Charles and Hughes

[2014] FamCA 252

FAMILY COURT OF AUSTRALIA

CHARLES & HUGHES [2014] FamCA 252

FAMILY LAW – CHILDREN – what parenting arrangements are to be put in place in relation to the two children of the parties – where the elder child is alienated from the father – where there is risk of realistic estrangement from the father of the younger child -  where the parties agree that the younger child spend alternate weekend time with the father –  where the father seeks to take the younger child on an overseas holiday during school time – where the mother opposes the overseas holiday – order for overseas travel made – where there are competing proposals for the facilitation of changeover – where mother’s proposal adopted - determination of the sequencing of weekends at the commencement of each new school term – where the father seeks to be able to coordinate the weekends in which the child spends time with him with the weekends when his wife’s children are with their mother – where the father proposes to provide the mother notice of the sequencing of alternate weekend time for the following year at the end of each school year – where father’s proposal adopted

Family Law Act 1975 (Cth)

APPLICANT: Mr Charles

RESPONDENT: Ms Hughes

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 3333 of 2011

DATE DELIVERED: 7 April 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 31 March 2014 - 2 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Longworth

SOLICITOR FOR THE APPLICANT: Abrams Turner Whelan

SOLICITOR FOR THE RESPONDENT: Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW D Town

Orders

1. All previous parenting Order with respect to the children B ("B") born … 2001 and C ("C") born … 2003 (collectively, "the children") are discharged.

2. The applicant father Mr Charles ("father") and the respondent mother Ms Hughes (“mother”) shall equally share parental responsibility for the children.

3. It is noted that B currently attends D School and that it is the intention of the parties that C also attend D School.

4. B and C shall live with their mother.

5. Both parents shall do all things necessary to facilitate any reasonable request made by B to spend time with her father.

6. C shall spend time with her father:

   During school terms:

   6.1.Commencing on 28 March 2014, on each alternate weekend from the 6pm on Friday until 7pm Sunday, subject to order below.

   During school holidays

   Subject to any other order:

   6.2.In 2014 and each alternate year thereafter, for the first half of each school holiday period at the end of terms 1, 2 and 3, unless otherwise agreed.

   6.3.In 2015 and each alternate year thereafter, for the second half of each school holiday period at the end of terms 1, 2 and 3, unless otherwise agreed

   6.4.For the first half of the 2014-2015 summer school holidays, and each alternate year thereafter, unless otherwise agreed.

   6.5.For the second half of the 2015-2016 summer school holidays and each alternate year thereafter, unless otherwise agreed.

7. Notwithstanding any other order:

   7.1.C shall spend time with her father on such further occasions as the parents agree;

   7.2.C shall spend Father's Day weekend with her father at the usual times she spends weekend time with him during school terms and in the event that the Father’s Day weekend falls on a weekend that C would have otherwise been in the mother’s care then C’s time with the father on the weekend immediately after Father’s Day is suspended; and

   7.3.C's time with her father on Mother's Day weekend is suspended and in the event that the Mother’s Day weekend falls on a weekend that C would have otherwise spent with the father then C shall spend time with the father on the weekend immediately after Mother’s Day at the usual times.

   Overseas trip

   7.4.C spend time with her father between 17 June 2014 and 5 July 2014 and that the father be permitted to take C outside Australia on the planned overseas trip to join his wife and her two children.

8. The children may communicate with the parent with whom they are not living or spending time at any reasonable time.

9. The father may communicate with B by sending her letters, cards and gifts to:

   9.1.PO Box A, F Town NSW; and / or

   9.2.Email address ….

10. The mother shall do all acts and things necessary to ensure that B receives all letters, emails and photographs sent to her by the father.

11. During school holidays all changeovers shall occur at McDonalds at Suburb G.

12. The mother shall deliver C to the father, his wife or his mother at McDonalds at Suburb H at 6pm at the commencement of C’s weekend time with the father during school terms and the father (or in circumstances where he is unavailable for compelling reasons, his wife or his mother) shall return C to the mother’s home at the conclusion of C’s time with the father during school term.

13. As soon as is practical for 2014 school year and by the last day of school term in each year, the father shall give the mother written notice of which weekend during school term will be the first alternate weekend when C will be with her father in terms 1, 2, 3 and 4 of the following year and in the event the father fails to give that written notice, then:

    13.1.When C has spent the first half of the school holidays with her father, on the first weekend after school term recommences; and

    13.2.When C has spent the second half of the school holidays with her father, on the second weekend after school term recommences.

14. Each parent shall ensure that they promptly inform the other about:

    14.1.Any serious medical problems or illnesses suffered by the children whilst in their care;

    14.2.Any medication prescribed for the children which requires administration by both parents in both their households;

    14.3.Any specialist medical, psychological, therapeutic or allied health appointments the children or either of them are required to attend.

15. Both parents are authorised by these orders to obtain from any school(s) that B and / or C may attend information about their progress and welfare, including but not limited to:

    15.1.copies of all school reports, awards, and information regarding the children's achievements and activities;

    15.2.invitations to school sports and swimming carnivals, prize givings, speech nights, open days, concerts and other events to which parents are usually invited; and

    15.3.school photograph order forms so that each parent has the opportunity to order same.

16. Each parent shall keep the other informed of their current telephone number, residential, postal and email addresses at all times and promptly notify the other parent in writing of any changes to those contact details.

