Daly and Daly (No. 2)

FAMILY COURT OF AUSTRALIA

DALY & DALY (NO. 2)

[2007] FamCA 638

FAMILY LAW - CHILDREN – Division 12A - Previous proceedings with allegations of sexual abuse – Fresh complaint from child later retracted – Mother’s response to retraction by child – Mother’s capacity to meet the emotional needs of the children – Psychiatric evaluation and further Family Report to be prepared

APPLICANT:

MR DALY

RESPONDENT:

MRS DALY

INDEPENDENT CHILDREN'S LAWYER:

MS MARY LONERGAN

FILE NUMBER:

MLF

546

2005

DATE DELIVERED:

30 March 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bryant CJ

HEARING DATE:

30 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ambrose

SOLICITOR FOR THE APPLICANT:

Coulter Roache

COUNSEL FOR THE RESPONDENT:

Ms Glaister

SOLICITOR FOR THE RESPONDENT:

Ingpen & Bent

COUNSEL FOR THE RESPONDENT:

Ms Bender

SOLICITOR FOR THE RESPONDENT:

Victoria Legal Aid

Orders

That the children N born in October 1998 (“[N]”) and A born in June 2000 (“[A]”) live with the father:
(a)from after school Thursday until before school on Tuesday each alternate weekend commencing on the first Thursday following the conclusion of the current school holidays; and
(b)each alternate other Monday from the conclusion of school until the commencement of school on Tuesday.
That the children live with the mother at all other times
That during the school holidays:-
(a) The children spend one half of each school term holiday with the father and one half with mother;
(b) During the current school holidays the children spend from noon on Saturday, 30 March 2007 until noon on Saturday, 7 April 2007 with the father and the balance of the school holiday with the mother.
(c) In the event that the parties cannot agree on holiday periods in other term holidays, the children spend the first week with the father.
That on A’s birthday the children spend from 12:30pm to 4:30pm with the mother.
That other than changeovers at school, all changeovers take place at the B Contact Centre.
That the father continue to provide a pre-paid mobile phone to the children which will accompany them between their parent’s households and the children will be at liberty to telephone the other parent
That the Applications be adjourned for further hearing to Monday, 6 August 2007 at 10:00am before this Honourable Court.
That a Directions Hearing be held by telephone on Monday, 2 July 2007 at 10:00am, for the purpose of considering the evidence required at hearing.
That a transcript of the evidence of Ms W be made available to all parties.

10.That a family report be prepared by Ms W prior to the re-listing of the matter on 6 August 2007 as to:-
(a)The issues identified by her and the parties which will be Attachment A to these orders;
(b)The existing parenting arrangements and extent to which they are working in the best interests of the children; and
(c)Any other relevant matter.

11.That prior to the adjourned hearing the mother:-
(a)obtain a psychiatric assessment;
(b)commence a course of therapeutic counselling to assist her in parenting issues and in particular to assist her in separating her needs from those of the children and dealing with the ongoing parenting arrangements.

ATTACHMENT A

Are the children at risk with either party ?
Will the children benefit from having a relationship with both parents, and who is the parent better able to facilitate that relationship with both parents?
Should there be a shared parenting arrangement ?
Would the mother be assisted by counselling ?

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Chief Justice delivered this day will for all publication and reporting purposes be referred to as Daly and Daly.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 546 of 2005

MR DALY

Applicant

And

MRS DALY

Respondent

REASONS FOR JUDGMENT

This matter concerns the parenting arrangements for the two children of the parties, A born in June 2000 and N born in October 1998. N is eight and A is six. It has proceeded as the first day of the hearing in accordance with Practice Direction 2 of 2006 and Division 12A of the Family Law Act1975 (Cth). The applications were filed after 1 July so it is a matter that falls to be determined within Division 12A.
The background to this matter is set out in the reasons for judgment that I delivered on an interim basis on 12 February 2007, as follows:

