Carl and Halliday - [2010] FMCAfam 424

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARL & HALLIDAY

[2010] FMCAfam 424

FAMILY LAW – Parenting – interim – unilateral relocation of the children by the wife – willingness of wife to facilitate and encourage a relationship between the children and the husband – separation of siblings.

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 60CC(2), 60CC(3), 61B, 61DA, 61DA(2), 61DA(4), 64B(2), 65DAA, 65DAA(3), 65DAA(5)

Goode & Goode (2006) FLC 93-286
Lindell & Ranteri (2010) FamCA 52

Applicant:

MS CARL

Respondent:

MR HALLIDAY

File Number:

MLC 920 of 2009

Judgment of:

Monahan FM

Hearing date:

26 March 2010

Date of Last Submission:

26 March 2010

Delivered at:

Melbourne

Delivered on:

30 March 2010

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr Ambrose

Solicitors for the Respondent:

Rockman & Rockman

Independent Children’s Lawyer:

Mr Dunstan

ORDERS

The matter be adjourned to this Court on 22 November 2010 at 10.00 am for Final Hearing with an estimated hearing time of four (4) days (“the Final Hearing”).
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and [Y] born [in] 1999 (“[Y]”) and [Z] born [in] 1999 (“[Z]”) (collectively known as the “children”) attend upon Sue Buckley and if Ms Buckley is unavailable, a Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry on a date and at time/s to be advised for the purposes of the preparation of an updated Family Report, such Report to be released by 18 October 2010.
The Family Report to deal with the following matters:
(a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the children.
The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant.
If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their legal representatives to) notify in advance the relevant Family Consultant of his or her need to attend Court.
The Applicant make, file and serve any further Affidavit to be relied upon by 4.00 pm 21 days prior to the Final Hearing.
The Respondent make, file and serve any further Affidavit to be relied upon by 4.00 pm 14 days prior to the Final Hearing.
The Independent Children’s Lawyer (“ICL”) make, file and serve any Affidavit to be relied upon by 4.00 pm 7 days prior to the Final Hearing.
On or before 4.00 pm 3 days prior to the Final Hearing, each party [and the ICL] must make, file and serve an Outline of Case document including the following:

PARENTING

1.   a list of the documents to be relied upon;

2.   a brief chronology;

3.   an outline of contentions with respect to:

3.1.    whether the presumption of equal shared parental responsibility applies (s.61DA),

3.2.    the considerations relevant to equal time and substantial and significant time (s.65DAA);

3.3   each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

3.4.    other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

3.5.    any other matters relevant to the decision; and

4. a statement of the precise orders sought.

That paragraphs 1, 3, 4, 5, 6 and 7 of the orders made by the Court on

19 May 2009 and paragraphs 1, 2, 3, 4, 5 and 7 of the orders made by the Court with the consent of the parties on 21 October 2009 be discharged but that all other existing parenting orders remain in full force and effect (in particular paragraphs 8-13 of the orders made with the consent of the parties on 21 October 2009).
The wife forthwith enrol and complete at her expense a post separation parenting course as nominated by the ICL.
The parties do all things necessary to attend upon Dr H or such other therapist as nominated by the ICL for therapeutic family therapy/counselling and to ensure that the children attend the relevant therapist at such times as shall be nominated by the therapist or the ICL.
The attendance upon Dr H or other therapist is conditional upon the parties securing Medicare funding for same; if such therapy counselling cannot be covered by Medicare, the ICL shall nominate an alternative professional whose services are covered by Medicare.
The Family Consultant be at liberty to discuss the family therapy/counselling with Dr H or other therapist.
The wife forthwith disclose her partner Mr A’s details (including full name and date of birth) to the ICL.
The wife forthwith acquire and the parties use a communication book to travel with the children to record relevant information about the children.

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

The parties have equal shared parental responsibility for the children [X] born [in] 1996 (“[X]”), [Y] born [in] 1999 (“[Y]”) and [Z] born [in] 1999 (“[Z]”).
[X] and [Z] live with the wife.
[Y] live with the husband.
Subject to agreement in writing between the parties to the contrary:
(a)Commencing Saturday 10 April 2010 the husband spend time with [Z] each Saturday from 10 am until 6 pm (until Saturday 19 June 2010) and the wife spend time with [Y] each Saturday from 6 pm until 6 pm the next day (until Sunday 20 June 2010).
(b)Commencing Friday 25 June 2010, the husband spend time with [Z] from 6 pm Friday until 6 pm Sunday and each alternate weekend thereafter;
(c)Commencing Friday 2 July 2010, the wife spend time with [Y] from 6 pm Friday until 6 pm Sunday and each alternate weekend thereafter;
(d)
In the event that [Z] is not already spending time in with the husband pursuant to the above on Father’s Day this year, then, in addition, she spend time with the husband from 12 noon until

