Cavanagh and Cavanagh

FAMILY COURT OF AUSTRALIA

CAVANAGH & CAVANAGH

[2007] FamCA 1231

FAMILY LAW – CHILDREN – Parenting proceedings – central issue relates to whether children are to spend overnight and holiday periods with their father

Family Law Act 1975 (Cth)

APPLICANT:

Mr Cavanagh

RESPONDENT:

Mrs Cavanagh

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

FILE NUMBER:

SYF

3623

2005

DATE DELIVERED:

16 October 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

29, 30, 31 May and 1 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr de Dassel

SOLICITOR FOR THE APPLICANT:

HAL Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Thomas

SOLICITOR FOR THE RESPONDENT:

Lapaine Pomare & Forster

INDEPENDENT CHILDREN’S LAWYER:

Ms Karagiannis

Orders

1.The children A born … December 1993 and V born … July 1998 (“the children”) are to live with their mother.
2.The mother is to have sole parental responsibility for the children.
3.Each parent is to have responsibility for the day to day care, welfare and development when the children are in his/her respective care.
4.From the date of these orders, the children are to spend time with their father as follows:
A. until the commencement of the 2009 school year:
(a)each Saturday except for every 3^rd Saturday from 9am to 8.30am until [and including] 23 December 2007;
(b)from 3pm to 8.30pm Christmas Day 2007;
(c)from 5pm Saturday 29 December 2007 until 6pm Sunday 30 December 2007;
(d)each alternate weekend thereafter, commencing 12 January 2008, from 9am Saturday to 6pm Sunday, to be suspended during the school holiday periods following terms 1, 2 and 3 in 2008 when paragraph (e) hereof will apply, until the commencement of the first school term in 2009;
(e)for three (3) continuous days during the school holidays at the end of terms 1, 2 and 3 in 2008, the days to be agreed no later than two (2) weeks prior to the last day of school term and failing agreement for the first three days of the school holidays;
(f)during the school holidays at the end of term 4 in 2008/2009
(i)for two (2) separate weeks on dates to be agreed and failing agreement for the first week in January and the last week prior to the commencement of the school term 2009;
(ii)on Christmas Day 2008 from 9am to 3pm.

B. from the commencement of the 2009 school year:
(g)during school terms from 6pm Friday until 6pm Sunday each alternate weekend;
(h)during school holidays for one half of each holiday period at times to be agreed and failing agreement for the first half in even numbered years and the second half in odd numbered years;
C. at all times, whether per A or B above:
(i)on Father’s Day from 10am to 6pm if the children are not otherwise with their father on that day provided that they spend Mother’s Day with their mother irrespective of these orders.
(j)from 3pm to 8pm [both children] on each child’s birthday if not otherwise specifically provided for in these orders and not otherwise with their father on that day provided also they be returned to their mother at 3pm if they are with their father on that day according to these orders;
(k)at such other times as the parents may agree in writing.

5. The parents are to:
(a)communicate directly about the children’s arrangements by an agreed mechanism;
(b)refrain from discussing the evidence in these proceedings with the children or from showing them any document related to the proceedings;
(c)use their best endeavours to be civil in their communications with each other at times of changeover of the children’s care and at other times;
(d)refrain from making any derogatory comment about the other parent to or in the hearing of the children;

6.For the purpose of implementing these orders, the father is to collect the children at the commencement of the times specified from the mother’s home and the mother is to collect the children at the conclusion of the times specified from the father’s home.
7.The independent children’s lawyer is requested to explain the orders to the children and for that purpose the mother is to facilitate the children’s attendance at an appointment scheduled by the independent children’s lawyer for that purpose.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3623 of 2005

Mr Cavanagh

Applicant

And

Mrs Cavanagh

Respondent

REASONS FOR JUDGMENT

Proceedings

These reasons relate to the future arrangements for the parties’ two children: A who will turn 14 years of age in December and V who is now 9 years of age having been born in July 1998. They are to be read in conjunction with judgment delivered 10 October related to the parties’ property settlement.
At an earlier time an order was made for the appointment of an independent children’s lawyer and Ms Karagiannis took up that appointment.

Approach

In making a parenting order, the best interests of the child are the paramount consideration [s 60CA] and the evidence about that has to be assessed within the structure the Act requires. Overarching that process are stated objects and underlying principles. The objects are about seeing children’s best interests are met by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests; by protecting them from exposure to physical or psychological harm; by ensuring they receive adequate and proper parenting to help them achieve their potential; and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s60B(1)]. The underlying principles, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents; their right to spend time on a regular basis and communicate regularly with both parents and significant others; their right to enjoy their culture; and that parents jointly share parental duties and responsibilities and should agree about future parenting [s60B(2)].
In this case it will not be necessary to consider the application of the statutory presumption of equal shared parental responsibility and the structured path to a best interests outcome that mandates because that has been excluded by the consent of the parents. What is in the children’s best interests, therefore, will be determined through evaluation of the evidence against relevant ‘primary’ and ‘additional’ considerations which will be discussed in due course.

Orders sought

The proceedings were instituted by the father filing an application on 1 August 2005 and he later amended the orders sought in a further application filed 12 July 2006. The mother’s response was filed 20 September 2005. However, those formal documents can be disregarded because the orders sought are now different.
The following agreement was put forward by all legal representatives at the commencement of the hearing [exhibit 14]:
1.That the children of the marriage namely [A] born […] December 1993 and [V] born […] July 1998 live with the mother.
2.That the mother have the sole parental responsibility for the said children.
3.That each of the parties have the responsibility for the day to day care, welfare and development when the children are in their respective care.
4.That the children spend time with the father as follows:
4.1each alternate Saturday from 10.30am [altered to 9am in closing addresses] to 8.30am commencing 2 June 2007 ~~until 1 September 2007~~; [deleted in closing addresses]
4.2each Saturday from 10.30am [altered to 9am in closing addresses] to 8.30pm commencing 8 September 2007.
5. …
6.That in the event that the children do not spent time with the father in accordance with order 4 then the father shall have make up time with the children, either as agreed between the parties or failing agreement as nominated by the father provided he gives 14 days notice and the date upon which such further time with the father is to occur falls on a weekend or in school holidays, and further this order shall be discharged on 8 November 2007.
7.That these orders to the extent necessary be varied to provide that the children spend mother’s day with the mother and father’s day with the father from 10am to 6pm.
8.That in respect of the children’s birthdays, both children shall spend time with their father 10.30am to 8.30pm on the date of each of the children’s birthdays in odd numbered years and similarly in each even year the children will spend time with the father on the day before the birthday.
9.That these orders be varied to the extent necessary to provide that the children spend their birthdays with their mother in each even numbered year, and similarly in each odd numbered year on the day before each birthday from 10.30am to 6.00pm.
In addition to those agreed arrangements, it was said at the time that the following additional were orders sought by the father and opposed by the mother:

‘4.3 each Friday from 6.00pm until 8.30pm the next day such time to commence 8 November 2007 until 8 December 2007;

4.4 commencing 21 December 2007 each alternate weekend from 6.00pm Friday until 6.00pm Sunday.

