Condon-Nixon and Rivers
[2012] FamCA 7
•16 January 2012
FAMILY COURT OF AUSTRALIA
| CONDON-NIXON & RIVERS | [2012] FamCA 7 |
| FAMILY LAW – CHILDREN - Final parenting and children’s orders – Sole parental order – Rebuttal of presumption of equal shared parental responsibility – Time spent and communication orders – Alleged sexual abuse and family violence – Family intervention orders – Criminal proceedings – Self represented litigant – Allegations of stalking and inappropriate behaviour – Total lack of communication and respect between households – Conduct of the parties – Notifications to the Department of Human Services – Family Consultant and other welfare reports – Role of Independent Children’s Lawyer and recommendations made by them – Need for a final defended hearing – Finality of orders – Injunctive orders – Restraint on issuing further proceedings without Court approval |
| Family Law Act 1975 (Cth) – s 60CA – s 60CC(2) – s 60CC(3) – s 60CG – s 61B – s 61DA – s 65DA – s 121 |
| APPLICANT: | Ms Condon-Nixon |
| RESPONDENT: | Mr Rivers |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 482 | of | 2008 |
| DATE DELIVERED: | 16 January 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Young J |
| HEARING DATE: | 19, 20, 21 and 22 December 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Mrs Howe |
| SOLICITOR FOR THE RESPONDENT: | Jane Baldwin |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Buchanan |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Septimus Jones & Lee |
INDEX
ORDERS
REASONS FOR JUDGMENT
ISSUES
ORDERS SOUGHT
SUMMARY OF ORDERS
AFFIDAVITS RELIED UPON
NOTICE OF CHILD ABUSE
PREVIOUS COURT ORDERS
FAMILY INTERVENTION / VIOLENCE ORDERS
BACKGROUND FACTS
RELOCATION WITHIN AUSTRALIA
LITIGANT IN PERSON
OBSERVATION OF WITNESSES
STANDARD OF PROOF
BEST INTERESTS OF THE CHILDREN
MOTHER
FATHER
RISK OF ABUSE IN FATHER’S CARE
LACK OF COMMUNICATION BETWEEN PARTIES
CREDIT FINDINGS
E
L
MR NIXON
MS L RIVERS
MOTHER’S OTHER WITNESSES
FAMILY CONSULTANT’S REPORTS
DEPARTMENT OF HUMAN SERVICES REPORT
FAMILY LAW ACT 1975 (Cth) – RELEVANT SECTIONS
SECTION 60CC CONSIDERATIONS
SPEND TIME ARRANGEMENTS
FUTURE SECONDARY SCHOOLING
SURNAME
TELEPHONE CONTACT
INJUNCTIONS
COMMUNICATION BOOK
MEDICAL PRACTITIONERS
FURTHER APPLICATIONS
CONCLUSION
COSTS
ORDERS
IT IS ORDERED:
THAT all previous parenting and children’s orders and injunctions be discharged.
THAT the father have sole parental responsibility for the children of the marriage E RIVERS born … December 2001 and L RIVERS born … March 2004 (“the children”).
THAT the children live with the father.
THAT the children spend time and communicate with the mother as follows:
(a)during school terms on each alternate weekend from after school on the Thursday until the commencement of school on the following Monday morning save where that day is a Public Holiday or a school curriculum day and then until the commencement of school on the Tuesday;
(b)for the second half of each of the first, second and third school term holidays;
(c)during the December / January school holidays from 4.00 p.m. 24 December until 7.00 p.m. on 14 January in the following year;
(d)on the Sunday of Mother’s Day in each year from 6.00 p.m. on the Saturday until the commencement of school on the Monday morning;
(e)in the event that the Sunday of Father’s Day falls on a weekend when the children would normally be with the mother then her time with the children on that weekend is suspended from 6.00 p.m. Saturday so that the father may enjoy all of that Sunday and he is to return the children to school on the Monday morning;
(f)on each of the children’s birthdays the family household in which the children are then not residing spend a period of no less than two (2) hours, or such further time as may be agreed, but not so as to interfere with any schooling;
(g)the alternate extended weekend time enjoyed by the mother is otherwise to be suspended during the first half of all school terms and December / January school holiday period from school break-up until return to school;
(h)by telephone on each Sunday and Wednesday between the hours of 7.00 p.m. and 7.30 p.m. and these telephone conversations are not to be recorded or transcribed and the parent with whom the children are then residing are to ensure that the telephone call is made punctually at 7.00 p.m. to the nominated telephone (preferably landline) of the other parent;
(i)at all such other times as the parents may agree, and which should include a reasonable time on the birthday of each of the parents and on the birthdays of each of the children of the other spouses, that is of R and M;
(j)other times as may be agreed.
THAT all changeovers of the children which do not occur at their respective school(s) punctually occur at the McDonalds Family Restaurant, B Street, Melbourne Suburb 1 and be facilitated by a parent or a person well known to both of them.
THAT the children are to continue in and complete their primary school education at School 1, Melbourne Suburb 2.
THAT the father is to determine the appropriate secondary school for each of the children to attend and he is responsible for their enrolment in and preparation for secondary schooling.
THAT the children are to continue to attend a general medical practitioner at the W Medical Centre, save for any emergency situation.
THAT the father must ensure that the child L continues to regularly attend upon her paediatrician, Dr N, and her designated speech therapist and both parents are entitled to forthwith receive any report or opinion that is prepared and available.
THAT each parent will, as soon as practicable, notify the other in relation to any illness, injury or accident sustained by either of the children whilst in their care if it is significant enough to warrant medical attention.
THAT the father do all acts and things and give all necessary instructions to advise the children’s schools that he is the primary parent responsible for their enrolment and attendance but he is to authorise and request the school to make available forthwith to the mother copies of all school reports, newsletters and other relevant information pertaining to the children and nothing in these orders will preclude the mother from attending any significant and scheduled school event or occasion normally attended by a parent.
THAT neither the mother nor father, or other adult members of their household are to physically discipline the children or allow any other person to deliver any such discipline.
THAT the mother and father and their servants or agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling or otherwise denigrating the other party or members of the household;
(b)discussing these proceedings with, or in the presence of one or other of the children or from permitting any other adult member of the household so to do;
(c)from making (without proper and substantial evidence) unfounded allegations of sexual abuse or other forms of abuse or violence of or concerning the children to any other person or to the Department of Human Services.
THAT subject to the provision of any specific school or sporting uniform that may be required each of the mother and father are otherwise required to provide all clothes, school requirements, toiletries and other items necessary for the children whilst they are in their respective care and to punctually return any item belonging to the other household.
THAT the parents are to continue using a communication book to accurately convey information to the other in relation to both children and all of their school, health and other social issues and that book is to be placed in the children’s school bag at all changeovers.
THAT the mother be restrained from issuing any further parenting, children’s or specific issue Application of or concerning the children and their welfare in this Court, or in the Federal Magistrates Court, without first obtaining the leave of a Registrar of the Court, upon proper material filed.
THAT the children are to be and remain known by the surname Rivers and both parents and their servants and agents are restrained from identifying or referring to the children under any other surname or hyphenated surname.
THAT the appointment of the Independent Children’s Lawyer be discharged as of 1 March 2012.
Pursuant to s 62B and s 65DA, 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.
THAT all extant Applications, both interim and final be otherwise dismissed and the proceedings be removed from the docket of Young J.
THAT there be no orders as to costs of and incidental to the hearing.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the father and Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment under the pseudonym Condon-Nixon & Rivers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 482 of 2008
| Ms Condon-Nixon |
Applicant
And
| Mr Rivers |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
ISSUES
The time for final parenting and children orders has arrived. The two children of this marriage E born in December 2001 and L born in March 2005 (“the children”) have lived in an agreed shared parental arrangement since shortly after their parents separated in late 2006. Largely as a result of continuing and escalating parental and household conflicts, a lack of communication, claims of alleged sexual abuse and other inappropriate behaviour and many Court Applications and hearings both parents, supported by each of their new spouses, have now sought a sole parenting order. The issues before the Court to be determined are therefore orders to be made in the best interests of the children for parental responsibility, as to where the children should live and with whom they should spend time and all related ancillary orders including orders as to schooling, change of surname and necessary injunctions.
ORDERS SOUGHT
MOTHER
The mother’s Amended Application in a case was filed 23 November 2011 and the final parenting and children’s orders that she has now sought are identical to those identified in that document.
The mother sought sole parental responsibility for the children and that they live with her and spend time with the father provided that he continued to live in the Melbourne metropolitan area.
The mother identified in paragraph 4 of her Amended Application the alternate weekend periods and other holiday and special occasion times that the children should spend with their father. As an overview she proposed that he have only alternate weekends from after school on Friday (later amended by her to the Thursday) until the commencement of school on a Monday morning, alternate Wednesday afternoons from after school until 7.00 p.m. (later withdrawn by her) and effectively almost half of school holidays, and on other special occasions.
The mother, as is evident from her Amended Application, sought specific orders controlling the father’s time and responsibilities with the children, most significantly that he is to be in attendance at all times when the children are in the presence of his new wife.
It is not necessary to detail with particularity all of the orders sought by the mother in paragraphs 5 – 27 (inclusive) of her Amended Application but they are all matters addressed in evidence by the mother and her witnesses and which I have considered.