6 pm on Father’s Day 2010;
(e)Similarly, in the event that [Y] is spending time with the wife on Father’s Day this year pursuant to the above, then the wife’s time is suspended from 12 noon that day.
As to changeovers, and subject to agreement in writing between the parties to the contrary:
(a)In respect of [Z], the husband at all times collect [Z] from outside the [K] Police Station and the wife collect [Z] outside the [W] Police Station at the conclusion of time spent with the husband;
(b)In respect of [Y], and subject to the following special arrangements described in sub-paragraphs (i)-(ii) below that will be necessary until the end of second school term 2010, the wife collect [Y] at all times from outside the [W] Police Station and:
(i)Commencing Sunday 11 April 2010 and each alternate Sunday thereafter until the end of the second school term, the husband collect [Y] from outside the [K] Police Station.
(ii)Commencing Sunday 18 April 2010, and each alternate Sunday thereafter until the end of the second school term, the husband shall collect [Y] from outside the [W] Police Station.
(iii)Commencing Sunday 4 July 2010 and all times thereafter, the husband shall collect [Y] from outside the [K] Police Station at the conclusion of time spent with the wife.
In respect of all references to the [W] Police Station in paragraph 22 herein, in the event that the [W] Police Station is not open to the public at the times provided by these orders, then changeovers occur at such other Police Station that is close to the husband’s residence as agreed, and in default of agreement such Police Station nominated by the ICL.
Both parties facilitate any reasonable request by [Z] and [Y] to speak to the parent that they are not otherwise living with or spending time with by telephone.

AND THE COURT NOTES THAT:

A.In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a) the filing of documents; or
(b) any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the Final Hearing date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
B.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the Final Hearing date.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Attachment A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 920 of 2009

MS CARL

Applicant

And

MR HALLIDAY

Respondent

REASONS FOR JUDGMENT

Introduction

The substantive application in these proceedings was filed by Ms Carl (“the wife”), initially on 6 February 2009 but as amended by her amended applications filed on 7 October 2009 and 26 February 2010.
The wife is seeking various parenting and property orders. The parenting orders are in relation to the three children, [X] born [in] 1996 (“[X]”), and twins [Y] and [Z] (“[Y]” and “[Z]” respectively) both born [in] 1999 (collectively, “the children.”)
The wife’s application is opposed by Mr Halliday (“the husband”) who seeks different orders discussed below.
The wife is seeking orders to achieve the following outcomes:
·sole parental responsibility for the children
·the children live with her;
·[Y] spend a defined time including communication by phone, with the husband;
·[Z] and [X] spend time and communicate with the father by agreement and subject to their wishes; and
·all changeovers for [Y]’s time be at the wife’s residence.
The wife’s application is supported by her various affidavits filed in these proceedings on 6 February 2009, 14 February 2009, 7 October 2009, 26 February 2010 and the affidavit that she filed today, which the Court notes provides in an affidavit form the submissions that she made during the interim hearing of this matter before me on 26 March 2010. The applicant wife was self-represented at that interim hearing as well at today’s interim judgment hearing.
As stated, the husband in his response filed on 17 March 2009 and amended by his responses filed on 20 October 2009 and most recently 25 March 2010, opposes the orders sought by the wife and is seeking different parenting orders in relation to the children and different property orders.
In respect of the children the husband had earlier sought orders for equal shared parental responsibility and that the children spend an equal time with him. In his most recent amended response filed on

25 March this year, which is at the centre of the decision today, he is now seeking orders to achieve the following outcome that:
·the parties have equal shared parental responsibility for the children;
·[X] and [Z] live with the wife;
·[Y] live with the husband;
·[X] spend time with the husband as he chooses;
·[Z] spend time with the husband on alternate weekends on Fridays through Mondays and after school on Wednesdays; and
·[Y] spend time with the wife on alternate weekends and from after school Friday until Sunday evening.
The husband is also seeking changeovers at various locations including the children’s school, the wife’s residence and the BP service station at [address omitted].
The husband relies on his various affidavits filed in these proceedings on 17 March 2009, 20 October 2009, 25 February 2010 and

25 March 2010, the latter being most relevant to this interim decision.
The respondent husband was legally represented by Mr Ambrose of Counsel at the interim hearing on 26 March 2010 and again today.
Pursuant to an order that I made on 4 March 2010 an Independent Children's Lawyer (“ICL”) has now been appointed (Mr Dunstan), and at the interim hearing he instructed Ms Buchanan of counsel to appear on that occasion. Mr Dunstan appears today.

Background

The parties commenced cohabitation in 1993 and were married [in] 1995. They separated on 5 December 2008 and a divorce order was made by Registrar Hubble on 11 February 2010.
The mother has re-partnered twice since separation. Firstly, to one Mr C who accompanied the wife to the interview conducted by Family Consultant Ms Egan on 7 September last year, but it appears that this relationship ended late last year for reasons that may have involved domestic violence.
The wife has more recently partnered to a male called “[first name omitted] - Mr A”. At the interim hearing she refused to disclose