5.That for the purposes of the time the father spends with the children the mother shall deliver the children to the home of the father’s mother at the commencement of such time and the father shall return the children to the mother at the conclusion of his time.’

There was added to this later a proposal for half school holiday periods from December 2007, to be taken week about.
In addition to the agreed arrangements, the following order was sought by the mother and opposed by the father:
5.That for the purposes of the time that the father spends with the children the father shall collect and deliver the children from and to the mother’s home.
At the close of the hearing it was agreed interim orders would be made providing for the children to spend time with their father from 9am to 8.30pm every second Saturday to commence the following day. From that footing, the independent children’s lawyer proposed orders as set out in exhibit 15 and by that stage, save for order 6, the father aligned his position with those proposed orders. They are as follows:
1.That the children continue to spend time with their father in accordance with paragraph 4.2 of the minutes filed herein on 29.05.2007 until December 2007.
2.Commencing in the December 2007 school holidays, the children shall spend time with the father on alternate weekends from 9am on Saturday until 7.30pm on Sunday; the mother shall deliver the children to the father’s home (or as otherwise agreed) at the commencement of these periods and the father to return the children to their mother’s home (or as otherwise agreed) at the conclusion.
3.In addition to paragraph 2, the children shall spend a further period of three days with their father during the Term 1, 2 and 3 school holidays in 2008 and one further week during the December 2008-January 2009 school holidays.
4.In addition to paragraph 2 herein and commencing in the 2009 school year, the children spend half of each of the midyear school holidays with their father and a period of three weeks during the December-January school holidays.
5.The court notes that the final orders herein are to be explained to the children by the Independent Children’s Lawyer together with one of the children’s counsellors; Order that the mother facilitate the children’s attendance at any appointment that may be scheduled for this purpose.
6.That the children continue to have the assistance of their respective counsellors for a further period of 18 months if required. [not supported by father]
7.That any changes to these parenting arrangements be made by the parents directly.
8.That the parties be restrained from discussing these proceedings with the children and from showing the children any document pertaining to the proceedings save however that the parents may tell the children that they have each given their consent to certain orders herein which provide for the children to spend time with the father.
9.That the parents shall use their best endeavours to be civil and polite to each other during times of changeover and collection of the children and in the course of telephone or other communication concerning the children.
10.That neither parent shall say derogatory or unpleasant things about the other parent nor about any other member of the other parent’s family to or within the hearing of the children and they shall use their best endeavours to ensure that no other person does so.
11.That the parties shall contribute towards the cost of the Legal Aid Commission as set out in the Memorandum of Costs of the Independent Children’s Lawyer filed herein.
12.Such further order as this Honourable court deems appropriate.’
The different proposals render the focus not on whether the children should spend time with their father but what time is to be spent with him and more particularly whether there should be any provision for overnight visits and school holiday block periods.

Evidence

In their evidence the father and the mother for the most part identify the same more significant events as having marked the progress of family history. In some instances a largely common account is given of what occurred, but to a large extent, though not entirely, their evidence consists of an account of what the child/ren said of some happening, or how the parent perceives the child/ren to have responded to some occasion, or how it has affected the child/ren, offering at the same time their own views about its meaning and import. In this case the core assessments do not depend so much on forming a view about some disputed event and so credit findings will serve no useful purpose. The decision at this point is more related to the evaluation of the children’s views and attachments and their relationships, the attitudes of each parent to their responsibilities, and of both parents’ capacity to recognise and meet the children’s various needs, including a sound relationship with the other parent. That can be undertaken against a broad view of historical developments and the necessary evaluations undertaken thereafter in light of all of the evidence, including but not limited to that offered by the parents.
Further evidence, apart form the tender of documents, came from:
·Ms F, the father’s partner;
·Ms L, psychologist, whom A has consulted;
·Ms N, psychologist, whom V has consulted;
·Ms G who saw the parents and the children in June 2006 and May 2007, as well as the father’s partner, and produced two Family Reports.
Ms G was not a model expert witness, demonstrated by her dogged reluctance to hypothesise when asked to do so by Mr Thomas and it has to be said it would have been more appropriate for her to have restrained her obvious impatience with his questioning; after all, his role was to probe and the testing of opinions to be expected by any expert. Nonetheless, I attach significance to her evidence, more particularly her evaluation of the children’s current position and their relationships. The two psychologists, Ms L and Ms N, had regular communications directly with each child and it has been instructive to hear of their engagement and the manner in which they discharged their responsibilities. Their vantage point was different to Ms G’s, by no means unimportant, but to the extent there is any inconsistency between their assessments and hers, I find Ms G’s to be the more crucial and reliable for present purposes. I say that because of the particular advantage she had on two separate occasions to observe the children around and with each of their parents and with the father’s partner on one occasion, whereas neither of the psychologists was exposed to that perspective. Also, there are other more subtle undercurrents that cannot be dismissed and give Ms G’s evidence precedence. The children’s mother chose and engaged both psychologists, she was the parent who gave them the background information, and apart from being the parent who was arranging the consultations and for the most part transporting them, she was in close contact with both psychologists. That is not to say they had no contact with the children’s father. There was a deal of telephone contact from the father and he attended upon both psychologists in his efforts to understand the children’s position. However, it is highly likely the arrangements around the children’s consultations conveyed to them the perception that their mother was one who was connected to and closely involved with the therapist. On the other hand, there could be no doubt that when the children saw Ms G they perceived her as a person who was going to relay to the court what they said. That was explicitly stated in A’s case. Context and perception are not without their significance as underlying influences on children, and in this case provide some possible explanation for differences in reports of the children’s attitudes and views. In the circumstances, Ms G’s interviews with them should be taken to be more reflective of those matters.
In expressing that evidentiary preference, I am conscious that Ms L specifically rejected the proposition that she was at a relative disadvantage by not having observed A relating with her father. In her opinion, she did not have to see them in the same room, she did not need to see A interacting with her father to know how she is feeling, and for that she relied on A’s feelings and her responses to the counselling as well as the way she has come to know A and from what she knows of children. Her explanation for any incongruence between A’s presentation to her and to Ms G was that A had been ‘pretending’ during her discussions with Ms G. Ms G, on the other hand, while acknowledging that a child in A’s position could present with variable attitudes towards her father, rejected this. For my part, long experience teaches that when children find themselves embroiled in and having to negotiate a disputatious environment between separated parents, there may be complexities and layers that need to be explored and evaluated beyond the surface of what children say and how they present in a single setting. Often those complexities become apparent only when there is the opportunity for a wider perspective, which may be gained by the introduction of the other parent to the setting under observation by the expert. In my opinion, Ms L’s conviction about pretence and the validity of A’s presentation to her did not take sufficient account of or make appropriate allowance either for that or for the special position her mother had taken in the consultations.

