Cousins and Peake

[2018] FamCA 671

FAMILY COURT OF AUSTRALIA

COUSINS & PEAKE [2018] FamCA 671

FAMILY LAW – CHILDREN – Orders – Contravention – Injunction against either parent changing schools of the children without the other’s consent – Equal shared parental responsibility – Mother found to have contravened order – Other incompetent charges dismissed – Consequences of contravention – Post separation parenting program – Injunction restraining mother from denigrating father to school or other such organisation – Looming controversy over arrangements for the children – Variation of interim parenting order – Father to have sole parental responsibility for education for period of mother’s absence from Australia.

Family Law Act 1975 (Cth)

APPLICANT: Mr Cousins

RESPONDENT: Ms Peake

FILE NUMBER: MLC 4941 of 2014

DATE DELIVERED: 31 July 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 31 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT

(1)The applicant father have leave to amend his Contravention Application filed 9 May 2018 by the addition to it of copies of the following orders:-

a)      the Order made on 13 October 2015 (“the Primary Order”);

b)      the Order made on 26 June 2014 (“the Order of June 2014”);

c)      the Order made on 10 November 2017 (“the November 2017 Order”).

(2)The pages of allegations contained in the father’s application which have been photocopied and to which has been added the orders alleged to have been contravened be referred to as Counts 1 to 11 in accordance with Exhibit “C1”.

(3)Counts 4 to 11 inclusive of the father’s contravention application be and are hereby dismissed.

(4)Count 2 of the contravention application be and is hereby dismissed NOTING THAT this Order does not in any way prejudice the entitlement of the father to seek that the monies paid by him to P School be treated as a non-agency payment in relation to the father’s liability for periodic child support in respect of the children X born … 2008 and Y born … 2010 (“the children”).

(5)Count 3 of the contravention application be and is hereby dismissed, it not being an order in respect of which contravention can be alleged using this procedure.

(6)As to Count 1 of the contravention application, I find that the mother has contravened paragraph 16(b) of the Primary Order in that she did without reasonable excuse:-

a)      in April 2016 the mother did change the children’s school from P School, E Town to S School, E Town;

b)      in October 2016 the mother did change the children’s school from S School, E Town to Suburb K Primary School;

– without the written consent of the father.

(7)Pursuant to s 70 NEB (1) (a) (i) by way of penalty for the mother’s contravention of the Primary Order the mother attend a post-separation parenting program at an advanced level and be in a position to prove compliance with this Order.

(8)The mother be and is hereby restrained by injunction from writing or in any way communicating with the Proper Officer of any school, organisation or activity in which the children X born … 2008 and Y born … 2010 are, or have been enrolled, in terms which are denigrating, belittling or insulting of the father or any member of the father’s household.

(9)This Order be sent by a Registrar of this Court to the Proper Officer of the following schools;

a.      P School, E Town;

b.      S School, E Town;

c.      The children’s current school, Suburb K Primary School.

(10)IT IS REQUESTED that the Proper Officer of each of the schools referred to in the preceding paragraph of this Order peruse the files of the children and remove therefrom communications which in the view of the Proper Officer are denigrating, belittling or insulting of the father and place same in a sealed envelope or, alternatively, redact the offensive comments.

(11)The mother’s application to make an oral application against the father in the same terms as the non-denigration order contained herein be and is hereby dismissed NOTING THAT this does not prejudice the mother from making an application in proper form.

(12)For the period of the mother’s absence from Australia, being 16 August 2018 to 16 September 2018, the children live with the father.

(13)During the period of the children’s residence with the father (16 August 2018 to  16 September 2018), the father be solely responsible for matters concerning the children’s education inclusive of what school they attend and whether they should attend school each day or complete work at home.

(14)Within 7 days the mother re-schedule or postpone such medical, orthodontic appointments for the children (or either of them) which fall during the period of her absence from Australia and which the medical or like practitioners concerned have not objected to being postponed.

(15)Within 7 days the mother provide to the father a schedule of medical appointments, orthodontic appointments and like appointments which the children, or either of them, have during the period of her absence from Australia (16 August to 16 September 2018) and which the doctor or like professional says cannot be re-scheduled until the mother is in Australia.

(16)Within 7 days of compliance by the mother with paragraph 15 of this Order, the father respond in writing to the mother informing her of what non-movable appointments he is able to keep and what appointments he is not able to keep. 

(17)Pursuant to section 11F of the Family Law Act 1975 the parties to the proceedings attend an appointment/series of appointments with a family consultant of this Registry of the Court:-

a)      The father is to attend at Level 5 of this Registry of the Court at 9.00 am on 26 September 2018;

b)      The mother attend at 11.00 am on 26 September 2018;

c)      The sequence and organisation of interviews is a matter within the sole discretion of the Family Consultant;

d)      The Family Consultant may appoint further interviews for the parties and the children; and

e)      It is requested that the Family Consultant prepare a Children and Parents Issues Assessment in writing and that it be made available to the parties, their practitioners and the Court by not later 12 October 2018 and that such assessment include:-

i)any recommendations for care of the children during future absences of the mother from Australia;

ii)what parenting program the mother should attend pursuant to s 70NEB(1)(a)(i);

iii)how the children can be protected from the impact of high parental conflict; and

iv)any recommendations for a variation to current parenting arrangements.

(18)The Family Consultant be available be required for cross-examination on the adjourned date and the parties be in a position to cross-examine the family consultant at 10.00 am.

(19)For the avoidance of doubt the family consultant, Ms H, be and is hereby authorised to have reference to:-

a)      all documents filed in these proceedings;

b)      any documents produced on subpoenae and released for inspection by all parties;

c)      any documents provided to him by the independent children’s lawyer who will give notice to the other parties to the proceedings of what documents are so provided;

d)      any documents or things referred to in this Order.

(20)The parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any Single Expert engaged for the purpose of this proceeding, or permitting any other person to do so, without first obtaining leave of the Court. This injunction will remain in full force and effect following completion of the proceedings.

(21)That pursuant to Section 68L(2) of the Family Law Act 1975 the children X born … 2008 and Y born … 2010 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

(22)That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

(23)That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

(24)IT IS FURTHER REQUESTED that the family consultant who conducts the s 11F assessment facilitate a meeting between the independent children’s lawyer and the children at the time of the assessment.

(25)The mother be in a position to inform the family consultant at the time of the s 11F assessment and the independent children’s lawyer when she is asked as to the parenting program in which she proposes to participate in pursuant to paragraph 7 of this Order.

(26)The father’s contravention application filed 9 May 2018 be and is hereby otherwise dismissed.

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

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

(29)That all extant applications be adjourned to 26 November 2018 before me in a Judicial Duty List at 10.00 am (“the adjourned date”).