I highlight paragraph 25 wherein the mother required the father to do all acts and things and sign all documents to effect a change in the children’s surname from Rivers to Condon-Rivers, but with the qualification that such name change not be implemented in their primary school, School 1, Melbourne Suburb 2.
The mother requested that a passport issue for each of the children though there is no evidence before the Court on her behalf as to any contemplated overseas holiday. I have decided not to grant such an order and there is no foreseeable need for either of the children to hold a passport.
FATHER
The orders sought by the father are detailed in his Amended Response filed 30 November 2011 and as were updated in the orders sought as contained within his outline of case filed 12 December 2011.
However in the opening of his case he sought a very significant change in the orders sought for parental responsibility. The father at all previous times had applied for the parties to have equal shared parental responsibility for the children save that he sought to exercise sole parental responsibility as to matters of their health and education. In a further case summary document filed by leave of the Court on the first day of the hearing and being document No. 142 in the Court Index the father sought an order that he have sole parental responsibility for the children. His case has been conducted on that basis.
The further additional order now sought by the father is contained in paragraph 18 of the most recently filed document and that is for an order that the mother be required to seek the leave of the Court before filing any further Application in relation to parenting matters. The mother opposed that Application.
The father initially proposed that the children spend time and communicate with the mother on each alternate weekend from the conclusion of school on Friday until the commencement of school the following Monday, or if a public holiday then until the Tuesday. Otherwise he proposed further special occasions and birthdays and for the second half of all school term holidays. In his final orders sought he also extended the alternate weekend period to commence on the Thursday so that the parent with whom the children do not live would have some limited but regular involvement with their school days, as recommended by the Family Consultant.
In the Christmas long vacation holidays the father has carefully proposed that both children spend time with the mother from 4.00 p.m. on Christmas Eve until 7.00 p.m. on the 14th of January in each following year, that is the mother has every Christmas Day and the period thereafter.
The remaining orders sought by the father related to the management of the children’s medical, general health and educational issues, injunctions and non-denigration orders and other ancillary matters that he proposed and which were intended to facilitate at least some form of workable relationship with the mother and other adults.
INDEPENDENT CHILDREN’S LAWYER
At the commencement of the proceedings a document entitled “Preliminary View of the Independent Children’s Lawyer” was filed and provided to both parents.
That submission sought the discharge of all previous court orders and proposed that both parents have parental responsibility for the children when they are in their respective care and that there be equal shared parental responsibility for decisions relating to education and medical needs.
The orders proposed that the children should live with their father and spend designated time with their mother and those periods were identified as being each alternate weekend from after school on the Thursday until the commencement of school on the Monday, save if that day is a public holiday, for half of school holidays and other birthdays and special occasions and further telephone contact.
There were other orders sought to promote communication, ongoing counselling for the children and to ensure that both parents have knowledge of all educational and medical concerns for the children and have relevant information and documents available to each of them.
The primary witness relied upon by the Independent Children’s Lawyer was the Family Consultant Ms C and in her follow up Report filed 5 December 2011 she had made specific recommendations including for the exercise of parental responsibility by each of the parents when the children were in their respective care.
The Family Consultant was cross examined upon that recommendation and during the hearing she became aware of further evidence including a tape recording of a telephone conversation between the father and the children. She was also questioned on the substantial level of ongoing conflict between the parties and she was then aware of the particulars of the final parenting orders sought by both the mother and father where they jointly opposed any order providing for a shared equal parenting arrangement. Ms C then modified her recommendations.
The final submitted orders sought by the Independent Children’s Lawyer were for the children to live with the father and that he have sole parental responsibility. That outcome represented a significant shift from the orders they had sought at the commencement of the proceedings. Counsel for the Independent Children’s Lawyer, Ms Buchanan, was very firm in her final submissions that there should only be a sole parenting responsibility order made in favour of the father and that it was not in the best interests of the children for there to be shared parental responsibility.
SUMMARY OF ORDERS
At the outset therefore there was a very defined position adopted by both parents before the Court. They each sought sole parenting orders on the basis that they are unable to communicate with or make decisions in consultation with the other parent. There is a significant background history in the Federal Magistrates Court of court proceedings, injunctions and other court orders and also intervention orders from the State Magistrates Court. These matters are more fully considered throughout these Reasons for Judgment, but always with the primary focus of the best interests of the children.
AFFIDAVITS RELIED UPON
The mother relied upon the following evidence:
§her trial affidavit filed 21 November 2011 and the many annexures thereto;
§the mother’s Financial Statement filed 24 November 2011;
§the affidavit of her new husband, Mr Nixon filed 21 November 2011;
§the affidavit of Ms H filed 4 July 2011;
§the affidavit of Ms S filed 21 November 2011;
§the affidavit of Ms I filed 21 November 2011;
§the affidavit of Ms B filed 21 November 2011;
§the affidavit of her father, Mr L Condon filed 4 July 2011; and
§the affidavit of her mother, Ms J Condon filed 4 July 2011.
The father relied upon the following evidence:
§his trial affidavit filed 30 November 2011 and its annexures;
§his further affidavit in reply filed 5 December 2011;
§his Financial Statement filed 30 November 2011;
§the affidavit of his new wife, Ms L Rivers filed 30 November 2011; and
§the further affidavit of his new wife in reply filed 5 December 2011.
In addition the father’s solicitors filed two outline of case documents, on 12 December 2011 and 19 December 2011 which included a substantial chronology and statement of background facts which were not challenged by the mother.
The Independent Children’s Lawyer relied upon the following evidence:
§the affidavit and updated Family Report dated 5 December 2011 from the Family Consultant Ms C;
§the earlier Family Report dated 20 May 2011, prepared by the Family Consultant Ms C; and
§the affidavit of Ms Z, Protective Worker in the employ of the Department of Human Services who filed a substantial 20 page report prepared by Ms Y, Senior Protective Worker and dated 18 February 2011, together with the recommendations then made by the Department.
I have carefully read and evaluated all of the affidavits and each of the Reports of the Family Consultant and of Ms Y.
At the commencement of the case I raised with counsel for the father and the Independent Children’s Lawyer and with the mother the issue of the many inadmissible facts, comments and observations and other statements contained within affidavits relied upon. I confirmed that the approach of the Court would be to wholly disregard all such inadmissible evidence and that I would concentrate upon the established facts and evidence relevant to a determination of orders that are in the best interests of the children. The case was conducted on that basis and these Reasons for Judgment have been drawn to incorporate only proper and relevant evidence.
NOTICE OF CHILD ABUSE
On 22 November 2010 the mother filed a very detailed Notice alleging seven separate episodes of child abuse or inappropriate conduct and behaviour by the father or Ms L Rivers. She had annexed to that Notice a copy of the interim intervention order made at the local Magistrates Court in early February 2011 and the affected family members there named were the mother and both E and L.
The issues raised in that Notice have been generally considered throughout this Judgment and, where applicable, appropriate findings made. I have found there to be no evidence or not sufficient evidence to properly substantiate any of those allegations.
PREVIOUS COURT ORDERS
These parents have been involved in court proceedings in this Court, or in the Federal Magistrates Court, since the father first filed an Application on 18 January 2008.
Final orders were made by consent in the Federal Magistrates Court on 31 March 2008 and I have read those orders which were made at a time when all parties were represented by counsel and solicitors. In summary those orders provided for the parents to have equal shared parental responsibility for both children and for there to be an alternate week arrangement for the children to live in each of their households.
There were then pronounced substantial ancillary orders as to school enrolment, injunctions, co-operation with the medical needs of the children, Girl Guides or swimming lessons and other like orders to substantially regulate the conduct and activities of the parties.
Throughout the 2009 calendar year there were various alleged issues that arose and whereby the mother sought medical and other assessments of the children and notifications were made to the Department of Human Services. The police were involved and the mother filed a Notice of Risk of Abuse and further Applications were filed which led to a re-commencement of defended proceedings in the Federal Magistrates Court.
On 12 May 2010 all of those proceedings were resolved and final consent orders were pronounced by Federal Magistrate Hughes. Again both parties were represented and counsel appeared for the Independent Children’s Lawyer.
The basis of the final consent orders were to discharge all previous orders, for the parents to retain joint parental responsibility for both children and for the children to live with each of their parents on an alternate week basis.
Again, and in summary there were various orders for time to be spent with the children on holidays and other special occasions, telephone communication and the instigation of a communication book, schooling and injunctive orders and orders to limit the medical, dental and other professional services for the children save in appropriate circumstances.
On that occasion an order, by consent, was pronounced for the children to be and remain enrolled in School 1, Melbourne Suburb 2 under the surname Rivers and the parents were injuncted from using any other surname for the children at all times.
On the basis that these were final orders the appointment of the Independent Children’s Lawyer was discharged.
Within five months of those final orders there arose factual disputes and allegations between the parents and more particularly between the mother and the father’s new wife, Ms L Rivers. In particular the mother alleged that Ms L Rivers had physically assaulted one of the children and police investigations were commenced and on 22 November 2010 the mother filed a further Notice of Risk of Abuse and overheld the children from the father.