Relevant background

To the extent it constitutes a record of facts, the background to follow is derived from common ground or admissions or is accepted as the more probable and reliable.
The children were aged 8 and almost 4 years at the time their parents separated and their father left the family home and they continued thereafter to live there with their mother. The parents undertook counselling over a long time with a view to reconciliation, but to no avail. The father made the decision ultimately that reconciliation was not possible and the counselling came to an end in 2005. In the meantime, he had formed a relationship with Ms F. Obviously by 1 August 2005 he was dissatisfied with the arrangements concerning the children’s time with him because he instituted the current proceedings, but he links the troubles that developed with his contact with the children to the mother’s awareness of his relationship with his new partner. She denies it. It is not particularly clear when she became aware of it; in her affidavit [paragraph 42] she identifies January 2006 as when she learned of it whereas Ms G reports her saying she hoped they would reconcile, counselling had been undertaken with that in mind, and it came to an end in 2005 when she realised the father was seeing another woman. Her awareness earlier than January 2006 is also supported by the father’s evidence that she telephoned him in November 2005, called Ms F a ‘prostitute’, and warned him she was only after his money. Whenever it was, Ms F’s presence in his life has been a source of difficulty, more particularly by reason of its impact on the children and their attitude towards their father.

Over the years following separation, while they were attending counselling with a view to evaluating the prospect of reconciliation, there were no court proceedings about the children’s arrangements and the children spent time regularly with their father. The informal arrangements were not of the more usual type one sees post-separation, however. Broadly speaking, visits occurred initially for the day on Saturdays and later also Wednesday evenings for a couple of hours. The Saturday visits were initially at the home and later there were outings, with and without the mother, and on the Wednesday evenings the father would have dinner at the family home and occasionally stay overnight in the spare room. The father relates visiting relatives on outings with the children, being involved in their schooling and extra-curricula activities as well as arranging and attending special family occasions.
It is not apparent whether the mother voiced any criticism of his engagement with the children during those years, but she is not uncritical now of it. Here she says that when he was at the home on Saturdays he read the newspaper or watched television while the children did other things, thus implying a level of disinterest on his part. Nonetheless, she describes the arrangement over these years as her ‘open house policy’, suggesting her willing support for the father’s regular contact with the children, at least according to the terms in place.
But the situation was more complicated. On no occasion during those years did the children have an overnight visit with their father – nor have they yet, 5 ½ years after he withdrew from the family home. He first asked for the children to stay overnight with him towards the end of 2003 [or early 2004] and there were further later requests, but on no occasions did the mother agree to it and nor does she agree to it now. She explained her earlier refusal by saying she did not think the children were ready for overnight visits, in her view their father needed to spend more time with them and do things with them before that occurred, they were not comfortable with him. The father has a different view about it; he sees her refusal as related to his leaving the marriage and he links it to occasional threats she made not to allow him to see the children unless they reconciled and he returned home.
Obviously the long standing ‘open house’ arrangement and the failure to achieve agreement about overnight visits became unsatisfactory to the father by at least 1 August 2005 when he sought orders for the children to spend with him alternate weekends, half the school holidays and special occasions. Throughout the remainder of 2005 and until Ms G conducted interviews in June 2006 for her first report, it is clear not only from the parents’ evidence about particular events but also from views exchanged in solicitors’ letters that there was a downward spiral in relations all round.
Without being exhaustive, the mother says there was an episode when yelling was overheard by the children [she alleges the father was doing the yelling]; she maintains V returned from a visit upset and distraught, complaining her father would not bring her home or give her something for a headache; there was an argument between A and her father about the mobile phone he had given her, a topic of contention that continued over some time; she says the children returned complaining they are bored when with their father and he does not take them on promised outings; there was a contretemps arising from the paternal grandmother’s 80^th birthday party in February when A met the father’s partner for the first time; and there were complaints from the children that the father’s partner is always there, they are not able to spend time with their father, their father does not stand up for them against her, and she makes fun of them.
In all of this the mother criticizes the father’s behaviour which she alleges left the children or one of them distressed and she maintains he does not listen to them and he lacks appreciation of their needs and wishes. The father, on the other hand, relates having to contend with her antagonistic attitude, her insulting remarks about his partner, she had denied his requests to see the children, including at Christmas and at other times [eg he proposed to take them to the Gold Coast at Easter for a holiday] and she then terminated his contact with the children in mid-May.
From early in 2006, before the unfolding of some events during this period leading up to the first Family Report, the mother was suggesting through her solicitor’s correspondence [see letter dated 31 January 2006] that the children attend counselling with a child psychologist to ‘assist them in dealing with the separation of their parents and to assist them in dealing with issues relating to their stated reluctance and refusal to have any overnight contact with’ their father. Absent a response from the father, the proposal was taken up in several letters over the months to follow. Indeed, the letter of 21 April 2006 from the mother’s solicitor, amongst other things, returns to the suggestion that the children see a psychologist; it relates the mother’s concern about the children’s health ‘and in particular in relation to their mental health.’; it goes on to advise that the mother had taken advice from the children’s family doctor, Dr T, who recommended the children be referred to a child psychologist to assist them with their ‘anxiety-related problems’. The letter further advised that the mother had had preliminary discussions with Ms N, psychologist, and that it would be in the children’s best interests to consult with her with their ‘post-separation anxiety and such other matters which may need addressing’. It was said to be a matter of urgency and the costs were advised.
Significant events followed shortly after this last letter. As related by the mother:
(i)On 14 May 2006 A returned from a visit with her father complaining the father’s partner had remarked, when A said her headband was squashing her brain, that she had ‘no brain’. As the mother describes the events of that evening, A was extremely distressed, she hit her head repeatedly against a door, she was crying and sobbing uncontrollably, and she said she felt like killing herself. The mother calmed her down eventually and put her to bed.
(ii)Despite this distressing scenario and the articulation of the idea of self harm, A went to school the next day and the following day.
(iii)The day after this event, 15 May, the mother took V for her initial consultation with Ms N.
(iv)The following day, 17 May, the mother took A to see Dr T, the family general medical practitioner. Dr T’s account of the consultation is to be found in a letter she wrote that same day to the mother’s solicitors. The letter opens with the advice that Dr T had sought an urgent consultation with A ‘following alarming comments that she made to her mother over the preceding days.’ The consultation with A [alone] occupied one hour. On my reading of the letter, it is not clear in all instances what part of the contents has been related by A and what has been related to Dr T by her mother; for example, ‘She was seen to bang her head repeatedly against the door’ suggests the mother as the source of information and not A. In any event, the letter says there had been complaints over the past 3 to 4 months from A and frequent mood swings and crying easily, along with other matters [again, it is not clear if this is what A related or it came from her mother]. There is a report of A’s visit at the weekend with her father, including reference to the tight headband and ‘no brains’ comment said to have come from the father’s partner. Again, whether A told Dr T she had said to her mother that she “hated her life” and “felt like killing herself” or that came from her mother is not clear. The letter continues: ‘I asked [A] if she wanted to harm herself and she replied “sometimes”. The letter then reports A saying she did not enjoy spending time with her father and he and his partner were ‘mean’ to her. Dr T asked her to describe other incidents but A refused to talk about them. The letter relays concern for A’s emotional and psychological well being as a result of distress about her family situation. Dr T comments: ‘I believe she is feeling the stress of this unfortunate and tragic situation which is compounded by the emotional and psychological abuse she is suffering during contact with her father and his partner.’ She recommended referral to the Child and Adolescent Mental Health Unit, though she said at this time A refuses to attend. She concludes the letter by saying she will continue to work with A and see her on a weekly basis.
