COLLARD & WALKER

[2014] FamCA 1113

FAMILY COURT OF AUSTRALIA

COLLARD & WALKER [2014] FamCA 1113

FAMILY LAW – CHILDREN – INTERIM ORDERS – Review of Senior Registrar’s interim orders dismissed.

FAMILY LAW – INJUNCTIONS – Restraining order preventing either party from interfering with the periods of time the children spend with the other parent – restraining order preventing either party from questioning the children about the other party.

FAMILY LAW – INDEPENDENT CHILDREN’S LAWYER – Order for appointment of an Independent Children’s Lawyer made by consent – application for order to be discharged on review.

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 68B, 68L
Family Law Rules 2004 (Cth) r 18.10

Goode and Goode [2006] FamCA 1346
Re K (1994) FLC 92-461

APPLICANT: Mr Collard

RESPONDENT: Ms Walker

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 2963 of 2014

DATE DELIVERED: 11 December 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 23 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levine

SOLICITOR FOR THE APPLICANT:	James McConvill & Associates
COUNSEL FOR THE RESPONDENT:	Ms Tulloch

SOLICITOR FOR THE RESPONDENT: Carew Counsel Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Stavrakakis appeared in the capacity of a watching brief

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

Orders

1. The husband’s Application in a Case for a review of orders made by Senior Registrar FitzGibbon on 11 August 2014 is dismissed.

2. Any application for costs is to be made by written submission to be filed and served within 30 days of delivery of this judgment and the party upon whom the submissions are served is to file and serve any submission upon which he/she relies within 28 days of service upon them of the other party’s submission.

3. Any submissions as to costs should include an estimate of costs claimed drawn on a party/party scale in accordance with the Family Law Rules 2004 (Cth) and include a statement as to whether the Court can fix the quantum of costs in preference to the matter proceeding to an assessment.

4. Any judgment on costs is to be determined on the written submissions in Chambers unless a party seeks to make an oral submission in addition to a  written submission.

5. The matter is placed in the list of cases awaiting allocation to a judicial docket with priority from the date of this order.  

IT IS NOTED that publication of this judgment by this Court under the pseudonym Collard & Walker 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 MELBOURNE

FILE NUMBER: MLC 2963 of 2014

Mr Collard

Applicant

And

Ms Walker

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an Application in a Case brought by the father of three children of the marriage, for review of interim orders made by Senior Registrar FitzGibbon on 11 August 2014.  The orders are parenting orders which involve restraints on each party and a procedural order for the appointment of an Independent Children’s Lawyer.

2. The application is opposed by the mother.

3. Counsel for the Independent Children’s Lawyer had previously successfully applied to be excused from this hearing but was present in Court in the capacity of a watching brief.

4. Under r 18.10(1) of the Family Law Rules 2004 (Cth) (“the Rules”), the Court must hear an application for review of a decision by a Judicial Registrar, Registrar or Deputy Registrar as an original hearing. Accordingly, a review is a rehearing of the whole matter and not a review of the original decision.

5. The affidavit evidence relied upon by the parties is set out in Annexure A.

6. Rule 18.10(2) provides for the evidence which the Court may receive on an application for review.  Counsel for the mother proposed to rely upon the Reasons for Judgment delivered by Senior Registrar FitzGibbon, dated 11 August 2014.  Due to the nature of the proceedings as a rehearing, wherein I am to make the relevant determinations afresh, I decided that it was not appropriate to rely on Senior Registrar FitzGibbon’s Reasons for Judgment as evidence.  However, it was open to counsel for the mother in making submissions to include, as part of her argument, some reference to the reasons articulated by the Senior Registrar.

7. The hearing proceeded by way of submissions and the evidence remains untested.  I have applied the principles referred to by the Full Court in Goode and Goode [2006] FamCA 1346. The scope of enquiry in interim proceedings is “significantly curtailed” and the Court should not be drawn into issues relating to the merits of the substantive case where findings cannot be made. The best interests of the children are the paramount consideration. I have considered the less contentious matters between the parties, the care arrangements prior to separation, the current circumstances of the children and parties and the proposals of each of the mother and the father for the future.

