Chase and Green

[2007] FamCA 1669

FAMILY COURT OF AUSTRALIA

CHASE & GREEN [2007] FamCA 1669

FAMILY LAW – CHILDREN – With whom a child lives with – With whom a child spends time with – PACE alert

Family Law Act 1975 (Cth)

APPLICANT: Mr Chase

RESPONDENT:  Ms Green

FILE NUMBER: SYF 2532 of 2006

DATE DELIVERED: 6 September 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 6 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Smith of Counsel

SOLICITOR FOR THE APPLICANT: Richard Gray & Associates

COUNSEL FOR THE RESPONDENT: Mr James of Counsel

SOLICITOR FOR THE RESPONDENT:	Smithson Solicitors
COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER	Ms Kirkman-Scroope of Counsel
SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER	Carter Naughton Rice Family Lawyers

Orders

1. That the mother and father shall have equal shared parental responsibility for the children S born … June 2003 and T born … January 2005.

2. That the children spend time and communicate with the father and mother at all such times as may be agreed between the father and mother, but failing agreement-

   a.   That the children spend time with the father for a period of 6 nights from 9.00am Tuesday to 9.00am the following Monday and every second week thereafter.

   b.   That the children spend time with the mother for a period of 8 nights from 9.00am Monday to 9.00am the following Tuesday and every second week thereafter.

   c.   That pursuant to order 2(a) above there is a phasing in period commencing Friday 14 September 2007 as follows:

   i.The children spend time with their father from 4.30pm Friday until 9.00am Monday every week for 8 weeks.

   d.   That the parent without the children have phone contact with the children from 6.30pm to 7.30pm each Tuesday and Thursday.

   e.   That the children spend time with the father from 9.00am to 4.00pm on Father’s Day and the father’s birthday each year, if the children are not otherwise spending time with the father.

   f.   That the children spend time with the mother from 9.00am to 4.00pm on Mother’s Day and the mother’s birthday each year, if the children are not otherwise spending time with the mother.

   g.   That on each of the children’s birthdays, the parent without the children, spends time with the children from 9am to 2pm

   h.   That the children spend time with the father from 9.00am Christmas Eve to 4.00pm Christmas Day during Christmas 2007, and every second Christmas thereafter.

   i.    That the children spend time with the mother from 4.00pm Christmas Day to 4.00pm Boxing Day during Christmas 2007, and every second Christmas thereafter.

   j.    That the children spend time with the mother from 9.00am Christmas Eve to 4.00pm Christmas Day during Christmas 2008, and every second Christmas thereafter.

   k.   That the children spend time with the father from 4.00pm Christmas Day to 4.00pm Boxing Day during Christmas 2008, and every second Christmas thereafter.

   l.    That the children spend time with the mother for a period of 4 weeks from 1 January 2008 to 28 January, 2008 and every second year thereafter.

   m.    That the children spend time with the father for a period of 4 weeks from 1 January 2009 to 28 January 2009 and every second year thereafter.

   n.   That the father and the mother have phone or video link contact with the children from 6.30pm to 7.30pm each Monday and Thursday during such 4 week periods.

3. That for the purpose of the visits referred to in Order 2 hereof, the mother will deliver the children to the H Service station at the commencement of the visits and the father will return the children to the H Service Station at the expiration of the visits.

4. That the children not travel outside Australia until such time T attains the age of seven (7) years unless otherwise agreed between the parties.

5. Subject to orders 3 and 4 above, that should either party wish to take the children outside Australia for a holiday, that the children obtain Australian Passports and that both parents execute the necessary applications and sign all documents necessary for the issue of those passports. 

6. Should either party wish to take the children outside of Australia for a holiday, and subject to the conditions in orders 3-5 herein, the party wishing to take the children is to give 2 months written notice of that intention to travel, and provide to the other party copies of return air-flight tickets, itinerary of travel and a contact number or address of place of travel.

7. That should the children travel outside Australia in accordance with Order 3-6 hereof that the children travel on Australian Passports only to ensure the children are permitted to re-enter Australia.