Proceedings were instituted again in the Federal Magistrates Court who immediately transferred those proceedings to this Court. The Department of Human Services were involved and interviewed the father and the children, and others.
On 25 February 2011 the proceedings were listed before Senior Registrar FitzGibbon who made orders by consent varying the terms of the earlier final consent orders of 12 May 2010. These orders varied the children’s living arrangements with both parents and, on an interim basis, placed a restriction upon the father from leaving the children, or either of them, alone with his new wife. The father was required to be in attendance during all periods when the children were in her presence. This was to prove to be a very substantial burden on the Rivers household.
A further Family Report was ordered and it was pursuant thereto that Ms C’s initial Report was prepared and received into evidence in these proceedings.
There was reference in paragraph 16 of those interim consent orders for the matter to be considered as a Magellan matter and leave was reserved to apply for a mention in that list to the Registrar. It is now evident that there are no Magellan issues central to this case, save perhaps the aggressive and inappropriate conduct of the parents and their inability to have any meaningful communication or discussion with each other. For the purposes of this hearing it was highlighted to the parties and accepted by them and by the Independent Children’s Lawyer that this case has no Magellan context and the issues to be heard and determined in these proceedings related exclusively to the welfare and best interests of the children and appropriate parenting and related orders.
Thereafter the matter was listed before the Court for the release of the Family Consultant’s Report, for case management issues before me, including the requirement upon the father to make, file and serve an affidavit advising the Court of the outcome of proceedings in the Magistrates Court where the police had brought proceedings against Ms L Rivers over an incident allegedly involving her assault upon the child L.
Subsequently, on 27 September 2011, I made orders requiring the parties to co-operate and do all acts and things to facilitate the church baptism ceremony for each of their daughters and although that remained a matter of complaint the ceremony went ahead and both children were finally baptised.
The issues as to the identity of the godparents, the father’s non-attendance and other matters identified by the mother are not central to the determination of the primary issues in these current proceedings. They better reflect the ongoing conflict and mistrust between the families.
FAMILY INTERVENTION / VIOLENCE ORDERS
There have been various family violence orders sought and granted as between the mother and Ms L Rivers and these have assumed significant importance in the evidence of the parties and Ms L Rivers and are matters that required balanced consideration in these proceedings. They are relevant s 60CC(3) additional considerations.
On 23 November 2010 the mother obtained an intervention order against Ms L Rivers who then obtained an order restraining the mother from attending at her work premises. Eventually that latter intervention order was withdrawn against the mother and in the fullness of time the mother’s order against Ms L Rivers lapsed. It is not necessary to make a finding upon whether the mother had pulled out of an agreement to mutually withdraw the respective orders.
The intervention order obtained by the mother is annexure “A” to the affidavit of Ms L Rivers filed 30 November 2011. The impact of that order was that she was restrained from approaching or remaining within 20 metres of a protected person or from being within 200 metres of the mother’s residence or the children’s school. What was significant about the terms and impact of the interim intervention order was that the children were named as affected family members and thus there was an immediate restriction imposed upon Ms L Rivers having contact with or being within 20 metres of both of them. As a result Ms L Rivers could not be present in her own home if the children were there with the father and consequently he had to exercise time with the children away from both the family home and his new wife. As it transpired that was a wholly unreasonable outcome.
Ms L River’s intervention order against the mother was based upon the mother’s sudden and unexpected appearance at her workplace, as deposed to in paragraph 20 of her affidavit filed 30 November 2011. The mother said that Mr Nixon had an account at that sales office and that she attended at his request to make a purchase. She entered only the retail shop and not the office administration building which was adjacent but separate from the shop. There was no discussion or physical or verbal contact between them but nevertheless Ms L Rivers’ evidence was that she found the behaviour of the mother “really intimidating”. I have made no specific finding upon this event save to record that it further inflamed the extended family situation.
The incident leading to the mother obtaining her intervention order on 23 November 2010 arose out of an incident at a local swimming pool on 10 November 2010. The facts are detailed by the mother in paragraphs 42 – 47 (inclusive) of her trial affidavit and otherwise are responded to and objected by the father and Ms L Rivers.
L was in a learn to swim class and left the pool with Ms L Rivers whom the mother alleged was then quite agitated and coarse in her dealings with L. It transpired that L suffered a scratching injury to the back of her hand allegedly from the nails of Ms L Rivers. When the mother later saw those marks on the next occasion when L was with her she sought a medical report and the matter was reported to the Department of Human Services and thereafter, and likely on their recommendation, the mother contacted the SOCA Unit at Melbourne Suburb 3 Police Station. It was those background actions that led to the November 23 2010 intervention order sought and being granted by the court.
The police prosecuted Ms L Rivers on a criminal charge and that case was heard in the Magistrates Court in early September 2011 before Magistrate Bakos. Judgment was reserved and handed down on 21 September 2011. The Reasons for Judgment were available to this hearing on a computer disk and, at the request of the parties, that Judgment was played in Court and tendered as an exhibit in these proceedings.
That was somewhat helpful in this hearing in that it provided an insight into the evidence that was before the Court on those charges and a better understanding of why the Magistrate dismissed the criminal charge laid against Ms L Rivers. The conflict in and the confusing nature of the evidence was there highlighted, particularly that given by the children and also, in large part, by the mother.
I emphasise that I have not looked behind that decision but the reasons were helpful to also illuminate the ongoing conflict and level of dispute between the mother and Ms L Rivers, the allegations and the way in which they were investigated and prosecuted and, above all, the very difficult family circumstances in which E and L must live.
The other purpose for allowing the playing of the disk of the Reasons for Judgment was to hear and confirm that part of the Judgment where the Magistrate recorded that the mother had denied ever accusing either the father or Ms L Rivers of the damage to her motor vehicle on 26 August 2011, an incident hereafter discussed.
It is proper to record that the mother submitted that significant care should be exercised in drawing any conclusions from the Judgment of the Magistrate, particularly because the children had been in the care of the father on the night prior to their interview, the events were recorded some nine months after the incident and the child L has special needs and her evidence was always likely to be unreliable and given under great difficulty. I have balanced all of those aspects of the mother’s submissions.
There are matters and facts of and related to that swimming pool incident and Ms L Rivers’ handling of the circumstances that are relevant to the determination of the parenting issues before me. I have carefully read and listened to the evidence of the parties and the witnesses and I have carefully balanced the evidence of the mother against the denials of the father and Ms L Rivers and, in her affidavit in reply Ms L Rivers is adamant in that “I did not hurt the children”, “I did not drag [L], I did not hurt [L], I did not hurt [L] with my nails or otherwise”. The mother challenged Ms L Rivers on this issue in her cross examination of her and again the denials were repeated and any suggestion that she had intentionally injured L was again rejected. Nevertheless I am satisfied that although there were some scratch marks to L’s hand as evidenced by the medical practitioner and the police the incident was fully examined and the outcome was final. I do not find that there was any intentional violence shown to L on this occasion and that incident was not a primary or additional consideration that directly influenced the outcome in this hearing.
This incident served to highlight the conflicts and tensions which exist between the adults in these proceedings, most certainly between the mother and Ms L Rivers.
On 31 August 2011 the mother sought a further intervention order against Ms L Rivers but ultimately accepted various undertakings as to conduct and behaviour.
In the case management proceedings before me shortly prior to the commencement of this trial the mother had indicated in open court that she intended making another Application for a Family Violence Intervention Order against Ms L Rivers. On the first day of this hearing the mother advised the Court that she had been granted, on an ex parte basis, an order restraining Ms L Rivers from assaulting, molesting or intimidating her or from being in the vicinity of her home. The order did not extend to the children. That order is marked as exhibit “M1” in the proceedings and it is a matter which I have had proper regard to given it is a current and validly made order of the court, notwithstanding that it was made in the absence of Ms L Rivers who elected not to attend the proceedings. From what I have heard of the alleged “car tailgating” incident it was minor, of no impact upon any of the children and most likely it was an opportunity too good for the mother to ignore. I have hereafter made certain findings on this issue.
In these proceedings I was asked to order the release and publication of the two Family Reports of the Family Consultant dated 20 May and 5 December of 2011. I delivered an extempore Judgment in which I considered the circumstances of the initial application for an intervention order lodged by the mother on 30 August 2011, the hearing and adjournment thereof and the subsequent application to reinstate those proceedings and the further order then made on 15 December 2011. Without now restating those reasons I intend that they be incorporated within these Reasons and I rely upon them.
I concluded that it was appropriate and in the best interests of the children and that it may be of some importance for the presiding Magistrate to have the opportunity to have presented and to read, at their discretion, those welfare reports. To the extent that there may have been a prohibition on their release pursuant to s 121 of the Family Law Act1975 (Cth) (“the Act”) I relaxed that prohibition so that the Magistrate and the Co-Ordinator of the Magistrates Court could accept and read those reports.
In the context of the children and parenting decisions before me that Magistrates Court history is important as it highlighted the attitude and capacity of the mother and Ms L Rivers on personal, parenting and inter-family relationship disputes. It highlighted the acrimony and mistrust between each of them and is part of the foundation upon which both parties relied to persuade the Court to rebut the presumption of equal shared parental responsibility and, in place thereof, pronounce a sole parenting order. They are additional considerations within s 60CC(3) upon which I have relied.