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

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4941 of 2014

Mr Cousins

Applicant

And

Ms Peake

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me as the father’s contravention application, filed 9 May 2018, and was originally before the Court on 6 June 2018.  On that day, it is not clear what happened to it, because it is not recorded in the Court file that came to me this morning.  This matter has three box files of seven volumes. Very evidently, the family has a long history of parenting proceedings in the Federal Circuit Court including a final determination effected by consent orders made in the course of a defended hearing, and various determinations of contraventions applications and appeals from decisions. There also appears to be significant history of intervention order proceedings in the Magistrates’ Court.

2. The father’s contravention application relates to an Order made 13 October 2015 by Judge Bender (“the primary order”) but is returnable in this Court because other extant proceedings have recently been transferred to this Court for final determination. The extant proceedings, which are now awaiting allocation to a judicial docket, include the mother’s application to relocate the children X (10 years old) and Y (8 years old) to the United States. The mother has applied for the final those proceedings to be expedited.

3. Both parties are self-represented. Without the filter of legal representation, the conflict between the parents is as palpable face to face as it appears in documents.

4. The father alleges that in 11 counts, the mother has contravened parenting orders without reasonable excuse.  There were a number of technical defects in the father’s application. He had not attached the relevant orders and he had not specified, charge by charge, which orders he alleged were contravened. The matter was stood down whilst he remedied those defects. The mother was not prejudiced. Ultimately, the relevant charges were set out in a document which was Exhibit “C2”.

5. I heard and determined the contravention application and then turned to the outstanding issues.  These reasons deal with the contravention and then with the consequences of the contravention. The balance of the hearing was taken up with outstanding pressing parenting matters in respect of which I made orders without delivering reasons.  These are my reasons for my determination on parenting issues including the evidence on which the reasons are based.

The law

1. Division 13A of part VII of the Family Law Act 1975 (Cth) (“the Act”) relates to contravention of orders made under the Act.

2. Pursuant to section 70NAC of the Act, a person is taken, for the purposes of this division, to have contravened an order under this Act affecting children if – and only if - the person is bound by the order that he or she has intentionally failed to comply with order, or made no reasonable attempt to comply with the order or, otherwise, he or she has intentionally prevented compliance with the order, by a person who is bound by it, or has aided or abetted a contravention of an order, by a person who is bound by it.

3. Section 70NAE of the Act provides that a person may be taken to have had a reasonable excuse for contravening an order.

4. A reasonable excuse in the terms of the legislation is set out in section 70NAE(7) which provides that person is taken to have a reasonable excuse for contravening a parenting order which allocates parental responsibility for a child if the person believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person, (including the respondent or the child) and in the period during which, because of the action, a person in whose favour the order for parental responsibility was made was hindered or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health of safety of the person whose health or safety is said to have required protection.

5. The circumstances specified in s 70NAE, in which a person is taken to have had a reasonable excuse for contravening an order, are not exhaustive.

Onus of proof

1. The applicant father has the onus of proving that the order was contravened. The respondent mother has the onus of proving that she had a reasonable excuse as and when she asserts the same.

Standard of Proof

1. Subject to s70NAF(3)[1], s70NAF provides that the standard of proof to be applied in determining matters in proceedings, including whether the respondent has a reasonable excuse within the meaning of s70NAE, is proof on a balance of probabilities.

   [1] Section 70NAF(3) of the Act provides that if, eventually, I was satisfied of a contravention and considered making a consequential order which imposed a fine or a term of imprisonment, I would need to be satisfied to the higher standard, of beyond reasonable doubt, that the grounds for making that order exist.

Evidence

1. The father relied on his affidavit sworn or affirmed on 8 May 2018. The affidavit contained some paragraphs not relevant to the contraventions but were arguably relevant to consequences of the court finding that the contraventions have or have not taken place including the court’s power Section 70NBA(1) to vary the primary order. They are set out under the heading “History” which I disregard for the purpose of the contravention proceeding but will have regard to on the issue of whether it is in the best interests of the children to vary the existing parenting orders.

2. The mother sought to rely on an affidavit sworn 30 July 2018 which is a mass of argument, submission and irrelevant material. Paragraphs 10 to 12 are emblematic and read as follows:-

   10The Applicant Father has continually tried to play “victim” and “ignorant to proper procedures and fair processes, being self-represented when he has the financial capacity to afford legal representation.

   During his FCC application and proceedings, with his documented Australian taxable income of AUD$105,000 (and other undisclosed foreign and USA incomes), the Applicant Father stated he was “too poor” to contribute to our children’s schooling and to increase their child support contribution of $110 per month.

   During the same period, the Applicant was spending approximately $1,000 per month on personal entertainment, which included subscriptions to online dating sites, E-harmony, Zoosks and RSVP and approximately $90,000 for his legal fees.

   I repeat my assertions the Applicant Father’s [sic] has the financial capability to afford legal representation, and to contribute to attend private Family Court Reporter and for an Independent Children’s Lawyer for our children, while I continue to be the full time carer parent, being prejudiced by time and financial constraints, bankruptcy (from incurred marital debts) and ongoing litigation for our children’s rights to be appropriately supported by both parents and by his financial and emotional abuse through inequitable, unjust and unfair processes and improper procedures.

   ANNEXURE 3 – The Applicant Father’s CBA bank statements

   11.I say this Honourable Court has been repeatedly discriminatory, unjust and unfair towards me, in its acceptance of the Applicant Father’s constant allegations and untruths, without any testing of his evidence.

   12.I say that this Honourable Court has repeatedly erred in law in it denial to me, procedural fairness, had failed to repeatedly consider and to test all relevant and critical factors in accordance to the “reasonable person test”, had mad judicial determinations that had been unjust, inequitable and unfair, and had repeatedly applied incorrect judiciary discretionary powers, to allow continued victimisation of me by the Applicant Father, and to cause continued extreme hardship to our children, by contravening their rights under the Family law Act 1097, to be supported and cared for appropriately by both parents and to have their rights protected against abuses of processes.

3. The mother’s affidavit is 75 paragraphs over 44 pages which concludes “I seek to provide complete responses with evidence, to his Affidavit in Responses, filed April 2018 and to all of his allegations in a follow up Affidavit”.  I informed the mother that I would not permit her to rely on the affidavit but that she should put relevant matters to the father when he was in the witness box and could herself say what she wanted to say in evidence from the witness box. To do otherwise would have required the father to object or respond to the multifarious allegations of the mother in the witness box lest the mother proceed with her defence to the contravention application thinking that clearly objectionable evidence was before the court and accepted.

4. Contravention applications are proceedings which should be dealt with fairly and promptly. Neither party sought an adjournment on the basis of material disregarded or struck out.