17. The mother, the father and the children shall continue to attend family therapy with Ms I. In particular, the parties and the children should meet with Ms I to deal with any issue that might arise as a result of the decision that has been made in respect of C’s overseas trip with her father. In order to facilitate the family therapy, both parents shall:-

    17.1.Follow the reasonable direction(s) of Ms I with regard to the arrangement and conduct of therapeutic sessions;

    17.2.Attend at all further individual and / or joint sessions with Ms I, as may be directed by Ms I; and

    17.3.Make B and C available for individual and joint sessions with Ms I and for meetings with each of their parents.

18. The Independent Children's Lawyer shall meet with both children to talk to them about the orders that have been made and in particular, the decision that has been made about the overseas trip. At the discretion of the Independent Children's Lawyer, that meeting may or may not involve the direct or indirect assistance of either Ms I and/or Dr J. If it involves Dr J, the Independent Children's Lawyer should forward to her a copy of these orders and the Reasons for Judgment. The Independent Children's Lawyer should, in any event, forward to Ms I, these orders and the Reasons for Judgment.

19. Either Ms I or the Independent Children's Lawyer in consultation with Ms I should ensure that B knows that her father has at all times since December last year, extended an invitation to B to join C, himself, and his wife and her two children on this overseas European trip.

20. The mother and the father shall share the costs of the family’s participation in family therapy, and by way of further definition:

    20.1.Each parent shall meet the costs of their individual sessions with Ms I;

    20.2.The parents shall share equally the costs of any joint sessions they are required to attend;

    20.3.The parents shall share equally the costs of B's and C's sessions with Ms I;

    20.4.in the event that either parent cancels their, or B's and / or C's involvement in a meeting as scheduled by Ms I, then that parent will meet the full cost of the cancelled meeting;

    20.5.The parents shall share equally the costs of any reports prepared by Ms I.

21. Except as recommended by Ms I the mother will not cause the children to consult with Ms K or any other mental health practitioner.

22. The parents and each of them are restrained, and injunctions granted against them from:

    22.1.Denigrating the other parent, or any member of the other parent’s family, in the presence or hearing of B and / or C, or in writing to them;

    22.2.Allowing any other person to denigrate the other parent, or any member of the other parent’s family, in the presence or hearing of B and / or C, or in writing to them;

    22.3.Initiating or pursuing discussion with the children, or either of them, about matters in issue in these proceedings or allowing any other person to do so;

    22.4.Discussing these proceedings with, or showing documents to, third parties (other than the parents own legal representatives).

23. The therapy undertaken by Ms I or her nominee shall be reportable.

24. The parties and the Independent Children's Lawyer be restrained from issuing a subpoena for the production of documents to Ms I without the leave of the court.

25. Both parties do all things and sign all necessary documents to ensure that C has a current valid passport (with the father to have the primary carriage of obtaining that passport).  C’s passport will ordinarily be held by C’s mother but will be released to the father 14 days before any occasion when C is due to leave Australia with her father and the father shall return the passport to the mother within 14 days of returning to Australia with C.

26. Within six months, the father pay the Independent Children's Lawyer’s costs in the sum of $6,169 less any amount for which Legal Aid NSW gives the father credit (including as a result of any previous payment the father has made to Legal Aid NSW).

27. I note that the Independent Children's Lawyer’s application for costs against the mother was not pursued after the mother provided details as to her financial position.

28. Pursuant to order sections 65DA(2) and 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of consequences that may follow if a person contravenes these orders are set out in annexure “A” to these orders, and those particulars are included in these orders.

Notations:

1. The cost of family therapy with, or a report by, Ms I is $132.00 per hour.

2. The costs of therapy with Ms I may be reduced pursuant to rebates obtained under a Medicare Mental Health Plan.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Charles & Hughes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3333 of 2011

Mr Charles

Applicant

And

Ms Hughes

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This case concerned what parenting arrangements were to be put in place in relation to the two children of the parties, B born in 2001 and C born in 2003.

2. The parents were able to negotiate final orders in relation to most matters and I will make consent orders in the terms of Exhibit 2 (except in relation to order 1, I will remake order 4 of 18 June 2013 orders); Exhibit 3 and Exhibit 7.

3. The parties also agreed on an order in relation to C’s passport.

4. The matters which remain to be determined relate to a proposed overseas holiday by C with her father, his new wife and her children; transportation for pickups and deliveries for alternate weekend time between C and her father during school term and the sequencing of alternate weekends during school term after each school holiday period.

5. Whilst the issues remaining might at first sight seem uncomplicated, they are not. B is estranged from her father; C is on the cusp of being estranged from her father. The circumstances which have led to the proposed overseas holiday mean that it has become a potential flash point in C’s future relationship with her father.

APPLICATIONS

Overseas trip

1. Although the father’s primary application was to take C from Australia on 13 June 2014 and have her away until 5 July 2014, he provided an alternate proposal which seemed to be the proposal that he relied upon in final submissions. That proposal was that he not leave Australia at the same time as his wife and her children but delay his trip so that C could do her ICAS exams. On this proposal he would leave Australia on 17 June 2014.

2. It is the mother’s position that the father could have C for the whole of the June/July school holidays and as I understood it, she would have no objection to the father taking C overseas at that time. She also indicated that could extend to the first week of the term 3.

3. The Independent Children's Lawyer’s proposal is to support the alternate proposition that was made by the father, that is, for him to have C overseas between 17 June and 5 July 2014.

Transportation on alternate weekends

1. The mother and the Independent Children's Lawyer both propose that the mother would deliver C to McDonalds at Suburb H at 6pm at the commencement of C’s weekend time with the father during school terms; and that the father should return C to the mother’s home (the Independent Children's Lawyer originally proposed 5.30pm but the mother during final submissions indicated that she would agree to 7pm and the father indicated that if an order was made along these lines the father wanted the delivery time to be as late as possible).