8. I am required to follow the legislative pathway.  The parties are in agreement that there should be equal shared parental responsibility for the children.

9. I have applied s 60CC of the Family Law Act 1975 (Cth) (“the Act”) in considering what is in the best interests of the children.

10. The issue in the substantive proceedings will be the living arrangements for the children.

Background

1. The parties were married in 2000 and separated on 16 December 2013.  There are three school aged children of the marriage.  B is 14 and is enrolled in Year 8.  C is 11 and is enrolled in Year 6.  D is five and commenced Grade Prep this year.

2. The wife is 53 and the husband is 63.  The wife is employed three days a week as and works flexible hours.  The father is unemployed and is a tradesman by occupation.

3. The father worked in the Northern Territory from late 2009 until approximately September 2011, spending three weeks at a time in the Territory followed by one week in Melbourne.  In early 2013 he returned to the Northern Territory on a 12 month contract, returning to Melbourne in December 2013.  For the first six months of this contract, the father spent three weeks in the Northern Territory followed by one week in Melbourne.  Thereafter, he worked in the Territory for two weeks at a time, returning to Melbourne each third week. While away, the father maintained regular contact with the children.

4. The mother was throughout this period the children’s primary caregiver.

5. Since separation the husband has purchased a home across the road from the children’s primary school.  The mother resides with the children in the former matrimonial home.

Application

1. The parties were before Senior Registrar FitzGibbon on 28 July 2014.  Interim orders were made by consent on 11 August 2014.  Those orders included that the husband and wife have shared parental responsibility for the children of the marriage and that the children live with the wife at all times when they are not otherwise living or spending time with the husband.

2. The Senior Registrar made a number of further orders which were not made by consent.  Among these was an order that the children live with the husband as follows:

   a)each alternate week from the conclusion of school on Thursday (or 3.30 pm if a non-school day) until the commencement of school the following Tuesday (or 3.30 pm if it is a public holiday or non-school day), commencing 14 August 2014;

   b)for half of all school term holidays in 2014/2015 at dates and times to be agreed between the parties;

   c)for the long summer holiday period at dates and times to be agreed and failing agreement from 6.00 pm on 14 January to 6.00 pm 28 January each year.

3. The orders the subject of review are the following:

   IT IS ORDERED UNTIL FURTHER ORDER:

   …

   12. That neither party interfere in any way with the periods of time the children or any of them live with or spend time with the other parent pursuant to these orders, unless:

   (a)          by prior written agreement; or

   (b)order of the Court, and including but not limited to the following:

   (i)collecting or taking them, or any of them, to walk or drive them to and/or from school; or

   (ii)attending the child’s school to undertake class work in the children’s respective classes/rooms; or

   (iii)attending during school hours, or when the children are in attendance to undertake other voluntary work including any maintenance/building works, save for parent teacher interviews, concerts and occasions to which any parent is invited by the school; or

   (iv)directly making arrangements with the children or any of them to spend time with them when living with the other parent, or encouraging them to do so; or

   (v)attending and/or participating in the children’s extra-curricular activities or after hours commitments; or

   (vi)enrolling them in any new or different extra-curricular activities.

   13. That each of the parties, their servants and agents be hereby restrained by injunction from:

   …

   (b)questioning the children about the other party, his/her behaviour and his/her activities, social or otherwise and about what the children do on a day to day basis when they are in the other party’s care …

   …

   IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER:

   …

   19.That pursuant to Section 68L (2) of the Family Law Act 1975 (“the Act”) the [children] be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such representation. …

4. It was common ground that the source of power for making the restraining orders is s 68B of the Act. There was no dispute that, as parenting orders, the principle of the orders being in the best interests of the children applies to the making of any restraining orders.

5. Counsel for the father submitted that the mother has not discharged the onus of demonstrating that restraining orders are necessary for the interests or welfare of the children.  He relied on a number of cases which he contended provide support for the proposition that the discretionary power to grant injunctions should only be exercised when the balance of convenience properly assessed, having due regard to the interests of the child, favours it.