Mr A’s family name. Following questioning by me she agreed to provide his name to the Court on a confidential basis and that was done. The wife further advised me, and this to some extent is now confirmed in her affidavit filed today, that Mr A is a 39 year old male who [has worked in the transport industry] but currently unemployed, who has six biological children and one step-child and that at present he is only in contact with his step-child. The wife subsequently advised that Mr A does have contact with his eldest biological son but he is not spending time with his other biological children. I will just note for the record that Mr A did not attend with the wife when she was interviewed by Family Consultant Ms Buckley on 19 February this year.
The husband, in his affidavit filed 25 February 2010 (paragraph 29) discloses that he has formed a new relationship with a Ms S but they do not live together.
These proceedings have been before the Court for some time. The Court has now received two family reports, a family report of Maggie Egan dated 21 September 2009 and an updated family report of Susan Buckley dated 25 February 2010.
When the matter came before me for final hearing on 4 March 2010 I determined that the matter was not ready for final hearing and I vacated that listing. I adjourned the matter to 26 March 2010 for three reasons:
·to enable an independent children's lawyer (ICL) to be appointed to represent the interests of the children;
· to consider whether the matter should be relisted for a final hearing;
·to consider whether the matter may benefit from an interim hearing in relation to parenting matters.
The parties’ relationship is extremely poor. Despite orders being made by this Court with consent of the parties on 21 October 2009, that included [Z] to spend time with the husband, it appears that this has only occurred on one occasion since that order was made. It is noteworthy that those consent orders provided as follows:
“1. That the parties, as soon as practicable, enrol in and     complete a post-separation parenting course at Relationships Australia Centacare or equivalent course and provide to the other party’s practitioner a certificate of completion.
2. Until further order the parties and if requested the children or any of them, attend upon Dr H or her nominee or other such professional as is agreed between the parties for therapeutic family therapy/counselling and each party comply with all reasonable requests for such therapist as to the conduct of such therapy or counselling, such professional to be provided with a copy of the family report.
3. The attendance upon Dr H is conditional upon the parties securing Medicare funding for same. If such therapy/counselling cannot be covered by Medicare the parties’ practitioners shall forthwith agree upon an alternative professional whose services are covered by Medicare.
4. An updated family report be prepared and the report writer be at liberty to discuss the family with the therapist referred to in paragraphs (2) and (3) hereof.
5. Pending the adjourned hearing, paragraphs (4) and (5) of the orders of 19 May 2009 be suspended and in lieu thereof the children, [Y] and [Z] born [in] 1999 spend time with the husband as follows:
5.1    [Y] spend time:
(a) each alternate weekend from 3.15 pm Friday until 8 pm Monday, commencing 30 October 2009;
(b) from 3.15 pm to 8 pm each Monday and Wednesday, commencing 26 October 2009; and
(c) for two weeks in the long summer vacation for seven days commencing 28 December 2009 and for seven days commencing 17 January 2010 and at the time in paragraphs (5)(i)(a) and (b) are suspended from 28 December to the commencement of the school year 2010.
[Z] spend time:
(a) each alternate Friday from 3 pm until 9 pm, commencing 30 October 2009;
(b) from 3.15 pm to 8 pm each Monday and Wednesday, commencing 26 October 2009; and
(c) during the long summer school holidays when [Y] is spending time with the husband from 8 am to 9 pm each day or otherwise agreed with the time in paragraphs (5)(ii)(a) and (b) to be suspended from 28 December to the commencement of the school year 2010.
6. For Christmas 2009:
6.1    [Y] shall spend time with the husband from 3.30 pm on            24 December to 9.30 pm on 26 December;
6.2    [Z] shall spend time with the husband from 3.30 pm on                  24 December to 9.30 pm on 24 December;
6.3    Paragraphs 5.1 and 5.2 shall otherwise be suspended from                   24 December to 24 December inclusive.
7. Pending the adjourned hearing the husband and only the husband shall collect the children from school at the commencement of time on school days, otherwise changeover remains as set out in paragraph (6) of the orders of 19 May 2009;
8. Both parties be and are hereby restrained from:
8.1    Denigrating the other party to or in the presence of hearing                  of the children;
8.2    Badgering the children about what happens at the other   parent’s house.
9. The husband to be in substantial attendance for all periods of time and shall not leave [Z] alone with his parents;
10. Should [Z] stay overnight with the husband he shall provide a separate room and appropriate bedding for her;
11. The orders of 19 May 2009 otherwise remain in full force and effect;
12. In the event the children wish to telephone the wife when they are in the care of the husband, the husband shall facilitate same;
13. That both parties inform and keep the other informed as to:
13.1 Their contact telephone numbers and address;
13.2 Any illness or injury suffered by the children or any medical            attention sought whilst in their care with the parent who has             the care of the child to forthwith advise as to any scheduled            medical appointments and the other parent be at liberty to                   attend such appointment;
14. For Christmas 2010, the children spend the period 24 December to 26 December with the wife.”
And the matter was then adjourned.
In relation to paragraph 1 of the consent orders made on 21 October 2009, the wife has not provided any evidence to the Court that she has complied with this order. She has, however, indicated to the Court that she enrolled in a course at Centacare at [address omitted] that commenced in February 2010 but had to leave the course after two sessions because she had obtained employment during office hours that prevented her attendance.