I record that in the proceedings before me, and in respect of the facts relevant to the current interim intervention application the wife has before the local Magistrates Court in mid January 2012, she has given an assurance that the children will not be named therein as an affected family member. The future conduct and actions of the mother in that regard await further scrutiny.
BACKGROUND FACTS
The parents met in late 2000 and commenced cohabitation in or about August 2001. They married in October 2002, separated in October / November 2006 and a Decree Nisi of Dissolution of Marriage was pronounced in April 2008.
The father is 29 years of age and a technician by occupation. His disclosed salary is $529 per week and he receives government rental assistance, family tax benefits and a carer’s allowance for his youngest daughter. There is evidence before me that he suffers from dyslexia.
The father remarried his present wife, Ms L Rivers in April 2011. Ms L Rivers has an 11 year old daughter, M, from her prior marriage and that child had adopted the surname Rivers.
The mother is 30 years of age, is not engaged in outside employment and is a full-time mother and undertakes all of the domestic tasks for her new family.
The mother remarried Mr Nixon in May 2011. They have two children of their relationship, X who is almost two years of age and Q now nine months of age.
Also living in their home, which is owned by the mother’s parents and from whom they rent, is the child R, aged almost ten years who is Mr Nixon’s daughter from his prior relationship. She attends the same school as the two children of the marriage, though she is now in grade 3.
Mr Nixon is 45 years of age and he has two other adult step children, of whom he is not the biological father, aged 20 and 21 years.
The two children of the marriage attend School 1, Melbourne Suburb 2 where they are now in grades 4 and 1 respectively.
A matter of dispute in the proceedings arose out of the fact that the three children, R, E and L all attend the same primary school and therefore the parents, but more particularly the mother and Ms L Rivers are often in contact with each other at the finish of school. This has led to various incidents and the suggestion has been levelled at the mother that she enrolled R in this school only to monitor the other week activities of the father and Ms L Rivers and to keep herself more closely involved with and able to supervise E and L. I find that, most likely, there is a large measure of truth in that allegation and it is helpful to a better understanding of the mother’s attitude and approach to the matters in dispute in this hearing.
RELOCATION WITHIN AUSTRALIA
These proceedings were presented to this Court and proceeded on the basis that both parents and their new spouse and families would live in and around the Melbourne metropolitan area.
The mother raised the risk of relocation in paragraphs 64 – 67 (inclusive) of her affidavit. She asserted that the father had no family in Victoria and that his new wife’s family resides in North Queensland. That issue has been addressed by the father and Ms L Rivers and I accept their assurances that they will live for the foreseeable and ongoing future in and around the northern suburbs of Melbourne, albeit that they live in rented accommodation on a two year lease and have no firm security of tenure in their present home.
The mother’s background and early years were in Western Australia and her parents are still happily married and reside in Western Australia, as does her younger brother. The mother lived in Town 1, Western Australia until 2000 when she relocated to Melbourne and thereafter met and then married the father.
Likewise the father was born in Western Australia and his early history is deposed to both by himself and by the mother in paragraph 13 of her affidavit.
I have accepted the position of all parties that they will live in Melbourne and want their children educated at School 1 and thereafter an appropriate secondary school which, in itself, is a matter of real dispute. Their spouses have children living and being educated in and around the same Melbourne suburbs and thus the location of extended family would likely ensure that these parents and E and L remain living within the Melbourne metropolitan area.
I do emphasise that is the basis upon which this hearing has been conducted and upon which I have determined final orders in the best interests of both children.
LITIGANT IN PERSON
As the mother was self represented I endeavoured at all times to ensure procedural fairness and that she had a proper understanding of the procedures of trial and of her rights in conducting her own case. I am satisfied that she had a very substantial factual knowledge of all matters in issue. She was positive in the way she presented her submissions to the Court and asked questions of the father and his witnesses and the Family Consultant. She conducted herself appropriately in Court and at all times appeared to be informed of the factual issues that were in argument before the Court.
The decision of the Full Court in Re F: Litigants in Person Guidelines (2001) FLC ¶93-072, modified the guidelines used in proceedings where a litigant appeared without representation from what was previously said by the Full Court in Johnson v Johnson (1997) FLC ¶92-764.
Those Guidelines are explained by the Full Court to be as follows:
(a)a judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
(b)a judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
(c)a judge should explain to the litigant in person any procedures relevant to the litigation;
(d)a judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
(e)if a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considered that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
(f)a judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
(g)if a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
(h)a judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150);
(i)where the interests of justice and the circumstances of the case require it, a judge may:
§draw attention to the law applied by the court in determining issues before it;
§question witnesses;
§identify applications or submissions which ought to be put to the Court;
§suggest procedural steps that may be taken by a party;
§clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
The Full Court in Re F: Litigants in Person Guidelines, after stating that the skill set of each individual litigant in person could vary greatly, further held at paragraph 229 that:
“With these matters in mind, we think that the giving of such assistance should lie in the discretion of the trial judge and should not be required by mandatory guidelines nor should the nature of the interventions from the bench be rigidly proscribed or prescribed. The exercise of such discretion serves the goal of achieving a fair trial so that the interests of justice can be served. Therefore, the application of the guidelines must depend on the circumstances of the particular case”
The Full Court had earlier said at paragraph 225
"…we think it is necessary to appreciate that the imperative to do substantive justice as between the parties requires the conduct of the presiding judge to be assessed by a standard which is properly informed. The informed nature of that standard must, in our view, take account of the responsibility of the Court seized of the family law matter to properly understand the litigant in person's position within the litigation."
This decision in Re F: Litigants in Person Guidelines has been affirmed and followed in subsequent decision of the Full Court and in particular the Full Court in Dobbs & Brayson (No 2) (2007) FLC ¶93-354 at 82,076 upheld its applicability to Less Adversarial Trials under Division 12A:
“These guidelines were formulated in respect of trials prior to the introduction of Division 12A by the amending Act. However, we think the statements set out in the guidelines generally remain relevant and apposite to child related proceedings conducted under Division 12A. “
As I said earlier the trial was conducted in a manner designed to ensure that the mother was understanding of the process and her rights. I am satisfied that she was given procedural fairness.
OBSERVATION OF WITNESSES
I have had what I consider to be in this case the very real benefit of observing the mother and father and their witnesses in giving their evidence on oath and in observing them in the courtroom, their demeanour, behaviour and character and also when they were cross‑examined. That observation of them has been of real assistance in formulating appropriate orders. Those observations are acutely available to a trial judge and the legal authority for such a position is that part of the Judgment of Kirby J in Minagall v Ayres (1966) SASR 151 at 154 per Hogarth J; see also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at P313:
“By conventional theory, the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process. They normally provide the primary decision-maker a distinct advance which controls, and even limits, the exercise by the appellate court of its statutory functions in an appeal by way of re-hearing: see Owners of Steamship Honestroom v Owners of Steamship Sagaporack [1927] AC 37 at 47; Jones v Hyde (1989) 63 ALJR 349 at 351; 85 ALR 23 at 27; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff.”.
I have had the significant benefit of hearing all of the evidence in its entirety, of reading carefully all of the affidavits, the exhibits to the affidavits and the other exhibits in the proceedings. I have reflected upon and have weighed all parts of the individual testimony against the balance of all evidence prior to delivering these reasons for judgment. I stress that, in this case, my court observations of the parties were of real benefit and importance.
The unique role and observations of a trial Judge have been highlighted by the House of Lords, Appellate Committee, in the case of In re J (a child) (FC), judgment delivered 16 June 2005 and I refer to this opinion to support my observations in this case.
In paragraph 4 and paragraphs 10-12 (inclusive) of the Judgment of Baroness Hale of Richmond the role of the trial Judge in the evaluation of oral evidence was considered and it was there stated that:
“10. The Court of Appeal appears to have intervened on the basis, first, that the judge’s conclusion on the risk was not justified by the evidence and second, that he had given it too much weight in his overall conclusion. Yet the assessment of the risk depended entirely on the judge’s evaluation of the father’s present intentions and likely future behaviour and its impact upon the child. There was objective evidence of the risk in the fact that the father had made the allegations in writing and then withdrawn them when he saw that they were damaging rather than helping his case. Whether he might do so again depended crucially on the judge’s evaluation of his oral evidence. The judge was the only person who could do this. He concluded that, while the father was sincere in his current intention not to raise such allegations again, there was a serious risk that if disputes arose in future, as they might easily do, he would resurrect them. These were findings of credibility and primary fact with which, for all the reasons explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, at pp 1372-3, an appeal court is not entitled to interfere”.
I have recorded my observations of the parties and others and made findings on their evidence as part of my evaluation of this case.
STANDARD OF PROOF
The appropriate standard of proof that I have applied is the civil standard, namely the balance of probabilities. The more serious that the matter was, or its importance in this case, then I have more strictly examined the level of proof required. Allegations in this case were serious, and were likely to have had a profound impact upon people and these were strictly evaluated.