8. That the PACE Alert remain in place until T attains 7 years of age.

9. That if either parent is unable to supervise the children at any time, that parent will offer that time with the children to the other parent, prior to making alternative arrangement for any other person to supervise the children.

10. That the mother and father will not permit themselves to be affected by or use drugs, alcohol, or any other illicit substance, whilst the children are in that person’s care.

11. That the children continue attending the R ABC Learning Centre whilst living with or spending time with the mother until the child S commences kindergarten in 2008.

12. That the children shall attend the R Primary School or such other school as agreed between the parties.

13. That T continue attending speech therapy with Ms B and that both parties facilitate such attendance.

14. That each parent notifies the other of any illness or accident that the children may suffer whilst in that parents care, and the name of the treating doctor and hospital if treatment is required.

15. That each parent be entitled to visit the children and stay with the children, should they be admitted to hospital or any other institution for any reason, and that each parent be entitled to visit the children at the other parent’s residence from 6.00pm to 7.00pm should they become seriously ill.

16. That both parents be entitled to attend any arranged or scheduled visit for the children to attend any doctor, hospital, medical specialist, dental surgery, or any other professional consultant etc., and inform each other immediately with notice of any such attendance.

17. That both parents jointly decide on any future medical treatment, including immunization for the children, and that both parents be entitled to attend with the children.  Failing agreement, the matter is to be discussed in a Family Mediation Centre.

18. That both parents be entitled to attend any parent/teacher meeting, school event, social evert, sporting event, club event, recognition, award ceremony, competition involving the children.

19. That the father and mother jointly decide, with the children if appropriate, which sporting activities, clubs, associations, groups, classes or any other activities in which the children are to become involved.  Failing agreement, the matter is to be discussed in a Family Mediation Centre.

20. That the father and mother jointly decide on any attendance or participation the children are to have involving school trips/outings/vacations/camps, sporting/group trips etc., including day or overnight events, and that the consent of both parents is required by the school/club/group or other such organisation.

21. That both parent jointly decide on any involvement the children are to have concerning religion, religious practice/attendance/involvement or church attendance.  Failing agreement, the matter is to be discussed in a Family    Mediation Centre.

22. That each parent be entitled to obtain any information, including any report, newsletter, document, note, file, record or other such material, involving the children from any doctor, dentist, hospital, teacher, school, child care centre.

23. That the father and mother communicate in relation to matters relevant to the children’s care, welfare of development, by way of phone call, text message, communication book or in person.

24. That each parent notifies the other of any change in residential address, telephone number or mobile number within 24 hours of any such change.

25. That each parent be restrained from denigrating the other parent to or in the presence of the children.

26. That each parent ensure that other persons do not denigrate the other parent to or in the presence of the children, and that each parent be restrained from denigrating the other parent to any doctor, teacher, dentist, school, club, sports group or other such organisation and to friends or other persons who may be involved with the children.

27. That the children be listed on any current application/document/form or any future application/document/form with any department as Green-Chase, and that the mother will not list the children on any future applications/documents/forms other than by the name Green-Chase and the parents will correct the children’s names on any present application/documents/forms from any other names and use the name Green-Chase.

28. That neither parent removes the children from Australia, except for the holiday visits listed herein, without a Family Court Order or consent from the other parent, to be done by consent in any Local Court.

29. That each parent will notify the other of any intention of travelling with the children at any distance around Australia, greater than 200km of that parent’s residence, or any intentions of transporting the children by plane, 4 (four) weeks prior to any such travel.

30. That any dispute about future schooling, kindergarten or childcare arrangements shall be disclosed to the ICL by 30 November 2007 and in turn referred to a Family Dispute Resolution Practitioner for resolution if time allows.

31. That the Independent Children’s Lawyer shall be discharged six months from the date of these orders unless otherwise ordered.

32. That the father and the mother withdraw their applications for Apprehended Violence Orders made under Part 15A of the New South Wales Crimes Act, currently before the Local Court Murwillumbah listing the father, the mother and the children as protected persons.