1)The applications that I have before me involve issues regarding contact between two young children and their father. The short background to the matter is that on 27 March 2006, orders were made by consent in relation to [N] aged 8 years and [A] aged 6 years. The orders provided for the children to live with the wife, who I will refer to in this judgment as the mother, and for her to have sole responsibility for decisions about their day‑to‑day care, welfare and development except when they are spending time with the father.
2)The father's contact was over a graduated period which commenced in April 2006 and took place initially at the [B] Contact Centre. The contact progressed to unsupervised contact during day times and ultimately to overnight contact which was to commence in August 2006. The orders also provided for contact on the children's birthdays, Father's Day, Christmas Day and by telephone, and provided for where the handovers for contact were to take place.
3)Prior to those Orders being made, there was a dispute between the parties which included the mother's concerns that the children had been sexually abused in some way by their father. Clearly, by reason of the fact the orders were made by consent, the mother, at least in March last year, felt that there was no longer a risk to the children.
4)The applications that I have before me today in the duty list commenced with an application by the father filed on 14 December 2006 alleging contravention of those orders by the mother. He also filed an application seeking final orders in which he seeks to vary the orders for contact both on an interim and a final basis and, as he says, envisaged by notations in the original orders. He also seeks, if the court finds the contravention to be proved or not, some make-up contact to make up for the periods in which he has not seen the children.
5)The mother responded to the application for final orders and also the interim orders by seeking, as far as final orders are concerned, that paragraphs 4(g) to (m) of the orders made on 27 March be discharged. Those are the orders that effectively provide for contact to take place. The mother, responding to an application in a case, seeks the same orders but a suspension rather than a discharge of those orders. In short, on an interim basis the mother seeks that the father have no contact to the children.
6)The mother's material filed in support of her application makes it plain that the reason that she seeks to suspend and discharge the orders for contact is that she alleges that the father has sexually assaulted [A]. The father denies these allegations and I will turn in a moment to the evidence to support them and my analysis of that evidence. As I have indicated in the short background that I have set out, the allegations that [A] has been the subject of some sexual abuse by the father are not being made for the first time and there is some history of reporting to the Department of Human Services.

