Dalton and Dalton - [2011] FMCAfam 215

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DALTON & DALTON

[2011] FMCAfam 215

FAMILY LAW – Children to commence overnight time with father – significant family violence – question as to timing and duration of spend time regime – ancillary issues as to parental attendance at school events and the like – orders made as proposed by Independent Children’s Lawyer.

Family Law Act 1975, ss.60B, 60CC, 61DA, 61DA(4)

Goode & Goode (2006) FamCA 1346

Applicant:

MR DALTON

Respondent:

MS DALTON

File Number:

MLC 3845 of 2009

Judgment of:

Burchardt FM

Hearing date:

9, 10 & 11 February 2011

Date of Last Submission:

11 February 2011

Delivered at:

Melbourne

Delivered on:

1 April 2011

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr A. Barbayannis

Solicitors for the Independent Children’s Lawyer:

Maria Barbayannis & Co

ORDERS

The mother have sole parental responsibility for the children of the marriage [X] (“[X]”) born [in] 1997, [Y] (“[Y]”) born [in] 2002 and [Z] (“[Z]”) born [in] 2007 (“the children”).
The children live with the mother.
The father spend time and communicate with the children as follows:
(a)On four separate occasions commencing on the first Saturday subsequent to the making of these Orders and each alternate weekend thereafter, from 9.30 am Saturday until 5.00 pm Sunday with changeover to take place at GordonCare in Frankston;
(b)After the conclusion of the time referred to in 3(a) herein, whilst the children are at school the children spend time with the father from the conclusion of school or crèche/childcare on Friday until the commencement of school or crèche/childcare on Monday on each alternate weekend, with the father to collect the children from and return them to school or crèche/childcare. Such time is to recommence on the first Friday of each school term and each alternate weekend thereafter;
(c)During the term 1 school holiday period in 2011, from 10.00 am on Friday 15 April 2011 until 5.00 pm on Monday 18 April 2011;
(d)During the term 2 school holiday period in 2011, from 10.00 am on Thursday 7 July 2011 until 5.00 pm on Tuesday 12 July 2011;
(e)Thereafter, for one week during first, second and third school term holiday periods at times to be agreed between the parties and failing agreement from 12.00 pm (midday) on the first Saturday of the relevant holiday period until 12.00 pm (midday) on the second Saturday of the relevant holiday period.
(f)For one half of the summer school holiday period in each year at times to be agreed between the parties and failing agreement on a week about basis as follows:
(i)From 12.00 pm (midday) on the first Saturday of the said school holiday period until 12.00 pm (midday) on the second Saturday of the said school holiday period in 2011/2012 and each alternate year thereafter; and
(ii)From 12.00 pm (midday) on the second Saturday of the said school holiday period until 12.00 pm (midday) on the third Saturday of the said school holiday period in 2012/2013 and each alternate year thereafter.
(g)From 3.00 pm Christmas Day until 6.00 pm Boxing Day in 2011 and each alternate year thereafter;
(h)From 12.00 pm (midday) Christmas Eve until 3.00 pm Christmas Day in 2012 and each alternate year thereafter;
(i)From 10.00 am until 5.00 pm on Father’s Day in each year;
(j)Via telephone on each Tuesday and Thursday between 7.00 pm and 7.30 pm with the father to initiate the phone call to the mother’s mobile telephone and the mother to ensure that the children are available to receive the telephone calls subject to the father’s caller ID being activated;
(k)At such other times that may be agreed between the parties.
The children’s time with the father is suspended as follows:
(a)From 12.00 pm (midday) Christmas Eve until 3.00 pm Christmas Day in 2011 and each alternate year thereafter;
(b)From 3.00 pm Christmas Day until 6.00 pm Boxing Day in 2012 and each alternate year thereafter; and
(c)From 10.00 am until 5.00 pm on Mother’s Day in each year.
For the purposes of changeover, when changeover does not take place at the children’s school or crèche/childcare changeover take place in the car park of the McDonalds Restaurant in [C] on the corner of [omitted], [C].
Each party will permit and facilitate the children telephoning the other party at any reasonable time they express a wish to do so.
During school holiday periods when the children are spending time with the father, the father will ensure that the children telephone the Wife on each Monday and Thursday between 7.00 pm and 7.30 pm.
Forthwith upon the making of these Orders the parties exchange email addresses for the purpose of being able to communicate with each other with respect to matters relating to the children only.
The parties remain child focused during all communications and will use their best endeavours to shield the children from any parental conflicts, disagreements or disputes.
The parties each keep the other party advised of their current mobile telephone number and advise the other party of any change to same within 24 hours of a change.
The father keep the mother advised of his residential address and advise the mother of any change to same within 24 hours of a change.
For the purpose of the children spending overnight time with the father, the father will ensure that each of the children have their own beds.
The parties immediately notify the other party of any serious illness or injury sustained by any of the children whilst in their respective care and provide the following:
(a)Details of any treatment required or received by the children;
(b)Details of any treating medical professional; and
(c)An authority for the other parent to speak with and liaise with the treating medical professionals.
Each party do all such acts and things that may be required to authorize the other party to obtain from the children’s school or crèche/childcare all notices, letters, school reports, invitations, photograph order forms and any other like documents that would ordinarily be available to parents.
Each party is at liberty to attend the children’s parent/teacher interviews on the condition that each party make separate appointments for the interviews unless otherwise agreed between the parties in writing.
The parties are each at liberty to attend all school, sporting and extra-curricular activities involving the children that parents would ordinarily be able to attend on a turn about basis, unless otherwise agreed.
The parties are each hereby restrained from enrolling the children in any activities that interfere with the children’s time with the other parent without the written consent of the other party.
The parties are hereby restrained by injunction from denigrating, belittling, insulting or abusing the other party or the family and friends to or in the hearing or presence of the children.
The father is hereby restrained by injunction from consuming alcohol 12 hours prior to and during periods when the children are in his care.
The father transport the children in age appropriate car seats and maintain all necessary safety requirements in sporting and social activities.
The parties forthwith enrol in and complete the “Talk it Over” program through GordonCare and forward a copy of the certificate of completion to the other party and the Independent Children’s Lawyer via email as soon as possible after it has been obtained.
The mother keep the father informed and invite him to provide an opinion in relation to any significant decisions relating to the children including but not limited to their health and education.
Order for the Independent Children’s Lawyer is discharged.
All previous parenting orders are otherwise discharged.
The father not take the children to any place out of mobile phone range while the children are in his care.
The father not attend the children’s schools and/or crèche/childcare save for the purposes of spending time pursuant to order 3(b) and orders 14, 15 and 16 of these orders.