In paragraph 26 of the husband’s affidavit filed on 25 February 2010 he indicates that he has enrolled at a Centacare course at [address omitted] and has, as at the date of that affidavit in late February 2010, attended eight sessions and needs to complete a further five.
In relation to paragraph 2 of the consent orders made on 21 October 2009, neither party has attended counselling with Dr H. In her affidavit filed on 26 February 2010, paragraph 3, the wife discloses that [Z] has attended with Dr H. The husband refers to this in paragraph 27 of his affidavit filed on 25 February 2010 and it appears to confirm that [Z] has attended a couple of sessions with Dr H but [X] has not.
As previously stated, in relation to paragraph 5.2 of the consent orders made on 21 October 2009 (and presumably paragraph 6.2 in respect of the Christmas period 2009), it appears [Z] has only spent one occasion, since those orders were made, with the husband. The wife explains this in her affidavit filed on 26 February 2010. In paragraph 2 she asserts that following the orders being made on 26 October 2009 she explained the orders to the children and that “[Z] was very upset as she was happy with the previous arrangements and because she didn't have any input into the change.” She elaborates on [Z] not spending time with the husband in paragraph 3 of her affidavit filed 26 February 2010:
The previous orders in respect of the children spending time with the husband were made by Phipps FM on 19 May 2010 and were not made by consent. These orders provided, inter alia, for [X] and [Z] to spend some time after school Fridays with the husband and for [Y] to spend time each alternate weekend.
It should be noted that the subsequent orders made by consent on 21 October 2009 which did provide for more time to be spent between [Z] and the father, followed the release of Ms Egan’s report and her recommendations were no doubt instrumental in the consent orders achieved that day. Equally relevant was the fact that both parties were legally represented by counsel on that occasion.
As stated, I set the matter down for mention on 26 March 2010 with a view to hearing argument as to whether the matter may benefit from an interim hearing. Of course, the urgency of the situation now stems from the husband’s amended response filed on 25 March 2010 whereby he seeks some radical changes to the current orders.
Of course, the catalyst to the husband’s recent amended response was the wife’s recent decision to relocate herself and the children from the [W] area to [H], a distance of some 65 kilometres from the husband’s residence or about one hour travel by car. The wife also unilaterally removed the children from their schools in the [W] area and enrolled them in schools nearby to her new residence.
Despite the wife informing Ms Buckley during her interview on 19 February 2010 that she was considering moving, and despite a reference to this in her affidavit filed on 26 February 2010, the wife has not sought an order from the Court about this, despite having filed an amended application as recently as 26 February this year, and nor did she make an oral application when the matter came before me on 4 March 2010.
Given these most concerning developments, I agreed to the husband’s request, supported by the ICL, to hear the interim matter on an urgent basis. Given that I will be leaving the Melbourne Registry this week and other listing issues, I agreed to hear the interim application that day (26 March 2010). Before doing so, however, I afforded the wife the opportunity of consulting with the duty solicitor which she subsequently did.
I commenced the interim hearing before the luncheon recess on that day and it concluded after approximately two hours of submissions.

The issues

The issues for the Court to determine today are:
·Firstly, whether the parties should continue to share parental responsibility for the children as the husband seeks or whether the wife should have sole parental responsibility, as she seeks;
·secondly, until further order, whether [Y] should live with the husband and spend time with the wife as he seeks or whether he should remain in the wife’s care and spend albeit different times with the husband, (i.e. different from those provided in the October 2009 orders); and
·thirdly, until further order, whether [Z] should spend any time with the husband and if so, how much time and under what circumstances.
The ICL supported the husband’s position at the recent interim hearing and opposed the orders sought by the wife.

Agreed and disagreed Facts

The parties disagree about the following:
·firstly, whether they each should have equal shared parental responsibility for the children;
·secondly, whether all three children should remain living with the wife or whether [Y] should spend time with the husband;
·thirdly, the spent time arrangements for [Y] and [Z];
·fourthly, the school that [Y] should attend; and
·lastly, where changeover should occur.
The parties agree that [X], who is presently spending no time with the husband, nor it appears wishes to, should make his own decisions about spending time with the husband.

The parties’ submissions

Mr Ambrose for the husband submitted that the facts of the case now justify a change in residence for [Y]. He submits that the wife has taken no steps to encourage or promote a relationship between the children and their father and that the two family reports support this. In his words, the wife sees “no value” in the children having any relationship with the husband. Mr Ambrose took the Court to Ms Egan’s family report dated 21 September 2009 and paragraphs 16 and 17 where she stated:
“16. Ms Carl was unable to accept that her children would benefit from spending time with Mr Halliday. Her reasons included that he has not been an active participant in their lives and that he would not be available to them now because of being caught up in his own issues and consumed by animosity towards herself for “destroying his life” and unable to control this hurt and anger. Ms Carl suggested, for example, that he has an abusive attitude towards her on the phone in front of the children and also denigrated her and her partner to the children. She also stated that he will not communicate with her at all about the children’s health and welfare. Ms Carl demonstrated limited insight into how her views and attitudes may influence the children’s decisions to spend time with their father, even though outwardly she states she encourages them to do so by, for example, asking them if they wanted to call him or to drop [Z] at her father’s for Father’s Day.
17. When asked about what needed to change for her to actively support Mr Halliday spending time witness the children Ms Carl seemed to demonstrate some insight into recognising that she and Mr Halliday had been engaged in a “tit for tat” pattern of behaviour, for example, when neither backed down about the paternal grandmother or neighbour collecting the children from school which was not conductive to working together and forming healthy communication for the sake of the children. However, she ultimately appeared unable to make the next step which is recognising that she needed to make some changes herself and that she needed to adopt some responsibility in actively encouraging and supporting the children to see their father. For example, Ms Carl was opposed to participating in a post-separation parenting program because she did not believe that she needed to make any changes herself, describing she had “gone out of her way to maintain open communication and had been able to separate her relationship issues from the children’s need to have a father, even though she believes the children are worse off in spending time with him.”
Mr Ambrose referred to Ms Buckley’s report and more specifically paragraphs 29, 33 and 35. In paragraph 29 she states:
“29. [X] said that his father was “always violent” and that he was “scared” of him. The examples [X] provided about his experience of his father’s parenting were global. For example, stating that his father “used to” “go off, explode at the tiniest things” and “yell, swear, smack and hit.” [X] was unable to remember more than two specific incidents. These were when he observed his father throw a mobile phone at [Y] as documented in Ms Carl’s affidavit material and when he spoke with the father on the telephone about not wanting to spend time with him during the week, which was also documented in Ms Carl’s affidavit material.
…
33. [Z] described her father as “loving and friendly” and said that she “liked going out and getting new toys.” [Z] indicated that she was happy to continue spending time with her father every Friday evening. She commented that she had stayed last Friday (4 September) but “does not want to stay overnight next time because I like seeing mum more.” When exploring this further with [Z] it was established that she was upset with her father for not letting her take home the toy donkey which he had bought her that weekend and that if he allows her to take her toys between the two homes she would feel more positive to stay overnight with him.
…
35. [Y] enjoys drawing, particularly in cartoon style. When asked to do a picture of his family he drew [X], [Z] and his mother and commented about each as he drew them. Like [Z], he described normal sibling interaction and conflict and confirmed that [X] punches him. He said that [X] gets out of trouble by crying. He did not want to draw Mr C because he considered him to be a friend, not part of the family. [Y] also stated that Mr C was “funny and liked fishing” but that he “yells a lot and kicks us in the bum.” [Y] describes his mother as “nice and caring” and says that she sometimes gets angry with [X] for punching himself or [Z]. [Y] also said that his mother and Mr C often fought about Mr C’s children. Whilst there have been allegations that Ms Carl and Mr Halliday argue, [Y] stated that he had never heard them fighting.”
Mr Ambrose then referred the Court to the husband’s most recent affidavit, in particular annexure “RFH1” which is a letter dated