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYF 2532 of 2006

MR CHASE   

Applicant

And

MS GREEN  

Respondent

REASONS FOR JUDGMENT

1. This was a case when it first came before me consisting of approximately 40  documents which included applications, affidavits, and took up four archive boxes.  It was set down for eight days.  It should never have got as far as that.  This is a comparatively simple matter.  It is very difficult, of course, for the parents, and I can understand that.  What it is, it is an application on the part of the father for two children of his relationship with the respondent, the mother, to reside with him - this was initially to reside with him and for the children to spend time with the mother.

2. One of the stumbling blocks, perhaps, was an initial application by the applicant for permission to relocate back to Ireland, since he is Irish born, and up until comparatively recently was an Irish citizen, still is, and had intended to return to Ireland. That application, which was full of difficulties, was withdrawn, I believe, on Monday of this week, the first day of the hearing. 

3. Naturally, that shortened immensely the number of affidavits which were going to be relied upon by the parties, and after my intervention I shortened the matter down to affidavits from the applicant and the respondent and a further brief report by Mr M.  Mr M had, of course, prepared a full length report in November 2006 when this matter was before the Court.  In fact, it was instrumental on the father getting some form of overnight contact at a hearing last year.

4. Briefly, the facts are the parties are comparatively young.  They met and entered into a relationship which I do not think at any time could be classed as permanent.  It seemed to be here and there. 

5. The mother fell pregnant with the first child, S, who was born in June 2003.  They were in Ireland for a period.  She returned to Australia - she became aware upon her return that she was pregnant with T, the second child, a boy, who born in January 2005. 

6. She returned from Ireland to Australia and this caused the applicant a great deal of angst and he directed the authority to institute proceedings under The Hague Convention for the return of the children to Ireland. This matter came before Johnson JR, of the Sydney Registry.  He considered the matter, and in an in-depth judgment he dismissed the application of the authority for the return of the children. Basically his argument revolved about what is "habitual residence." 

7. The father then caused an application for review to be filed.  This was heard before Rose J, and he dismissed such application and made certain orders in relation to spending time, which it was at that time.  The parties had been living in the Northern Rivers of New South Wales:  the mother in the Northern Rivers area; and the father, 30 to 50 minutes away in a neighbouring town. On 5 September I was informed that he has now moved to the Gold Coast area and is living in an area somewhat closer to the Gold Coast than to Surfers Paradise. 

8. His occupations have been varied, but at present he says that he has employment with a trades firm.  It is a trade group in which he is working as a tradesman.  He does not have specific qualifications as a tradesman as I understand, but during his period with the Irish Army of about four years, he did, in fact, do a course and I understand he had some form of qualifications which enables him to be employed by this firm and I expect the firm will decide whether or no he has sufficient qualifications by way of practical working to see whether he will continue to be employed by them.

9. Mr M, in November of last year, when his report was released, expressed a great deal of concern about the veracity of both of these people.  He was of the opinion that they are of reasonable intelligence. I think they are of high intelligence, and that they were, in effect, telling monstrous lies, that they were very free with the truth and he says he found great difficulty - he said:

   So momentous are the issues of fact in this matter that it would be imprudent to form any conclusions without resolution of those questions.  It was evident throughout these interviews that both parents are sufficiently intelligent to know truth from fiction, and that there are no obvious personality problems that might lead one to accept one account over the other.  Rather it appears that there is a deliberate attempt to mislead by one or both parents. 

10. Fortunately, as a result of the course, which I hope I was sufficiently involved in to eventually direct this matter to, the question of credit will not be necessary for me to determine.  I have made it always clear, notwithstanding the findings of the Full Court to the contrary, that in my opinion findings of credit in a children's matter are something which should be avoided as much as possible. 

11. Parents will have continued relationships with each other solely for the benefit of the children and I think that it is quite inimicable to such ongoing relationships that some Judge, who was not fully aware or fully apprised of all the facts about the matter, comes down on one side or the other and lambasts that person, suggesting that they are evil or that they are liars, and they are mendacious.  I prefer not to do that and I find that there are many other ways in cases of children's matters to hang your hat on some other thing which will allow you to come to a determination.  In this case, as I said, fortunately I do not have to worry about that.

