COBURN & GARNER

[2017] FamCA 603

FAMILY COURT OF AUSTRALIA

COBURN & GARNER [2017] FamCA 603

FAMILY LAW – CHILDREN – Final parenting orders sought by consent with the exception of one issue – whether the mother should be restrained from being present at changeover for time spent where she is employed by the school at which a child attends – best interest of children – high parental conflict – psychological wellbeing of children – mother should not be present – injunction granted.

FAMILY LAW – CHILDREN – Desirability of avoiding further proceedings in relation to the children could not be addressed given the narrow ambit of the dispute.

APPLICANT:

Ms Coburn

RESPONDENT: Mr Garner

INDEPENDENT CHILDREN’S LAWYER: Mr D Piekarski

FILE NUMBER: MLC 2553 of 2014

DATE DELIVERED: 30 January 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 19, 20 and 30 January 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Swan

SOLICITOR FOR THE APPLICANT: Swan Lawyers

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

BY CONSENT IT IS ORDERED THAT

1)The Mother and Father have equal shared parental responsibility for the children B, born … 2010, and C, born … 2013.

2)The children live with the Mother in Australia.

3)The children live with and communicate with the Father as follows:

(a)    From the weekend preceding the commencement of Term 1 2017, in a two-week cycle;

(i)In week one, from 3pm Thursday until 9am on the Monday during the January holiday weekend and at all other times from the conclusion of school Thursday or 3.00pm if  Thursday is a not a school day  until the commencement of school the following Monday or 9.00am if Monday is not a school day;

(ii)In week two, from the conclusion of school or 3.00pm if Thursday is not a school day until the commencement of school Friday or 9.00am if Friday is not a school day;

(b)    During school holidays;

(i)In each school term holiday, from the conclusion of school on the last day of term  until 9.00am on the middle Sunday of the holidays;

(ii)In each year, from the conclusion of Term 4 until 3.00pm two weeks later;

(c)    By electronic communication  such communication to be visual communication at first instance if available and to include but not be limited to Skype and Facetime , not less than every second day when they are not in his care and the mother be permitted to contact the children by electronic communication such communication to be  visual communication at first instance if available and to include and not be limited to Skype and Facetime, not less than every second day when they are not in her care and

(d)    At other times as may be agreed between the parents from time to time. 

4)The children live with the Father as follows:

(a)    Each year from the conclusion of school on the Thursday preceding Good Friday until the commencement of school on Easter Tuesday;

(b)    Each year from 5:00pm Christmas Eve until 5:00pm Boxing Day (noting that this time is likely to overlap with the time in paragraph 3(b)(ii) herein);

(c)    For the children’s birthdays as they fall on the Gregorian calendar;

(i)If a school day, from the commencement of  school until the commencement of school the following day;

(ii)If on a Saturday from the conclusion of school Friday until 9.00am Sunday and

(iii)If on a Sunday from 9.00am Sunday until the commencement of school Monday;

(d)    From the conclusion of school Friday until the commencement of school Monday on Father’s Day weekend;

(e)    On the Father’s birthday;

(i)If a school day, from the conclusion of school until the commencement of school the following day;

(ii)If on a Saturday from the conclusion of school Friday until 9.00am Sunday and

(iii)If on a Sunday from 9.00am Sunday until the commencement of school Monday and

(f)     At other times as may be agreed between the parents from time to time.

5)The children live with the Mother as follows:

(a)    From the conclusion of school Friday until the commencement of school Monday on Mother’s Day weekend;

(b)    On the Mother’s Jewish birthday (…) and Gregorian calendar birthday;

(i)If a school day from the conclusion of school until the commencement of school the following day;

(ii)If on a Saturday from the conclusion of school Friday until 9.00am Sunday and

(iii)If on a Sunday from 9.00am Sunday until the commencement of school Monday;

(c)    For the children’s birthdays as they fall on the Jewish calendar (B: … and C: …);

(i)If a school day, from the conclusion of school until the commencement of school the following day ;

(ii)If on a Saturday from the conclusion of school Friday until 9.00am Sunday and