6. None of the cases cited by counsel for the father are factually similar to the circumstances of this case and are distinguishable. 

7. Counsel for the father made submissions about the specific additional time the father seeks with each of the children, some of which was during the time that they spend with the mother under the interim orders which have not been challenged.

8. The father deposed that he has been invited to participate in a classroom reading program at the youngest child’s school and has also been asked to attend to maintenance around the school.  The father argued that his attendance at the school has not been disruptive and there is no reason why he should not be able to attend when invited. 

9. The father complained that the impugned orders prevent him from undertaking the role of goal umpire at his daughter’s sports matches every second weekend.  Although the sports season is now over for 2014, he is concerned that the interim orders will restrict him during the sports season next year.

10. The father also complained that the orders prevent him from spending additional time with his eldest son to play tennis with him immediately after his tennis lesson to reinforce what he has learned during the lesson.  This is because the tennis lesson takes place on Wednesday, when the father is not spending time with the children.  Furthermore, the father submitted that, notwithstanding that his eldest son has a maths tutor, the child needs additional assistance with his maths homework and this should not be restricted to time when he is in the father’s care.

11. Counsel for the father also submitted that the father no longer intends to walk the children to and from school other than on special occasions and accepts the need to minimise any “awkwardness” between the parties for the welfare of the children.  This represented a change of position for the father and his counsel essentially submitted that this is an indication that the father is accepting that the relationship between the parties is over.

12. Counsel for the father also submitted that paragraph 13(b) of the interim orders was too wide in its terms and impossible to enforce.  He suggested that it cut across the ordinary conversations that a father might have with his children and was undesirable because it impacted on the concept of equal shared parental responsibility which had been agreed upon by the parties. 

13. Regarding the order for the appointment of an Independent Children’s Lawyer, which was made by consent, counsel for the father submitted that there was no intractable conflict between the parties in the circumstances of this case which warranted the appointment.  He submitted that a heavily contested issue such as whether the parents should have equal time with the children was not “symptomatic of conflict”.  He emphasised that the father is “slowly accepting the relationship is over and gradually accepting the [need for] boundaries to be established.”  No explanation was provided for why the father previously consented to this order if it is indeed unnecessary.

14. Counsel for the mother submitted that interim orders do not finally determine the involvement of the father but are holding orders pending a final determination when there can be a testing of the evidence. 

15. The argument presented on behalf of the mother centred on the father’s lack of insight and understanding of appropriate behaviour at this time and the corresponding need for the orders to guide his behaviour.

16. Counsel for the mother referred to the mother’s evidence of the father telephoning the children repeatedly every day and pressuring them to spend time with him.[1]  The mother deposed to having overheard the children on the telephone, apologising to the father because they could not spend time with him on the weekends scheduled for her time.[2]

    [1] Affidavit of the mother filed 9 April 2014 at [26] – [27].

    [2] Affidavit of the mother filed 9 April 2014 at [40].

17. Counsel for the mother also relied on the example of the father failing to communicate with the mother prior to collecting the eldest child after school for a shopping trip, when the mother ultimately called the police after making several enquiries because she was unable to locate her son.[3]

    [3] Ibid at [37].

18. Annexures EAW-1 and EAW-2 to the mother’s affidavit filed 23 July 2014 were also relied upon by her counsel as examples of the husband’s lack of insight.

19. Annexure EAW-1 includes an email from the husband to Ms F, Group Leader for the First Suburb E Scout Group Region J (which the two older children attend), dated 19 June 2014.  The email states:

    Hi [Ms F],

    Just a note of information regarding [Ms Walker] and my position.

    Sorry we haven’t attended to the scout fees till now.

    I have given [Ms Walker] a cheque for ½ the fees and [Ms Walker] will put in for the other ½ and she will send or give both my and her payment to you. We are still in a state of flux in our marital matter, with solicitors in a feeding frenzy, however it should settle down eventually in a year or two.