17 March 2010 written by the wife and faxed to the husband’s solicitors that day. The letter advises the wife’s change in residence and the children’s changes of school.
Mr Ambrose also referred the Court to the wife’s recent affidavit where she discloses in paragraph 6 that she is “relocating closer to Melbourne.” Equally disturbing was the wife’s decision to attach various letters alleged to have been written by the children about the husband. Mr Ambrose submits that these letters are provided without context and raises the spectre that the wife encouraged or otherwise facilitated their production.
Mr Ambrose submitted that the wife’s argument that the children and in particular [Z], are mature enough to make decisions about their parenting, raises a number of question marks against the wife.
Over all, Mr Ambrose submitted that the drastic step proposed by the husband was in the children’s best interests and was the only way to ensure that [Y] did not succumb to the pressure to abandon a relationship with the husband.
Ms Carl submitted that she was unaware it was necessary for her to seek the Court’s approval to relocate and/or to change the children’s schools. She asserts that the husband’s track record in looking after the children was not a positive one and that there were incidents where he had left the children alone unattended. She elaborates upon these in the affidavit filed today.
The wife also asserts that she was evicted from her [W] home provided by her former employer. She asserts she made numerous applications for rental properties although she acknowledged she had no independent evidence available to corroborate this. She also acknowledged that she had made no applications for accommodation in the [W] area because it was, in her submissions, too expensive and that she has sought out the [omitted] area because it was cheaper and closer to her new employment.
The wife asserted that the change in schools was necessary, not because she had moved houses but because she asserts [Y] has been a victim of bullying at school and it was not in his interests to remain at the [W] school. She reinforces these submissions in her most recent affidavit.
The wife acknowledged that there was no evidence in her affidavits, including the one filed today, to corroborate this submission.
The wife submitted that she was now working 9.30 am to 5.30 pm Monday to Thursday and she was not in a position to facilitate the existing orders, in particular after school time to be spent with the husband. The wife acknowledged that the children are in her new partner’s (i.e. Mr A’s), care after school until she returns home from work.
The wife also seeks that all changeovers occur at her home because this will ensure, in her view, her safety because she will not have to come face-to-face with the husband. The wife alleges that there have been incidents during changeovers which currently occur in a public place, and she elaborates upon that in the affidavit filed today. She asks the Court to make an order directing the husband to undertake an anger management course.
Lastly, as stated, the wife provided the Court with some details about her partner Mr A, following questions from me.
Overall, the wife seeks orders that enable the children to remain at their new schools, that there be no orders for [X] and [Z] to spend any time with the husband, and that [Y] spend time with the father alternate weekends (i.e. Friday through Sundays), and that changeovers occur at her new residence.
Ms Buchanan, for the ICL, submitted that unfortunately it appears that nothing can be done now to salvage [X]’s relationship with the husband. Given this, and other reasons, the ICL supported the husband’s position and the amended orders sought, despite it meaning that there would be a change of residence for [Y] before the final hearing and a consequential splitting of siblings, and indeed the splitting of twin children.
Ms Buchanan referred the court to Ms Egan’s report and in particular paragraph 39 where Ms Egan states:
“39. When [Y] and [Z] entered the assessment room Mr Halliday verbally greeted them but did not get off his chair. The children started playing in the sandpit and Mr Halliday continued to sit on his chair and passively observe them without conversing. After some time watching the children play Mr Halliday asked what they were supposed to do during the observation. When he was advised of the purpose of the activity he interacted more with the children, for example, by commenting on their drawings, asking what they did yesterday, and joking with them. The children appeared comfortable with their father, talking happily, making good eye contact and laughing with him. [Y] appeared eager to inform Mr Halliday that Ms Carl will allow [Z] and himself to spend time with him during the school holidays. Mr Halliday also displayed appropriate disciplining when [Y] drew a picture of a toilet by firmly telling him to stop and explaining why this was not appropriate. [Y] appeared to listen and respond well to this. At the end of the observation Mr Halliday and the children hugged and kissed warmly. [Y] and [Z] appeared to play well together.”
Ms Buchanan submits that this observation by the Family Consultant does not support the wife’s assertion that the children fear being in their father’s care or company.
Ms Buchanan also referred to the wife’s affidavit filed in late February 2010, and in particular paragraph 2 where she asserts that [Z] was upset by the consent arrangements put in place following the release of Ms Egan’s report and claims to have had “no input into the change.” Ms Buchanan asserts this is simply untrue as Ms Egan took on board the children’s views before making her recommendations, as did Ms Buckley. Ms Buchanan submits that the wife acted against [Z]’s best interests by giving a 10 year old the power to make such an important decision. Ms Buchanan fears that if the example of [X] is anything to go by then [Z]’s relationship with her father may be irreparable and that it was just a matter of time before [Y] “went the same way.” Ms Buchanan stated that parents are under an obligation to follow the orders of the Court and to facilitate their children doing so. The wife’s behaviour, in Ms Buchanan’s view, firstly, in not following or facilitating the orders made in October last year and secondly, unilaterally moving and relocating without permission, is “disturbing.”
Ms Buchanan also referred the Court to Ms Buckley’s recommendations and in particular recommendation number 7, and I quote:
“In the event that Ms Carl relocates then both parents should be involved in selecting the appropriate school.”
Ms Buchanan submitted that the wife was acting as if the husband did not have any parental responsibility.
Ms Buchanan advised the Court that she had spoken to Ms Buckley during the course of the day (i.e. the day of the interim hearing on