(iii)If on a Sunday from 9.00am Sunday until the commencement of school Monday;

(d)    For the purposes of the Jewish holidays as set out below, from the conclusion of school or 3.00pm on the day preceding each Jewish holiday as defined below to the commencement of school or 9.00am on the day following the conclusion of the Jewish holiday as defined below;

(i)Rosh Hashanah (time with the Mother be for three nights);

(ii)Yom Kippur (time with the Mother be for two nights);

(iii)Sukkot (time with the Mother be for three nights);

(iv)Shemini Atzeret and Simchat Torah (time with the Mother be for three nights);

(v)Purim (time with the Mother be for two nights);

(vi)Pesach (time with the Mother be for eight nights);

(vii)Shavuot (time with the Mother be for three nights) and

(e)    At such further and other times as may be agreed between the parents from time to time.

6)For each of the occasions referred to in Paragraph 5(d) herein which occur when the children ordinarily live with the Father pursuant to these orders, the children shall spend additional / make-up time with the Father from the conclusion of school or 3pm on Thursday until the commencement of school or 9.00am Monday on either;

(a)    The weekend immediately following the Jewish holiday if it would not otherwise be a weekend the children would spend with the Father or

(b)    The second weekend after the Jewish holiday.

7)In the event that periods of time specified in paragraphs 4 and 5 overlap:

(a)    Father’s Day: Paragraph 4 shall take priority;

(b)    Easter: Paragraph 5 shall take priority;

(c)    Christmas: Paragraph 4 shall take priority;

(d)    Birthdays save for the Mother’s Gregorian calendar birthday when paragraph 4 takes priority: Paragraph 5 shall take priority;  and

(e)    If the Father has made an election pursuant to paragraph 17 (f) that period of time takes priority over international travel by the children and the Mother.

8)Changeovers take place as follows:

(a)    On school days, at the children’s school / kindergarten;

(b)    On non-school days, the Father will collect and/or return the children to the Mother’s home save that if either parent moves more than 15 kilometres further from the other parent’s home changeovers shall take place at a midpoint venue between each of the parent’s homes as agreed between the parents and

(c)    As otherwise agreed between the parents from time to time.

9)Alternate weekend time with the Father shall recommence on the first weekend after the commencement of school on each of terms 2, 3 and 4 and on the weekend prior to the commencement of school in term 1.

10)The mother and father do all acts and things necessary to ensure that the child B be referred to as “B D” at her school. 

11)The Mother be responsible as between herself and the father for styling and cutting each of the children’s hair.

12)The Mother and the Father comply with the school rules in relation to each of the children while the children are on school premises or in the vicinity of the school and when in school uniform.

13)In the operation of paragraphs 10 and 11 of this Order each parent be and is hereby restrained by injunction from causing, permitting or suffering any action contrary to paragraphs 10 and 11.

14)Within 14 days of the date of these Orders the Father deliver to the Registrar of the Family Court at Melbourne the passports of each of the children and the Registrar keep the passports safely pending production of documents in accordance with this Order or the further order of the Court..

15)The Registrar release the passports of the children or either of them to either parent upon the production of written consents by each parent and any renewed passport or passport released for visa purposes be returned to the Registrar within 14 days of completion of the tasks.

16)That there be liberty to apply on short notice to the Chambers of Justice Bennett in the event of a dispute over the release of the passports without the prior need for filing an Application and Affidavit but on production of an itinerary and correspondence.

17)The Mother be permitted to travel to Israel  each calendar year for:

a.      a maximum period of 35 days on one occasion to include Pesach or Rosh Hashanah and Yom Kippur or January after the conclusion of the children’s time with the father pursuant to paragraph 3(b)(ii) or

b.      on two occasions;

(i)For a period not longer than 21 days to include Pesach and

(ii)For a period not longer than 21 days to include Rosh Hashanah and Yom Kippur and

c.      At such further and other times by agreement between the parents.