5. Both parties gave evidence and were cross examined notwithstanding that the mother was informed that she was not required to give evidence.

6. Both parties sought to rely on statements of the children, some relayed as oral statements and some by text messages. Section 67ZV of the Act provides that evidence of a representation made by a child about a matter that’s relevant to the welfare of that child or another child which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay. The court may give such weight to it as it thinks fit.

Finding of facts

1. In these reasons a statement of fact is a finding of fact.

Incompetent charges which were dismissed

1. All but one of the father’s alleged contraventions were misconceived.

Count 2

1. In count 2, the father alleged that without excuse, the mother defaulted in payment of her contribution of school fees.  He says, as a result, outstanding fees for the children’s enrolment at P School were required to be paid by him as a result of the school suing for payment.  The amount paid was $5111.05.  Paragraph 8 of the order made on 26 June 2014 provides that pursuant to section 116(1)(b) of the Child Support (Assessment) Act 1989, the father paid, by way of non-periodic financial support for the children, various expenses, including “half of all school fees, including excursions”.  However, that order does not impose an obligation on the mother to pay the other half. 

2. Paragraph 6 of the primary order made on 13 October 2015 provides that, “In the event that the wife chooses to pay part or a whole of the school fees for X and Y at P School for 2016 prior to the determination of her departure application, she would be at liberty to seek an order that the husband pay half of any such fees paid by her in the event that she is successful with such an application”.  Still, that is not an order which imposes upon the wife an obligation to pay. 

3. Interestingly, the mother who was at some point bankrupt, alleges that she has a receipt from the school evidencing payment by her of the moneys which the father says he paid.  That seems strange in the circumstances when the father asserts that he paid them.  However, it can, in due course, be sorted out between the parties and the Child Support Agency and P School. I do not know whether the father is eligible to claim a non-agency payment in relation to these moneys, but, if he is, then there is nothing in this decision that precludes him from doing so. In the meantime, however, Count 2 is dismissed.

Count 3

1. Count 3 was dismissed.  The father alleged that the mother had without reasonable excuse on or before 9 February 2018 failed to pay the father’s costs of a child support departure application filed on 11 November 2014 and her application in a case filed 13 November 2015.  That was an order for costs made by Judge Bender on 10 November 2017 in the sum of $8,932.  It is conceded by the mother that those moneys remain unpaid.  First of all, she says that the Order imposing the liability for costs is wrong and that Judge Bender erred in the exercise of her discretion and that the father is in contempt of court.  None of those matters detract from the mother’s responsibility to make the payment to the father. I gather that the mother has not successfully appealed the costs order.

2. Non-compliance with an order for costs is not an order in respect of which this contravention application can apply because it is not an order affecting children arising, out of a financial agreement, or an allegation that someone has prevented or hindered a recovery order in relation to children. 

3. Accordingly, whilst I have dismissed count 3 of the father’s application, the costs are still owing and payable by the mother to the father.  The unpaid costs will be attracting interest at the rate provided for in the Family Law Rules.  I will be open to an application – any application the parties or either of them wish to make for an extension of time within which the costs can be paid, but those costs should be paid. 

Counts 4 to 11

1. Counts 4 to 11 have been dismissed.  They were all counts in which it was alleged that the mother had, without reasonable excuse, written emails to the children’s various schools which denigrated the father. 

2. The order in relation to non-denigration is one which is found in the primary order made on 13 October 2015, in particular, paragraph 16(a), which says that until further order, each party, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party or any member of their household in the presence or the hearing of the children or permitting any other person to do so.

3. The denigration alleged by the father was not to or within the hearing of the children or in circumstances where it would be likely to come to their attention. The father sought to rely on section 121 of the Act, which prohibits distribution or information to the public which identifies parties to proceedings in this Court. In my view, whilst the school is a public place, it is not “the public” within the meaning of section 121 of the Family Law Act 1975. In any event, if there was a case pursuant to s121, it would not be prosecuted by the father.

4. I am satisfied that the emails did denigrate the father.  However, the mother’s actions were not in contravention of any order.

Count 1

1. Turning to the only count which I am required to determine, it is in two parts.

Sub-count one

a)First, it’s alleged that in April 2016 the mother in contravention of paragraph 16(b) of the primary order changed the children’s school from P School in E Town to S School in E Town and did so without the consent in writing of the father.  The mother denies the allegation and said otherwise that she had a reasonable excuse.

Sub-count two

b)Second, it’s alleged that in October 2016 the mother without reasonable excuse and again without the consent in writing of the father changed the children’s school from S School to Suburb K Primary School.

1. Paragraph 16(b) of the primary order provides:-

   Until further Order that each party their servants and agents be an are hereby restrained by injunction from [..] changing the children’s school, kindergarten or child care centre without the consent in writing of the other party.

2. The parents also have equal shared parental responsibility pursuant to paragraph 2 of the primary order.

3. The mother denied the two sub counts on the basis that she had a reasonable excuse.

4. In relation to sub-count one, the mother’s evidence was that she did not seek the father’s consent to change the children’s schooling from P to S School. She relied on the fact that the father conceded that the parties could not afford to send the children to P School.  However, there is more than one private school in E Town and, whilst the mother obtained a concession from the father in cross-examination that he had countenanced and even sought that the children should go to a less expensive private school in E Town, he did not agree on which school the children should go to much less confirm his consent in writing. 

5. It was conceded by the mother that she did not ask the father about which of the two private schools he would select for the children. 

6. It is also apparent on the evidence that she did not give the father any prior notice of the children commencing at S School from the commencement of Term 2 in 2016.  That much is obvious by her questions to the father as to whether the children had told him in the term holidays which immediately preceded them commencing at S School that they were about to start at a different school. The father’s response was that the children had not mentioned anything and his impression is that they had been told not to talk to him about school.

7. Finally, in response to a question from me, the father said that S School was conveniently located to the family home whereas the other private school was at the other end of E Town.    

8. There is no allegation that issues of health and safety were brought into play by the enrolment of the children at S school. It was clear that a change of school was necessary or inevitable but the mother took no steps to inform the father that the change of school was even going to occur. In her defence the mother said that it was too hard or impossible to ask the father either personally, by telephone or email. I do not accept that is so. In evidence is an email from the mother to the father dated Wednesday 13 April 2016[2] which commences “I am writing to advise you that X and Y have changed school from Term 2. They are now enrolled at S School in Suburb U, J Street. Both boys are enjoying their school immensely and will continue to be educated in their faith.” She went on to describe the location from which the children could be collected for time spent that Friday and requested that the father not remove the children’s religious cross necklaces. It was a relatively cordial communication which does not support the mother’s assertion that she was, somehow, prevented from telling the father.