The letter is a remarkable document in a number of respects. For one thing, it is addressed to the mother’s solicitors rather than taken up in some other direction more suited to addressing its serious content, thus leaving the impression it was written for evidence gathering purposes in the mother’s case. There is no reference to the recommendation Dr T had allegedly made much earlier that the children be referred to a child psychologist to assist them with their ‘anxiety-related problems’ [as per the letter from the mother’s solicitor dated 21 April] and it is curious she would omit this history and earlier recommendation when recording her concerns. The lack of clarity about what she was told by the mother and what she was told by the child is unsatisfactory. It is also of concern that there would be a consultation undertaken by a general medical practitioner [with no apparent expertise in the area of such serious matters as the letter discusses] with a child, alone, for a period of one hour in such a state of distress as described. It is also of concern that a statement would be made by a child about thoughts of self harm and the issue not referred to appropriate persons equipped to properly address it. It is also unsatisfactory that a child in such circumstances be asked in a leading and suggestive way, as she was, if she feels like harming herself. Furthermore, it is puzzling how it could be said, as a given fact, that the child is suffering from emotional and psychological abuse during contact with her father and his partner when that could not possibly have been assessed as substantiated by Dr T on what was available to her. These and other questions can be taken no further; Dr T’s letter was annexed to an affidavit but she was not called to give evidence.
The mother terminated contact between the father and the children at this point. After the consultation with Dr T, she took A to consult with Ms L who is part of the same practice as Ms N.
On 20 June the children and parents and the father’s partner attended Ms G for interviews for the first Family Report. By this time, there had been no contact between the children and their father for more than a month. A summary of her report follows:
(a)      Ms G related the substance of the interviews conducted with each parent. The mother identified the children not wanting to go with their father after the grandmother’s birthday party and A’s consultation with Dr T as the reason for her decision to cease contact. She said she supported weekly contact continuing but not overnight visits which she believed the children did not want. The father identified the mother’s inability to let go and her attitude to his partner in his life as the source of the problems. He was perplexed how things had developed as they had and he did not understand the objection to the children staying overnight with him. Nor was he able to reconcile the discrepancies between Dr T’s report about A and the absence of any problems for A according to the school co-ordinator. He indicated willingness to forego overnight contact if that was the wish of the children, but he wanted contact to resume.
(c)      The father’s partner, described as a pleasant woman, was distressed by being seen as the ‘bad guy’ because the children did not seem to resent her when they were together. She denied making the ‘no brains’ comment to A. She was willing to absent herself from contact visits if it would help the father have contact again because she did not want to be the cause of everyone’s distress.
(d)      A was described as being initially withdrawn and surly, refusing to speak, saying she did not want to be there, and it took some time to have her talk, but she did so after being told the court wanted to know what she was thinking. She related her father having said something to her she was not happy about, adding that her father had said a number of things that had made her upset, explaining that she may say something and her father might disagree with her. Specifically on the topic of whether she actually wants to spend time with her father, she replied ‘sometimes I want to see him and sometimes I don't’, that she had felt less like seeing him recently since his partner had been in his life. Asked about this, she said ‘Dad always agrees with her and not with me’ and if she and V want to do something on the weekends the father’s partner suggests something else. The Easter show was given as an example. Asked why she was refusing to stay at her father’s overnight, she said she did not like sleeping at other people's houses, but preferred to be in her own bed and she wanted to be with her mother. But she confirmed she did want to spent time with her father: ‘yes, I do, I would like to see him on Saturday but not on Wednesday night because on Wednesday night there is just not enough time to see him and it is too rushed’.
(e)      V was described as a very quiet little girl who sat in the chair staring at the counsellor with frightened eyes, very reticent about talking at all but she responded to questions about school. Asked what it was like when she went to her father’s she said ‘I like playing with Daddy’ which she then corrected to say ‘I like playing with Daddy sometimes’ and, on the verge of crying, she described being with him as ‘sometimes bad and sometimes good’ and she volunteered that sometimes her father teases her. Her view of the father’s partner was that ‘sometimes she gets cranky and at other times she is good.’ As for time with her father, she did not want to stay overnight but she could not give her reasons. As she was visibly upset Ms G terminated the interview.
(f)       Ms G later had a discussion with Ms N who had seen V a number of times by then. Ms N described V as pessimistic and introverted and said she had some problems with the parents’ separation, that she loves her father but does not want to spend time overnight with him and she was having difficulties coming to terms with the father’s partner in her father’s life.
(g)      Having observed the children with their mother, Ms G concluded the children were obviously very attached to her. Describing her observation of the children with their father, she said they were playing a game when he entered. They called him across to help and he responded. Ms G said it was obvious the children are very fond of their father and are not in any way dismissive of him. She then introduced the father’s partner to the playroom and as she approached the group A got up and walked away to the other side of the room and V followed suit. Ms G stopped the observation. Later in the process while the children were playing with their father the father’s partner, introduced to the setting, sat down and joined in the game. Ms G described this as very different from the earlier observation. The girls included her in the game and she was responsive to them and appropriate in her manner with them. The mother was then introduced to the group. Obviously finding it difficult, she stood at the side and observed but did not interact. When A noticed her mother standing behind her, she stopped playing, closed up the cards and just sat there staring at the wall. V did the same. Ms G disbanded the group.
(h)      Later, after interviewing the mother again, Ms G entered the waiting room and described the children as sitting on the floor, looking up to their father and his partner, and speaking in an animated manner. When told their mother was waiting for them, they both jumped up and ran towards her and looked back towards their father and waved, though A was described as looking at her mother with concern on her face.
(i)       Ms G gave this summary.
‘35 [The mother] maintains that she has facilitated contact with the father but the Counsellor is concerned that she has not herself given up the idea of her marriage and cannot accept [the father’s partner] as part of [the father’s] life. As a result, the children are concerned about upsetting their mother when being with the father and a number of incidences, which have occurred with [the father’s partner], are possibly a by-product of the mother's distress at the situation.
36 [The father] obviously wants overnight contact with his daughters and he was very distressed when discussing it. However he admitted that he was prepared to forgo his request for this if it was going to distress the girls in any way.
37 In observing the father and the children and [the father’s partner], the Counsellor did not see any difficulties with the children's reaction to [the father’s partner]. The only time that the children did not interact with [the father’s partner] was when the mother entered the room.
38 This is a very common response in children when they are caught between parents and feel that they are not having the mother's approval if they interact in a pleasant way with the father. Although [the mother] denies that her children are frightened of her, the Counsellor tried to explain to her that the fear is not about her but the fear of her distress if they appear aligned to the father.
39 [A] and [V] are both introverted children and do need ongoing counselling.’
(j)       Ms G recommended the children not go overnight at that stage as it would be too distressing for them, but she recommended the Saturday visit finish later so the father could take the children to dinner and they visit for 2 ½ hours on Wednesday afternoon. She also recommended the mother help facilitate the contact and the children have ongoing counselling, both parents encourage A to see a psychologist given her symptoms of depression, and the case be reviewed in 12 months when things have settled.
On 15 August 2006, after the release of the report, interim orders were made by consent providing for the children to spend time with their father
·each Saturday from 10.30am to 7.30pm except for the third Saturday each month;
·every second Wednesday from 6pm to 8.30pm;
·at certain times at Christmas, birthdays, and other special occasions;
·as the parents may agree in writing; and
·there were also a number of notations about various matters, including the collection and return of the children from the mother’s home and encouraging the children to continue counselling with Ms N and Ms L.
After these orders, Ms N prepared a report dated 25 September. In her conclusions she described V as a happy child with strong relationships with her mother and sister but appearing to experience significant difficulty in ‘verbalizing her emotional responses to stress at home or express her feelings about her parents’ separation.’ Though not raising any issues or concerns about her relationship with her father or his new partner, she was assessed as having issues about her communication with her father and her relationship with his partner through play therapy. She saw V as being in a period of transition in making the adjustment to her parents’ separation, noting that ‘better communication amongst her parents is vital to her emotional well-being.’ She recommended continued counselling with her, visits to her father being kept to Saturdays and Wednesdays at that point, she spend quality time with her father without his partner, both parents support her through the transition, and there be possibly monthly meetings with a psychologist ‘to assist both parents determine common disciplinary boundaries and address parenting issues.’