AND THE COURT NOTES THAT:

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 3845 of 2009

MR DALTON

Applicant

And

MS DALTON

Respondent

REASONS FOR JUDGMENT

Introductory

This case is about the best interests of three children, [X] born [in] 1997, [Y] born [in] 2002 and [Z] born [in] 2007. The primary issues in dispute concern, in effect, when it is that the children (who will continue to live primarily with their mother by consent) will start to spend overnight time with their father and the amounts of such time.
The applicant father proposes that overnight time commence, effectively, almost at once. The respondent mother seeks that time be phased in over an extended period of time. The Independent Children’s Lawyer’s position is that time should commence shortly after judgment is given, and progress to more extensive periods of time thereafter.
For the reasons that follow, I propose to make the orders sought by the Independent Children’s Lawyer.
It should be noted that the Court has faced several difficulties with the way in which the parties ran their cases. The father, despite extensive litigation experience both in his own capacity and in his former career as a policeman, failed to file any affidavit material for well over a year before trial. At the commencement of the trial he asserted that he was under the impression that he could simply turn up and tell his story.

I found this explanation unsatisfactory but permitted him to do so because it was the only practical way to proceed.
No doubt at least partly because of this absence of material, the materials filed by the mother were incomplete and both parties gave extensive oral evidence-in-chief.
Although the mother purported to rely only upon her trial affidavit, it became apparent during the currency of the proceeding that she wished to make reference to other materials and she was permitted to re-open her case to the extent of introducing materials about the father’s alleged gambling problem. Given the latitude already previously given to the father, as I explained at the time, this seemed only fair.
Similarly, although a number of matters proceeded on the footing that they were not controversial, the absence of formal proof of the father’s various convictions and court outcomes has been somewhat disconcerting.