12. It may be that as a result of this case, these parties are starting to recognise that the children are much more important than their own personal views, because concessions were made by both of them in cross-examination.  One concession, which had already been said by the mother, is that she realises that the children love their father and he loves them.

13. The father on the other hand concedes that some of his actions were not in the interests of either himself, the mother, or particularly of the children.  I refer, in particular, to the letter which is exhibited to the wife's first affidavit, the order 30 affidavit.  That is a step in the right direction and I do not intend to go any further than that but to compliment them upon, at least, starting to recognise that they are not always right, that perhaps the other side has something which will be of worth to the children's welfare. 

14. The mother concedes that there should be joint parenting.  The question basically left for me is the quantum and in particular I have to consider where there is going to be joint parental responsibility. 

15. Those matters which are set out in Mr James', counsel for the respondent mother, submissions at par 7.  I have taken those into consideration and the evidence is that since he has moved to the Gold Coast area there will be, at least, a driving distance of one and a half hours between the parties.  That is not short, but it is not long.

16. The other matters:  am I convinced that the parties have the capacity to advance the welfare of the children by their shared parenting and in the time which I am going to limit to one of them?  I think they do.  There has been an improvement, notwithstanding the fact there has been an enormous of amount of comings and goings to the Courts.  $100,000 has been expended, or thereabouts by the mother, on this trial or on this application, this parenting matter. 

17. The father is fortunate in that he is legally aided.  The taxpayers are paying for his.  It is an enormous amount of money that could much better have been used in the welfare of the children.  It would have paid for both of those children's university education completely.  And if, in fact, it had been invested, that amount of money would probably also pay their maintenance for about the next 10 years.  However, that is not the case.  The parties have seen fit, as they are entitled to do so, to fight until the bitter end, to have four archives boxes full of documents.  They must be making solicitors very tired of drawing all these enormous affidavits. 

18. The affidavit of the father was 631 paragraphs.  It almost came down to, "I came to the door.  I opened the door.  I walked out and turned left."  One must think that they have an enormous amount of money to be able to spend on the drawing and settling of these documents.  It would be far better if they get down to dot points.  And, naturally, of course, I am hopeful that the new procedures brought into bearing in the LAT procedures will enable a Judge to take control of these documents and if it would have been my way, I would not have allowed those documents to be presented, and they will not be presented in any LAT case that I have after this to that extent.  They will be torn up, thrown out, a waste of money. 

19. However, the parties have, up until now, as I have said, not been getting on at all well.  Perhaps that is rather a light statement but I think that there is an improvement.  I think that they have realised, as I have said on several occasions already, that there is something more important in this world than them.  I made it quite clear, and I think I have said before, that parents in my Court have never, since 1976, had rights.  They have had duties in relation to their children and they will always have duties.  All the rights are on the children and I wish parents could understand that.  If they did show sufficient sense, of course, there would be no necessity for a Family Court. 

1. I think that they will be able to communicate on a very limited basis.  I think it is most unfortunate that it appears to be that at hand over times for the kiddies that it would be preferable if Mr and Mrs Green Senior do not attend at the hand overs.  I am not ordering that.  I am suggesting that because it appears as though the red rag to the Greens is the father and it may be that the red rag to the father are the Greens Seniors, and I think that it would be better if they kept away so that there would be no untoward incidents at handing over.  I am not going to order it, as I said.  I hope they are big enough to recognise the reason for my so suggesting. 

2. And then it goes on to say that I should have a look to see if the impact of my arrangement or my order would have on the children.  I am more than satisfied on the evidence before me by Mr M, these children have a relationship with their father.  In November, he was certain of that.  He commented upon it.  He indicated he thought the father's time should be significantly increased, particularly overnight.  And yet, I think it was early this year or late last year we had the allegation of sexual abuse by the father upon his daughter. 

3. This was subsequently thrown out and the mother appears not to have quite accepted the expert's view of this.  Insofar as what she said to Mr M on the subsequent appointment which I arranged for Tuesday afternoon, she still believes it took place.  If that is the case, then why does she concede that the child should spend time with the father?  I think the great difficulty with the mother here is she has become over protective.  There has been a clash between herself and the father and she is fearful that such clash will affect the welfare of the children, not only personally themselves, but also in her relationship with them.  That will not happen. 