2. The father’s primary position however was that the travel be done “equally” which on the father’s proposal, meant that on each journey the changeover would be at Suburb G with the mother bringing C to Suburb G on Friday evenings at 6pm and the father returning C to McDonalds at Suburb G on Sunday at 5pm.

The sequencing of weekends at the commencement of each new school term

1. The mother and the Independent Children's Lawyer both proposed that an order be made that when C had spent the first half of the school holidays with her father then alternate weekends during school term will commence on the first week after the school term recommences and when C has spent the second half of the school holidays with her father, then alternate weekends during school term will commence on the second weekend after the school term commences.

2. The father wishes to be able to coordinate the weekends on which C is with him with the weekends that his wife’s children, L (born in 2000, aged 13) and M (born in 2002, aged 11) are ordinarily in the father’s household with their mother (that is, the weekends when they are not with their own father). In order to achieve that, the father proposes that by the end of each school year the father will provide the mother in writing, notice as to whether or not C will come to him on the first weekend after school term recommences or the second weekend after school term recommences in relation to terms 1, 2, 3 and 4 in each term of the following year. In default of the father giving that written notice, the father agreed that the order proposed by the mother and the Independent Children's Lawyer should apply.

OVERSEAS HOLIDAY

Factual background

1. In his affidavit filed in July 2013 [62 and onwards] the father sets out his evidence about a proposed overseas holiday in 2012. The father indicates that on 3 January 2012 he forwarded an email to the mother proposing that he be permitted to take both children on an overseas vacation during July 2012. The mother responded by sending an email on 5 January 2012 saying that they too were planning a holiday for the July school holidays, “as according to the custody agreement instigated by yourself, the girls are with us for the second week of the holidays...”. She went on to say that “I am not comfortable with the children missing two weeks of school, either side of the holiday period, especially in light of B’s acceptance into the [educational] program”. She also pointed to the fact that in the first week of term 3, B receives her core work activities.

2. It seems that that was the end of the discussion in 2012 of any possibility of the father taking the children overseas at the end of term 2 in 2012.

3. The father resigned from his role at a charitable organisation in November 2013. He indicated that he is currently seeking consulting work in his field of expertise until he regains steady employment.  He does not provide evidence in his affidavit as to why he resigned from his job. The mother alleges that it was partly to do with a change in his child support assessment as the mother altered her care of B to 100 per cent in November 2013 (B had not been spending any time with her father for a significant period prior to this time).

4. Unfortunately the father took the attitude that since he was now no longer employed, he should seek a reassessment of his child support to zero. Initially that was the assessment that he obtained. It was challenged by the mother and changed to an assessment based on the father’s earning capacity. There has in the early part of 2014 been friction between the parties in relation to the arrears that arose as a result of the position which the father originally adopted. The father’s counsel during the case said that the father had at all times complied with his child support obligations. Whilst that is factually accurate, it does not detract from the fact that the father took a particularly aggressive and uncaring attitude towards the financial support of the two girls, which greatly upset the mother.

5. In that environment, on 20 December 2013 the father emailed the mother with an email in the following terms:

   Subject: Christmas present....

   Hi [Ms Hughes],

   As you are aware, I’ve been intending to take the girls to Europe for some time. [Ms Charles] and I are now in a position to travel in June 2014. This works in beautifully with the girls commitments at school, and allows [B] sufficient time to transition into High School, assuming she is open to coming. It will also mean that Naplan is complete.

   I recognise your OK is required to take the girls, but given the limited time I have with the girls and the fact we have been talking about this for some time, I hope you will be supportive.

   The dates we are looking at are June 13 to July 5. We thought this was the best time given I will have the girls on both weekends during this period, and the first week of the school holidays.

   Could you please give me your OK in principle by Monday 23 December, as we intend to surprise the children over the Christmas period.

   Regards,

   [Mr Charles].

6. The mother says that her second husband left her on 20 December 2013 (she says for the second time and because of friction and tension arising out of financial issues connected to the father’s cessation of child support).

1. On 21 December 2013 the mother responded to the father’s email about the overseas trip in the following terms:

   [Mr Charles], I am not in a position to agree to anything at the moment with your current court proceedings and the childrens’ wish not to spend time with you.

   [Ms Hughes]

2. That is the only communication that the mother had with the father about this overseas trip. She was unable to say why the second part of the response seemed to say that C as well as B did not wish to spend time with her father, when that was not the case.

3. Prior to sending the email to the mother, the father had had a session with Ms I. The father had obviously discussed his proposal with Ms I because she gave oral evidence that she thought it was inappropriate at the time to do that and that the father would be better placed to give the children a regular sort of Christmas gift until all the court and mediation had been addressed. She said her words to the father were that “he would be setting them up, and himself, for failure, given the history of the past arrangements for the trip”. Also, given the complexities of the relationship between the father and B, and indeed C, Ms I felt it was not a good idea and strongly encouraged the father not to go ahead with that idea. The father of course ignored this advice.

4. The father first told C about the trip in January 2014 when she spent the second half of the school holidays with him. He provided C with her airline ticket as a late Christmas present. The itinerary took the father, his wife, L, C and M to various destinations in Europe. The father says C was firstly stunned and then very excited and subsequently very openly and proudly told her friends about the trip during the course of the year. He said that he and his wife asked each of the children to pick a city they would be interested in knowing more about and discovering and to get some ideas about what they would do at the times they would visit those cities. C and the father jointly had N City, they did some active research and C wrote in one of her journals some of the activities and ideas that they could do whilst in N City. The father indicated that he has since seen the diary, over the course of the last weekend prior to the hearing, and that page has been removed. The mother was not cross examined about the removal of the journal page as alleged by the father.