The factual background

Having made these preliminary observations, I turn to the relevant history.
The father was born [in] 1968 and is 42 years old. The mother was born [in] 1972 and is 38. The parties married in May 1997 and separated in April 2009. It is the mother’s case that the father was violent and abusive during the relationship, that he drank to excess and that he had a serious gambling problem.
The father denies violence, denies drinking to excess and, while he concedes that he has gambled from time to time, essentially denied having any problem.
Although it will be necessary to return to the matter in more detail when I come to deal with issues of credit, it is clear from what the father told me in his evidence-in-chief that at the time of separation, an incident took place which led the mother to seek an out-of-hours intervention order which was granted by police.
His Honour Magistrate Smith made an intervention order for a period of ten years in favour of the mother on 22 June 2009 following contested proceedings, but that period was apparently reduced to one year, expiring in April of this year, upon appeal.
On 7 June 2009 the father was charged with various matters including stalking and threat to kill. He pleaded guilty to the four offences charged and received a CBO (see paragraph 26 – mother’s affidavit filed 21 April 2010).
Likewise, although it is not clear exactly when this occurred, it is not contested that the father assaulted the maternal grandfather. Following what was again a contested hearing, he was fined $5,000.
The parties were able to come to consent orders in respect of their property dispute. On 27 July 2010 I made orders by consent which, inter alia, allotted responsibility for a number of debts to the father. Amongst the orders made (order 33) was an order that the father pay $11,933 to discharge a costs order made by Monahan FM, and a further $10,000 towards the mother’s outstanding legal costs. It appears that those sums have not been paid and, indeed, the mother sought orders in this proceeding that he be made to do so, together with witness expenses for her brother.
Following the separation, orders were made in May 2009 for the father to spend time with the children. The supervised time was to take place at McDonald’s in [C]. Controversy emerged as to whether the father was behaving himself properly.
On 10 July 2009 the interim arrangements were discharged and the children were to spend time with their father at GordonCare. GordonCare proved logistically difficult and Aiders and Carers were used for a time. It is clear that the time with Aiders and Carers did not progress well and was ultimately cancelled. Aiders and Carers’ workers suggested, and the father denied, that it was terminated because of bad behaviour by him.
Subsequently again the children have commenced to spend time with the father at GordonCare and this process has continued for quite some months. With one or two exceptions, that time appears to have progressed smoothly although the children apparently do not like using GordonCare.
The father has, in relatively recent times, entered into a relationship with a new partner, Ms M. He has been in a relationship with her for eight months at the time of trial and they have been living together for six months, and in the last several months at a home owned by Ms M in [suburb omitted].

The oral evidence

As earlier indicated, the father’s evidence at trial was given wholly orally. In his opening submission, the father confirmed that the two-year process since separation, including numerous court appearances, had been demanding on him and that he was focused on the best interests for the welfare of the children. He said that he wanted everything to end and to move on. He confirmed that he was basically accepting of the recommendations of the most recent family report.
Once he commenced to give his sworn evidence he detailed the new home in which he lives, which has a spa, a gym, an indoor swimming pool and three bedrooms.
He said that the parties need to take a responsible approach in the best interests of their children and to stop bickering. He accused the mother of being unable to negotiate or talk to him about the children in a cooperative way.
He said that the children wanted to see him, that he wished to take them camping and it would be beneficial if he did so.
He said that he wished to attend parent/teacher nights and sporting events and the like at the children’s school.
He then went on, however, to revisit, as it were, the matters giving rise to the intervention order. He complained that he had been effectively “set up” by the mother. He said, in effect, although these are not his actual words, that the intervention order was obtained after hours on the basis of very historical allegations and that the mother had planned the intervention order following a resumption of contact by her with a former boyfriend on Facebook. The clear implication in what he said was that the mother had intended to leave him for another man and had done so.
The father also confirmed that he was charged with stalking, and it is clear that he was charged and convicted of stalking, threat to kill and breach of the intervention order, even though no-one has provided the relevant court documents.
I note that the father said that he has been assessed for drugs and alcohol and never been the subject of any adverse findings.
Under cross-examination he confirmed that he had broken the nose of the mother’s father and spat at him. He attempted to justify this behaviour. It was not entirely clear to me (and nobody tendered the criminal records) whether the CBO covered both the breaches of the intervention order and the assault upon the grandfather, although it is clear that the assault on the grandfather led to a $5,000 fine.