    In fear of more litigation I am reticent to be at Scouts seeing [Ms Walker] has forbidden me to attend unless its [sic] “my time”. This at present is 5 Nights per fortnight Thursday to Monday. Applying to the Family Court, I am hopeful that common sense and fairness will prevail and then the children would be with me equal time with shared Parenting 7 nights per fortnight. This is a more normal and equitable arrangement. Thus I could participate more regularly in scouts and not feel isolated.

    I have recently bought my own home and I’m not working, so I cant [sic] afford to pay for two households.

    Thanks for your understanding and explain [sic] to [Mr G] and [Mr H], and the other Leaders for their information.

    Sadly

    [Mr Collard]

20. Annexure EAW-2 is a letter from the mother’s solicitors to the father’s solicitors.  The letter mentions an alleged incident involving the youngest child who is in Grade Prep.  It alleged that the mother had taken the youngest child to school and, upon arrival, unexpectedly found the father there.  He allegedly followed the mother inside the classroom and as she was about to leave called out across the room, “Did you hear about the electricity about to be cut off”.  This was in the presence of the child, other children, their parents and the teacher.

21. Counsel for the mother also relied upon annexure EAW-1 to the mother’s affidavit filed 30 September 2014.  This annexure includes an email from the father to the mother, in which the father states:

    [B] wants to catch up with me to get extra tuition in Maths, so if you can make an arrangement for him to call past on his way home for and [sic] hour

    He would benefit greatly. We spent some time on graphs and algebra, and he was very happy that he got on top of it. I realise that he has his tutor, but I could see that he was very much buoyed up and confident. Please talk to him, and extra tuition can only help him.

    Similarly he is keen that we have a couple of Tennis sets at the end of his Wednesday coaching, and I could drive him home afterwards?

22. Counsel for the mother argued that this email implies that the father had already discussed the possibility of such time with the eldest child prior to having discussions with the mother.  In light of the orders already in place, counsel for the mother argued that creating such an expectation of additional time in the eldest child’s mind was inappropriate and is further illustrative of the father’s lack of insight.

23. In response to the father’s arguments for additional time with the two younger children, counsel for the mother emphasised that the father can participate in all of the activities mentioned (reading group and assisting with maintenance at the youngest child’s school, as well as acting as an umpire at the daughter’s football) during the time when the children are in his care.

24. Counsel for the mother also relied on paragraph 30 of the Family Report of Mr I dated 22 July 2014[4], wherein it was indicated that the father will “play by the rules provided he gets what he wants”.  The father seeks ultimately an equal shared care arrangement for the children, contrary to the recommendation of Mr I, the Family Report writer.

    [4] Affidavit of Mr I affirmed and filed 23 July 2014 at annexure GFU-2.

25. Counsel for the mother submitted that the restrictions are appropriate given the context and construct of what the Family Report writer pointed out.  Mr I stated that the parents need to learn how to deal more directly with each other for the sake of the emotional wellbeing of their children.  He recommended that the parents participate in the Parenting Program (POP) to redress the situation and to assist them to focus on the needs of the children.[5]

    [5] Affidavit of Mr I affirmed and filed 23 July 2014, annexure GFU-2 at[66].

26. Counsel for the mother emphasised that parent/teacher meetings can be arranged any time and are specifically not restricted by the orders.

27. She submitted that the mother does not accept that the husband has had an “epiphany” now and argued that this is borne out by his conduct since the orders were made on 11 August.  She submitted that the orders remain necessary because of the significant ongoing conflict between the parties and the ongoing litigation.

28. Counsel for the mother submitted that, although the father had suggested that the additional time he wishes to spend with the children is “benign”, the position is quite the contrary in that it puts pressure on the children.  In addition, if the impugned orders were to be discharged, the mother could never know where and when the father would arrive.  In circumstances where the mother wishes to distance herself from the father, it was the mother’s submission that this could ultimately lead to a negative interaction between the parties in the children’s presence.  Counsel for the mother argued that the mother and children need some “peace and quiet until the dust settles”. 