5. On 21 January 2014 the father sent a second email to the mother in the following terms:

   Hi [Ms Hughes],

   As I indicated to you, we will be going to Europe for a holiday in June for 3 weeks. We have purchased a ticket for [C]. We have also made a provision for [B] should she wish to join us. We gave [C] her ticket last week and she is naturally very excited. I said to [C] that I would let you know as she is worried about telling you and feels that you will be upset at her for wanting to go. I assured her that you would be supportive and she felt really relieved.

   We fly out of Sydney on .. 2014 and return on … 2014.

   I will provide a full itinerary for you with contact details, and will facilitate regular contact.

   I expect your support, consistent with every statement you have made in our family matter about encouraging and promoting a positive relationship between the children and I.

   This would be a step in the right direction, and I suspect part of a mediation process (which you have indicated is your preference) ahead of a final hearing.

   Regards,

   [Mr Charles].

6. The mother did not respond to that email and has not otherwise communicated with the father about the proposed trip after this time.

7. The mother said that when C returned from her time with the father in January 2014, and told the mother about the trip, C had hesitations; she was looking forward to going to Europe, but at that point she was not aware of her school camp or athletics carnival. C’s initial hesitations were that she was missing school and B’s reaction to her sister’s news. The mother said that when C told B that the trip would be over B’s birthday, B “jumped down her throat” and said “that’s not right that’s not fair Dad’s taking my best friend away from me on my birthday”. The mother replied “maybe he doesn’t realise” and told the court she was “trying to soften the blow”. B said “well that makes it worse”. Notwithstanding the amount of therapy the mother has had, the mother was unable on this occasion to deflect B’s comment by saying something like, “Well we can make an alternate arrangement on the weekend before C goes overseas”. The mother was unable to do that because she herself had set her mind against the father having this holiday with C overseas in circumstances where she was extremely angry at the way he had approached his financial responsibilities in respect of the day to day support of the children. She was unable to shield the children from that adult concern. When C told the mother about the trip, the mother responded by saying something similar to “that’s something Dad and I need to talk about.” The mother agreed she did not fulfil that promise to C. When asked if she expressed any enthusiasm, the mother said that she was not going to talk to her child about something not agreed upon. The mother agreed going to Europe would be wonderful and an extraordinary experience but did not say this to C so as not to get her hopes up about a trip that had not been confirmed.

8. The father says that on occasions when C was with him in February and March 2014 there were positive conversations from time to time about the overseas holiday.

9. The parties attended mediation on 17 March 2014. A large number of matters were able to be resolved. The significant matter that remained outstanding was whether or not the overseas European trip for C would proceed.

10. On 18 March 2014 the father received an SMS from C in the following terms:

    Dad, I can’t and don’t want to go to [Europe] as I have 2 ICAS tests, The athletics carnival, [B’s] birthday, school camp and I really don’t want to miss school I have been scared to tell you as you punch and kick the walls like you did when [B] told you she didn’t want to come. I have got many reasons I am saying

    From [C]

11. The father agrees he did not respond to that SMS. The father said he tries not to engage with those messages and found the SMS uncharacteristic. He stated he would not usually ask C about texts such as that. C told her mother on 18 March 2014 that she had sent the SMS to her father. After C had gone to bed on the following day, C texted a copy of the SMS to her mother and started it with the following additional message:

    Hi mum this is a message I sent to dad yesterday. Can you please tell him I don’t want to go

12. The parents did have a conversation about this text message on 20 March 2014, the mother telling the father that she received information from C’s school teacher to the effect that C was very teary at school and unhappy and she did not want to talk about it and she had become a little aggressive towards her friends. The mother told the father the reason C was upset was because he was not responding to her communication. He continued not to respond.

13. On Sunday 23 March 2014 the mother says that she was at home with C and B. C asked “who decides if I have to go to [Europe]” to which the mother replied “likely the judge, I think”. C then indicated that she wished to write a letter to the judge. The mother’s response was that she could not have anything to do with it, and nor could B, and that C had to go and write the letter in her room. The mother agreed that perhaps in hindsight it would have been better to have indicated to C not to worry and that it was a matter for her mother and father to work out.

14. According to the mother C then, over a two day period, set about creating a document which is Exhibit 6 and is in the following terms:

    Dear Judge,

    I just got off the phone to my dad as he was forcing me to go to his house and [Europe]. I don’t want to go but he is ignoring my beliefs. Last time I sent an email about my beliefs I went to his house and he printed out what I wrote and told me to cross it out. He bribes me all the time with money and toys.

    I have told my dad I don’t want to go to [Europe] because I don’t want to miss school, [B’s] birthday, 2 ICAS tests and the athletics carnival. I’d like to go to school camp as well, because my friends and I are really excited. Last time [B] told dad she didn’t want to go he was calling her a nerd and punching walls.

    From C

15. The father suggested that I might conclude that because of the way in which the SMS and the “Dear Judge” letter has been worded, that C had direct assistance in writing it. Both experts were of the opinion that, although it may not be the way C ordinarily expressed herself, C had the capacity to express herself in the terms of those two documents. Ms I unpacked the contents of the letter with C and I am satisfied that the letter genuinely expresses C’s thinking, at least in the mother’s household. That is of course not to say that some of the opinions expressed by C are those that she has adopted as opinions that are consistent with views she understands her mother and her sister hold.