   [2] Father’s affidavit sworn 8 May 2018, page 9 of 72

9. Within a few hours of the mother advising the father of the change of school, he wrote pointing out that she had changed schools without any agreement from him. She responded[3], inter alia, “Since you have always been delinquent in your financial responsibility towards X and Y since they were born, it was necessary due to financial reasons and for their continual upbringing in their faith, to have them educated at a private school at this stage.”

   [3] Father’s affidavit sworn 8 May 2018, page 11 of 72

10. I am satisfied that the mother has without reasonable excuse contravened the order as alleged in sub-count one. 

11. Within sub-count 2, the father alleges that in October 2016 the mother without reasonable excuse and again without the consent in writing of the father changed the children’s school from S School to Suburb K Primary School. 

12. Again, it is common ground she did this without notice to the father and without obtaining his consent in writing.  Unlike the earlier contravention, there was no previous discussion, negotiation with the father or contemplation by him that the children would be removed from S School and enrolled in Suburb K Primary School. The mother’s evidence was that the change of school was necessary because she and the children moved residences.

13. In evidence is an email from the mother to the father dated Saturday 28 January 2017[4] which reads:-

    FYI – with regards to the kids’ schooling and education, I don’t need your “permission”.

    When that time comes, if I don’t have your “agreement”, then we will see each other in court. Again. Period. I’m not to fuss.

    Cheers

    [Ms Peake] J . 

    [4] Father’s affidavit sworn 8 May 2018, page 13 of 72

14. I am not satisfied that the mother had a reasonable excuse within the meaning of the legislation.

15. I find that the mother did without reasonable excuse contravene paragraph 16(b) of the primary order by enrolling the children at Suburb K Primary School without the father’s consent in writing.

Consequences of contravention

1. I have found that the mother has contravened a parenting order on two occasions and has done so without reasonable excuse.

2. Part VII – Division 13A of the Family Law Act 1975 makes distinction between serious and less serious contraventions. I would regard these as less serious contravention. That said, it is a serious case for the children and for the parents because it focusses attention on a high degree of dysfunction and a toxic level of parental conflict. However, in terms of the contraventions, I could not regard the mother’s behaviour as showing “a serious disregard for her obligations under the primary order” as required by s 70NAE(4) of the Act.

3. Section 70NEA(2) provides that if the mother has not previously been found to have contravened an order, as is the case here, the court may impose all or any of a number consequences which are enumerated in s 70NEB. These include:-

   (a)Make an order requiring either or both parents to attend a post separation parenting program;

   (b)Adjourn the proceedings to allow either or both to make a parenting application to discharge, vary or suspend the primary order or other order;

   (c)Require the mother to enter into a bond in accordance with s.70NEC;

   (d)Impose a fine;

   (e)Order that the mother pay the father’s costs.

4. In this case a bond or a fine would pour fuel on the fire and do nothing to benefit the children. In fact, either would be likely to distance the children from the father. The mother is angry, voluble about her grievances and, in relation to her communications with the children’s school to which I will come shortly, acting outside boundaries of what is acceptable behaviour vis a vis the father and the school. The children’s interests will be best served by controlling the mother’s behaviour vis a vis the school and requiring her to attend a post separation program which hopefully can address her behaviour.

5. The mother seems not to realise the significance of the order which she breached on two occasions or the obligations of shared parental responsibility. Where two or more persons share parental responsibility in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[5] The concept of shared parental responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[6] and to ‘make a genuine effort to come to a joint decision about that issue’.[7] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.

   [5] Family Law Act 1975 (Cth) s 65DAC(2).

   [6] Family Law Act 1975 (Cth) s 65DAC(3)(a).

   [7] Family Law Act 1975 (Cth) s 65DAC(3)(b).

6. Most importantly, though, the mother shows no insight into the impact and effect on the children of her failure to consult with the father and to inform him of circumstances affecting the children which will translate into major decisions about them. A good example was the mother’s question to the father about whether the children told him during school term holidays that they were stating at a new school. She entirely missed the point that the children should not be in a position of having to tell the father or feeling that they need to conceal something of that nature from him. It is divisive parenting which I hope can be addressed by the mother.

7. I am satisfied that the appropriate consequence or penalty for the mother is one that is solely educative. Accordingly, I will direct her to attend a post separation parenting course in accordance with s.70NEB(1)(i). The mother has already done such a course so this next course should be selected with a view to addressing her unsatisfactory behaviour evidenced in the contravention of which I am satisfied and some behaviour which alleged but which does not constitute a contravention of an order.

8. The mother sought an order that the father be required to go to the same kind of parenting course. I note that the contraventions are not recent, they both occurred in 2016. I do not disregard the possibility that the father may have brought the contravention application, nigh on two years after the breaches, for the ulterior purpose of having the mother found to have breached a parenting order in the run up to the final hearing of her application for relocation to the United States. Whether it is genuine forbearance or tactics, there was nothing in the proceedings I heard today which satisfies me that the father requires such a course or that it would benefit the children if he were required to attend such a course. Accordingly, I will not accede to the mother’s application.

9. There was no application for costs or indication that the father had incurred costs associated with the contravention application.

Pending proceedings 

1. I have excised from the proceedings and set out above that which is relevant to the contravention. However, it is more than clear that the contravention is a small part of a maelstrom of proceedings which has parenting applications flying hither and thither. These include:-

   ·the mother’s application for relocation which, from her perspective predominates. She is desperate for an expedited hearing. That is not my responsibility although I would try to accommodate it early next year if asked to do so.

   ·the mother’s application in a case filed on 21 May 2018 seeking the appointment of an independent children’s lawyer for the children.

   ·the mother’s amended application in a case filed on 23 May 2018 seeking the appointment of an independent children’s lawyer and a s11F child and parent issues assessment “to assist with the expedition of the Initiating application … for international relocation to the USA”.

   ·On 15 June 2018 the mother filed a further amended application seeking, additionally, orders about non-disclosure for child support purposes.

   All these applications appear to have been returnable on 29 June 2018. I do not know what happened to these applications but understand that an independent children’s lawyer is not yet appointed.

2. If this was the end of the interim skirmishes, I would see no amenity in ordering the s11F assessment sought by the mother. Indeed, interviewing children should not be done lightly. It is a forensic exercise which has an impact on children and parents. Children should be interviewed only when necessary and reports about them should be released as close to the determination the court is required to make as is possible. However, there is another controversy looming.