1. Counsel for the mother also pointed out that paragraph 13(b) of the interim orders does not prevent the father from listening to any matters which the children volunteer.  Rather, it is intended to prohibit cross examination of the children about the activities of the other parent.  While it was conceded that such an order would be difficult to enforce, counsel for the mother submitted that the order is of a type commonly made in this Court and serves the purpose of guiding the parties on an interim basis.

2. Counsel for the mother supported the appointment of an Independent Children’s Lawyer on the basis that there is an intractable conflict between the parties, which she argued is evidenced and has been exacerbated by the father’s inability to move on from the Senior Registrar’s interim orders.

The relevant law

1. The power to make the interim restraining orders sought by the wife is contained in s 68B(1) of the Act. Pursuant to s 68B(1), the Court may make such order or grant an injunction, in relation to a child, as it considers appropriate for the welfare of the child. A non-exhaustive list of injunctions is specified. An injunction may be granted unconditionally or on such terms and conditions as the Court considers appropriate.[6]  In considering what is appropriate for the welfare of the child, any order or injunction must be likely to benefit the child.

   [6] Family Law Act (Cth) s 68B(3).

2. The onus is on the mother to demonstrate that restraining orders are appropriate for the welfare of the children. The standard of proof is on the balance of probabilities under s 140 of the Evidence Act 1995 (Cth).

3. The power to make orders for the appointment of an Independent Children’s Lawyer is found in s 68L(2) of the Act. An order may be made by the Court on its own initiative or by application. As stated by the Full Court of this Court in Re K (1994) FLC 92-461, when determining whether to appoint an Independent Children’s Lawyer, “the broad general rule is that the Court will make such appointments when it considers that the child’s interests require independent representation”.[7]  Subject to that rule, the Full Court articulated guidelines for determining whether to appoint an Independent Children’s Lawyer, including, relevantly, where there is an apparently intractable conflict between the parents.[8]

   [7] Re K (1994) FLC 92-461 at 80,773.

   [8] Ibid at 80,774.

4. Nonetheless, the listed categories were “not intended to be exhaustive” and should guide rather than inhibit judicial discretion.[9]

   [9] Ibid at 80,776.

Conclusion about the appointment of an Independent Children’s Lawyer

1. It is my view that this is a case where the children’s interests require independent representation.

2. Whilst the father asserts that there is no intractable conflict between the parties, the wife has a different view.  The wife has deposed that “since our separation there has been ongoing conflict between us on almost every issue especially on parenting issues.”[10]  The Family Report writer referred to the strained relationship between the parties and the “suspicion, mistrust and anxiety usually associated” with the process of the pending litigation “doing little to foster openness and good communication.”[11]

   [10] Affidavit of the wife filed 21 October 2014 at [23].

   [11] Affidavit of Mr I affirmed and filed 23 July 2014, annexure GFU-2 at [67].

3. On the balance of probabilities, on that evidence which is not disputed, I accept that there is an intractable conflict between the parents.  The conduct of the father in pursuing a review of a decision for the appointment of an Independent Children’s Lawyer in circumstances where he consented to such an order demonstrates his capacity for changing his mind.  The nature of the father’s interim proposals would intrude on the mother’s time with the children and would be contrary to the interim orders which have been made and which are not challenged.  His interim proposals suggest a means to circumvent the unchallenged interim orders.  In these circumstances there can be no confidence in the father’s improved insight, as referred to by his counsel.

4. Both parties are still coming to terms with the end of the marriage and the inevitable adjustments to the boundaries of their own relationship.  The evidence of the Family Report writer remains untested, however the report writer noted that the reference to the father’s suggestion that “he would refrain from intruding into [the mother’s] time with the children only if he succeeds with his application, or that his behaviour will be conditional on his preferred outcome” was “troubling.”[12]

   [12] Affidavit of Mr I affirmed and filed 23 July 2014, annexure GFU-2 at [53].

5. The Family Report writer’s untested opinion is that, despite the presence of a number of positive attributes, the parents have at times shown some mistrust and an unpredictable capacity to negotiate without the assistance of mediators, lawyers and the courts. 