He professed to be unaware that the maternal grandfather suffers leukaemia, although he did know that he had a stroke.
The father also asserted that the maternal grandfather attended the same gym as him and appeared to have no difficulty with that, although the wife strenuously denied these assertions, saying that the grandfather was in fact terrified of the father.
It is common cause that the father spent some years in the military and a considerable number of years as a policeman.
It appears that the father has paid no child support for the last two years and it is clear that he recently took the children to a factory owned by a friend of his for a day. This would appear to have been perhaps enjoyable for the eldest child, who was allowed to operate a machine under supervision, but I could not evade the impression that it would have been rather dreary at least for the young girl and the very young boy.
In response to cross-examination by the mother as to his drinking, he denied doing so to excess and denied now being a gambler. He also denied that he would leave the children with anyone else while they were in his care overnight.
He was also cross-examined by the mother about an incident where it emerged [Y] had a broken arm. His answers were to the effect that [Y]’s arm had not appeared to him at the time to be as bad as it eventually emerged.
He denied letting the children ride their bicycles without a helmet, but he did admit that on the first occasion he collected the children he did not have an appropriate child seat for [Z].
The father further confirmed that in addition to telephone time, he would like to spend time with the children by Skype.
He conceded that the mother was a good mother.
The mother’s evidence, which I can paraphrase more briefly, was focused upon her concerns as to the childrens’ safety. She said she wishes to wait until they are older before they start spending overnight time with their father and that blocks in the school holidays be limited to one week.
She asserted that the father is intimidating and was even so at GordonCare. She denied ever having had another partner. She said that the father finds it hard to see reality at times and could say nothing positive about him. She conceded that the father was good at playing with the children but, according to the mother, he was never a parenter. She expressed concern about camping trips into areas beyond mobile phone coverage.
She had no objection to the father attending parent/teacher nights, provided it was on a different night to her, and confirmed that she could not be in his presence at school concerts and the like. Similarly, she did not want Skype contact because “I don’t want him looking into my house”. She was happy with twice-weekly phone calls.
She also emphasised the failure of the father to comply with his financial obligations. It was clear from what she said and the way that she said it that the father’s failure to provide her with any assistance in her finances is the source of ongoing frustration and bitterness to her.

In the ultimate, the father has asserted that he wishes to commence paying money into the mother’s bank account to assist her, and as I pointed out to the parties in open Court, this would be the way to improve his relationship with her if that is what he really wishes to achieve.
Cross-examined about the incident at GordonCare, the mother confirmed that she had told the father to “fuck off”, but only after she had told him to go away at least twice and following his repeated failure to do so.
Ms M was called and it is sufficient to say that she was an impressive witness. She has a five-year-old child of her own and when in due course the children come to stay with their father at her house, it is clear that they will each have a bed. Her responses as to concerns raised as to the eldest child, [X], requiring space and room on his own were credible and measured. She said that he would initially share a room with her son, [name omitted], but if that did not work they could use the library and make alternative arrangements, including arrangements for [X] to be able to study.
The most recent reporter writer, Dr O, who has produced reports dated 7 June 2010 and 27 January 2011, was called and adopted her reports. She noted an apparent improvement in the father’s behaviour, most particularly in relation to the number of questions put to the children. She supported a regime whereby the children spend from Friday to Monday with their father, most particularly because anything that reduces the interpersonal contact between the parents is preferable.
Ms O was in favour of sole parental responsibility being granted to the mother, given the fact that the children will live primarily with her and the very poor interpersonal relationship between the parents, but recommended that the father be kept properly informed of the decisions.
She supported the regime of gradually introduced overnight time with the father proposed by the Independent Children’s Lawyer. She noted that the children do not like GordonCare, are closely bonded together, and should not be separated.
She confirmed that three weeks will be too long a time for [Z] to be away from his mother.
Ms O recommended telephone contact with the father on Tuesdays and Thursdays and emphasised the importance of his informing the mother of his address as and when it changed. She further recommended the Talk It Over program conducted by GordonCare.
Ms O noted that the father was now less focused on the mother’s alleged psychological problems. He was less negative about the mother but was still negative to an extent (see paragraph 12 of

Ms O’s report – he still asserted to her that all of the mother’s allegations were lies).
I note that psychiatric evaluation by Dr C found nothing remarkable about the mother. Dr C found the father to be a “rather obsessive individual”.