3. The mother has informed the father and the school that she will be absent from Australia from 16 August to 16 September 2018, and that the children will be cared for by the father. The mother has also purported to impose requirements on where and by whom the children are to be collected from school and done so in emails directed to the school which are unpleasant and demeaning of the father. They appear as Annexures 13 and 14 of the father’s affidavit. The father is yet to confirm that he can have the children stay with him. He informs the court that one impediment is the mother insistence that the children attend school each day and be collected by the father. Another is that a number of medical and like appointments have been scheduled for the children or one of them when they would be in his care. The father has younger twin children with his new partner and informed the court that he might not be able to get the children to and from Suburb K Primary School.  In addition to this forthcoming trip, the mother indicated that she would be required to be out of Australia at future times.

4. It appears that there are three stages which require review of parenting arrangements.

   ·First, what is to happen from 16 August to 16 September 2018.

   ·Second, how the children are cared for if the mother wants to travel overseas between 16 September 2018 and the determination of her application for relocation.

   ·Third, the final hearing of the relocation application.   

5. The presentation of the parties and the controversies that rage between them lead me to conclude that they are not parties who carefully plan litigation. They impress me as high energy litigants who would not hesitate to issue applications about singular issues and therefore could appear regularly and frequently before the Court. For instance, neither party have brought a formal application about care arrangements for the children during the mother’s absence from Australia. It is common ground, however, that there is no alternative other than the father and the points of contention appear to be school attendance and medical appointments. More thoughtful parents would have concentrated on these issues today. The mother has not expressed any significant criticism of the father’s care but seems to want to dictate how the children will be cared for by him. The father offers the mother nothing by way of reassurance. It is a stalemate. It is clearly in the best interest of the children to avoid any last minute applications with which the Court will not have time to deal with. Because of exigencies of time and the inappropriateness or impossibility of the parties returning to court for any hearing prior to 16 August, it falls to me today to deal with what is to happen from 16 August to 16 September 2018. I will also deal with the mother’s applications for an ICL and a s11F assessment, both of which she still seeks.

Appointment of an independent children’s lawyer

1. The mother seeks that the children’s interests be represented on the relocation application. The father does not oppose this.

2. The role of an Independent Children’s Lawyer is to form an independent view, based on available evidence, of what is in the best interests of the child and then act in the proceedings in what he/she believes those best interests to be.[8] The independent children’s lawyer is not a legal representative retained by the child and is not bound by any instructions from the child.[9] The Independent Children’s Lawyer does not take instructions from either parent.

   [8] Family Law Act 1975 (Cth) s 68LA(2).

   [9] Family Law Act 1975 (Cth) s 68LA(4).

3. The role of the independent children’s lawyer is to deal impartially with the parties and ensure that any views expressed by the child are fully put before the court. It is also to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing matters to the court’s attention.

4. The independent children's lawyer is also under a specific duty to take steps to minimise for each of the children the trauma associated with proceedings[10] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[11]

   [10] Family Law Act 1975 (Cth) s 68LA(5)(d).

   [11] Family Law Act 1975 (Cth) s 68LA(5)(e).

5. The independent children’s lawyer’s duty to act impartially does not preclude him/her from pursuing a course in proceedings which he/she discerns is in the best interests of the children even though such a position may be contrary to the position of one or both parents. The parents should expect the independent children’s lawyer to be robust in his/her approach to the case and to make recommendations for how the case could, or should, be resolved consistently with the best interests of the children. Recommendations may be made by the independent children’s lawyer of his/her own volition and/or when requested by the court. An independent children’s lawyer may make a series of preliminary recommendations prior to making a final recommendation. As with parents, an independent children’s lawyer may alter his/her final recommendations.

6. Section 68L of the Act is silent on the specific matters which are to inform the exercise by the court of its discretion to appoint an independent children’s representative save that it must “appear to the court that the child’s interests in the proceedings ought to be independently represented”. International relocation has traditionally been a category of cases which attracts independent representation of a child’s interests as have proceedings where one or both parties are unrepresented. I will request an independent children’s lawyer.

7. Representation by the independent children’s lawyer in this case will not be confined solely to the relocation. Henceforth, the children’s interests should be represented independently in all proceedings in which their best interests and welfare is paramount, or a relevant, consideration.

Variation of parenting order 

1. Section 70NBA of the Family Law Act (“the Act”) provides that, where a contravention application is brought in respect of an order, the court may vary that order.

2. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). In varying a parenting order:-

   a)The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

   b)When making parenting orders, the Court is to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

   c)For the avoidance of doubt, s 70NBA(2) does not apply because I do not regard this as a more serious contravention.

3. Section 61DA of the Act provides a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents. Section 61DA is engaged whenever the court considers making a parenting order.

4. Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE). Here the parents already have shared parental responsibility.

5. Turning to the urgent matter of what should occur whilst the mother is absent from Australia for the month commencing 16 August 2018. There appears to be no agreed resolution of the living arrangements for the children. However, having heard extensive evidence and submissions, my impression is that the following have occurred or are in play:-

   a)The mother has advised the school and the father of her absence and requires that the father care for the children whilst she is away.

   b)The father has not indicated that he can assume care of the children during the mother’s absence.

   c)The mother considers (erroneously in my view) that the father is obliged to assume care of the children because he has shared parental responsibility for them;

   d)The mother has been in contact with the school stipulating her requirements around the children being collected each evening from school, in particular, requiring the children to be signed out at the school office.

   e)The father lives about 45 minutes in heavy traffic from the children’s school and says that he cannot necessarily get the children to school each day. He indicated that he is considering the children doing some school work from his home.

   f)The mother requires that the father take the children to school each school day.

   g)The mother has made or maintained a series of medical, orthodontic or dental appointments for the children which fall during the month of her absence. The mother considers (in my view, erroneously) that, equal shared parental responsibility obliges the father to ensure that the children keep whatever appointments she has scheduled them.

   h)The father has requested of the mother that that the health related appointments for the children be re-scheduled.

   i)At the hearing before me, the mother was unable to say which appointments could not be postponed without deterioration to condition of the children or either of them.

   j)The mother indicted that she will be absent from Australia on further occasions between now until the final hearing of application for relocation.

6. I am satisfied that, unless some structure is imposed on the parents in relation to the care of the children during the mother’s absence, the mother will continue to issue missives to the school and the father and, potentially, medical and like professionals. She will, in effect, seek to pull the strings from overseas. Communication to achieve a desired result is one thing. However the tone of the mother’s emails to the school are quite another.

7. Notably, by email dated 15 April 2018, the mother wrote to the children’s school copying the father; the email, titled “RE: X (5D) and Y (2B) Cousins-Peake – Children’s Safety, Family Law proceeding and Notice of Family Violence (Current Case)”, read[12]:-

   [12] Affidavit of the husband sworn or affirmed 8 May  2018, Annexure 13, page 46 of 72

   Dear Principal, Class Teachers ([Ms K] and Mr L) and Staff of [Suburb K Primary School]

   As Term 2 commences tomorrow, I am writing to respectfully advice the School that X (5D) and Y (2B) are the subjects of a current Family Court of Australia proceeding, with a Notice of Family Violence (Current Case).

