relationship between the father and the children and I also accept his opinion that this relationship ‘would grow quickly if he were able to have more time with them’.

Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s60CC(3)(c), noting (s60CC(4))

1. The father is concerned that the mother is conditioning the children and that this will have a long term impact on them.

2. The mother has made it clear by her application, by what she said to me today, and by what is contained in her written documentation, that the mother does not want the father to be part of the children’s lives. She is willing to give up all child support if he gets out of their lives. In her view, he is a bad father and the children would be better off not having a relationship with him. Dr R believes that the mother ‘intends to stop any contact between the children and anyone else…I believe that she will intentionally undermine the contact between the children and anyone else including the father’.

3. The mother’s fixed position in relation to the father is of great concern to me. Dr R writes in his report, that if the children were to have regular time with the father, they would be ‘enriched’ by their developing relationship with him. The mother does not accept this.

Likely effect of any change in the children’s circumstances (s60CC(3)(d))

1. Dr R believes that if the children do not go to school and have the opportunity to develop healthy relationships outside the home, this will detrimentally affect their long term well-being. 

Practical difficulties and expense of the children spending time and communicating with a parent (s60CC(3)(e))

1. This is not a relevant factor in this matter.

The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs (s60CC(3)(f))

1. On an interim basis and as a preliminary view, I have serious concerns about the mother’s capacity to provide for the needs of the children arising from the untested evidence I have about the mother’s personality style, which I referred to elsewhere.

2. The arrangements that were put in place by the mother on 1 February 2011 demonstrate the extreme measures the mother will go to in order to prevent separation from the children for any length of time. On 14 January 2011, the mother requested to attend today’s interim proceedings by electronic communication on the grounds that she did not have anyone to look after her children. On 27 January 2011, a Court employee telephoned the mother, and informed her that her request had been denied by me but that arrangements had been made for the children to be minded in the child care facilities available within the Court. In oral evidence today, the mother said that the children were with a friend in the city, ‘walking around’. On further questioning, the mother conceded that rather than leaving the children with that friend at H for the day or indeed in the child care facilities provided by the Court, the mother had required the friend to come into the city to be close by the Court with the children. She claimed that it was better for them to come into the city where they could ‘play and do activities’. She denied that this was because she didn’t want to be separated from them, claiming that the children would not want to stay with the friend at her home for too long without the mother there; that they would ‘get tense’.  That the mother needs the children to be in such close proximity to her, despite the fact that they would spend the time outside in the middle of a city on a very hot day, is one example of the enmeshment that causes Dr R, and myself, concerns about the boundaries that exist between the mother and the children.

The maturity, sex, background and lifestyle of the children and parents (s60CC(3)(g))

1. Both of the parents were born in India. Dr R is of the opinion that ‘it is open to interpretation as to how her (the mother’s) over-protective nature be [sic] explained culturally or whether this is more relating to her personality’. I conclude, on an interim basis, that the mother’s culture is not the predominant driver of her over-protective behaviour.

If the children are Aboriginal or Torres Straight Islander (s60CC(3)(h))

1. This is not a relevant factor in this matter.

The attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s60CC(3)(i), noting (s60CC(4))

1. The mother made it clear to the Court that she feels B’s schooling is her responsibility and that the decision associated with this is hers alone to make. In my view, the mother’s fixed position on this does not reflect well on her attitude to the children in terms of their long-term development, or her understanding about her responsibilities as a parent. Dr R makes it very clear in his report that, in his opinion, the children are at long-term risk due to the mother’s over-protective behaviour.

Any family violence involving the children or a member of the children’s family (s60CC(3)(j) and(k))

1. I have discussed the allegations of family violence above. I am not satisfied, on an interim basis, that they can be given a weight which would preclude me from acting upon the more obvious and immediate risks to the children.

Likelihood of order leading to further proceedings (s60CC(3)(l))

1. The mother said on a number of occasions throughout today’s proceedings that she would not comply with any order made for B to attend school, or for the children to spend unsupervised time with the father . I am therefore aware that the orders I have made will more than likely lead to further proceedings. However, I do not consider this to be a sufficient ground to not make the orders.

CONCLUSION ABOUT THE INTERIM ARRANGEMENTS ABOUT B’s SCHOOLING

1. The fundamental concern that I have about B’s schooling arises from the concerns expressed by Dr R which I share. I am dealing with an interim issue and on an interim basis I have Dr R’s opinion that the mother ‘has a dependent suspicious personality style’, which has caused, and is causing, extreme enmeshment with the children, creating the loss of healthy boundaries for the children. Dr R does not express a conclusive view about whether or not the mother has a personality disorder. My experience in this case to date has been consistent with Dr R’s opinion about the mother’s personality style.

2. In paragraph 33 of her affidavit filed 14 January 2011, the mother sets out the reasons which she would like the children to be home schooled. These are as follows:

   48.1The children are at risk of harm from the father and the Court cannot   guarantee the children’s safety;

   48.2B suffers from chronic constipation;

   48.3 Both children suffer from eczema.

3. Consistent with her view that the father is a “bad man”, she asserts that the children are at physical risk if they are sent to school. I am not satisfied that an order for B to go to school creates a risk of harm from the father. The risk to B if he does not go to school is from the mother.

4. It is my preliminary view that the mother’s primary motivation for wishing to home school B is that she does not want B to be away from her.