26 March 2010), and that Ms Buckley was supportive of [Y] going to live with the husband “for the time being.” Ms Buckley sees [Y] as reportedly “a vulnerable kid who needs stability” and she acknowledges the risks associated with [Y] leaving the mother’s fulltime care but believes such a move could actually encourage [Z]. Indeed, the ICL was now supportive of [Z] spending overnight time with the husband.
Lastly, Ms Buchanan asked the Court for orders, firstly, for the wife to enrol and complete a post-separation parenting course, and secondly, for the wife, the husband and the children to commence family therapy with Centacare [address omitted].
In their responses Mr Ambrose submitted that the wife’s allegations about [Y] being bullied at the [W] school were without any evidentiary foundation. It was not an issue raised by the wife with Ms Buckley, Ms Egan or in her affidavits, certainly in her affidavits filed up to 26 March 2010.
Ms Carl argues that she raised these various matters with both family consultants and they these matters were not included in their reports. She believes the family consultant’s notes will corroborate this.

The law

The Full Court of the Family Court decision of Goode & Goode (2006) FLC 93-286 (“Goode”) guides the Court’s approach to making interim decisions and interim orders in relation to parenting disputes. At paragraph 81 of the decision the Full Court noted:
“In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests for the child.”
This matter is such a case. More specifically this raises the reality that the Court cannot fully determine issues of credit at an interim hearing as the evidence being presented by the parties to the Court is not being tested by cross-examination. That having been said, in the same paragraph, that is paragraph 81 of the Goode decision, the Full Court went on to say:
“However, the legislative pathway must be followed.”
In other words the relevant provisions of the Family Law Act 1975 (“the Act”) post the 2006 shared parenting amendments, and in particular the matters set out in section 60CC of the Act, must be followed at an interim hearing.
There is considerable animosity, indeed, hostility, it would appear, between the parties in this case and no doubt the history of the matter will be the subject of evidence in cross-examination at the final hearing.
The wife is seeking an order for sole parental responsibility but is clearly now acting like such an order has already been made by the Court.
Section 64B(2) of the Act stipulates that a parenting order may include an allocation of parental responsibility for a child. That order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to a child.

Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which by law parents have in relation to children.” This not only includes those duties and responsibilities relating to such matters as health and education but also as stated in the recent case of Lindell & Ranteri (2010) FamCA 52, “the general direction in life that is so important for children in teenage years”.[1]
[1] Lindell & Ranteri (2010) FamCA 52 at [31] (Cronin J).
The relevant definition as to what the law expects of parents in relation to this decision-making is stated in section 4 of the Act:
“Major long-term issues in relation to a child means issues about the care, welfare and development of the child of a long-term nature and includes but is not limited to issues of that nature about
(a)    the children’s education, both current and future; and
(b)    the children’s religious and cultural upbringing; and
(c)     the child’s health; and
(d)    the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for a child to spend time with a parent.”
Section 61DA of the Act incorporates a presumption that the Court is required to consider when making a parenting order, that is, the Court must apply a presumption that it is in the best interests of the child concerned for the children’s parents to have equal shared parental responsibility.
Section 61DA(2) makes it clear that the relevant presumption does not apply if there are reasonable grounds to believe there has been abuse of the child or family violence.
In addition, under section 61DA(4) the presumption may be rebutted if its application could be contrary to the child’s best interests, those interests being determined by reference to the matters in section 60CC of the Act in light of the evidence. As stated, I will canvass the matters in section 60CC shortly. If the presumption is not applied or is rebutted then the Court must still make an order which is in the best interests of the child (again taking into account the considerations in section 60CC of the Act).
If the presumption applies then the Court is required, under section 65DAA of the Act, to consider whether the child or children’s best interests would be served by making an order that he or she spend equal time or alternatively, substantial and significant time, with each of his or her parents. Either outcome requires the Court to consider whether the children spending equal time or substantial and significant time in lieu, with each of their parents would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.
In considering the reasonable practicality issues section 65DAA(5) requires the Court to have regard to:
“(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.”
Clearly, an equal time arrangement is not appropriate this time, given the now considerable distances between the current residences of the parents.
In relation to substantial and significant time it is noteworthy that section 65DAA(3) of the Act stipulates that a child will only be taken to spend substantial and significant time with a parent if:
“(a) the time the child spends with a parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends and holidays; and
(b)the time the child spends with a parent allows the parent to be involved in:
(i)     the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
Returning to the Goode decision, the Full Court at paragraph 82 of that case sets out the approach that this Court must take in determining interim cases. The starting point is clearly to identify the competing proposals, identify the issues in dispute and identify any agreed or uncontested relevant facts (and I note that I have previously canvassed these in this decision) before considering the best interests principle.
Section 60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child the court must regard the best interests of the child as the paramount consideration.”
To determine the child’s best interests the Court must consider the primary considerations or factors set out in section 60CC(2) of the Act and the additional considerations referred to in section 60CC(3) of the Act where relevant.
The Court will now briefly canvass these.