S.140(1) of the Evidence Act 1995 (Cth) provides that a Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. Sub-paragraph (2) further provides that, without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject – matter of the proceeding; and
(c) the gravity of the matters alleged.While Dixon J.’s classic discussion in Briginshaw’s case of the operation of the civil standard of proof does express the considerations which s.140(2) of the Evidence Act 1995 (Cth) requires a court to take into account, the correct approach, as recently observed by Branson J. (with whom French and Jacobson JJ. agreed) in Qantas Airways Ltd v. Gama (2008) 247 ALR 273, at para. 139 is that :
. . . references to, for example, “the Briginshaw standard” or “the onerous Briginshaw test” . . . have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s.140 of the Evidence Act provides.
Similarly, in Johnson & Page (2007) FLC 93-344, at 81,891, the Full Court of this Court expressly agreed with the “view that reference to the Evidence Act, rather than Briginshaw, is appropriate”.
BEST INTERESTS OF THE CHILDREN
In determining final children and parenting orders I have primarily focused upon the best interests of the children and throughout my assessment and evaluation of the evidence of the parents and other witnesses I have carefully considered the primary and additional considerations as are set out in s 60CC(2) and (3) of the Act. I have later in these Reasons for Judgment referenced each of these sub-sections and made summary findings of relevant facts thereunder. My focus however in analysing the evidence of all of the witnesses and the Family Consultants has been to establish the benefit to the children of having a meaningful relationship with their parents, to ensure their protection from all forms of abuse and family violence and otherwise to assess the attitude and capacity of parents and others and evaluate other additional considerations with the aim of pronouncing a final order that is overwhelmingly in their best interests.
MOTHER
The mother is fully engaged with the care, support and upbringing of the two children of her current marriage, the child R and, on a week about basis, E and L. She attends fulltime to their medical and schooling needs and to the upkeep of the home and her support of her new husband.
The mother’s evidence, both in her affidavit and given orally under cross examination, strongly focused upon the need for her to be awarded a sole parenting order and for the father to have only alternate weekend and holiday time with the children. The offer of mid-week time was not maintained.
The mother capably presented her case to the Court in this hearing. My findings of and observations about her are that she is somewhat an obsessive, manipulative and controlling person. Her focus was upon achieving the outcome for which she had plotted. She was particularly dismissive of Ms L Rivers and her life and role within the father’s household. She would not acknowledge any positive contribution that the father and Ms L Rivers had made to the welfare and upbringing of the children.
The mother asserted that the father had no real ability to care for the special medical needs of L and in particular made reference to various subpoenaed medical reports and files to underscore her complaint of the father’s lack of attention to medical appointments and her health concerns.
Under cross examination her various complaints to medical practitioners, the Department of Human Services and police were highlighted, though on all occasions I have failed to find any proper or sufficient evidence to justify her concerns or the concerns of others about the father and his household.
The mother’s evidence concentrated upon the unsuitability of Ms L Rivers to have any substantial care and involvement with E and L. In previous court orders there has been a requirement for the father to be present at all times to supervise Ms L Rivers’ time with these children. I have given careful attention to the mother’s substantial complaints and I conclude that she has convinced herself of the failings and lack of standards of Ms L Rivers. That is not supported by an overview of all of the evidence. I find no need for any level of supervision of Ms L Rivers.
The centrepoint of the mother’s submission is that she holds firmly to the belief that the children in the presence of the father and Ms L Rivers are now at risk from “inappropriate behaviour, but not of a sexual abuse type”. It is clear from the evidence, the notifications to the Department of Human Services and previous court hearings that the mother did develop and harbour a concern, perhaps better described as an obsession, that the father had or was capable of sexually abusing one or both of the children. She, or others on her behalf pursued that issue over several years without any proper foundation or evidence and I find, on what I have read in evidence and heard in the proceedings and all the background information considered, that there was never any basis to those allegations of inappropriate sexual behaviour. That issue was not pursued by or on behalf of the mother in these proceedings. I find that the mother was largely tactical and opportunistic in her actions.
The mother’s concerns have focused primarily on what she perceives to be manipulation of the children by the father and Ms L Rivers and the continuing risk of physical and emotional abuse to which they are exposed by living on a week about basis and at other times in the father’s home. I have elsewhere in these Reasons substantially considered her “abuse” and “risk” allegations and the various incidents where she alleged she had been targeted, most likely, by the Rivers. There is not sufficient evidence to support her allegations.
In this context I have carefully read and evaluated paragraphs 31 – 67 (inclusive) of the mother’s affidavit.
The mother has detailed various threats, abuse and inappropriate actions of the father or Ms L Rivers but, leaving aside the incident at the swimming pool on 12 November 2010, they are largely unsupported by others and not appropriately based on any proven facts.
As an example I reject the allegations made and concerns of the wife in paragraph 47 of her primary affidavit. I do not find that the children are “at immense risk of psychological abuse by the father due to his uncontrollable outbursts at the children denigrating me”. This episode related to a recorded telephone conversation, elsewhere considered in these Reasons for Judgment. Whilst the father’s words and his response was highly inappropriate and very immature its actual tone and delivery as recorded over the telephone to L was somewhat offhanded and not said in anger.
Generally I conclude that the mother has exaggerated her allegations and concerns, however that is said with the caveat that I have no doubt that the four relevant adults in these proceedings, and most likely the mother and Ms L Rivers are capable of provocative and hurtful comments and actions towards each other.
What I have carefully evaluated is all of the evidence of and related to the mother’s actions, allegations, notifications and generally her obsessions with the father’s household, more particularly since the arrival of Ms L Rivers as a member of that household. There is a very clear and documented history of continual conflict and carefully prepared and planned actions and these have had a very unsettling impact upon both households but more particularly upon the children whose lives have been substantially exposed to the conflict, bitterness and ongoing contest between their parents and households.
FATHER
The father works full-time in a retail shop. He works from approximately 11.30 a.m. – 5.30 p.m. five, and sometimes six days a week.
I accept his income and financial circumstances to be generally as disclosed in his Financial Statement and he was not cross examined upon any financial issue. The income of his household and their outgoings are also in evidence in paragraphs 184 – 189 (inclusive) of his primary affidavit. The total household income of his family is approximately $1,200 per week. He and Ms L Rivers rent their home for $430 per week and they have a two year lease. I accept that they do intend to live in and around Melbourne Suburb 4 for the foreseeable future. I most certainly accept that the Rivers family needs to be careful with its money and live within their means and pay expenses. The father received legal aid to cover his costs of these proceedings, in contrast to the mother whose legal aid application had previously been rejected and therefore she was self represented.
The father has limited reading skills, but said that he could not read a whole book. He volunteered that “I am not much good at handwriting”.
He asserted that he had taken the children to all properly scheduled medical, dental and related health appointments and there was some clear level of dispute with the mother when she had arranged unscheduled appointments during his week about time with the children. He likewise said he had attended school teacher / parent meetings and otherwise had had some discussions on a six monthly basis about his daughters with their teachers. He was however somewhat unconvincing in regard to his past involvement with the children at their school and he must become more interested and active in their schooling.
The father was adamant in his denial of any physical or sexual abuse of the children and his response in his affidavit was clear and definite and in that regard I accept his evidence.
The father is not a confident or self assured person. He is hard working and conscientious in his employment and has spent considerable time with the children. Nevertheless he must now substantially rely upon Ms L Rivers to co-ordinate and implement the children’s regime. The father has tended to occupy a more limited and somewhat background role in the children’s early education and health issues and it is time that he became more assertive and involved with their welfare and progress.
There have been occasions where the father has simply not had the necessary personal skills and understanding to fully deal with the family situations that have arisen and to counter the many allegations made against him by the mother and others. It may be that his low level response, on past occasions, has permitted the continuation of proceedings and orders that have severely impacted upon his family and household. He is not a person comfortable with litigation or the courtroom process and that is a marked difference between he and the mother.
Overall I find the father to be loving and caring of his children and of others within his household. He must certainly show a greater level of maturity and understanding of the children’s situation and continue a willingness to foster their relationship with their mother. On balance I find that he is capable of a greater level of responsive behaviour and conduct than is the mother and that is one of the additional considerations within s 60CC(3) that I have carefully contrasted and evaluated. He most certainly is very loving of the children and with the assistance of Ms L Rivers and their secure marriage would be able to properly provide for the emotional and intellectual needs of both children.
I can find no likely adverse effect upon the children were they to primarily live with their father, given the substantially shared arrangements that have existed over past years.
RISK OF ABUSE IN FATHER’S CARE
The mother’s case for a sole parenting order has been substantially based upon the risks to the children from their manipulation by the father and Ms L Rivers and what the mother alleged to be a serious risk of emotional abuse to them if they were to live with the father and more particularly Ms L Rivers. These concerns of the mother are highlighted at paragraphs 31 – 58 (inclusive) of her trial affidavit and the accompanying annexures which I have carefully read and evaluated.
The mother’s evidence must first be understood in that she said she is very positive of the father and his relationship with the children. Her evidence under cross examination was that “the girls adore him … they run to him … they love him but not [Ms L Rivers]”. She continued and said that “he is a good father”. She added that he “takes the children out … he spends money on them … he can be good with the girls ….” That is evidence supportive of the father’s parental role.
The mother had a very different attitude to and a high level of criticism of Ms L Rivers. She alleged that the father “is highly led by [Ms L Rivers’] influence and he follows her guidance”.