6. Although the younger children are aged only 11 and five years, the eldest child is aged 14 and the views of the children must be considered.  There is already a disagreement between the parties as to the eldest child’s views in terms of extracurricular activities and time to be spent with his father assisting him with homework.  There is potential for further disagreement about the views of the older children.  An Independent Children’s Lawyer will be of assistance in clarifying the views of the children for the substantive proceedings.

7. Accordingly, based on all these matters, it is appropriate to make an order for the appointment of an Independent Children’s Lawyer.

The restraining orders

1. It is important to bear in mind that these are interim rather than final orders.  The interim orders will not finally determine the care arrangements or the father’s involvement in the children’s lives.  They can, however, provide certainty and guidance to the parties, which is important as they transition into their new lives.  The restraining orders sought would apply to both parents and are flexible in providing for variations by prior written agreement.

2. I accept the submissions made on behalf of the mother that the father’s conduct since separation demonstrates that he has had difficulty accepting that the marriage is at an end.  The father deposed that the separation was a complete shock to him and that he had no idea that there were any problems with the marriage or that the wife wanted to leave him.  It is uncontroversial that the father did not contact the mother to advise her of the shopping trip with the eldest child.  The father deposes that the mother overreacted in contacting the police.  This might well be an issue at trial.

3. According to the Family Report writer, the children are aware of the disharmony between the parents concerning the spend time arrangements.  It follows that the children will be pressured by unnecessary discussion about changes to the arrangements.  The children do not need to be exposed to that disharmony by the parents having more frequent engagement with each other during the time that the children spend with the mother, which the father’s proposals would inevitably entail.

4. The father can assist with the children’s homework, participate in their extracurricular activities and engage in reading with the youngest child  during the five nights when he spends time with the children.  He also has the opportunity to speak with the children by telephone and spend time with them for half the school holidays.  The father has the opportunity to attend school during the school days that he spends with the children and at other times when parents are invited for special occasions.

5. According to the Family Report writer, the two older children are well settled and appear to be managing the separation of their parents.  However, the Family Report writer referred to some problems at school in regard to the youngest child expressing “aggressive/emotional behaviour”, which resulted in the child meeting with the principal on two occasions, as he was being “overwhelmed by his emotions.” 

6. The Family Report writer also referred to other factors which suggested that the parents should jointly seek professional assistance for the youngest child.  Whilst any issues relating to the youngest child may be unrelated to the separation, it is important for the youngest child, who has only commenced Grade Prep this year, to be relieved of any conflict between the parents concerning interference with the time that each of them spends with the children.  There is no reason why the father cannot spend time at school to assist with reading for the youngest child during the time that he is scheduled to spend with the children. 

7. The restraining orders sought by the wife are appropriate for the welfare of the children on an interim basis.  This is because the parties and children are still adjusting to the separation and unnecessary contact between the parties provides an opportunity for conflict in the presence of the children.  The orders would not place unreasonable restrictions on the father and allow for flexibility by prior written agreement as the trust between the parties improves.

8. The Family Report writer noted that the present arrangement offers the opportunity for “significant and substantial time” as envisaged by the Act. He noted that “the present regime does provide scope for the father/children relationship to develop and progress” and enables the father to have input into the lives of the children. He also noted that the present arrangement is familiar for the children.

9. In making recommendations that the children live with the mother for nine nights and with the father for five nights in a two week cycle, the Family Report writer took into account the important consideration that the children are maturing and their needs are changing.  He noted that they will become more independent as social networks and friendships assume greater importance.  He also noted that as the children were primarily in the care of the mother prior to the separation, that they are likely to find adapting to spending longer blocks of time away from her difficult.  He noted that such a change may well entail some loss and disruption.

10. Although the father prefers face to face contact with the mother for communication about the children, the Family Report writer noted that the mother prefers written and less personal exchanges.  He also recorded his suspicions that the father’s motives in seeking more direct and frequent contact with the mother “may be also related to his confused feeling around the separation.”[13]

    [13] Affidavit of Mr I affirmed and filed 23 July 2014, annexure GFU-2 at [55].