16. Pursuant to the recommendations in Dr J’s report, the family (that is the mother, father, B and C) had been having family therapy with Ms I over a period of approximately six months in the second half of 2013. Ms I however had taken the decision in December 2013 to suspend therapy given that the parties were preparing for the forthcoming court hearing and the father had indicated that he would agree to a process of mediation. As a result of C’s distress over the pending overseas trip, the mother contacted Ms I on an urgent basis and made an appointment for her to see C.

17. The mother took C to see Ms I on 28 March 2014.

18. In Exhibit 8 (an email sent by Ms I to the Independent Children's Lawyer on 30 March 2014), Ms I provides the following report:

    I have had conversations with [the mother] and emailed [the father] in the last week. [The mother] phoned me regarding her concerns over [C] and asked me to see [C] asap. I arranged an appointment for [C] on Friday 28/3/14. [The mother] said that she would ask [the father] to collect [C] from her appointment with me. I had not heard from [the father] so I emailed him to confirm the arrangements and suggested we arrange an appointment for himself after court. Which I had also discussed with [the mother] by phone. [The father] did not acknowledge me on Friday, concentrating his attentions on [C] – which is understandable, and hopefully indicative of his keenness to see his daughter.

    On Friday, [C] came to the session and handed me a note (attached) which was to “Dear Judge” – she asked could I send it for her. I agreed to scan it and send it to you, as there was not enough time for anything else. She agreed and said I could read it. I unpacked the contents with her, she seemed completely focussed on just regurgitating the contents of the letter.

    During the session we engaged in a therapeutic exercise around the difficulties of having two families and what that meant. We constructed a map where [C] was able to name islands and develop bridges and ways of negotiating the different “family islands”. I observed that [C’s] perspective followed the same pattern as each other session (except for the first few sessions where we were rapport building). Clearly she is struggling with the pressures of having to “please both parents” and decision making of things a 10 year old would not normally need to do in a healthy family situation. She also is living with the difficulty of her sister’s ongoing resistance to have any contact with her father.

    In summary, I want to express my concerns for [C], and the decision around the trip to Europe. She made it very clear, that if the trip was in the school holidays, she would love to go. Interestingly this comment was made towards the end of our session.

    My concerns are not just for the pressure [C] is under generally, but also, for the impact of this trip (if needed the court decides [C] should go) on her relationship with her sister, [B].  There is definitely the potential that this could be devisive (sic) and impact their relationship negatively, given [B’s] continued refusal to even entertain the idea of any contact with her father.

19. In oral evidence, Ms I described that when C came into the waiting room, she was holding a piece of paper folded up. Ms I said that when she said hello it was like an urgent thing that C had to give her the piece of paper, saying that it was something to give to the judge. Ms I said, “Oh ok do you want me to read it or send it on?” C indicated that Ms I could read it. Ms I said that she then unpacked it a bit with C and explained that she could not send it directly to the judge, there was not enough time, but she would send it to the Independent Children's Lawyer. I find that whatever input the mother or B might have had either directly or indirectly into the creation of the letter, and it is clear there has been some influence, what C wrote was substantially her view at the commencement of her session with Ms I on 28 March 2014. Some of the things that were in the “Dear Judge” letter had been discussed in therapy with C previously. During this session C said that she was feeling like she had been bribed by her father at different times. This is C repeating what B has previously said and importantly what B said to C when she came back from Christmas holidays with an electronic device that had been given to her by her father.

20. Ms I also commented that given the neatness of both the presentation and the expression in the letter, she formed the view that C would have written a number of drafts of the letter before she finally produced Exhibit 6.

21. Ms I said that she worked with C for about half an hour and asked C what her position would be if the overseas holiday could happen during school holidays. Ms I reported that at that point C was really clear, her face lit up, she said she would like to go if it was in school holidays and that that attitude was not just conveyed in words but also by her body language and her “little face”.

C’s objections to the timing of the overseas holiday

1. There are five objections raised in C’s “Dear Judge” letter and I deal with them in sequence:

Missing school

1. This is a general complaint by C. The mother indicated that she would have no objection and would support an arrangement whereby C was on a three week trip overseas, being two weeks of school holidays and the first week of term three. The experience on offer to C in this one off trip outweighs what experiences she would have by going to school for less than two weeks (part of which time is interrupted by a sports carnival and school camp). In addition, arrangements could be made with the school for C to take some school work away to do.

B’s birthday

1. B’s birthday falls during the planned trip. I have already discussed what happened when B “jumped down [C’s] throat” upon C’s return in January 2014 when B realised that the proposed period included her birthday.

2. The mother conceded in cross examination that an arrangement could be reached whereby B’s birthday could be celebrated on the previous weekend before the father left for overseas.

The ICAS tests

1. The father’s alternate proposal, the one that he now says that he is prepared to agree to (not without cost to himself and losing some of the overseas holiday with his current wife), is that he will defer travelling with C overseas until after the timing of these tests. The mother in her oral evidence, after the father advanced his alternate proposal, said that this was the least of all of the reasons why the holiday should not proceed and that the tests were not of great significance. I cannot help but think that they would have been of greater significance had the father insisted on his original proposal.

The sports carnival

1. C apparently enjoys sport and in particular, athletics. The mother says that she hopes to be sufficiently successful at the school carnival to go onto the district zone carnival. The mother had not made any inquiry of the school as to whether or not it was possible to make an arrangement with the sports teacher or somebody else at the school for C (in circumstances when she was travelling overseas with her father at the time the carnival was on) to run some time trial or make some other arrangement that might see her possibly qualify for that event.