Ms L produced a report about A dated 27 November. Having related the background given to her [she understood from the mother that the parents had separated in 2005 and not in 2002] and having given an overview of her sessions with A, Ms L concluded the marriage break up had serious effects on A’s behaviour and emotional wellbeing and her recovery was being hindered by a number of factors: the on/off relationship had given A a false sense of hope there would be reconciliation and she is angry with her father and blames him for the break up; the father had unrealistic expectations that A would accept his new partner; she is not able to communicate with her friends and that is significant because adolescents use friends to vent frustration and anger; and she has developed underlying anxiety about staying at her father’s because she feels she has lost control over her world. Ms L commented that the father has good intentions but his approach is not always appropriate, particularly his view that the mother is the cause of the problem, and while he has tried hard to listen he is easily frustrated. She also pointed out that there had been a number of changes for A: transition to high school, loss of school friends, loss of the family unit, loss of a father figure in her family home, loss of quality of life financially and emotionally, and the loss of her father to a new partner. All of this is impacting on her behaviour and she is trying to deal with them in her own way by emotionally detaching herself from her father as a way of coping, thereby not feeling the disappointment and hurt she is currently feeling. She concluded by saying this may result in major depression and may have an effect on her mental health.
The interim orders did not proceed without difficulties. The children were not made available in early September and the father filed a contravention application which he later withdrew.
Towards the end of September there was a suggestion by Ms L that there be a three month trial during which the children would choose what time they would spend with their father rather than according to the interim orders. The father agreed to this at the time. The father’s partner had agreed to withdraw and not be present during any of the visits. However, it turned out to be unsatisfactory, at least from his point of view because he did not see V except for Christmas Day and New Years Day and he only saw A on several occasions. He offered to attend mediation with the mother to sort out the issues but this was not taken up. On the other hand, the mother has a quite different attitude to the three month period; she describes it as a period when A was at her happiest, she was doing better at school, and her relationship with her father was better.
At the expiry of the three month ‘trial’ period, the father had some difficulty in re-establishing the arrangements under the interim orders. He saw both children on 1 January, he did not see either child throughout January and then saw A, not V, at the end of January. He subsequently brought another contravention application. Around this time he decided to put three options to the children: they not see him at all; they comply with the interim court orders; or they meet him for lunch each Saturday. They chose the second option. From mid-February, for a time during which the contravention proceedings were adjourned not reached, arrangements with the children proceeded according to the interim orders. But again the interim orders fell by the wayside in that while A spent time with him each Saturday – and with his partner - V did not. By the time of Ms G’s interviews for the updated report shortly prior to the hearing, he had not seen V for the previous two weeks.
Consideration of whether to update Ms G’s earlier report, which was based on interviews almost a year earlier, produced reports from both Ms L and Ms N advising against the children being re-assessed or re-evaluated by another process. But it was ordered. The day before the scheduled interviews the mother told Ms G she would not be bringing the children as one would be sick and the other going on a school excursion. As it turned out she did bring them and this call was attributed to a misunderstanding by the mother of the situation.
As Ms G framed the issues at that point, not only was there a question about the time the children should spend with their father but also about whether they should make the decision about the time they would spend with him, whether there should be court orders about it, and the mother’s support for such orders.
In the course of his interview, the father called the time spent with the children since the interim orders ‘disjointed and disrupted’. He spoke of Ms L’s suggestion of a three month trial when the children would choose when they would see him, that this had resulted in little time with him, and he regretted having agreed to it. He also spoke of his decision to put three options to the children and their choice to abide by the interim orders. He related feeling estranged from the counselling process both children had been undergoing and of his difficulties in having Ms L return his calls. Nonetheless, he also related A enjoying a recent outing with the father’s partner while he went elsewhere and that things were much better there. He did not understand why V had not recently been spending time with him.
For her part, the mother described the father as being always angry with the children, that he does not listen to them, and he does not understand how they feel. She explained her failure to be at home for a scheduled visit with their father by reference to A being in one of her ‘dark moods’; she had taken them away so A would not have to make the decision about whether or not to go with her father. She spoke of ‘threats’ about contravention applications and according to Ms G spoke in great detail about A’s history of depression and the need to be careful about this at all times. The mother did not agree with equal shared parental responsibility with the father, maintaining he does not know how to care for the girls and does not show interest in them.
Ms F reports A saying she had felt a little bit ‘funny’ about coming to court but she denied being anxious, she did not mind talking, her attitude was pleasant and she smiled a number of times throughout the discussion. Amongst other topics, she spoke of the shopping trip with the father’s partner in positive terms, she told Ms G that being with her is now ‘okay’, and she does not mind spending time with her. A said she is no longer attending counselling with Ms L because it is a ‘bit boring’ and she does not need it anymore. Reminded of the time she had been having ‘black moods’ and thinking of suicide, A said she does not have those moods anymore, she is not thinking about suicide or self harm, and she believes she will never think about either of those things again. She discussed the three options her father had put and said she had chosen to see him as the orders provided, that she had thought just seeing him for lunch could be a good idea but then she had thought that she wanted to spend more time with him than just lunch. Asked about the first option of not seeing him, or his partner, at all, she said she did not consider that option as she definitely wants to see her father and she now she enjoys seeing her father’s partner also. Ms G’s report continues:
‘20. [A] claims that she would prefer that the Court tell her and [V] what they should do because she does not think that it is a good thing for them to make the choice themselves. She claimed that having to make the choice makes her confused. [A] believes that if an activity comes up that she wants to attend on a Saturday, her father will take her. She said that recently he had promised to take her to the football and, for some reason which she did not know, he did not take her and she was "cross". She did say, however, that he had promised to take her on another occasion and she is going to remind him of this.’
Ms G reports V coming into the interview without any hesitation and not looking fearful or concerned. She discussed school but became silent when it came to discussion about the time she spends with her father. She was asked to nod or shake her head at questions around that, which she did.
Observed with their father, both children greeting him and they became involved in making things. As they both talked to him V became quite animated and A talked about what they were doing. After about fifteen minutes, the father was told it was time to leave as the mother wanted to return V to school for the excursion. Ms G continues: ‘[A] spontaneously got out of her chair and hugged her father and kissed him. [V] stood behind [A], waiting her turn to also cuddle her father and he bent down and she kissed him on the cheek. I observed a comfortable, spontaneous and warm interaction between the girls and their father.
In her evaluation, Ms G expresses major concerns about the parents’ ability to communicate and therefore she did not see equal shared parental responsibility as practicable given the history. But in her assessment the time the children spend with the father should increase gradually with the aim of spending overnight time with him after six months from the date of further orders.
Ms G had no concerns about the prospect of A self harming. She observed that while the mother had given A’s dark thoughts as the reason for not being there on a scheduled visit, A had denied having any such thoughts. While V had found it impossible to talk about her visits to her father and why she had seen him the previous weekends, she was able to indicate by head nods that she is not fearful of her father, she thinks he does listen to her, she now likes the father’s partner, and she could not understand why she had chosen to stay home. Ms G commented that the interaction between the girls and their father in the playroom was obviously pleasurable for them all. The reports from the psychologists and the mother complaining that their father does not listen to them and is not interested in them was not evident from any aspect of her observation; rather, the children were affectionate towards him and he showed interest in them. Commenting on the counselling the children had had, Ms G said it may have helped them express themselves and work though some of their confusion, but she expressed some concern about Ms L’s unavailability to the father and the perception of her alignment with the mother by not organising a mediation session with A as he had requested by telephone and letters.
Ms G recommended that the mother have sole parental responsibility, each parent have day to day decision making responsibility when the children are with them, and for the first six months the children spend time with the father:
·each 1st and 2nd Saturday between 10.30am and 7.30pm
·each 4th and 5th Saturday (when it occurs) between 10.30am and 8.30pm
·after six months, the children spend time with their father every alternate weekend from 6pm Friday until 6pm Sunday.
·after six months, the children spend half the school holidays with their father, including staying overnight.
·when the children are with their father, [the father’s partner] also be a part of these arrangements if she and [the father] so desire.
While Ms G elaborated in cross-examination on matters discussed in her report, she gave no further evidence to displace or undermine the substance of her written reports and to the extent further reference needs to be made to her evidence that will follow in discussion of the relevant factors.