18)The travel in paragraph 16 be subject to the following conditions:

(a)    The Mother provide the Father not less than 14 weeks notice of each trip:

(i)An itinerary;

(ii)A copy of airline bookings (or intended airline bookings) and

(iii)Contact details for each location at which the children will be staying;

(b)    The Mother, at her expense, obtain enforceable Orders in Israel which are complementary to these Orders AND the Father do all such things and sign all such documents as may be required to enable the Mother to obtain such Orders;

(c)    The Mother forward to the Chambers of Justice Bennett, the Father and the Independent Children’s Lawyer sealed and/or certified copies of the correspondence and orders obtained in Israel prior to the first occasion of overseas travel;

(d)    The Mother be restrained from travelling with the children to Israel until Justice Bennett or Her Honour’s Chambers have notified the parents that the Network Judge in Israel has confirmed that the orders obtained by the Mother in Israel are enforceable in Israel;

(e)    Upon their return to Australia, the children live with the Father from the conclusion of school Thursday until the commencement of school Monday on the two weekends immediately following the return on each occasion, and alternate weekend time shall restart 2 weeks thereafter and Thursday night with the father in the preceding week;

(f)     The children live with the Father for an additional week in either of the long summer holiday or second term holiday at his election and the Father advise the Mother within 4 weeks of receiving notice from the Mother pursuant to (a) herein of his election;

(g)    Whilst the children are in Israel, they communicate with the Father by Skype / FaceTime not less than every second day and

(h)    The Mother shall return the children’s passports to the Registry within 14 days of her return to Melbourne.

19)The Mother and Father are restrained from instituting proceedings in Israel seeking an alteration to these Orders.

20)The Mother and Father be otherwise permitted to travel with the children to any country that is a signatory to the 1980 Hague convention during periods of time the children ordinarily live with the travelling parent pursuant to these Orders unless otherwise agreed between the parents and the travelling parent shall provide to the other parent not less than four weeks’ notice of the trip:

(i)     An itinerary;

(ii)    A copy of airline bookings (or intended airline bookings) and

(iii)     Contact details for each location at which the children will be staying;

AND return the passports of the children to the Family Court Registry within fourteen days of return to Melbourne.

21)The Mother and Father keep each other informed of the following:

(a)    Their residential address;

(b)    Their preferred telephone number;

(c)    Their preferred email address; and

(d)    Any interstate travel with the children.

22)The Mother and Father keep each other informed of any illness or injury suffered by the children or either of them AND:

(a)    Each of the Mother and Father advise each other of any person providing medical treatment to the children or either of them;

(b)    Each of the Mother and Father be at liberty to contact any person involved with the medical treatment of the children or either of them.

23)The Mother and Father be at liberty to attend the children’s school / kindergarten;

(a)    For parent-teacher interviews;

(b)    For any event to which parents are ordinarily invited and

(c)    At such other reasonable times as agreed between each parent at the school / kindergarten.

24)For the purposes of live-with arrangements, the Mother not be present at the Father’s changeovers at school.

25)All previous parenting orders be discharged.

26) The Independent Children’s Lawyer be discharged following compliance by the Mother with paragraph 18(c).

27) Certify for Counsel and Solicitor acting as Counsel.

28) 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 the 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 FURTHER ORDERED THAT:

29)For the purpose of live-with arrangements the mother not be present at the father’s changeovers at school.

30)In the operation of paragraphs 10 and 11 of this Order each parent be and is hereby restrained by injunction from causing permitting or suffering any action contrary to paragraphs 10 and 11.

31)Otherwise all extant applications be and are hereby dismissed and the matter be removed from the docket of the Honourable Justice Bennett.

IT IS DIRECTED:

32)That the signed minute of consent as amended be marked Exhibit “A” and remain on the Court file.

33)My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties to the proceedings.

THE COURT NOTES:

(A)The parents agree that while the children attend E School the Mother will be responsible for the payment of school fees for each of the children.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2553  of 2014

Ms Coburn

Applicant

And

Mr Garner

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE REASONS FOR JUDGMENT

1. The parties have been three days in Court.  I would have to say they have used those three days somewhat productively, to agree on a raft of orders in relation to their children B, who is six years old, and C, who is three years old.  The one issue that remains for determination is whether there should be an order that for the purpose of spending time, the mother not be present at the father’s changeovers at school.  I have not been handed the minutes of orders to which the parties agree, but I understand that those minutes would, if made, require changeovers for the purpose of “spend time” to occur at the school regularly.