4. The children obviously have their prime attachment to the mother, but they have a warm and loving attachment with their father, and they deserve to be able to advance and expand upon that enjoyable relationship.  Even our political masters came to that conclusion in the 73^rd(?) amendment of the Family Law Act in 30 years when they held that the children have a right to know their parents.

5. Really it has come down to, as I have said, quantum.  All parties agree - or both parties agree that there should be time spent by the father.  The father wants equal time.  The mother suggests four nights per fortnight.  I think that is correct. In effect, the old normal type of each alternate weekend and half the school holidays.  The father is seeking more as I have said, and Mr M supports him to a great extent in his second report wherein he suggests that a fortnight should be split six/eight in favour of the mother, the mother having eight nights and the father six.

6. There has been objections to that, and Mr James set them out particularly clearly in his written submissions, and I have taken those into consideration.  I think that there are difficulties, but that such difficulties with a little bit of goodwill, I hope there is just even a little bit of goodwill between the parties, can be overcome. 

7. His present housing arrangements appear quite comfortable for the kiddies, but they are a bit far away.  He has to look at moving his residence closer to the New South Wales border.  There are many places down in that area: … - those ones towards the south of the Gold Coast bordering onto New South Wales border, numerous places down there for accommodation.  And I recommend most strongly that he get there not that he just intends to do so later on in the year.  He is not bound, as I understand, to stay at his present address other than for a period of two months.  This is for the welfare of the children, not for the mother, it is for the children.  So he had better get closer.

8. Insofar as equal time I, myself, have a philosophical opposition to equal time parenting.  I believe that if the parties cannot agree on everything, how can they possibly agree on equal parenting time-wise?  It works, it works particularly well, but we never see it in Court because the parties agree to it.  And as a result thereof they work very hard to make it work, but we do not see it in Court.  There is a classic story, and this is for the benefit of the parties, of a woman who once said, "We understand that you agreed about the," as it was in those days, "residence and contact of the children she should get."  And they said, "We understand you had a very terrible bust up."  She said, "It was dreadful.  We really hate each other."  She said, "How did you agree on that?"  She said, "It was simple.  We found out we loved the children more than we hated ourselves."  And if they would think of that they will get somewhere. 

9. I am against, as I said, philosophically equal shared where there is an agreement.  However, in this case, the presumption is there and Mr M, who is a very experienced counsellor, very well known in this Court, is of the view that almost equal sharing would be to the advantage of the children.  There are logistic problems.  The children, whilst they are not attending school at this stage, are attending pre-school or play school, and one of the days is Friday if my memory serves me correctly, Friday afternoon, which would make it in some ways difficult, but that is only for two days a week.  But the problem comes next year when the girl goes to school. 

10. I will be touching upon whether the parties could agree on what school they could go to and for once I am not going to allow them to agree, I am going to order - in fact, I will do it now, I think they should go to school in the R area, nearer to the primary residence for them, that is the mother's.  But next year the eldest will be going Monday to Friday up until, I presume 3.00, 3.15 from around about half past 8 in the morning.  If we have equal shared parenting of seven days, how are we going to work that out? 

11. Well, Mr Smith put up a plan which is contained in his draft order.  It has not really been touched upon by Mr James because his instructions have somewhat tied his hands, and the independent children's lawyer has not put a suggestion at all, if my memory serves me correctly, and I hope I do not do her a disservice.  I have taken into consideration, as I am sure my reasons have indicated, the provisions of the recent amendments, particularly section 60CC, and I think I have touched sufficiently upon the things which have caused me to come to the conclusion I will without specifically referring each of them seriatim.  I am persuaded by the contents of Mr M's two reports, and I incorporate those in my Reasons for Judgment that it is in the interests of the children that they have a greater amount of time with their father than his, shall we say, "normal" - and I use the word "normal" in inverted commas. 