2. Counsel for the father submitted that there was no certainty that C would be successful at her school’s athletics carnival and pondered what C’s reaction might be to that lack of success had it been part of the reason why she had given up her overseas trip.

3. There will be further sports events in future years.

School camp

1. It was the school camp that was the major issue that the mother advanced during the hearing as the primary barricade to the overseas trip. She said it was important for C not to be ostracised from her friends and miss out on the bonding experience which was the school camp. Ms I on the other hand said C had good connection with her peers and that she did not think it would cause C any long term harm to be excluded from the school camp. She said that whilst it might be difficult for C in the short term in as much as C would feel a bit left out from whatever had been happening at the camp, she did not think that it would cause any irretrievable damage. It was clear from the evidence that there will be other school camps in the future. B herself went on a school camp in year 5 and the evidence is that the friendships she has from that experience have not been enduring apart from a number of boys who are still at school with her and with whom she apparently plays sport. B herself went on another school camp this year in year 7. The mother asked Ms I whether or not she thought not going to school camp would be a source of anxiety for C. Ms I responded by saying in the overall scheme of things, she did not think that this was going to be a cause of anxiety for C who otherwise lives in a world of high anxiety as she walks the tightrope between her two parents.

The risks for C

1. There are risks for C both ways, no matter what I order.

Risks if an order is made that allows C to travel overseas with her father

1. There are two possible scenarios that give rise to risks for C. The first is that C is upset that her expressed views as set out in her letter to me have not been properly acknowledged, or if acknowledged, have not been actioned. It is likely that C will be upset if the mother is not able to otherwise support a decision by the court that requires C to go overseas with her father. In these circumstances there is a risk that C becomes miserable and consumed by guilt and that poisons her ability to have a good time when with her father overseas. I have got no doubt that the father would not intend that to be the result, but that may be an unintended consequence. Dr J opined that nobody in the court has control over what C is feeling.

2. The second scenario that has risks for C, is one in which C has a lovely time whilst she was overseas but after she comes back, is given grief particularly from B expressly, and perhaps more subtly by her mother. Dr J says that B may become cold and hostile to her sister and that this may lead to a position where C is forced to choose, in a test of loyalty, between her mother and B on the one hand and her father on the other. Dr J has no doubt as to how that choice would be made. It would be made in her mother’s favour given that C’s top priority is the relationships that C has in her primary household.

3. So on either of the two scenarios just discussed, there is a real risk that C would feel that she is forced to choose between resolving the conflict in favour of her mother and her sister and doing so on the basis that she reaches the conclusion that “it is too hard” to try and balance the positions of her parents.

1. Against these risks is the acknowledgment by the expert opinion that to some extent an order, that is made by the court, assists in relieving C of conflicted anxiety about being disloyal to her mother and to her father.

2. Ms I in her oral evidence suggested that if an order was made that precluded C going on the overseas trip, then it would be possible for the father to tell C that at some future point in time (and Ms I saw nothing urgent about it), that there would be some overseas travel involving C and her father which perhaps could even include B should she be of a mind to travel with them at that time.

If an order is made that C not go on the holiday

1. This also involves its own risks. Such an order validates the mother’s role in ignoring the father’s attempt to involve the mother in the planning for this trip and not otherwise facilitating it. Failure to make the order models to C that when her parents are totally unable to make decisions about her, then she must. This inappropriately burdens C, at the age of 10, with the feeling that she herself must take on the decision making (as she has done in the “Dear Judge” letter).

2. It seemed to be common ground that the success of the overseas trip (in the sense that it did not become a flash point for C ceasing to have a relationship with her father) was highly dependent upon the mother authentically supporting C travelling with the father.

3. Counsel for the father said that there was some pointers which would enable the court to make a finding that the mother may well be able in the future to authentically support the trip, namely:

   57.1.The mother says she does in fact support an overseas journey (just not at the time the father has organised it);

   57.2.In cross examination the mother had agreed that she had not dealt with particular issues with the girls in an appropriate manner (two examples were her conversation with B after B had “jumped down [C’s] throat” in respect of the overseas trip being at the time of her birthday and secondly, the fact that she had (at least implicitly) encouraged C to write the “Dear Judge” letter);

   57.3.The mother on numerous occasions during the hearing indicated that she would like to seek Ms I’s advice before she gave an opinion about a particular matter, thereby demonstrating the mother’s propensity to turn to professionals for help;

   57.4.Ms I indicated that she would be available to assist the mother to both deal herself with a negative outcome to this part of her application and to deal with the children’s reaction to such an outcome.

4. If an order is made which precludes C from going overseas, C will be going for at least a few weekends before the trip to a home where M and L are getting ready to go overseas and to a home after they come back where talk about the European trip will probably be front and centre for some time and that might create problems for C and her enthusiasm to go to her father’s household.

5. Counsel for the father also, I thought weakly, submitted that if the risks are that there is going to be estrangement between C and her father whatever option is selected, then at least allowing C to go would give her the experience of three weeks away with her father, which have the prospects of being pleasurable for her and those fond memories may lay some future platform for her to be able to have a relationship with her father when she was older.

6. The mother made it clear that if I order that C not go, then she should be with her father for the second week of the June/July 2014 school holidays.

B is an alienated child; C on the cusp of becoming an alienated child

1. Dr J referred to the difference between alienation and realistic estrangement. She said her hopes for the family therapy had been to encourage the father to act in a way that would not give B a reason for realistic estrangement by not doing things that made it worse, in particular by his empathic failures towards her. 