2. I’ve heard, on and off, submissions about a number of issues over which the parents were in dispute. All of which have resolved apart from this outstanding issue. Because of the way in which the parties have confined proceedings to this one issue, it is not necessary for me to consider broader issues around equal shared parental responsibility.

3. This is a case of high parental conflict.  Until today, the matters which dominated the previous days in Court are matters which sadly I would say are examples of parents putting their own needs before the needs of their children.  Two issues are emblematic of that. 

4. The first was the father’s application that he be solely responsible for styling the children’s hair.  That was because the mother, without consultation with the father and, I am satisfied, in circumstances where she thought the father would object and be less comfortable than he could otherwise be, styled the young son’s hair in a way which I would refer to as being conventionally Jewish Orthodox for a boy, that is, a very close-cropped hair with long sideburns down to his jaw which are worn in front of the ears.  The father took exception to this and said that C’s new hairstyle puts him apart from him (the father) and his family, who are not of the Jewish faith.  Of course, B is Jewish but the father means the family in his current household. The father said that, if he was solely responsible for C’s hairstyle, he would have the son’s hair cut in a way that was not obviously in a Jewish Orthodox style and would not involve sidelocks. The matter was resolved by the father desisting with his application.

5. The next matter over which the parties spent some considerable time but which is resolved, is the name by which the daughter B is referred to at school.  I have heard viva voce evidence in cross-examination of the circumstances of the creation of her birth certificate seven years ago, which recorded her name as B D.  The mother says that “B” is a name which she does not accept nor recognise, and she sought that the child be known at school as D.  The father objected and sought an injunction against the mother restraining her from causing or permitting B to be known as D. The mother applied to have the child known as D.

6. The child is seven years of age.  The mother has not previously brought an application to change D’s given name.  She says that is because the school has previously referred to B as D, and did so until the father lodged a formal complaint which compelled the school to observe the child’s name as registered on her birth certificate.  It’s another example of the needs of a parent, in this case the mother, being given more weight to her own needs than to the needs or the legitimate entitlement of the child concerned.

7. I was particularly disturbed to hear the mother’s evidence in relation to the use of the name B and the way in which she has lent her imprimatur to the name B being ridiculed.  She has not, on her own evidence, sought in any way to assuage concerns which she says flow from the child being bullied about her name. 

8. Based on the mother’s evidence alone, I am not satisfied that the child is indeed bullied.  I have now heard today – and am even more concerned than I was previously – that the mother is employed by the school at which B attends. Accordingly, to the extent that she has allowed the child to think that “B” is not a name that is worthy of her or that she is prepared to recognise, there could be some idea in the child’s mind that that is also what other teachers at the school think.  That is not in the child’s best interests.  I am critical of the mother.  But it’s a matter which has been resolved with the mother having desisted.

1. I have gone over those two issues to demonstrate that, in the unfortunate situation of this family, the needs of the parents are sometimes elevated above the legitimate needs of the children to feel loved and cared for by their parents - regardless of how their hair is cut or by what given name they are known.  The legitimate entitlement of each child is to have a life free of conflict between their parents.  If that is not possible because of the personality of both of the parents, then the children should be relieved from exposure to the conflict to the greatest degree possible.

2. Returning to my determination of the issue of the mother’s attendance at changeovers where the changeover is at school. As with any parenting order, the best interests of each individual child is the paramount consideration. Not the only consideration but the paramount consideration.

3. I am satisfied that there is a real benefit to the children for each to have a meaningful relationship with both parents. This is consistent with the parenting regime to which the parents have agreed and the expert evidence of the family consultant.