Of recent times the mother has detailed very specific episodes of alleged abuse perpetrated upon her, predominantly she would assert, by Ms L Rivers and the examples upon which she was cross examined could either lend support to her stringent criticisms of the father’s new wife or otherwise show her to be a highly calculating, manipulative and scheming person preoccupied with obtaining a court outcome in her favour at any personal and emotional cost to others, including the children.
In paragraph 48 of the mother’s affidavit she highlighted an incident which occurred on about 20 August 2011 where the words ‘bitch” were painted on her house and six days thereafter the words “die dad haters” were texta coloured on the front panel of her motor vehicle. She alleged other and continuing verbal abuse from Ms L Rivers.
The mother had no actual knowledge or proof of the person(s) who defaced her house and motor vehicle with these provocative and hateful words but she strongly asserted it was most likely from the father’s household and more particularly Ms L Rivers. Significantly that is very different from her evidence to Magistrate Bakos. The police were involved, photographs were taken but ultimately no charges have been laid. I was left unsure if the police investigations are continuing. The police officer from the Melbourne Suburb 3 was on holidays and, notwithstanding my requests of the Independent Children’s Lawyer to urgently investigate this matter, the police file, evidence and photographs could not be located.
Surprisingly the mother and Mr Nixon could not locate any photographs that she asserted they had taken of the offensive language. I accept however that it is likely that the police were called, there most likely is a pending investigation and photographs were taken of the mother’s house and motor vehicle. Significantly there was no cross examination of the mother or Mr Nixon upon these events or upon the mother’s claim that the cost of cleaning the texta colour from the front of her motor vehicle was $280.
As the evidence stood at the conclusion of the hearing I was unable to make positive findings as to what person(s) was responsible though I was certainly strongly inclined to the position that it was not the Rivers. That position was strongly re-enforced by the mother’s evidence in the Magistrates Court criminal proceedings against Ms L Rivers where the judgment played to the Court identified in those proceedings that the mother had denied ever accusing either the father or Ms L Rivers of being responsible for any damage to her motor vehicle on that day. That admission is a significant matter and it was not challenged by the mother in these proceedings. I am unable to make a finding that the mother, or others on her behalf, damaged her own motor vehicle, and also her home but that remains an open situation which adds to the level of intrigue and tension in this case.
A second and in many ways a far more concerning incident related to postings on Facebook. Again the evidence was somewhat confusing though the father and Ms L Rivers have wholly denied their involvement. The mother’s affidavit detailed these issues and surrounding facts in paragraphs 57 and 58 of her affidavit and annexures “LN14” and “LN15”.
I am troubled by this event and conduct in that the mother was exposed on Facebook and described as a liar, manipulator, dad hater, child neglecter, child abuser and stalker. Accompanying those very serious allegations were her disclosed address and current mobile telephone number and a cross reference to her business interests. The mother’s photograph was displayed on that Facebook page.
The intrigue is perhaps further heightened by the fact that the mother has in evidence a Facebook page of Ms L Rivers and her Facebook contact address itself raised many questions in the context of this abuse and provocative conduct which is in evidence in these proceedings. That Facebook address (nickname) of Ms L Rivers is, somewhat surprisingly –
>
The similarity to the Facebook name of the site exhibited in “LN15” is obvious but not conclusive.
The mother asserted or implied that Ms L Rivers has both stalked and abused her and has gone public by creating the particular Facebook page and posted abusive and unproved allegations about her and disclosed to the world where she can be located.
The concern of the mother was further heightened in that it took her approximately three or four weeks of daily reporting to have this highly offensive Facebook site removed.
The mother was cross examined by Counsel for both the father and the Independent Children’s Lawyer with the focus of establishing that she created that Facebook page and lodged the entries thereon. By reference to other Facebook searches and entries, tendered as exhibit “ICL1” there was an endeavour to establish the mother’s involvement but I find that was unsuccessful and no outcome was proved under this line of cross examination.
Of significance was the cross reference to paragraph 4 of the affidavit of Ms H, filed by the mother in support of her orders sought where the deponent said:
“I consider the mother to be a highly intelligent and organized woman, in past years she established a parenting website supporting other mothers called […] which she later handed the management on to another person”.
The mother sought to limit the extent of her own computer and website skills and said that she had not established the website but had loaded and managed the program which required only limited computer and technology skills.
I am substantially inclined to the view that the mother has taught herself considerable typing, computer and technology skills but that does not enable me to find to any proper standard of probability that the mother did actually create the Facebook page and put herself and family in some level of danger with the posting of her residential address and telephone number thereon.
Again I express (as I did in the hearing) a level of some surprise that, given the prior disclosure of this Facebook page and the significant allegations involved therewith that there had not been proper and timely inquiries made, including a court subpoena or at least written requests to the website controller to disclose information such as the date of establishment of the site and any personal or identifying information of and related thereto.
I have balanced the evidence and my concerns against the fact that Ms L Rivers is also an active user of internet blog sites and of Facebook and has her own Facebook page and her blogger name “[…]” and her Facebook nickname. I do record the very forceful denials of Ms L Rivers to having established or in any way whatsoever been involved with this Facebook site and the entering of the mother’s personal details thereon. On a balancing of all of the evidence I accept her denials. Likewise and to the extent that the mother sought to develop the theory that it would have been one of Ms Rivers’ extended family members who was responsible, I reject that outcome.
The father’s case was conducted on the basis of suggesting or inferring that the mother was responsible for the defacing of the home and motor vehicle. That was denied by the mother. There is no proper evidence upon which I could conclude that she, or a person on her behalf, was responsible for those actions. I do accept that Mr Nixon was not involved. I was inclined to the view that the mother most likely was involved in some way but, on the stricter level of probability I am unable to make that finding and it is not a matter which I have balanced against the mother in determining the final orders that I have pronounced. I however record my high level of suspicion and I still do not understand why the mother herself did not photograph the offending words and damage and retain that evidence for the various courts where the incidents have subsequently been raised.
Aside from the defacing of the home and motor vehicle and further aside from the Facebook postings there are numerous other references in evidence as to where the mother alleged that Ms L Rivers has stalked or abused her and other issues of road rage. I do not find that such further incidents have occurred.
The very essence of the mother’s case is that E and L are at a real risk of emotion, physical and psychological harm being done to them by Ms L Rivers due to her overwhelming and uncontrolled abuse, harassment and erratic behaviour that she has continually displayed towards the mother. All of those allegations are very strongly denied by Ms L Rivers. I have read and carefully evaluated the mother’s evidence in paragraphs 51, 52, 53 and 54 of her affidavit, balanced against the responses thereto by the father and Ms L Rivers.
There were further incidents of harassment alleged including the mother asserting that in recent days she had been “tail gated” by Ms L Rivers at a time when the mother had R and Q in her car and Ms L Rivers had M, E and L in her car.
The mother alleged that a vision of the incident was recorded on her Nokia mobile phone and that she had been to the police who, on an enlarged version of the video could identify a red car and its number plate. That video was shown to Counsel out of Court on the first hearing day.
I was advised by Counsel without objection that the video was inconclusive, that there was no proper identification of any motor vehicle or its number plate and thus the video was not tendered in evidence and I have not had the opportunity to view same.
It is important to understand that this “tail gating” episode, to which I have earlier made reference, was the trigger for the mother to approach the local Magistrates Court and obtain, ex parte, an interim Family Violence Order against Ms L Rivers which is to continue until the further hearing date in mid January 2012.
The mother cross examined Ms L Rivers on this alleged incident and she wholly denied and explained the events of the afternoon which occurred after they had each collected children from primary school. Ms L Rivers has been clearly distressed by the many incidents and complaints of and made by the mother and that was very apparent from her demeanour in giving evidence. On this issue I am inclined to the belief that the mother slowed or stopped her motor vehicle in a right turn lane and waited so that Ms L Rivers’ car would be behind hers when they were each stationary and waiting to execute that turn.
The circumstances of the making, or the extension, of the interim family intervention order against Ms L Rivers, if correct, are somewhat concerning. Ms L Rivers explained that she could not take further time off work at the risk of losing her employment. She attended at the local Magistrates Court on the day prior to the hearing on 15 December 2011 and indeed her attendance was on the day that the mother had forewarned her in my Court that such an application was forthcoming. Ms L Rivers’ evidence was that there was little or no information offered to her at the local court, that the process was largely an initial paperwork entry and then a hearing if and when time permitted.
Those events may or may not be a fair and accurate description of the procedure in a very busy local court and they are not intended as any form of criticism but the outcome was a continuing interim order made on facts that are strongly disputed and open to a great level of suspicion and tactical manoeuvring.
Put simply the mother’s evidence on this tail gating issue, or the resulting interim intervention order, has played no part whatsoever in my determination of final orders that are in the best interests of the children.
LACK OF COMMUNICATION BETWEEN PARTIES
Both the mother and father and each of their new spouses have highlighted in their affidavits and viva voce evidence their inability to talk to or communicate with each other.