2. Dr J discussed the only way back in what is a difficult situation for B, is if the beloved parent can permit and facilitate the child to have a different point of view and value the other parent, and if the rejected parent can behave very empathically and non-coercively about the child’s dilemma. She indicated she had hoped some movement towards that would happen with Ms I, but she does not think it has. I agree the mother has not been able to hear and action the message that she needed, to a far greater degree than she has up to the current time, to hold her adult views about the father to herself and not either expressly or impliedly convey them to her daughters. Dr J is worried that B is currently lost, and unless the father behaves in ways that are gentle, kind and non-demanding, showing that he is present and won’t be sent away no matter what, B will never find her way back to him. Ms I was not totally pessimistic about there being absolutely no future in a relationship between B and her father. Ms I indicated that with time and kindness and support (by both parents), the relationship between B and her father was still not irredeemably compromised and there was still some hope that B’s relationship with her father could be rebuilt.

3. Dr J says that she is filled with a fair amount of gloom by the “Dear Judge” letter. Dr J interpreted that document as C reaching a point where she had started to “nail her colours to the mast” and that the ship is not her father’s.

4. In response to my question, Dr J described the losses for C if she is forced by her mother’s camp to make a choice. These are the obvious losses resulting from no contact with a parent (guilt, depression and anxiety) but in the case of a daughter entering adolescence, Dr J described the advantages to a daughter in being able to relate to her father during adolescence and the risk of girls not knowing their father loves them having implications on their ability to form future relations. Dr J also opined that C is not taught a good lesson in dealing with tension in a relationship if she resolves that tension by just dismissing the other person from her life. Dr J also indicated that if a child does not have access to a parent’s love because they feel they would be betraying their loyalty to the other parent, that is a disadvantage to C in forming her identity as she grows up.

Conclusion about the trip

1. Both counsel for the Independent Children's Lawyer and counsel for the father were of the view that the risk for C was very real either way.

2. The parents seem to acknowledge that this is probably a watershed moment and there is a real need for the mother to take control of the messages she is sending C.

3. The decision that is to be made in this case has to be made with C’s best interests as my paramount consideration. When making that decision, the matters referred to in s 60CC Family Law Act need to be considered. I do not intend to discuss individual matters in detail. I have above touched upon the major matters that require consideration, namely, the risks to C’s relationship with her father no matter what decision is made; the relationship that C has with both her parents and her sister; C’s views and factors going to the weight that should be placed upon them. Taking all the matters that I have discussed into account, I conclude that I should accept the recommendation made by the Independent Children's Lawyer and make an order that C attend with her father on the overseas trip during the dates in the father’s alternate proposal.

4. The reasons that I have done so should be conveyed to C in language that she could understand by the Independent Children's Lawyer. The Independent Children's Lawyer should meet with both children to talk to them about the decision that has been made, and at the discretion of the Independent Children's Lawyer, this may or may not involve the direct or indirect assistance of Ms I and/or Dr J. In the event that Dr J is to be involved, the Independent Children's Lawyer should send her a copy of these Reasons. The Independent Children's Lawyer should in any event, send Ms I a copy of these Reasons. The parties should also attend Ms I to discuss the outcome of the court’s decision, in the context of ongoing family therapy.

Mother’s knowledge about B being invited on this trip

1. The father’s first email about the holiday on 20 December 2013 did include the word “girls”. At annexure ‘J’ to the mothers March 2014 affidavit the father writes in an email to the mother “we have made a provision for B should she wish to join us.”

2. The mother was less than clear about whether or not B had communicated to her the message that she also was invited on this overseas trip. The father said that his offer had been set out in a card to B which he had given C to take home to give to B in January 2014. The mother said she did not know about the card, and that if the father says he gave it to C then C would have most probably given it to B (but the mother says she was unaware about whether that had happened). B had not said anything to the mother about it.

3. It is worthwhile asking Ms I to ensure that B has that message (although from what Ms I said there is little chance that B would take up the offer). Either Ms I or the Independent Children's Lawyer in consultation with Ms I should ensure that B knows that her father has at all times since December last year, extended an invitation to B to join C, himself, his wife and her two children on this overseas European trip.

PICKUPS AND DELIVERIES

1. I have set out above the proposals of the respective parties. Following the mother’s unilateral move to D Town, she did the lion’s share of the driving to facilitate the children’s time with the father. Then orders were made by consent on 10 August 2011 that allowed the Mother to maintain her relocation to D Town and provided an arrangement in which the children would reside with the father three weekends out of every five weekends during the school term. Order 10 of those orders was to the effect that when the father did not collect or return the children to and from their school, then changeover was to occur at McDonalds at Suburb H. This is a three and a half hour round trip from the mother’s home. The father has at all times lived at Suburb O. 

2. Dr J in her report recommended:

   It may be less stressful for [C] if [Mr Charles] collects her from school on Fridays and returns her home on Sunday nights.

3. It seems common ground that the approximate time to travel from D Town to Suburb H is about three hours. Suburb H to Suburb O was said to be about a half an hour. The mother’s proposal therefore would mean that the father would do one half hour additional travel and the mother one half hour less additional travel (a difference of one hour travel between them for weekend travel that involved something in the order of seven hours of travel).

4. The mother indicated there were two substantial reasons why her proposal should be preferred. The first related to disruption to B during the weekend. B is now in high school; she was dux of the primary school; she is a conscientious student. The father’s proposal would mean that B would spend in excess of four hours on the road each weekend where the mother’s proposal is that B would spend three hours on the road. More importantly however, the mother’s proposal has B only travelling on Friday afternoons whereas the father’s proposal has her travelling on Friday afternoons and Sunday afternoons.