   For the safety of the children during this proceeding, I am expressly requesting that ALL persons (including myself) collecting the children (after the school and/or during school hours) be required to make their attendance known to the Reception Staff, prior to any such collection of the children. The children will be advised to attend the Reception Office after school each day.

   It is expected that all parties will comply strictly with the current Federal Circuit Court Parenting Orders (dated 13 October 2015), until the current proceeding concludes in the Family Court of Australia, Melbourne.

   In the event of any breaches of these Court Orders, please call the Police immediately to secure the welfare and safety of the children.

   Thank you for our support and kind understanding of the children’s otherwise difficult circumstances. I am hoping the proceeding will conclude expeditiously for the best interests of the children.

   If there are any concerns or issues, please feel free to contact me directly by phone or email.

   Sincerely
   [Ms Peake]

   In response, the father wrote:

   I do not consent to this.

   There are no active Family Court Cases, nor have the existing orders been varied as to allow this type of request from [Ms Peake].

   The mother then wrote to the father:

   Dear [Mr Cousins], Principal and Staff

   Thank you for your kind reply.

   I do not wish to discuss confidential Family Law issues on email like on previous occasions. It is very unfair for the School Staff to be involved any further with our difficult family circumstances. Their job is hard enough to provide the best education as possible for the children’s welfare and development.

   Nor what I have expressly requested up for negotiation for the safety of the children.

   I do expect the School and Staff to follow the Victorian State Government Education Policies. Furthermore I am the signatory parent on enrolment forms, hence the contractual responsible parent under the law.

   My advice to [Mr Cousins] would be to log on to his Comcourt Portal account for updates. The Family Court of Australia proceeding has been listed for urgent hearing. The Court documents are with the Court Servicer to be served on to [Mr Cousins] this week. He was advised many months previously to do what was in the children’s best interests.

   I will provide to the School a copy of the Family Court of Australia Notice of Risk of Family Violence (Current Case) this afternoon during after school pick up.

   If you have any concerns or questions please feel free to contact me by email or phone.

   Kind regards

   [Ms Peake]

8. The mother’s reference to family violence proceedings was unnecessary and, I am satisfied, designed to embarrass the father and, at worst, cast negative aspersions on, or denigrate, the father in the eyes of the school.  

9. On 16 April 2018, the mother again emailed the school under the heading “RE: X (5D) and Y (2B) Cousins-Peake – Children’s Safety, Family Law proceeding and Notice of Family Violence (Current Case)”, she copied the father in on the email and attached the first page of the mother’s Notice of Risk filed 11 April 2018. The email read:[13]

   [13] Affidavit of the husband sworn or affirmed 8 May  2018, Annexure 14, page 52 of 72

   Dear [Suburb K] Primary Principal, Class Teachers and Staff

   Re: Family Court of Australia Proceeding and Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case)

   Please find attached below the sealed and filed copy of page 1 for the Family Court of Australia – Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case).

   Due to confidentiality and privacy for the children, the remainder of the document has not been attached to this email.

   I expressly repeat my reasonable and respectful request for the safety of [X] and [Y] in relation to all future after school pick ups until the Family Court of Australia proceeding has concluded. And the strict compliance of Federal Circuit Court Orders, (dated 13 October 2015).

   Please feel free to contact me if there are any concerns or questions by phone or email.

   Kind regards

   [Ms Peake]

   The father’s response was as follows:

   This is an application by [Ms Peake].

   It in no way varies court orders or offers any findings by the court. It is also inappropriate to share and irrelevant to the current arrangement.

   The mother’s response was:

   Dear Staff,

   As I have previously advised to [Suburb K] Primary school and [Mr Cousins], and repeated as follow here:

   1. Previously stated. X (5D) and Y (2B) are the subject of current Family Court of Australia proceeding currently listed for urgent hearing.

   2. Agree. Advice to [Suburb K] Primary Principal, Teachers and Staff of the Family Court of Australia proceeding filed and listed for urgent hearing, with the attached Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case).

   3. Request for Strict compliance to Federal Circuit Court Orders (dated 13 October 2015).

   Agree. No variance to the above FCC Orders – no consent or advice to the contrary has been stated here or anywhere else in writing.

   Repeat. Any breaches by ANY or either party, please contact the Police immediately to secure the welfare and safety of the children

   4. ALL party is requested to announce their attendance to the Reception Staff prior to collection after school, of the children, for their safety. Until the conclusion of the Family Court of Australia proceeding.

   5. A question of Relevance ?. It is extremely relevant for the School to be fully aware of any high animosity and contentious Family Court proceedings, for which their students are the main subjects, and to be fully alert to any potential risks to their welfare and safety or Notice of risks of the Family Violence filed, while the children are on School grounds and in their care. Until the conclusion of such proceedings.

   6. As the signatory parent on the enrolment forms, and the custodial Primary career of the children, it is my duty to protect the children during these difficult circumstances. It is also my contractual rights as signatory to request from the School this reasonable and simple request.

   However, I would expect all parties involved do all things necessary under the law, Court Orders and School Policies, to uphold, ensure and secure the children’s safety and best interests at all times, without the extra threats of litigation.

   Nonetheless the children have been advised to report to the Reception Office after school. And if needed, more formal Court Orders will be requested at the next Hearing date to effect my reasonable request for the safety of the children and the entire School Community.

   Thank you kindly,

   [Ms Peake]

   The mother’s communication with the Suburb K Primary School in 2017 was similarly intemperate. On 18 April 2017 the mother copied the school personnel into an email to the father which, in part, read[14]:-

   […] I am presuming as a responsible parent, you have made alternative arrangements for the boys pick up from school this Friday […] I will be away and will not be unable (sic) to do your parental responsibility for you. […]Please confirm the identity of the adult for whom you have arranged to pick up the boys […] This is of utmost importance for the safety of [X] and [Y] as you would be fully aware that the children are still currently on the Australian Federal Police Airport Watch list for prevention against abduction.”

   [14]Affidavit of the husband sworn or affirmed 8 May  2018, Annexure 9, page 35 of 72

10. On 19 April 2017, the father informed the mother and the school by email that he would arrange for his wife’s brother to collect the children from school. By email dated 20 April 2017 the mother under subject of “Re: Your alternative plan for [X] and [Y’s] pick up on Friday 21 April 2017” the mother wrote to the father and copied Suburb K Primary School[15]:-

    [15] Affidavit of the husband sworn or affirmed 8 May  2018, Annexure 9, page 34 of 72

    Does this person have a police or working with children’s check if he is going to be frequenting your residence?