4. I must, and do, take into account the need to protect each child from psychological harm and from being exposed or subjected to abuse, neglect of family violence. There are no concerns about physical violence. However, my assessment of the degree of conflict which exists between the parents is that it is at a level which is toxic for the children and, necessarily, emotionally harmful for the children. Accordingly, the order that I make must protect the children from the endemic parental conflict to the greatest degree possible.

5. The children are not of an age where their views on this narrow topic are helpful to me. Indeed, it would be harmful to seek the views of either child lest he or she be left with a sense of responsibility for the outcome or feel they will anger or disappoint one parent. I proceed on the basis that the children’s perspective is that they wish that their parents could interact happily and not make one another cross.

6. The children have a close and appropriate relationship with each parent and each parent seeks appropriately to be involved in decision making about the children.

7. I have regard to the capacity of each parent to provide for the emotional and intellectual and other needs of the child. The endemic parental conflict does not reflect well on either parent but my impression is that the mother promotes the conflict to an extent which is greater than the father. An example is that the mother is prepared to fuel the child’s negative feelings or embarrassment about her given name to a degree which is entirely inappropriate. Where there is nothing the mother can so, unilaterally, to alter the child’s name, it would be in the child’s best interests to make the child feel as comfortable as possible about her name.  

8. The mother on two occasions when she gave her oral evidence said that there is “no problem” with the changeovers between herself and the father.  She went on to specify that they “unfortunately do not even greet each other” and they “do not talk”.  In my view, that is an example of covert hostility, which is particularly injurious to the children.  It is behaviour from which the children should be, if possible, spared.

9. The mother’s evidence is that she works at the school, which has some four campuses.  She says that it is impracticable that she be able to absent herself from changeovers, because in the course of her employment she might find herself in the same location as the changeovers. I do not accept that evidence.  I am satisfied on the mother’s evidence that the mother’s working hours are structured largely so that she ceased work prior to the collection of the children on Thursdays and started work later than the time that the father would deliver the children to school on a Friday.

10. The times of employment provided by the wife were not absolutely firm, because the school year has not started.  It may be that her work times alter.  But, as the mother said, these schools have four campuses.  There is one set of orders which specifies the time and date at which the father will be entering the school grounds and going to classroom of each child for the purpose of either collecting them at the beginning of time spent or returning them at the conclusion of time spent.

11. The mother is well able to take those times into account.  She has four campuses over which to work.  If any time does fall during working hours, she can leave one of the campuses from another exit.

12. For the avoidance of doubt, if the children were to see their mother from a distance during an access changeover, what I envisage is that she acknowledge the children’s presence by waving at them from a distance but not approach the children or the father.

13. Whilst this case has largely resolved, it has all of the hallmarks of a case which will now encounter difficulties with compliance by the parents with the orders notwithstanding that they are orders in terms that the mother and father agreed upon. It will not be in the best interest of either child to allow the school to become a battleground on which the conflict between the parents can be fought. It is important that neither child think that it is necessary to see or be accountable to the mother before they leave school to spend time with the father. 

14. It is preferable to make an order that will least likely lead to the institution of further proceedings in relation to either or both of the children but there is no scope for a prophylactic element in an order which quells this dispute. My expectation is that there will be further conflicts and proceedings and that these will not benefit the children. The parties should be aware that the vexatious quality of any future proceedings will be noted in the context of Section 118 and/or 102QB of the Act and may ultimately impact on the entitlement of one or other of the parties to bring further proceedings.

15. I conclude that there should be no communication or interaction between the parents at school.  However, if occasionally, inadvertently or unavoidably the children do experience seeing their parents at school at the same time, the experience should be as pleasant for the children as possible. 

16. I propose to make the order sought by the father, that is, that for the purpose of the father spending time with the children or either of them, the mother not be present at the father’s changeovers when they occur at school.  For the avoidance of doubt, that does not prevent the mother from working.  I’ve already referred to some of her work hours as meaning that she would not be required at the school at that time.  If she is required at that time, she should structure her activities so she does not put herself directly in contact with the father and avoid being present at the changeovers.

17. I’m satisfied that the order sought is consistent with the best interests of both children.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 30 January 2017.

Associate: 

Date:  26 July 2017