The father gave oral evidence that the parties raised issues only in the communication book which for the mother was in her handwriting and for the father was largely typed entries cut and pasted by Ms L Rivers. There have been no meaningful discussions between the parents for years. Both parents emphasised that they do not talk to the other party or their spouse. There is no communication by text message or by email. There has been, predominantly from the mother, an effort to involve the children in discussions and for the purposes of obtaining information about the other. That has had an adverse impact upon the children who are now very careful of what they say and how they respond to issues raised by their parents of and concerning the other household. The children should never have been put in such a position but neither of these parents have any proper or thoughtful understanding of the pressure, tension and difficult circumstances in which they have placed them.
Mr Nixon gave evidence that he had spoken to the father only two or three occasions over the past few years. Likewise Ms L Rivers has not had the need or occasion to speak directly to the mother or Mr Nixon on any issue of or concerning the children. What was most apparent was the hostile relationship between Ms L Rivers and the mother. They do not talk and clearly have no time or respect, one for the other. Most likely they will never make any reasonable endeavour to co-operate with the other on children’s matters. That has all contributed to a toxic adult relationships which the children must be acutely aware of and under the pressure of which they must live their lives.
I have concluded that the refusal of the parties to communicate and the very hostile attitude of the respective households towards each other, and I see no future improvement on this issue, is one of the primary reasons why I have determined that it is proper to accept the primary position sought by both parents and to find that a sole parenting order is appropriate and for the presumption of equal shared parental responsibility to be properly rebutted.
CREDIT FINDINGS
Throughout these Reasons for Judgment I have made findings upon the evidence of the parties and the various witnesses and as to certain events that have, or have been alleged to have occurred.
Generally I prefer the evidence of the father and Ms L Rivers as against the evidence of the mother.
The mother is somewhat obsessive in her conduct of the proceedings, the complaints and allegations made and her recording and documenting of same and her focus is as much upon hurting or destabilising the life of Ms L Rivers as it is upon having the children live with or spend more time with her.
Save where I otherwise have made specific findings I therefore have generally preferred the evidence of the Rivers household and I have only accepted the mother’s evidence on disputed matters where it has been corroborated. That said I have however accepted much, but not all, of the evidence of Mr Nixon.
E
E is described by her father as a very happy and social child. He said she enjoys good health, is progressing very well at her school where she is settled and has very strong friendship groups.
Somewhat in contrast the mother says in paragraph 109 of her affidavit that E has been exhibiting concerning behaviour as a result of spending time in her father’s care. She asserted that she has recently been misbehaving at Girl Guides and has displayed anger conduct and tested the boundaries of good behaviour. There were a few examples of bad and unexplained conduct identified in the hearing but I have drawn no specific adverse finding therefrom.
The mother acknowledged that E enjoyed good health albeit with a slight intolerance to oranges. She takes no prescribed medication.
In her first and detailed Family Report of May 2011 the Family Counsellor reported and I have placed weight upon her observations that:
“[E] presented as a thoughtful, fair and wary girl. According to her parents she has met all her developmental milestones within the normal framework. [E] was observed as quite reticent during the interview, she found it difficult to make eye contact and answered “I am not sure” to inquiries about each of her parents and [Ms L Rivers]. [E] did say what she liked about her father and [Ms L Rivers] was that “they take me out places” and “I miss [Ms L Rivers] it is not fair when we can’t see her”. [E’s] family drawing was very detailed, she spent quite some time on it. She drew [Ms L Rivers] and her father first and second and with significant detail and colours, then [M], [E], [L] and then her mother and her family. [E], consistent with her presentation in the previous Family Report has a very inclusive view of her family and the individuals that make up this entity”.
I have not had regard to the wishes of the children given that they are not of an appropriate age or level of maturity.
Throughout my Reasons for Judgment I have carefully reflected upon the nature of the relationship which the children each share with all relevant adults. Individually they have a close and loving relationship with their parents and I have no evidence of any conflict or difficulty as between the children and Ms L Rivers or Mr Nixon. However I find that they are more likely to enjoy a normal family life in the home of their father and I am mindful of the observations and findings of the Family Consultant which I have accepted.
I conclude that the father and Ms L Rivers are substantially more able and willing to facilitate the children’s relationship with their mother than that which would occur on the reverse scenario. I do not accept that the mother would promote any proper relationship between the children and Ms L Rivers and thus that would adversely impact upon their relationship with their father. This has been an important factor in my pronouncement of final orders.
I do have a very considerable issue with the attitude of the mother as a parent and with her capacity to parent the children throughout their junior and teenage years. I have found that her actions towards the father with the earlier notification or false accusations and more lately those various allegations made against Ms L Rivers have distracted her from a primary role as homemaker and parent to the children. Her attitude has been to criticise or detract from the other household rather than promote her own parental and motherly skills. That is unfortunate but I find it is deeply engrained within the mother’s emotional and psychological persona. She will not likely change, particularly given that she is so well acquainted with the court system and, if not restrained, has the ability to file complaints, appear for herself at Court hearings and well argue her cause.
I do not suggest that the mother is not a good housekeeper and there are no current complaints about her care and upbringing of her younger children, from her marriage to Mr Nixon. I would well expect that Mr Nixon would require a clean and liveable household and a significant level of care and devotion by the mother to X and Q. The reality is, from some of the references in the earlier Department of Human Services Report, that I hold some background concerns about the mother’s likely performance under emotional stress and difficult lifestyle circumstances. She needs, and so far she has had, the support and companionship of Mr Nixon.
I have throughout these Reasons for Judgment addressed the various issues of family violence as were alleged, inclusive of sub-paragraphs (j) and (k) which are additional considerations in determining the best interests of the children. I have had regard to s 60CG and have carefully considered and balanced the risk of family violence.
I am hopeful that my final parenting and children’s orders should lessen the frequency of Court proceedings, though the reality is the mother will be ever vigilant as to the parenting capabilities and behavioural issues of Ms L Rivers.
What I have strongly concluded was that the time was now right for a change from previous negotiated Court outcomes. Shared parental responsibility was wholly inappropriate for these children. Perhaps the family did need a defended hearing where they could each present their case and cross examine other witnesses, but now that that has occurred it is time for both households to be accepting of this final decision and endeavour to place past conflict behind them and concentrate on the future of the children.
Finally I have had regard to the other facts and circumstances that curiously were part of the evidence in this case. Whilst there may have been insufficient evidence to conclude findings on an appropriate balance of probabilities I have earlier discussed my concerns upon the Facebook issue, the comments written upon the house and motor vehicle and other unexplained events where I found that the father or Ms L Rivers were almost certainly not involved.
SPEND TIME ARRANGEMENTS
It was ultimately a matter of agreement between all parties that the parent with whom the children do not live should spend time with them each alternate school week from after school on the Thursday until the commencement of school on the following Monday morning, or if that day is a public holiday or school curriculum day then until the Tuesday. Such a period of time is the specific recommendation of the Family Consultant and, whilst not initially sought by the parents it is now a matter of agreement. I find that timetable to be in the best interests of the children and I have so ordered.
There was general agreement as to a sharing of school holidays, with the mother to have the second half of school holidays during each of the first, second and third school terms and I have so ordered.
The December / January school holidays were a matter of agreement. The father does not celebrate Christmas Day, rather the morning of Christmas Eve and thus by agreement the children will be with the mother in each and every year from 4.00 p.m. Christmas Eve until 7.00 p.m. 14 January of the following year. The father will then enjoy his uninterrupted holiday period from their return to him on 14 January until the commencement of the school year.
I have made orders for a sharing of significant days, primarily birthdays and the mother will have the children on Mother’s Day and likewise the father will have the children on Father’s Day. All up therefore the mother’s time spent with the children is both substantial and significant though that outcome was not a required consideration of the Court given that I have not ordered an equal shared parental outcome.
It is appropriate that both parents attend all formal school parent / teacher interviews and special school occasions such as concerts, major sporting events and the like and, with this direction to the parents, this is a matter that they should be capable of arranging.
I have decided against any award of mid-week school time to the mother in the other week, that is when she does not have the Thursday evening and Friday periods with the children. Further time in this other week would be disruptive to the children and would likely ensure continuing parental conflict.
All changeovers which do not occur at the children’s school should continue to occur at the McDonalds Family Store, Melbourne Suburb 1 unless otherwise varied with the consent of the parents. It is appropriate that there be some flexibility associated with these changeovers and therefore either of the parents or their new spouses or an adult person known to the children may collect and return them on all occasions.
FUTURE SECONDARY SCHOOLING
The children presently attend a Catholic primary school. The parents have not and will not agree on a secondary school for the children to attend and for E this will be a relevant issue in the 2014 school year.
The mother’s evidence on religion and the Catholic upbringing is highlighted in paragraphs 105 1- 108 (inclusive) of her affidavit. Her evidence is that her family is very religious and that she has had a committed and religious upbringing. Mr Nixon was a baptised Catholic and supports the children in their Catholic faith and the mother is currently undertaking religious education with the aim of being confirmed and participating within holy communion within the Catholic Church.
There has been a significant issue of recent times about the baptism of the children and only after much conflict and indecision, and an Order of the Court, were they able to be baptised. Given that they are attending a Catholic primary school that may have been a matter of some importance to them. Indeed at the baptism the father elected not to attend when the parents could not agree on who would be the children’s Godparents. Further there was a disagreement over the registration of the father’s name on the baptism certificate and his response to that issue and the action he sought was identified in exhibit “M4”.