12. I am persuaded that it should be six nights to the father and eight to the mother.  How are we going to put that into force and effect?  Mr Smith, quite properly, acting on instructions - and I compliment the father for this - has, in effect, said that he will forego five of those nights for a period of eight weeks to enable the children to get used to the fact that they will be absent from their mother for a period of more than, shall we say, one overnight.  And I compliment him upon that.  I think that is very sensible. 

13. And I will order that notwithstanding the fact that maybe the mother does not have the sacred weekend for eight weekends - or rather four as it would be if it was each alternate weekend, I am going to order that the father have contact with the children from 4.30 on Friday afternoon until 9 am Monday morning.  The children are to be handed over at the H service station.   That is for a period of eight weeks. 

14. Thereafter, we are starting to come close to the worry with the school holidays.  I think that the only way we could do that, unfortunately - I say unfortunately because it will be an upheaval, but probably less upheaval because there would be less travelling involved for the children.  I will accept the submissions of Smith wherein he submits that I should order that the father have contact with the children - should spend time with the children - 2(a) and (b). 

    RECORDED  :   NOT TRANSCRIBED

15. For the father it is 9 am Tuesday to 9 am the following Monday and vice versa.  The other matters which are to be determined are the children's names.  I have already indicated that I am surprised - this was in argument - I am surprised that if the father considered it so terribly important that the children only be known by Chase, that he did not complain about this when he became aware of it in August of last year when he returned from Ireland to Australia.  And he only raised the question of the name - the mother is using the double barrelled name of Green-Chase - only arose in the second or third amended application which was put before the Court on Tuesday, 4 September.  I have no hesitation in a case such as this that I am satisfied that there was an agreement between the parties in relation to the naming of the children and I would allow the mother to refer to them as Green-Chase and to be used for no other purpose other than for the general things where it is required for the names to be used, enrolments, etcetera, and that type of thing, doctors.

16. Insofar as the travelling overseas, there is an order sought by the father that he be entitled to take the children back to Ireland.  He was born in Ireland.  He is an Irishman, he carries of an Irish passport.  He has decided to remain in Australia.  His extended family are in Ireland and as he says he has a very large extended family and he would desire to take the children back to see their extended family as soon as practicable. I think that at this stage, notwithstanding the children have had some flying from Ireland to Australia, it would not be in their interests for them at such a tender age to travel overseas, and I am surprised - supportive of the order suggested by Smith of counsel for the independent children's lawyer that they not go until - - -

    RECORDED  :   NOT TRANSCRIBED

17. And we will have to have both Mr Smith, Mr James, and the independent children's lawyer attend to the finalisation of the draft order put before me.  And you will note that in the drafts I have crossed out the ones which I do not wish to be put in a draft order and I am at this stage working on the father's.  Together with the independent children's lawyer's paragraph, which will be inserted therein. 

    RECORDED  :   NOT TRANSCRIBED

18. I must say that I have struggled a little bit because I do not have the luxury of lengthy time within which to sit down, paste and cross out things in matters of this nature, seeing as I am required in Melbourne tomorrow, and I do not have time and, of course, the parties are entitled to have a decision albeit it may not be a thing of elegance.

    RECORDED  :   NOT TRANSCRIBED

19. Now, for instance, I have crossed out the father's draft - I have crossed out 2(n), (m), 5 as amended, 6, 7 is crossed out, 9 is crossed out, 10 is amended, 11 and 12 crossed out, 13 is crossed out, 14 and 15 are there, 29 and 30 is crossed out, and 31, 32, 33.  This 36, failing to agree of matters to be discussed in a Family Mediation Centre, I think there was an order sought by the independent children's lawyer that I appoint them.  Yes.  17.  I think it might not be a bad idea - a Family Relationship Centre.

    RECORDED  :   NOT TRANSCRIBED

20. It will start tomorrow week. 

    RECORDED  :   NOT TRANSCRIBED

21. Also I am looking at 7, 8, 9 in the independent children's lawyer's draft, I want that included too.  The children attending the school and also that I note that client, Mr Smith, does not think that T needs speech therapy.  He does.  So he is going to have it.  I am not going to have a Family Relationship Centre decide that. 

    RECORDED  :   NOT TRANSCRIBED  

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell  

Associate

Date: 7 March 2008