Primary considerations: section 60CC(2)

As previously stated, the Court is required firstly, under section 60CC(2)(a), to consider “the benefit to the child of having a meaningful relationship with both of the child’s parents.” At this point let me note that “meaningful” does not mean equal, but clearly it signifies that both parties should be involved with their children and consequently signifies an expectation of time to be spent.
The right of a child to spend time with each parent and extended family is clearly a right enunciated in section 60B of the Act. Consequently the Court will in all likelihood need to give some considerable weight to this factor at the final hearing, should such be needed.
At present [X] has no relationship at all with the husband. That is disturbing but it is clear from the family reports that no order of the Court, apart from an order mandating therapeutic counselling, is going to shift the views that he has. Whether he has formed those views objectively or whether they have been influenced by the behaviour of one or both of the parents will no doubt be a feature at the final hearing.
In addition, [Z] who turns 11 in May this year, has no relationship with the husband. The wife asserts that this is her child’s decision which she wishes to respect. [Z], through [Y], does have some relationship with the husband. All three children clearly have a relationship with the wife and presumably a relationship with the wife’s new partner, Mr A.
It is of some concern that Mr A has no relationship with the majority of his own biological children but there may be reasons to explain this. We have no evidence about Mr A or his relationship with the children. The wife is clearly under an obligation to put such evidence before the Court before the final hearing.
Secondly, the Court is required under section 60CC(2)(b) to consider the need to protect a child or children in this case “…from physical or psychological harm from being subjected, to or exposed to, abuse, neglect or family violence.”
There is no doubt that it would be in the children’s best interests to develop a meaningful relationship not just with their mother but with their father. That, however, needs to be balanced in respect of protecting children from any physical or psychological harm and the like.
Given the nature of the allegations here the Court is satisfied there is a need to test the issues of whether the child or children have in any way been psychologically harmed by whoever, or whatever statements have been made in the child’s presence or the conduct they may have observed. There are issues here warranting investigation and the Court needs to tread cautiously in the interim arrangements that will be necessary today given the allegations made by both parties.
The wife asserts that [Y] has been the victim of bullying at school and this partly explains her reasons to relocate. This is a serious allegation that needs testing but there is no evidence before the Court about this, nor does it feature as a concern of the wife expressed to Ms Buckley in her interviews just six weeks ago. It is noteworthy

Ms Egan spoke to the relevant schoolteachers of [Y] and [Z] only last September as well as the school’s principal and in her report raises no issue of [Y] being bullied at school.
I refer to paragraphs 41 and 42 of Ms Egan’s report where she states:
“41. No significant concerns were raised with respect to the children’s attendance or physical presentation and no concerns were raised with respect to [Z]’s social presentation. [Y] was described as being academically and socially challenged, partly due to his auditory processing difficulties but also in part due to, for example, displaying some difficult behaviours such as temper tantrums. School have not noticed the children to display any significant behaviour changes following the parental separation.
42. School staff are aware of Mr Halliday and Ms Carl’s recent separation and of the dispute before the court. The children were said generally not to speak about their home situation but there have been some instances where staff have observed the children to be affected by their parents’ conflictual relationship. An example was where [Z] was given money to purchase a Father’s Day present for Mr C with strict instructions not to use the money to purchase something for her father.”

Additional considerations: section 60CC(3)

The additional considerations under section 60CC(3) include “any views expressed by the child…” The Court needs to balance carefully [Z]’s current view that she does not wish to spend any time with the husband against her long-term interests. The therapeutic counselling that is proposed will be beneficial to unlocking why this has become so entrenched. At present the parties accept [X]’s views that he wishes to spend no time at all with the husband.
In relation to the “willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent,” the Court is satisfied that the proposed therapeutic counselling will assist in determining the parties’ future relationships with their children and in particular [Z]’s relationship with the husband. The wife’s actions to date have been less than child focused and appear to be widening the gulf between the children and the husband.
In relation to “the capacity of each of the child’s parents and any other person… to provide for the needs of the child, including emotional and intellectual needs” and the “attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents”, the Court notes that there are issues here that will need to be fully tested at a future hearing. There is a question mark hanging over the capacities of both parents but in particular the wife, given her recent unilateral decisions to change the children’s schools and to move residence.
In relation to “the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child”, this is a serious factor in play. Change of the long-term residential arrangement, particularly in an interim hearing, is a drastic step but where the circumstances not just make it justified but make it essential, it must be done.
Lastly, in relation to “any other fact or circumstance” let me state that had the matter been a contravention application I have serious doubts that the Court would excuse the wife’s non-compliance with the orders made in October last year, based on her 10 year old child refusing to comply. While I am not suggesting that the wife should forcefully coerce the children into spending time with the husband, she is under a positive obligation to facilitate the orders that she and the husband considered were in the best interests of the child when they were consented to last October and clearly flowed from the recommendations of Ms Egan in her family report.