    It doesn’t matter that the children may know him in passing as an acquaintance.

    Apparently you yourself have testified of only knowing your own wife for less than two years.  So the boys would only have known this man for even less time than that.

    It is delinquent of you as a father to consistently pass on your parental responsibility to other people.

    You only have every second weekend (2 nights out of 14 nights per fortnight) to spend quality time with the boys and you can not even do that properly.

    This has been a constant delinquent habit with you to deprioritize the boys and to be absent on your own weekend with them or to not be present during hospital procedures or not be involved in any school activities.

    You were always an absent dad and you have continued this selfish behaviour now.  It’s always been all about “The [Mr Cousins]” I am sad for them.

    Hence it is very comical, the pretence of your own full custody application for the kids after I had asked for that divorce finally, for which you dragged out for three years, only for you to settle on the 2^nd day of final hearing because you knew you would lose to factual evidence of your deadbeat absences from the children’s lives.

    It is time to grow up [Mr Cousins] and act like a man and father and be less selfish towards your own children now that you have two extra children to take care of.

    Your wife may not appreciate having to care for all four children on her own without your proactive participation.  And she is not the one who is supposed to be responsible for [X] and [Y].

    You are!!  You are their father.  Act like one.

    It’s my job to protect the kids and ensure their safety while in your care if you are absent.

11. By email dated Tuesday 5 September 2017 at 11.38 am Suburb K Primary School emailed both of the father and the mother under subject heading “Collection of X and Y Peake-Cousins”[16]:-

    Dear [Ms Peake] and [Mr Cousins],

    There appears to be some confusion in regards to who is authorised to collect [Y] and [X] from the school grounds.  We request that only yourselves, as the parents of the boys, are the ones who come to collect them on their given access days. If partners or other relatives are granted permission we seek written, signed authority from you both to ensure that each party is in agreement with this arrangement.

    [16]Affidavit of the father sworn or affirmed 8 May 2018, Annexure 9, page 38 of 72     

12. On 5 September 2017 at 11.42 am the father replied to the email[17]:-

    This is not going to be possible for me to pick up and drop off every day as I work considerable hours and often with travel  My wife sees to the day to day care of the children as she is a stay-at-home mum with our two other children.  If [Ms Peake] is going to leave them at our house for weeks at a time, this is the only way we can accommodate it.

    Otherwise, I suggest [Ms Peake] make alternative arrangements while she is in the USA.

    [17]Affidavit of the father sworn or affirmed 8 May 2018, Annexure 9, page 37/38 of 72

13. At 12.09 pm the mother wrote to Suburb K Primary School, copied to the father[18]:-

    I am certain that [Mr Cousins] is now thanking his lucky stars that he lost his family court application dragged over three years for full custody of the children then, if I am given enough courtesy advanced notice.

    FYI – As usual [Mr Cousins] is in the habit of telling half truths.

    The period of 11-20^th September would be my first time to leave the children in the total care of [Mr Cousins], contrary to his statement “[Ms Peake] is going to leave them  at our house for weeks at a time” and his court allegations that he was ever their care, since they were born.

    This would be part of his “shared parental responsibility” for him to care for the boys while I am overseas on business trips.

    I would urge [Mr Cousins] to seek independent legal advice and would welcome any future applications that he may choose to file if he doesn’t agree with the legal stance of a [Suburb K] Primary School of documenting authorised persons for the safety of the children.

    Please contact me if there are any further problems or concerns with regards to the safety of the children.

    [18]Affidavit of the father sworn or affirmed 8 May 2018, Annexure 9, page 37 of 72

1. On 7 September 2017 under subject heading of “RE: Advance notice – school drop off and pick up of X (4B) and Y (1B) Cousins-Peake”, the mother emailed the father and copied Suburb K Primary School[19]:-

   As [Mr Cousins] would be fully aware he has shared parental responsibility for the boys.

   My previous email to the school is to merely inform the School of my definite travel plans (that will not change despite [Mr Cousins’] protest against his responsibility) and not open for debate.

   [Mr Cousins] has been notified well in advanced [sic] the children will be in his care as has been discussed on numerous occasions in writing.  It would be up to [Mr Cousins] to follow up on his idle threats of DHS or going to court to change permanent arrangement despite his refusal to attend Family Dispute Resolution Mediation to discuss children’s issues or seek independent legal advice in the mean time.

   I have extended the courtesy of notification to [Mr Cousins] and the School of my absence well in advance.

   [19]Affidavit of the father sworn or affirmed 8 May 2018, Annexure 12, page 43 of 72

2. My impression is that the above messages from the mother were composed thus to belittle or demean the father in the eyes of the school administration. If the sole purpose was to convey information, the communications could have been composed in a neutral tone. The extracts are far from neutral. They are emblematic of the harmful way in which the highly conflictual relationship between the mother and father impacts upon the children’s school and, through the school, on the children. In case the parents lack the insight to appreciate how these inappropriate messages impact on the children, I am satisfied that the school would reasonably regard the parents and children as a family in difficulty and one with which it is more than usually difficult for the school to deal, much less want to approach.

Child’s best interests – primary considerations

Section 60CC(2)(a)

1. The father has not made an application for a change of residence for the children and the mother proposes that the father care for the children during her absence overseas so, implicitly, each accepts the children have meaningful relationships with the other parent from which they derive benefit.

Section 60CC(2)(b)

1. I assess the conflict between the parents as toxic and have no doubt that it is deleterious to the emotional wellbeing of the children. However, neither party alleges that the other is a source of physical or emotional harm to the children. 

Child’s best interests – additional considerations

1. Given the short period under consideration, 16 August to 16 September next, few of the features prescribed as “additional considerations” under s 60CC(3) of the Act are influential in my determination of what will promote the children’s best interests.

2. The children, Y and X, are aged eight and ten years respectively. Neither parent made submissions as to the views if the children (s 60CC(3)(a)). I would be prepared to infer, however, that the children would like to be able to move between two homes harmoniously and that they not be burdened by the conflict which rages between their parents.

3. The nature of the children’s relationships (s 60CC(3)(b)(i)) was not the subject of submissions. Objectively, each parent considers that the other has a relationship with the boys that is satisfactory; subjectively, the emails from the mother say something quite different. However, testing on that point is more appropriate at the final disposition of the case rather than at this interim stage.

4. The mother criticises the father for not readily stepping in to assume care of the boys as and when convenient to her, having regard to her commitments to travel overseas. The mother’s message of 20 April 2017 to the father to be responsible for the children, “You are their father. Act like one.” indicates the mother’s negative view of the extent to which the father has failed to avail himself of opportunities to involve himself in the children’s lives. However, the mother has misconceived the obligations of equal shared parental responsibility. Her criticisms do not resonate under s 60CC(3)(c). Instead, they are emblematic of the inability of the parents to communicate.