11. At this stage of the separation, face to face contact between the parents presents an opportunity for disagreement and tension between them to be witnessed by the children.  This would not promote their welfare. 

12. I accept that the terms of any restraining order should precisely identify conduct that is to be restrained and should not be expressed in terms that are too wide, should be enforceable and should impose the minimum terms that are necessary.

13. The term “interfere in any way”, complained of by the husband as being very wide and imprecise and difficult to enforce is appropriate in the circumstances, particularly having regard to the comment made by the father to the Family Report writer that he would “refrain from intruding into the mother’s time with the children only if he succeeds with his application.”  Although the Family Report writer’s evidence is as yet untested, this sense that the father will obey the rules if he likes the rules was reinforced by his own counsel, who explicitly submitted that the father would be more willing to accept boundaries if the arrangement was 7/7 shared care, rather than 9/5 as is currently the case. The order also specifically lists the behaviour which constitutes interference. 

14. I accept the submissions of Counsel for the wife about the injunction sought in paragraph 13(b); that this restraint on each party does not restrict the children from volunteering information about their daily activities, but guides the parents in learning to respect each other’s boundaries post-separation, given that their shared relationship as husband and wife has broken down.  This is beneficial for the children because they are likely to feel conflicted if questioned about the other parent.  This is particularly so in circumstances where there is litigation pending and the parents and children are adjusting to the separation.  There is also the concern for the behaviour of the youngest child which needs to be addressed in the opinion of the family report writer.

15. The wife has discharged the onus of proof on the balance of probabilities that the restraining orders sought are necessary and appropriate for the welfare of the children.

16. In arriving at this conclusion I make no findings about the controversial issues such as whether the father is pressuring the children in his conversations, or harassing the mother in the contact between the parties.  I have not relied upon the submission by counsel for the mother that the nature of the restraining orders is common because each case must be considered on the particular facts.   

17. I am satisfied that the conflict between the parties is such that the usual conditions should apply that each party spend time with the children in the absence of the other party.  The fact that the father seeks to be involved with the children in the time that the mother spends with the children demonstrates the need for the orders.

Costs

1. Each party made an application that the other party pay the costs of this application but no submissions about costs have yet been heard. 

2. Should any party seek to pursue a costs application, a written submission is to be filed and served within 30 days of delivery of this decision and the party upon whom the submissions are served should file and serve any submission upon which he/she relies within 28 days of service upon them of the other party’s submission.

3. Any submissions as to costs should include an estimate of costs claimed drawn on a party/party scale in accordance with the Rules and include a statement as to whether the Court can fix the quantum of costs in preference to the matter proceeding to an assessment.

4. Any judgment on costs is to be determined on the written submissions in chambers unless a party seeks to make an oral submission in addition to a written submission.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on

11 December 2014.

Associate: 

Date:  11 December 2014

Annexure A

Documents relied upon by the father:

• Affidavit of the husband affirmed 17 October 2014, at [12] – [44];

• Application in a Case filed 10 September 2014;

• Affidavit of the husband affirmed 4 September 2014;

• Affidavit of the husband filed 28 July 2014, at [9] – [12];

• Affidavit of the husband filed 22 May 2014, at [19] – [22], [24], [28], [33], [36], [39] and [53]; and

• Affidavit of Mr I affirmed and filed 23 July 2014.

Documents relied upon by the mother:

• Initiating Application of the wife filed 9 April 2014;

• Affidavit of the wife filed on 9 April 2014, at [1] to [45];

• Affidavit of the wife affirmed 23 July 2014, at [14] to– [25];

• Affidavit of Mr I affirmed and filed 23 July 2014;

• Minute of interim orders proposed by both parties dated 28 July 2014;

• Wife’s Response to an Application in a Case filed 30 September 2014;

• Affidavit of the wife filed 30 September 2014; (in relation to parenting matters); and

• Affidavit of the wife filed 21 October 2014.