Findings about the evidence

In the light of the way the parties ultimately put their cases, it might be thought that many of the factual issues raised by the parties do not require determination. After all, all parties agree that the children should spend overnight time with their father. The real issue is the commencement and amounts of such time. Nonetheless, I think it is appropriate to make some findings, because the mother’s concerns about the father are such that an examination of their accuracy or otherwise cannot be avoided.
The father was a poor witness. His answers were on occasion evasive and/or self-serving. When it was put to him that he had been convicted of stalking his wife, his answer was “it depends what you mean by ‘stalking’”. This equivocation in the face of his formal conviction for stalking his former partner does him no credit and was, in my view, typical of his evidence as a whole.
Although both Ms O and the Independent Children’s Lawyer suggested that the father’s attitude towards the mother has improved, and although I accept that this is the case, he is after all coming off a very low base.
In my view the father is still equivocal about the mother. While he said, and it does him credit, in his final submission that he wishes to move forward and wishes the mother well, the fact is that he could not help himself in his earlier evidence from asserting that the entirety of the intervention order was something preplanned by the mother and inferring that this was done to enable her to commence a relationship with a former boyfriend.
I entirely accept the mother’s denial that this was so.
It should further be noted that the mother was an impressive witness. Her bearing was one of quiet dignity and her evidence was given with complete conviction.
I wholly reject the father’s assertions that the mother is not scared of him. She plainly is and she plainly, as Ms O says, has reason to be. The father’s breezy dismissal of his earlier gross misconduct leading to the intervention order, the convictions for stalking, the assault of her father and the like, stand in stark contrast to this proposition.
I note the observation in Ms O’s most recent report at paragraph 24:
“He continues to present with a somewhat imperious attitude and acknowledges that he resorts to sarcasm at times and is overtly opinionated. It is noted in the GordonCare reports that

Mr Dalton has, on occasion, continued to speak about

Ms Dalton, and spoke in highly negative terms about her.”
At paragraph 27, Ms O said:
“Mr Dalton’s presentation, while appearing slightly less intense than at the time of the Previous Assessment, suggested that he continues to hold beliefs and attitudes with respect to his rights of contact with the children, women and Court which undermine his capacity to interact in a respectful and non-judgmental manner.”
It should, however, also be noted that at paragraph 29, Ms O went on to say:
“Mr Dalton does appear to be able to consider the needs of the children in a more balanced way than he is able to do with respect to Ms Dalton. It is reported by Ms Dalton and the children that if the children have prior arrangements or want to attend a social event Mr Dalton has been quite reasonable in allowing them to do so without issue.”
From Ms O’s report it is apparent that [X] and [Y] are quite happy to spend overnight time with their father, and although [Z]’s remarks were perhaps more limited, it appears that he is likewise happy to do so.
At paragraph 45, Ms O said:
“While it appears that there is ongoing conflict between the parties that compromise a shared care arrangement and make changeover and change-back necessary to occur in a structured environment, it also appears that there is no basis on which to consider that Mr Dalton is unable to care for the children when in his care or that his contact with them should be limited in any way.”
In the ultimate, therefore, although I think that the father is frankly less than honest in his endeavours to minimise his own behaviour during the relationship in relation to violence and drinking and gambling, the fact is that the children are happy to see him, they want to spend time with him, and Ms O, as the independent unchallenged expert, has no objection to their doing so.
Accordingly, while I believe the mother’s evidence about what the father was like during the relationship, and have no doubt that the father thoroughly and reprehensibly disgraced himself by the conduct which gave rise to the intervention order and other proceedings, together with the appalling assault upon her father, the fact is that there is no reason why the children should not spend overnight time with their father. I find that he will not leave them in the care of others, that he will not go out and gamble at nights when they are in his care nor will he consume alcohol to excess. I note that he is prepared in any event to accede to orders to this effect.
Against these findings I come to consider the statutory pathway.