The present proceedings commenced initially in December 2006 when the father brought an application for contravention and then sought some variation of some orders that were made by consent on 27 March 2006. Those orders provided for a regime of contact to recommence between the father and the children, first to be supervised and ultimately to be unsupervised. That regime had been put in place because there had been allegations made by the mother previously and given some support - on that occasion initially at least by the Department of Human Services - that the children, A in particular, was at risk of sexual abuse if contact took place with the father. I think it is implicit in the orders by consent that there was no risk to the children with the father, certainly if the regime of contact that was there set out occurred.
When the application came on in December the mother had acted upon what she asserted and believed were some further allegations by A about inappropriate sexual contact by the father. She had in her mind, at least, acted protectively by ceasing the contact and when the matter came before me in February the father had not had any contact for some considerable time. The mother was at that stage seeking to suspend all of the orders for contact.
In the interim proceedings in February I analysed the evidence that was then before me and did not accede to the mother's application but varied the orders to some extent to take account of the fact that I had not had an opportunity to hear the evidence tested at that stage and provided for daily contact on alternate weekends to take place. That contact has taken place since then. The matter assumed a different complexion when it commenced before me today. The reason that was so emerged when the family consultant Ms W gave some oral evidence about the reportable counselling that had taken place between her and the children and the parties.
What emerged from Ms W’s evidence was that on the weekend before she saw the children, A had apparently informed the mother that to the extent that she had made allegations that her father had inappropriately touched her, she retracted those allegations. This statement was repeated by A to Ms W and has clearly affected the way in which the proceedings are now being pursued by the parties.
As far as the mother is concerned, she acknowledges and accepts that there is no evidence from which a court would be likely to find to an appropriate standard of evidence that the children, in particular A, were at risk of abuse in the unsupervised presence of their father. Whether or not she continues to hold personal concerns is a different matter which I will address, but she accepts as part of her case that a court would not be likely to find that the children were at risk if they were to be in the unsupervised care of their father.
She acknowledged at the outset that the children have a good relationship, subject to such concerns as she might harbour, with their father and that they should have substantial and significant contact with him. In particular she proposed that there be orders that the children continue to live with her but that they spend alternate weekends with their father from 5 pm Friday until the commencement of school on Monday, and each Wednesday after school until the commencement of school on Thursday; one week in each term holiday, two weeks in the other holidays and other special occasions.
The father's position was also different. He sought that the children live predominantly with him, that they move from their mother's care to his care and that a virtually mirror image arrangement be made for the children to have contact with their mother on alternate weekends. The father's position arose from essentially what had occurred when Ms W saw the parties. The detail of that emerged when Ms W gave evidence.
Ms W described both what she had elicited from the mother had occurred prior to her seeing the children, and then subsequently a description of what occurred in front of her. What emerged was that in the weekend before Ms W saw the children, A had informed her mother that nothing untoward had occurred by her father. This was described as a retraction of the allegations. It appears that the mother was angry at this revelation to the extent that she told A that she was going to take her to the police station so that she could inform the police that she had previously lied about the allegations.
This threat was carried out to the extent that they drove to the police station. There is some suggestion then that A retracted the retraction, which Ms W postulated, may have been because she did not want to go into the police station, and in the event she was not taken inside by her mother. Nevertheless, when she saw Ms W shortly after the weekend she repeated to Ms W that nothing untoward had occurred. It is important, in my view, that Ms W emphasised the consistency with which A maintained the position that nothing had happened, and even more remarkable, she postulated, in view of her mother's distress and anger during the weekend.
When the retractions were made again in front of Ms W, Ms W described the mother again as becoming angry and distressed by what had happened. In particular the mother said that the children could go to live with their father as a result of what had occurred, and both children were "devastated" - to use Ms W's words - at her reaction.
Ms W indicated that the mother was much more focused on her own distress than the effect on the children and had difficulty focusing on the children's distress at their apparent rejection by their mother. Ms W indicated that she had some difficulty in focusing the mother upon dealing with the children's distress but ultimately that did happen. Ms W indicated that she thought that the mother needed some help with ongoing counselling, particularly to separate her own needs from those of the children.
Ms W commented upon the children's relationship with their father. She indicated that the father did not blame either child for the allegations and that he attempted to ensure that the children felt safe and secure, and focused on trying to relieve their distress.
After some questioning by the representatives of the parties and the independent children's lawyer, Ms W repeated her concerns about the mother's lack of restraint and insight when A had withdrawn the allegations, and indeed Ms W's concern on that day was such that she made a notification to the Department of Human Services because she was concerned about the possibility the mother might do some harm to herself, and to her reaction generally.
The Department of Human Services in response to that notification wrote to the court by letter dated 28 March which letter I have received into evidence and mark exhibit 1. The department noted:
After investigation it has been assessed that Child Protection will not be taking any further action in relation to the matter.
It is Child Protection's assessment that at the time of the interview with the children there were no clear disclosures from the children.
There has been some concern in relation to the mothers [sic] mental health and it would be the recommendation [sic] of Child Protection that the mother attends a psychiatric assessment and counselling..