5. Whatever the truth of the mother’s motivation for home schooling, ordinarily B would have commenced kindergarten in the week the hearing took place. The children have never attended a pre-school or day care. The mother says that since May 2008, she has taken the children to a play group / mother’s group run through the Anglican Church at H. This group meets for two hours each Monday, and on the mother’s evidence, the children have attended most weeks. Prior to S’s birth in 2007, the mother took B to a play group at the Baptist Church in H. Apart from this, the children have not had contact with other children on any regular basis, in any play or formal setting, and certainly not in circumstances where the mother hasn’t been present. The mother has always been present.

6. The mother appears to me to be highly anxious of any suggestion that the children should be out of her sight at any time, particularly if that involves them being with the father. The mother’s resistance to B starting at an ordinary school should be viewed in that context.

7. On the father’s evidence, home schooling has not been a long term plan by the mother, but is relatively new. Certainly according to the report of Dr R, the father was not aware of the mother’s plan until the interviews took place for the preparation of the expert report.

8. The mother denies that home schooling is a new plan, and said in oral evidence that she made the decision to home school the children in 2009, approximately one year after separation from the father. If this is in fact the case, I was not impressed by the level of preparation for home schooling which has been undertaken by the mother thus far and I am not convinced that she is fully cognisant of the onus and obligations that will be on her to ensure B is educated to a standard that would allow him to integrate easily into public schooling later if the mother so desires. As an example of this, when being questioned by the Independent Children’s Lawyer, the mother said she believed the NSW Board of Studies would prepare the syllabus for B. When the Independent Children’s Lawyer explained that in fact, she would be required to prepare it and the NSW Board of Studies would only review it, the mother was quick to say that she would be able to do that. However, given that as yet the mother has not even taken the initiative to read in detail the Home Education in NSW Education Package (Exhibit D), knowing that B’s schooling was an issue to be determined by the Court today, I am less than confident in her capacity to home school B appropriately. 

9. The mother has not been able to accept, let alone take on board, Dr R’s concerns that if the children do not attend school and are not able to develop relationships outside the home ‘their overall development will be severely restricted and stunted…They could become extremely anxious and in the long term quite depressed’. This rather bleak outlook is of great concern to me.

10. It is for that primary reason that I have formed the view that B has to go to school, and he has to go to school straight away. I think attempting to introduce it slowly would only give greater scope to the mother to interfere with the process. The mother, I think inadvertently, told me that B is socialised sufficiently and is sufficiently extraverted for her to be confident that he would be able to settle into school if I made such an order.

11. The mother says that it would not be possible for a teacher to manage either B’s constipation, nor his eczema. I have very little confidence in the evidence given by the mother as being a genuine reason why B can’t go to a public school. For the purpose of these interim proceedings, I am prepared to assume children with constipation problems and eczema problems go to school and the school manages those problems in accordance with the medical advice that they receive. The extent to which B’s constipation problems are related to the anxious dynamic that exists arising from the mother’s dependent suspicious personality style will be a matter for further exploration at the final hearing.

12. The mother has informed me that she will not comply with any order to enrol B in school this year. She tells me that B will not go to school and she cannot force him, as this is not the type of relationship she has with her children. I made clear to the mother that I do no accept that she cannot make her five year old child do as she asks.

Conclusion about the children’s interim time with their father

1. Having taken into account all the statutory considerations, on balance, at this interim stage, I find that it would be in the best interests of the children to have the opportunity to have some time with the father away from the mother. The father has indicated that he thinks this is going to be difficult, particularly in relation to his daughter who is quite affected, in his observation, by the mother’s anxiousness. Nonetheless, the time has come to attempt to give the children some time with their father on an unsupervised basis.

ADDITIONAL PROPOSED ORDERS

1. The mother has provided the court on a confidential basis with the residential address of herself and the children. On the information that I have, it seems that the W Public School is the appropriate school for the catchment area in which the mother lives.

2. I will be making orders much in the form as requested by the Independent Children’s Lawyer. I will order that B attend W Public School, starting Monday 7 February 2011. I will order that the mother immediately contact that school to start making the necessary arrangements for that to happen.

3. The document received from the Department of Human Services indicates that they would help assist the mother deal with any transition of the children to school through the Brighter Futures program. It is in the children’s best interests for me to order that the mother attend that program.

4. The mother conceded in cross examination that there has been significant non-compliance with the order that the children have fairly limited face-to-face time with their father in the mother’s presence at a shopping centre. I accept on its face the father’s assertion that he has only seen the children on 8 out of 21 occasions.

5. I will make some orders that will put a heavier onus on the mother to obtain medical evidence if she asserts that any particular acute problem either of the children are suffering from prevents face-to-face time taking place.

6. It is also clear from evidence before me that the mother has engaged B in conversations about the court case. I will make an order that neither party discuss these proceedings or any issues arising out of these proceedings with the children.

7. The mother, consistently with her view that the father should not be part of the children’s lives, has encouraged them to refer to their father by his first name rather than “Dad”.  I will be making an order that she do everything she can to ensure that the children know their father as “Dad” and that they are discouraged from referring to him by his first name.

8. The Independent Children's Lawyer has requested, given the allegations that the mother makes about the children’s chronic constipation and eczema, for them to be examined by a paediatrician whom he nominates. I accept that that is an appropriate order to make. The father has agreed to pay the costs of the paediatrician’s report. I will order that the mother follow all recommendations made by that paediatrician about the children’s medical care.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 15 February 2011.

Associate: 

Date:  15.2.2011