5. The was insufficient evidence upon which I can make any finding about the fulfilment or otherwise of the father’s obligations to help maintain the children (s 60CC(3)(ca)). The mother leaves me with the impression that she considers the degree of financial support provided by the father, directly and indirectly, is insufficient.

6. It appears to be common ground the parents each have the capacity to satisfactorily meet the children’s physical, emotional and intellectual needs (s 60CC(3)(f)).

7. The most evidence for the purposes of s 60CC(3) of the Act was the high level of parental conflict and my conclusion that the children are not spared exposure to it and the mother’s apparently high handed attitude to the father’s relationship to the children and the responsibilities of parenthood (s 60CC(3)(i)). It appears that the mother harbours a grudge against the father for, what she perceives to be, a lack of contribution by the father to the practicalities of looking after the children. In redress, she appears to be concerned to inflict inconvenience and embarrassment on the father in his attempts to arrange for the collection of the children from school. She has used the context of proceedings in this court to suggest, with pretended authority, to the school that, in her absence and away from the school, the children are in danger. The nature of the danger is unspecified and unsubstantiated, although the necessary inference is that the danger arises either from the conduct of the father or possibly the father’s wife’s brother. To the extent that the mother acknowledges to the school authorities that she was placing them in a difficult position, it was precisely her intention. The mother’s reference to the Family Court of Australia – Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case) and to an uncharacterised threat to the safety of the children by persons unnamed was more likely than not intended to cast the father in the role of a negligent parent or worse, in the eyes of the school authorities, and to induce the school to impose restrictive conditions on the father’s arrangements for the boys’ collection. The mother’s suggestion that the same conditions be imposed by the school on both parents was, I think, disingenuous.

8. Neither party made submissions about the avoidance or provocation of further litigation (s 60CC(3)(l)). This is only an interim proceeding and each parent appears reconciled to much more litigation. My impression is that the parents have an appetite for litigation and are likely to be as highly energetic about making applications in the future as they have been in the past. They are likely to seek a judicial determination on trifling matters in order to score points rather than endeavour to parent independently of the court. Both parties should be aware of the provisions around vexatious proceedings (Part XIB of the Act).

9. I am satisfied that the mother’s inappropriate emails to the school must cease. She displayed no insight in this regard over and above seeking to justify her position by alleging that the father is impossible to deal with and communicates poorly to, and about, her. There are two difficulties with the mother’s position. First, in spite of much preparation and collation of material and her attempted reliance on a very long affidavit, the mother could not produce one sample of the father’s invective. Second, the mother should not be expressing herself in the vituperative and insulting way that she has, even if provoked.

10. I will order that the mother be restrained by injunction from communicating with the children’s school in an inappropriate way and request that the two schools which received inappropriate communications remove those communications from the children’s files.

11. Next, I will make the father solely responsible for matters relating to the children’s education whilst the mother is absent from Australia. I do not envisage that the father will make any long term decisions but it is in the best interests of the children that the father have free rein to take them to school or not and have them undertake work from home without interference from the mother, however well intentioned her interventions may be. I should make clear that I do not attribute to the mother anything other than pure and caring motivations as for as the parties’ sons are concerned. I take exception to how she expresses herself and yields to the temptation of using messages to the school as an opportunity to ridicule the father.

12. I am otherwise satisfied that conferring sole responsibility for the children’s education on the father for the duration of the mother’s absence overseas is necessary to protect the school from the demands and prohibitions imposed by the mother. I am mindful that the school makes no application but I consider that insulating the school from the conflict between parents, by effectively requiring the school to deal with only one parent (the father) is likely to be of benefit to the children. It is an order that will last for only a month and will only take effect when the mother leaves Australia. At the very least, it should disincentivise the mother from quizzing the children about what school work was undertaken when she was away and her seeking to gather evidence to be used to criticise the father.  

Mother’s Applications

1. The mother sought orders against the father which I declined to give her leave to make orally. She sought that any non-denigration order be mutual. However, she had no evidence in support of the application. This is in spite of having sworn a very lengthy affidavit and it being clear to her that I would have had regard to documents such as letters and emails had she been in a position to produce them.

2. Tit for tat applications are not to be encouraged. That said, I acknowledge that there is likely to be much more to this case than I observed in one day in the Judicial Duty List. My refusal to permit the mother to make an oral application does not prejudice her from making an application in proper form.

Section 11F Assessment

1. Both parents agree that some form of reportable assessment is timely. In this case I am satisfied that the court will be assisted by a parent and children’s issues assessment in the near future. The assessment will, hopefully, provide guidance to the court in considering how X and Y’s best interests can be met in the further interim parenting disputes which I am very confident the parents will bring before the court between now and the final determination of the mother’s application to relocate the boys to the United States of America. For instance, an assessment of the boys’ experience of the uninterrupted month within the father’s household (16 August to 16 September) will inform decisions about what should occur during subsequent absences by the mother from Australia.

2. In spite of me having read and heard a great deal of evidence in this proceeding, I have not learnt much about X and Y. The boys’ personalities and views are not accessible from the evidence because the evidence is exclusively about the parents’ struggle with one another. It is not uncommon in cases of high parental conflict that the interests of the parties predominate over the interests of the children. There should be some impartial, independent, expert social science evidence available to the court in a timely manner.

3. A section 11F assessment will enable the Court to hear the views of the children.

4. Hopefully the independent children’s lawyer can meet with the children in the same outing as they meet with the family consultant, if that will be least onerous for them.

5. In 2012, the Act was amended to introduce as an object, by which the best interests of the children are met, giving effect to the Convention on the Rights of the Child to which Australia is a signatory. Article 12 of the Convention provides that children have a right to be listened to and taken seriously. Article 13 provides that children have a right to find out and share information. This is an interim assessment and not the opportunity to gauge the children’s views about relocation. Indeed, without knowing when that application will be heard, eliciting the children’s views on relocation and the consequences thereof, and exposing them to the reaction of their parents, may be unfair and potentially harmful. The children can be advised, in an age appropriate manner, of the progress of the proceedings that impact upon them but my intention is to obtain some evidence which will assist the court to make parenting decisions between now and the disposition of the ultimate issues.

6. The family consultant will also be well placed to specify what post separation parenting program will be suitable for the mother in the context of the order which I have made requiring her to attend such program.    

Conclusion

1. I make the order set out at the commencement of these reasons.

I certify that the preceding one-hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 31 July 2018.

Associate:     

Date:  27 August 2018