5. The father asserts that B might be able to be minded by third parties but I have no evidence that would satisfy me that those arrangements could be made on a consistent basis by the mother. It seems it would be more convenient for B not to have to travel on Sunday afternoons thereby creating additional uninterrupted time for her to catch up on school homework or otherwise relax, if she wished.

6. Counsel for the father commented that Dr J’s recommendation focused on what was best for C and not what was best for B and the mother was now relying primarily on what was best for B. However in these proceedings, the best interests of both children are relevant.

7. The second matter to which the mother refers is difficulties that she has had from time to time at changeovers. Her proposal eliminates the changeover on return. She pointed to paragraphs 27 to 31 and 69 to 77 of her affidavit filed 26 July 2013. These paragraphs provide examples of alleged incidences where the father has been running late for the changeover on return and not communicated with the mother. One example provided is where the mother phoned the father’s wife from Suburb H McDonalds to see where the children were. The phone was not answered and on arrival the children told the mother that the father and his wife looked at phone ringing, laughed and put the phone back in the wife’s bag. The truth of this allegation was not tested. On another occasion the mother waited for over an hour at Suburb H McDonalds and the father did not answer the mother’s texts or phone calls. The mother says she and B returned home and the father’s brother ultimately returned C to the mother’s home.

8. I take into account when making this decision, the concession made by the mother that the drop off at her home could be as late as possible, consistent with C’s settling back into her household, having a meal and a shower and preparing for bed and the forthcoming school week.

9. It seems to me that the mother’s proposal actually places C in a motor vehicle with her father for a longer period of time than would otherwise be the case on the father’s proposal. Counsel for the father conceded that this journey creates an opportunity for the two of them to talk together.

10. Taking all these matters into account, the arrangements proposed by the Independent Children's Lawyer and the mother are to be preferred in C’s best interests.

11. The father should ordinarily do the pickup and deliveries. In the alternative, his wife or mother may do them. Delivery back on Sunday should be done by the father unless compelling reasons preclude him from doing so.

THE SEQUENCING OF WEEKENDS AT THE COMMENCEMENT OF EACH NEW SCHOOL TERM

1. As indicated above, the mother and the Independent Children's Lawyer opposed the father’s proposal which would allow him to ensure that as far as possible, C was with him at the same time as L and M were present.

2. The mother’s primary objection was initially lack of certainty. There is no lack of certainty in the proposal put by the father as he will provide a notice of which two weekends at the commencement of each school term will be the starting point for the alternate weekend cycle and if no notice is provided, the mother’s proposal will be the default position. The mother’s second objection was that the father and his new wife would construct the weekends in a way that would advantage the father and disadvantage the mother. When that submission was tested, the mother seemed to concede that the children, just by random chance, would be with her on most of their birthdays which ordinarily fall during school term. There is no provision of extension of alternate weekend time for long weekends. The mother mentioned Easter but in relation to Easter there is no specific order and either the mother would have the children on Good Friday and Easter Monday or she would have the children for the whole of the Easter weekend. The only possible advantage that the father could obtain is if there were an uneven number of weekends in a particular school term and starting all school terms immediately on the first weekend after the commencement of term gave him a greater number of weekends in a particular term.

3. Whilst I acknowledge the mother’s apprehension, it is overstated. One balancing factor against the construction that the mother fears is the fact that Ms Charles will have to negotiate with the father of L and M, arrangements in relation to their respective alternate weekends. Ms Charles would have to negotiate a highly favourable outcome with the father of her children in order to obtain any advantage. Given that the mother will have all the Mondays of all long weekends and Good Friday and Easter Monday as well as the majority of the girls’ birthdays, it is difficult to see how any imbalance can be created by this arrangement. Secondly and more importantly, the father reports and I accept, that C and M in particular, have a good relationship. Ms I confirmed that in her discussions with C, C was happy to “do stuff together” with M in particular as he is closest in age with her. Ms I indicated that C had never communicated anything negative in relation to her and M’s relationship and when doing ‘mapping work’ with Ms I C included L and M in her wider family connections.

4. The mother argues that if the order is left in the way that is proposed by herself and the Independent Children's Lawyer, there will be some terms when C’s time with M and L are in sync and some terms when it is not. In the terms when it is not, the mother argues that that is a good thing because it creates one on one time between the father and L. Ms I indicated that from her perspective she would like to see the father spend special time with C without the other two children, M and L, as it is an important aspect of their family. She did not say to exclude the other children all the time but that there needs to be special time. Dr J was also of the view that one to one time would “of course be good”. The mother in her submissions said that the father often sends C to friends’ houses and returned her early on one weekend so she is not sure that the father really even wants C with him if M is not there. The father during his evidence said positive things about C and M; they have a very close relationship and enjoy playing computer and video games together. The father indicated that when M and L are not at his home on the weekends that C is there, she often expresses a degree of disappointment and a sense of boredom.

5. In some ways the mother’s proposal is an inappropriate intervention into the way in which C spends time in the father’s household.

6. I find that there will be ample opportunity on alternate weekends for the father to find space to have one on one time with C, including taking C out to special events, should he so choose to, and of course he will have a three hour travel time with C each alternate weekend where he can spend one on one time with her, if the father chooses to travel alone with C.

7. I find that it is in C’s best interests to make the order for sequencing of weekends during school term as proposed by the father.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 7 April 2014.

Associate:

Date:  7.4.2014