Best interests

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

Ms Karagiannis observed in closing submissions that this is an unusual case. She pointed out the parents had taken traditional roles while they were together and for some time after their separation there was no introduction of circumstances where the children would spend extended periods of time with their father. They have not yet spent an overnight visit with their father at his home over 5 ½ years after separation. So usual in most families post-separation, spending extended time and overnight visits was ‘foreign’ to these children and that attitude was reinforced by the counselling they had undertaken with the psychologists. Their father’s application to bring about a change in that direction was experienced as stressful and it caused an anxious reaction in the children. She also submitted that if there is no change then the difficulty for these children will be prolonged and the prospect of them having a meaningful relationship with their father will disappear completely.
I see that as a valid analysis. The fact that the parents underwent counselling over such a long period so as to assess the future of their own relationship combined with the arrangement for their father’s contact with them to be at the family home, subject to outings when they may be accompanied by their mother, must surely have instilled in the children a notion of what was ‘normal’. It is therefore not surprising that the prospect of change to that longstanding embedded pattern created difficulties for them - particularly when it was obviously experienced by them as not consistent with their mother’s view of what should happen, their parents’ disagreement about their arrangements plainly was being asserted in a hothouse atmosphere, and there was the additional confronting reality, not only for them but also for their mother, of a new partner in their father’s life. Nor is it particularly surprising that their mother would be resistant to the change his proceedings sought to impose. She links her reports of the children’s adverse responses to time spent with their father to his insensitive incompetence and/or his lack of interest in them, but that is unsupported by the more reliable evidence and does not exonerate her from a share of the responsibility for the children’s difficulties.
In my assessment, it is important for these children to have the opportunity to develop and sustain a meaningful relationship with their father and for that to happen there is no doubt they need to spend adequate time in his care and it be of a qualitative nature.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This is not relevant. There is no abuse, neglect or violence alleged.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