Parental responsibility

The Court is required to apply a presumption that it is in the children’s best interests to make an order for equal shared parental responsibility unless there are reasonable grounds to believe that a parent of the child has engaged in either abuse of the child or family violence (s.61DA of the Family Law Act 1975 (“the Act”)).
The presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the children to make an order for equal shared parental responsibility (s.61DA(4)).
Here, it is clear that there has been family violence. Although he is at best equivocal as to accepting the result, the fact is that the husband has been convicted of activities which would plainly fall within the extended definition of family violence in the Act.
Even if this was not the case, I would accept the recommendation of

Ms O. At paragraph 55 of her January 2011 report she wrote:
“In light of Mr Dalton being subject to an Intervention Order, and the parties have no effective communication at this time, the notion of shared parental responsibility remains impracticable and impossible to implement. On this basis it is recommended that Ms Dalton have sole parental responsibility for the children, and the daily care and wellbeing of the children when in her care. Such initial strategy could be the establishment of an email address used by the parties for the sole purpose of arrangements regarding the children.”
Given that the presumption does not apply, “the Court is at large to consider what arrangements will best promote the child’s best interests” (Goode & Goode (2006) FamCA 1346 at [65]).
These best interests are ascertained by consideration of the objects and principles from s.60B and the primary and additional considerations in s.60CC of the Act. I bear in mind the objects set out in s.60B in approaching the matters indicated in s.60CC.

Section 60CC matters – primary considerations

Here it is clear that there will be a benefit to the children in having a meaningful relationship with both of their parents. Neither party proposes otherwise, and indeed the case is about the mechanics of promoting such an outcome, rather than whether it should exist or not.
It is in my view appropriate in the light of past history to make orders that will provide the children with a measure of protection from abuse, neglect or family violence when in the care of the father, even if, as he says, it is not necessary to do so.

The additional considerations

Section 60CC(3)(a)

The views expressed by the children are that they are happy with overnight time. They do not wish changeover to continue at GordonCare. Equally, however, it is clear that they wish to remain in the primary care of their mother, who has looked after them in that capacity all their lives.

Section 60CC(3)(b)

The children have a close and well-bonded relationship with their mother and with one another. Their relationship with their father seems likewise well-established, albeit that it has been impacted by the history of litigation between the parties.

Section 60CC(3)(c)

Here, the mother’s willingness and ability to facilitate a close and continuing relationship with the father is necessarily, whether consciously or otherwise, slightly impaired by the history of the matter. Her understandable fear of the father and her resentment over his failure to assist financially (a matter which he would do well to correct) must have some effect. Nonetheless, I accept that the mother does not wish to sunder the relationship between the children and their father and will take appropriate steps, notwithstanding her concerns.
The father is, as I say, to an extent ambivalent about the mother. It is wholly encouraging to hear him saying things in Court which would suggest that he is moving on from the former exceptionally negative views that he held of her. These views are still, in my opinion, extant to an extent. He will need to live up to the good things he says about the mother before the Court.

Section 60CC(3)(d)

I have already indicated that the children should not be separated. That is Ms O’s recommendation and I adopt it. The real issue here is the amount of time the children should be away from their mother and when it should start. The Independent Children’s Lawyer has set out a regime of gradually increasing time, in which GordonCare would also be phased out. Ms O expressed the view that this was a desirable course of action. To move immediately to the times sought by the father would be too much. It is a further example of his lack of insight that he proposes it.
Likewise, the position of the mother is, in my view, understandable but overstated. The children have expressed no concerns about overnight time and it should begin in the fashion contended for by the Independent Children’s Lawyer.
A further issue in the case is how much time should be spent in holidays. The mother is prepared to have blocks of up to a week and Ms O supported that position. The father sought up to three consecutive weeks in the long summer holidays. Clearly, in my view, a child as young as [Z] ought not be away from his mother for so long a period of time. Blocks of one week will be ordered.

Section 60CC(3)(e)

In the context of the findings already made, and subject to an issue about camping holidays to which I will return, this subsection adds nothing.

Section 60CC(3)(f)

There is no question as to the capacity of the mother to look after the children. The father, despite the other criticisms made of him, is felt by Ms O to be capable, and I accept that expression of opinion. Ms M was, as I have already said, an impressive witness. She has a young child of her own. She will plainly, to the extent necessary, be able to provide for the needs of the children.