Conclusion and orders

Having considered the submissions in light of the evidence and the structured discretion of the Act, the Court is satisfied that changes to the current parenting orders are indeed in the best interests of the children. Despite the poor relationship between the parties, the Court sees no reasons to rebut the presumption in favour of equal shared parental responsibility at this stage.
The children, [X] and [Z], will continue to live with the wife and until further order, [Y] will live with the husband. [X] will remain living with the wife and spend time and communicate with the husband as that child wishes.
This change will necessitate discharging orders 1, 3, 4, 5, 6 and 7 of the orders made on 19 May 2009 and paragraphs 5 and 7 of the orders made by consent on 21 October 2009.
It will also require the husband to re-enrol [X] at the [W] Primary School. [Z] will, until further order, remain at her new school.
In addition, until further order, and failing agreement between the parties to the contrary:
(1)Commencing Saturday 10 April 2010, the husband will spend time with [Z] each Saturday from 10 am until 6 pm (until Saturday 19 June 2010) and the wife will spend time with [Y] each Saturday from 6 pm until 6 pm the following day (until Sunday 20 June 2010);
(2)Commencing Friday 25 June 2010 (that is the last day of second school term), the husband will spend time with [Z] from 6 pm Friday until 6 pm Sunday and each alternate weekend thereafter;
(3)Commencing Friday 2 July 2010 the wife will spend time with [Y] from 6 pm Friday until 6 pm Sunday and each alternate week thereafter.
This gradually increasing arrangement will ensure that [Z] and [Y] will spend every weekend together and will maximise [Y]’s time with his brother [X]. It will also ensure that all children are with their mother on Mother’s Day this year. In the event that [Z] is not already spending time with the father pursuant to the proposed orders on Father’s Day this year, then in addition she will spend time with the husband from 12 noon until 6 pm on Father’s Day 2010. Similarly, in the event that [Y] is spending time with the wife on Father’s Day this year, then that time will be suspended from 12 noon that day.
In framing these proposed orders it is clear to the Court that given the wife’s new work hours and the distances between the parties’ respective residences, that either party collecting the children from school may not be a viable option at this stage.
As to changeovers, either a half way travel point is required or each party will need to travel to the other party. The Court does not accept the mother’s submission that changeovers at her residence will afford her and the children greater protection. Clearly a very public place is needed and the Court has formed the view that until further order changeovers should occur outside a police station.
The Court has determined that the nearest police station to the wife that is proximate to [W] is [K] Police Station. Clearly the nearest police station to the husband is the [W] Police Station.
In respect of [Z], and subject to agreement to the contrary, the husband will at all times collect [Z] from outside the [K] Police Station and the wife will collect [Z] from outside the [W] Police Station at the conclusion of the time spent with the husband.
In respect of [Y] and again, subject to agreement to the contrary, and subject to special arrangements that will be necessary until the end of second school term, the wife will collect [Y] at all times from outside the [W] Police Station. Commencing Sunday 11 April 2010 and each alternate Sunday thereafter until the end of the second school term, the husband shall collect [Y] from the wife outside the [K] Police Station. Commencing Sunday 18 April 2010 and each Sunday thereafter until the end of school term, the husband shall collect [Y] from the wife outside the [W] Police Station. Commencing Sunday 4 July 2010 and all times thereafter the husband shall collect [Y] from outside the [K] Police Station at the conclusion of the time spent with the wife.
I will order the ICL to make some inquiries about whether the [W] Police Station is open at 6 pm on a Sunday and if it is not, the changeovers (i.e. in lieu of [W] Police Station) will be at a police station as directed by the ICL.
In addition to the time spent orders referred to both parties must facilitate any reasonable wish by either [Y] or [Z] to speak to the parent they are not otherwise living with or spending time with.
The Court reminds the parties that these new orders must be complied with and failure to comply will in all likelihood be considered by the Court as a very serious breach. Both parties are under an obligation to facilitate the availability of the children.
There will also be a specific order directed at the wife today to forthwith enrol and complete at her expense, a post-separation parenting course as nominated by the ICL. In the circumstances the Court will also revoke but recast the orders requiring the parties and the children to attend for family therapeutic counselling and a counsellor for this purpose will be nominated by the ICL.
All the other remaining parenting orders will remain in full force and effect. This will include the various orders made by consent on 21 October 2009 and in particular, paragraphs 8 through 13 inclusive.
The wife will also be required to disclose her partner, Mr A’s, details to the ICL. The wife will also be required to forthwith acquire, and both parties will be required to utilise, a communication book to travel with the children to record relevant information.
Given the orders that will be made today the Court is satisfied that the matter should be relisted for final hearing later in the year and that a further updated family report should be obtained from Ms Buckley and in the event that she is unable to do so, a family consultant nominated by the child dispute services regional coordinator.
The Court will also make orders for the filing of trial affidavits and case outline documents for all parties prior to the relisted final hearing.
I reserve the right to settle the reasons for this interim decision.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Monahan FM

Deputy Associate: M. Raggatt

Date: 17 May 2010