Ascertaining the views of the children in this case is complicated by the dynamics of conflict that have surrounded them for some time.
Their mother asserted more than once in her evidence that the children should have a choice about what time they spend with their father. More particularly, she expressed the view that A wants to choose when she goes to see her father and that would be the best outcome for her. The mother did not accept that giving the children a choice would be a burden on them; from her point of view A was at her happiest in the three month trial period when she was able to choose; if able to choose the children will actually want to go with their father more and not feel pressured because they will feel they have some say in the matter; they would have a better relationship with him; and their time with him will have the advantage of being spontaneous. She says she regards it as important they see their father and she says she will support their choice by encouraging them to go with him.
It may be observed that choice is not an element in the arrangement the mother agreed to [exhibit 14] despite iterating this as her position at several points during her evidence. In any event, I do not accept that giving the children a choice, as this evidence urges, would be consistent with their best interests overall. The three month period where this was ‘trialled’ at Ms L’s suggestion did not result in the children spending much time with their father and it is not evident what, if any, real encouragement and support was given by the mother to the children to spend time with their father during that time. There could be no confidence, therefore, that there would be sufficient real encouragement and support in the future and so it is an entirely unappealing option to place upon the children. Also, it is a position that is inconsistent with the indications the children gave to Ms G in her more recent interview with them or, expressed more specifically, it is contrary to A’s stated view that she would prefer the court to say what they should do and that choosing makes her feel confused. That is entirely understandable.
The question of choice being disposed of, it is accepted that the more reliable source of the children’s views about seeing their father and spending time with him are as they expressed them to Ms G during the more recent interviews – in A’s case by direct discussion and in V’s case in the manner described by Ms G. I am satisfied therefore that both children want to see him and spend time with him. That much is not in contention, as the agreed component of the orders reflects. What is not apparent from that evidence is their attitude to spending overnight or longer block holiday periods with him. Of course that is the very decision now to be made and it will have to rest on the evaluation of other factors relevant to their best interests.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
It is accepted that both children are very closely attached to their mother with whom they have always lived and they have spent very little time away from her daily care.
It is also accepted that they have a close relationship with their father. One only has to read Ms G’s description of their interaction with him to appreciate their pleasure in his company. A was described as spontaneously going to hug and kiss him with V waiting her turn to cuddle him, and it was assessed by Ms G as a comfortable, spontaneous and warm interaction. Pressed in cross-examination by Mr Thomas about the extent to which she was in a position to know the problems V had when she first went to see Ms N, Ms G rejected that and said [to the effect]: ‘I wish you could have seen the love and warmth between [A] and her father on the day in the playroom. You would not be able to say, after seeing that, there was not a very warm, strong connection between herself and the father. So whatever else is happening on the other side, I don’t know.’
It is acknowledged there have been problems in the relationship between the children and their father. Yet I am satisfied they are not inherent or embedded problems arising from their relationships per se but are more ‘environmental’ or arise from the circumstances in which the children have found themselves. They have had to negotiate a path between their parents who not only have quite different views about what arrangement would be in their best interests [of which they are plainly fully aware] but also negotiate the introduction to their father’s life of a new partner, along with the rather complicated overlay of their mother’s attitude to the end of the marriage so much time was invested in trying to salvage.
As for their relationship with the father’s partner, the children have arrived at a different point with that. A is a little more advanced than V in making the adjustment. But given the opportunity and time, I can see no difficulty in both children developing with her a relationship appropriate to her position in their father’s life. That much is apparent from Ms G’s description of their reactions to her, complicated only by their mother’s presence and the discomfort they felt in that setting. It is the mother’s evidence that she has encouraged the relationship between the father’s partner and the children. It would be of considerable benefit for the children if that were so because it would release them from any obligation to demonstrate their loyalty to their mother, but there is no indication that is happening in any real sense, as Ms G’s description of the group interaction reflects.
(c)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
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents [see also ss (4)]