Section 60CC(3)(g)

The only matter I should mention under this subsection is the father’s lifestyle. For the reasons already given I do not uphold the concerns expressed by the mother. I do not think he will be as feckless or lacking in proper care of his children as to leave them alone or with other parties overnight. He will not drink to excess while they are in his presence, both because it is in his interest not to do so and because I will make an order that he will not do so. The gambling issue, while clearly established as an historical fact (the material tendered by the mother shows clearly that, whatever its full extent, the father was at times a heavy gambler) is not now of any moment.

Section 60CC(3)(h)

This is not relevant.

Section 60CC(3)(i)

In the context of the findings already made, I do not think this subsection holds anything further.

Section 60CC(3)(j) and (k)

These matters are obviously relevant, but I have dealt with them above.

Section 60CC(3)(l)

The orders that I will make are designed to be final orders. The mother abandoned in final submissions a suggestion that there be a further family report in six months, and I think that she was correct to do so. The orders I propose to make should (particularly given an earnest endeavour to look to the future by the parties) avoid the need for further litigation.

Section 60CC(3)(m)

There are no other matters which I think it is necessary to mention.

Other issues

Parent/teacher nights

Both parents should be permitted to attend teacher/parent nights, providing they make interview times that do not cause them to be anywhere near each other.

Special occasions – school

While the parties have made some progress, the interrelationship between them is so bad, and the mother’s fear of the father so sincere, that it would be wholly improper and not in the children’s best interests to order that the parents come into contact at school concerts and the like. The fear that this would occasion the mother is clearly not in the children’s best interests.
The special school events, such as plays, sporting matters and the like, shall, in the absence of agreement, be attended on a turn-about basis.

Camping holidays

The father wants to take the children on camping holidays when they are spending time with him. The mother expressed reservations about this, but camping holidays are by no means an unknown facet of everyday life. I will, however, order that the father not take the children camping any place where mobile phone coverage is not available. This will provide the mother with comfort and will also ensure that the orders made as to telephone contact are capable of being put into effect.

Special days

The parties have agreed as to orders for Christmas, and I accept the proposal of the Independent Children’s Lawyer as to special days.

Email communication

Given the difficulties the parties have in communications, I will make the orders sought by the Independent Children’s Lawyer that the parties communicate about the children via email. I accept that the mother’s fears of the father looking into her house via Skype would be distressing to her and this is plainly not in the children’s best interests, and I will therefore not order it.

Talk It Over

I accept Ms O’s recommendation that the parties enrol in and complete the Talk It Over program through GordonCare.

School reports and other matters

These matters I think, in the ultimate, are not matters of disagreement, and there will be orders in the form sought by the Independent Children’s Lawyer.

School attendance

The mother seeks that the father’s attendance at the children’s school be limited so as to avoid incidents during ordinary school weeks. There is no reason why the father should attend save in compliance with these orders and the mother’s concerns, while in my view unduly apprehensive, are in all the circumstances reasonable. I will make an order accordingly.

Conclusion

For all of the above reasons, I propose to make orders substantially in the form sought by the Independent Children’s Lawyer. I have prepared draft orders to that effect but will give the parties an opportunity to peruse the same before making them final, in case there is any matter I have overlooked or which requires further fine tuning.
It should be noted that I have not in these Reasons for Judgment traversed by any means each and every item of evidence that the parties saw fit to bring before the Court. The matters not referred to have not been ignored. They have simply been felt by me not to be of sufficient moment to merit any particular reference.
It should further and finally be noted that the mother’s assertions, not included in her responses but in her affidavit, that the father be compelled to pay moneys previously ordered have not been the subject of more detailed consideration. That is because the orders have already been made. There is nothing at this stage that the Court can presently meaningfully do to compel their compliance. I note that Mr Dalton is unemployed in any event. He apparently proposes to start paying moneys into the mother’s bank account in the near future. It is clear that he would be well-advised to do so, as much of the mother’s ongoing concerns about him clearly derive from a feeling of annoyance and betrayal at his failure to meet what she regards as his obligations.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 1 April 2011