The father’s explanation, which was somewhat unsatisfactory, was that if he was not to be at the baptism then he wanted to ensure that Mr Nixon’s name was not placed on the certificate as father and he otherwise preferred it to be left blank. I did find his position to be very difficult to comprehend and for the children, with no father named on the certificate which they will likely see on many future occasions, then the decision is somewhat incomprehensible and showing poor judgment.
The mother’s discussion on future secondary education is detailed in paragraph 95 of her affidavit. Her preferences are either School 1 or School 2. Private schools or Catholic secondary schools are not an option because of the yearly fees.
The father’s choice is Melbourne Suburb 4 High School and likewise his family is not able to afford a private or Catholic education.
There is no issue that both children will receive a very good education at a Government secondary school. That is a very proper outcome but the children need the support and encouragement of both households and a total acceptance and commitment to the school in which they are enrolled and attend.
The choice of the future secondary school is a matter to be determined by the parent with sole parental responsibility. What the children need is a sole decision maker and certainty on their future secondary education and, the sooner the decision is made and enrolment is activated then the children, particularly E, have time to know and accept of their future school.
SURNAME
The children have always been known by the surname Rivers. That is their registered birth name. The father desired to maintain that name and will not discuss or accept any compromise or hyphenated name. The mother has asked the Court to order that the children be known under the surname of Condon-Rivers.
The father’s new wife has taken the name of Rivers and her daughter is now known by that surname. The mother has adopted the surname of Condon-Nixon and her two children of her recent marriage are known by that surname. R has retained her surname of Keith.
Given that I have pronounced a sole parenting order it is strongly in the best interests of E and L that they carry the surname of the parent with whom they will hereafter live. They need a certainty and continuity of surname. That outcome is clearly in their best interests and it is what I will order.
I record that, in paragraph 24 of the final consent orders pronounced 12 May 2010 there was then made an order that the children be and remain enrolled in school under the surname Rivers and that the parents use that surname only for the children at all times. That situation should continue.
I have therefore ordered that E and L be known under the surname of Rivers and use that name for all purposes.
TELEPHONE CONTACT
By paragraph 12 of the initial consent orders pronounced 31 March 2008 the parents were each required to facilitate the children taking a call from the other parent on Monday at 7.00 p.m., at the shared expense of the parties and otherwise they were to facilitate the children communicating with the other parent at all reasonable times as requested by the children. That order was subsequently discharged by consent but nevertheless the parents were ordered to keep each other advised of their current residential address and telephone number (in paragraph 21 of the Orders dated 12 May 2010).
The current telephone contact order is to be found in paragraph 11 of the final parenting orders pronounced by consent on 12 May 2010 and that order provides for the children to have telephone communication with the non-residential parent at 7.00 p.m. each Tuesday and the parents were required to ensure the children have privacy for the call. The residential parent was responsible for the children placing the call.
The children are of an age where they can meaningfully talk to their parents on the telephone and that is a valuable means of further communication for the children provided it is not corrupted by the parents’ actions, or the actions of other adults.
I have evidence of one particular telephone conversation before me where the call was recorded by the mother and where the father displayed an extremely casual attitude and level of interest to the children and their questions. I do understand that the father’s input was sought to be explained by the then circumstances, the stress and conflict between the parents and his lack of telephone discussion skills. Nevertheless there were issues on that occasion and the parents must ensure that there are no further issues and conflict over the facilitation of telephone calls.
Nevertheless it is important that there be a structured regime of telephone calls and I have ordered accordingly.
There is no agreement as to the day of the week and the regularity of future telephone calls. The mother proposes one call only on a Monday evening at 7.00 p.m. The Independent Children’s Lawyer proposed that there be a telephone call to the father’s landline placed by the mother on each Tuesday and Thursday at 7.00 p.m. The father proposed that the mother telephone the children at his residence on each Wednesday and Sunday between 7.00 p.m. and 7.30 p.m.
All parties agreed that there must be privacy provided to the children, that no parent should record or interfere in the telephone call and that ideally it should be made to a landline.
The issues that I have considered as to the day of any telephone call(s) include the children’s swimming lessons and other extracurricular activities and the appropriate day of the week.
I have concluded that Sunday and Wednesday between the hours of 7.00 p.m. and 7.30 p.m. are most appropriate and I will so order. I have further ordered privacy for the children and their telephone conversations must never be recorded or transcribed.
INJUNCTIONS
I conclude that it is necessary for there to be ongoing restraints upon each of the parents, their servants and agents so as to endeavour to regulate a level of proper and respectful behaviour.
No party is to physically discipline the children or allow their spouse or others to behave in such manner.
I have made orders to restrain each party and their servants and agents from abusing, insulting, belittling or otherwise denigrating any member of the other household and particularly from discussing these proceedings with the children or in their presence or allowing any other person so to do.
I conclude that these injunctions are absolutely necessary in this case and all relevant adults must understand the real potential to do harm and damage to the children by continuing the conflict between the households and allowing the children to observe, hear or be involved in any ongoing dispute.
Realistically I well understand that my strong words and findings in this Judgment may not bring about an improved level of behaviour and conduct by all relevant adults but hopefully they have the capacity as a parent or other spouse and the appropriate attitude to reflect on their behaviour and conduct over recent years and now act with the welfare and best interests of the children in mind rather than any personal and wholly misguided vendetta against others.
The Independent Children’s Lawyer had sought an order that, in the event that either parent had any concerns about the children being at risk in the home of the other parent they would be required to first voice their concerns with the other household before presenting the children to any medical or law enforcement professional. I do not propose to pronounce any such order but I take this opportunity to encourage the parties to discuss any issue of concern with the other household in an organised and structured manner and without emotion or heated argument. Again that perhaps is optimistic but it is a procedure that would be in the best interests of the children.
A further order sought by the Independent Children’s Lawyer in paragraph 8(a) of their orders sought was to enrol the children in a post separation program at a Family Mediation Centre. I have considered this request but I will not make such an order as it is somewhat impractical given the time and travel distance involved from the respective households and I was not asked by either parent to consider this outcome. Finally this was not a matter urged upon the Court in the final address of Counsel for the children.
The final like order sought by the Independent Children’s Lawyer was identified in paragraph 10 of their orders sought and that was for any dispute as to issues of education, health or any other parenting matter to be referred to mediation prior to any application being made to a Court. Again that may be a very sensible scenario, on the facts of this case, I will not require either of these households to first commit themselves to a structure of mediation. I have determined to limit applications to this Court by granting the father the order sought in paragraph 18 of his orders, as I have hereafter discussed.
COMMUNICATION BOOK
Past Court orders have required the parties correspond and pass on information via a communication book. That has worked well and in reality is the only viable means of communication between these households. The mother has managed to collect all of the past books and some of their pages have been used in evidence in these proceedings.
I am asked by both parties to maintain an order for a communication book and this I will do.
MEDICAL PRACTITIONERS
Both children, particularly L have used the same general practitioner and specialist doctors where required and that should continue. Their medical records have been subpoenaed to Court and the extent of the involvement of these doctors with each of the children is apparent and should continue.
I will require the sole parent to maintain the current medical services for the children. The other parent has no entitlement to make any regular medical appointment and must not change practitioners, save in an emergency. I emphasise therefore that it is the responsibility of the father’s household to make all appropriate general practitioner, paediatric and speech therapy appointments as required and, save for a genuine reason both children are to attend the general practice of the W Medical Centre.
FURTHER APPLICATIONS
In paragraph 18 of his orders sought the father requested the Court place a restraint upon the mother filing further Applications in relation to parenting matters without the leave of the Court having been first obtained. I am acutely aware of the litigious history of these proceedings, the number of Applications issued in various courts by the mother and her attitude towards and fixation upon Ms L Rivers. I carefully balance all of those issues, and my general observations of the parties in this trial with the right of a parent to genuinely and appropriately seek orders that are justified and in the best interests of the children.
On balance a level of finality of court proceedings would be a substantial benefit for the children. I have therefore determined to require the mother, before any further Application is filed on parenting or ancillary issues in this Court or the Federal Magistrates Court to first obtain the leave of a Registrar which would only be given for genuine or urgent reasons and upon proper material filed. This order is in the best interests of the children and if a genuinely urgent situation arises and is explained to the Court leave can be obtained in proper circumstances. I emphasise that I was not asked to find that the mother is a vexatious litigant and I have not made any such order.
On balance it is unnecessary to extend this restraint to the father as I have assessed that it is unlikely he will file any further Application in the immediate future, save for enforcement issues if and when they may arise.
CONCLUSION
In conclusion therefore it is very strongly in the best interests of the children that a final sole parenting order be pronounced and that the children live with their father and spend time and communicate as structured with their mother.
COSTS
I would intend to make no orders as to costs. The mother was self represented and both the father and the Independent Children’s Lawyer were legally aided. This hearing was required to achieve final and workable orders and a better outcome for the extended family. It would not be just to make any costs orders.
I certify that the preceding Three Hundred and Forty Four
(344) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 16 January 2012
Associate: ……………………………………………………………
Date: …………………………………………………………………
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Costs
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Procedural Fairness
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Remedies
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