There can be no doubt that the mother has fulfilled her responsibilities as a parent by providing well for the children and their needs in so many ways. She has maintained the family home environment for them and seen to their schooling, their involvement in extra-curricula activities of interest to them, and given them routine and continuity. She did so during the years the end of the marriage was suspended in a state of flux and during the past year or two when she has been required to adjust to the finality of the separation.
It is Ms G’s view that she had not made that adjustment when she interviewed her for the first report and she had not adjusted entirely by the time of the second report. As she saw it, this makes it difficult for the children to spend time with their father because they perceive their mother will be unhappy about it, even though she may not say so expressly.
The mother’s case does not accept this sort of evaluation. She maintains she wants the children to see their father and that she has always encouraged it. Yet her case fell short of persuading that this is soundly based. She has not reinforced with the children the fact that she agreed to orders about their arrangements in the past; by her rejection of the proposition that the children might be saying things to her they think she wants to hear she leaves no room to take on board that possibility; she urges leaving the children to make the choice about seeing their father despite the obvious burden of conflicting loyalties and therefore confusion this would place upon them; and she has relied on A’s ‘dark thoughts’ to explain why the children were not made available to spend time with their father at a time when A was disavowing to Ms G having any such thoughts. Making adjustment to the change proposed by their father has been difficult for the children and in my assessment they have not received sufficient support from their mother in making it.
This view is consistent with Ms G’s assessment, which I accept as well founded on the whole of the evidence, that the mother has not done enough to encourage the children to spend time with their father. It is also Ms G’s assessment that she would benefit from long term psychotherapy; however, in my opinion voluntariness is fundamental to the prospect of that process delivering change and therefore it will remain a step for the mother to consider rather than be the subject of an order. What is necessary, by whatever means, is that the mother develop further insight into the difficult position in which the children have been placed, including her own contribution to that, and that she examine why there has been continuing parental disagreement about how and in what circumstances their relationship with their father is to proceed when the indisputable objective evaluation is that they love him and he cares for them as a loving parent.
The father has also fulfilled his responsibilities as a parent as much as he has been able. He has provided support for them financially and otherwise and he has maintained his commitment to involvement in their upbringing in the face of considerable difficulties.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from (i)either of his or her parents…
The decision to be made would require the children to spend time overnight with their father, initially on weekend visits and then for extended periods in school holidays. The mother was asked her reasons for opposing overnight visits. In her response she said she had discussed it with A on a number of occasions, the first time a few years ago, and A has always steadfastly said she does not want to sleep over. She said the topic distresses A and she has to be calmed down. She also said she is not comfortable with the idea because of ‘incidents between [A] and her father’, the children are ‘already struggling with other serious issues and going to counselling’ and if she adds to it by discussing overnight visits it would make the situation worse. Moreover, she stated their father does not listen to them and does not follow through on promises about outings. While she had expressed the view at an earlier time in her affidavit that overnight visits would come in time, she does not now believe this because there have been ‘too many problems’. She does acknowledge she has a role to encourage and facilitate it if there is an order for overnight and extended contact. However, it is not apparent from the evidence that she does encourage the children to see the topic in any way that is inconsistent with her own view about it.
Of course her views are to be taken into account in arriving at a decision. What has also been considered is Mr Thomas’ line of questioning related to the need for the mother’s support of any order about the children’s arrangements to spend time with their father if the order is to ‘work’. On the hypothesis inherent in the questioning, unless she supports it there is a risk of the re-emergence of the sort of behaviour the children exhibited at an earlier time and that would run counter to their interests.
Whether or not their behaviour would deteriorate is hard to say; they are older now and at least A a bit more assertive about her circumstances. But there are other difficulties with this approach. As I see it, while the attitude of a parent to the nature and substance of orders is not unimportant, the weight to be given to evidence about that very much depends on the particular circumstances being discussed. In this case, the argument arising from the line of questioning has no persuasive influence because the indicators pointing to the children’s best interests are solidly against what weight it does have. In short, a decision for overnight and extended periods with their father, phased in over time or not, is not supported by the children’s mother and it is acknowledged that may very well create difficulties for them. However, the alternative of not providing for that time with their father, in both a quantitative and qualitative sense, thereby shutting off their opportunity to develop a proper meaningful relationship with their father in the more normal or usual setting, would be more detrimental to their well being in the longer term.
(f)the capacity of (i) each of the child’s parents; and (ii) any other person …to provide for the needs of the child, including emotional and intellectual needs
The evidence establishes both parents to be capable of meeting their children’s needs in many respects, but it does throw up shortcomings.
The father’s attendance in 2005 at a parenting course is an indicator that he is committed to doing the best he can for the children and it says something of his openness to improvement. But there have been events that have demonstrated there has been some shortage of sensitivity and restraint and the same might be said of the father’s partner. For example, the attendance at the school reconciliation occasion could have been approached differently and the father’s partner’s discussion with A about her parents at the beach at Manly might have been less forthcoming in her interests. On the other hand, the father’s response to having heard the evidence from the expert’s impressed as sincere and therefore it is probable he has the insight and maturity and sense of responsibility to examine his own ideas and open them up to change.
The mother, on the other hand, did not impress as similarly minded. She conveyed the impression of being quite fixed in her views about any difficulties the children have experienced, or are experiencing, with little insight into her contribution to that. One troubling aspect of this is the overvalue she attributes to the children being given a choice [not only about seeing their father but in other matters such as asking A if she wanted her father called when she was taken to the hospital with a physical ailment just prior to the hearing] without any apparent understanding of the complexities for the children of being put in such a position by her attitude and approach.

Conclusion

In my assessment, the children must have the opportunity to develop and sustain a meaningful relationship with their father and that requires they not only spend time regularly with him but they do so overnight in his home environment where they can experience all the quotidian facets of what makes up his life, including his household routine, interactions with family and friends along with other relationships and interests. That more qualitative time with him will also enlarge their capacity to share their day to day experiences with their father. Of course the benefits of doing so have to be balanced with other considerations, including but not limited to their mother’s attitude which is so integral to their daily life, but the balance favours the change being introduced. More of the same will not deliver for the children the important benefits of experiencing their father and developing their relationship with him in such a setting. Both children love their father and he is a loving parent – though, like their mother and most if not all parents, not perfect – there is no sound reason they cannot have all the advantages that flow from spending overnight and extended visits with him in his home and resolving with him the vicissitudes and competing priorities of family life whatever they might be at any time.
The thrust of the proposals made by the independent children’s lawyer, mostly adopted by the father in closing, is largely consistent with what I regard as appropriate to the circumstances. In the orders set out earlier, however, I have made some changes which I regard as suited to the circumstances and to accommodate the time that has elapsed since the draft orders were proposed, along with some other relatively minor changes and re-drafting I consider warranted. However, I am unable to adopt proposed order 6 about the children’s further counselling. It is a difficult subject to assess by reason of its nature and its implications for children, but ultimately I am unprepared to impose such an obligation by way of court order. In saying that, I am conscious of Ms G’s view that V may need some ongoing counselling though a break might do her good and so on. But it will remain a decision for sound parental assessment according to the child’s circumstances.
I should add that there is no question in this case of making different orders for each child. They should go on visits together. I should also add that I see it as the responsibility of the parent who has the children at the times set out in the orders to see that they are taken to scheduled extra-curricula activities and those arrangements should not represent an excuse for non-adherence to orders. Nor would it be expected that the children would be committed to any more extra-curricula activities without the other parents’ agreement if the activity is to be undertaken during the time the children would be with that parent.
Finally, a decision needs to be made about the dispute related to the travel/driving necessary for the orders to be implemented. In resisting any obligation to share in the driving, the mother points out that she does a lot of the driving now to take the children to their activities, such as dance troupe on Saturday mornings. She rejects out of hand the suggestion that it would set a good example to the children to see her facilitating their contact with their father by doing some of the driving involved.
However, the subtlety of the message that can convey may have passed her by; it must go some way towards conveying a notion of support for a child to see a parent actively facilitating the arrangement for them to visit their other parent rather than being the passive bystander always at home while the children come and go. There is no sound reason she should not participate in the arrangements and orders will be made to bring it about.
The orders that will issue have been set out earlier.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate:

Date:

[2007] FamCA 1231

16 October 2007

Key Legal Topics

Areas of Law

Family Law