Those recommendations, it will be clear, are in accordance with Ms W's recommendations as well. Some of the complexities of this matter were teased out in the evidence of Ms W with the questions that the various counsel asked. Ms W's opinion was that the mother probably still believes that A has been abused and that it may take some time for her to change that view, and that is a major issue which concerns her. Ms W was concerned to some degree about N, who appears to be compliant and has taken on a somewhat protective role in relation to A and the mother. She expressed concern that the focus has largely been on A and thus to some extent to the apparent emotional neglect of N. Ms W was concerned about him whilst noting that he was not obviously adversely affected.
Ms W also indicated, that apart from her concern about the mother's rejection of A, she was concerned about A herself. She said that she thought that A had felt a huge responsibility for the last two and a half years, which is really the period of the currency of these allegations, and seems to be aware of that responsibility.
When one considers that A is now six and that she has been in this position since she was less than four years of age, the effect on the child must be considerable and concerning. Ms W finally opined that A's sense of responsibility must stop and that there may be more opportunity for that to occur if she were living with her father, in the sense that she would be able to be a child. The context of this evidence led the father to the position that the children ought be living with him predominantly and having contact with their mother.
For her part, the mother told me in her evidence that she accepted the fact that it was not going to be likely that the court would make the finding that there was any risk to the children being with their father and that she accepted that position and that was why she was proposing substantial and significant contact. She said that she had acted protectively towards the children in the past, that there was no malice in the protection, and that she had acted on the advice of those to whom she had reported her concerns who had supported her protective actions.
The mother accepted my view, importantly, that she needed now to move on, even if she was still finding it difficult to accept in her own mind that the position with the children and their father was completely free of risk. Accordingly, she proposed that the children continue to live with her and that they have significant and substantial contact with their father.
The position of the independent children's lawyer was that Ms W's evidence about the mother's response and rejection of the children and the ability to understand their distress was very concerning and that the underlying reasons why the allegations were originally made was still not really clear and there were genuine concerns about the children, particularly about the responsibility that A might feel and has felt for some time.
The independent children's lawyer, however, accepted that even if the mother genuinely continues to hold concerns she should be given the opportunity at least to do as she said she wished to do, which is to move on and deal with the matter on the basis that the children will have a normal and meaningful relationship with their father. In the circumstances, the position of the independent children's lawyer was that there should not be a complete change of residence to the father but that a shared care arrangement would potentially work best for the children.
The father's position was put on the basis that the mother's allegations were concerning, that the mother's reaction to the children was concerning and that the children's interests would best be served by the opportunity now to live in a normal family relationship with their father, who can provide for them and who would provide a meaningful relationship with their mother.
The issues that were identified by Ms W at the commencement of her evidence were, first, the question of whether there was a risk to the children of either physical or emotional abuse from either party; secondly, the benefit to the children of the relationship with each party; thirdly, the capacity of each of the parents to foster such a relationship and, finally, whether there should be some sort of shared arrangement or whether the children should predominantly spend time with one or other of the parties.
Fortunately, the parties live within a reasonable distance of each other in the Geelong area. Neither of the parties suggested the children's present school should be changed, and each of the parties would be able to implement their proposals without any practical impediment as far as the children are concerned.
Because this matter is being dealt with under Division 12A of the Family Law Act 1975 (Cth) (“the Act”), this is not the final determination of the matter, it is part of the hearing which will operate in the continuum. I will make orders today because both parties seek that I do so, but the matter will come back again potentially for final determination in about four months' time. In the meantime, I propose to make an order for a full family report to be prepared by Ms W for that hearing. So any arrangements that are put in place today will in a sense be a trial of those arrangements between now and when the matter comes back.

As I will be making a parenting order, I am required to apply the provisions of s 61DA. That section provides:
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Section 65DAA then provides:
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)      If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)      the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)      how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e)      such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
The parties here already have an order for joint parental responsibility and neither has sought to disturb that order. Although I am required by s 65DAA to consider whether the children spending equal time with each parent would be in their best interests, I am also required to consider it because it is the order sought by the Father and in that context I will consider it.
The Family Law Act requires that the court make orders which are in the best interests of the children, and pursuant to s 60CA of the Act the child's best interests are paramount in considering whether to make a particular parenting order.
Section 60CC of the Act sets out how the court is to determine what is in the best interests of the children. There are two primary considerations and a number of additional considerations. The primary considerations are set out in subsection (2) and are as follows:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Both of the parties now acknowledge that there is a benefit to the children in having a meaningful relationship with each parent, and the real question is whether both parents can foster that relationship. As far as protecting the children from physical or psychological harm, in the end the case before me today at least is focused on whether or not the children are at risk of psychological harm if they remain in the care of the mother.
Addressing those matters that are relevant in section 60CC subsection (3), I take into account the following matters:
a)any views expressed by the children.
The relevance of the views expressed I think in this case are, in the main, the expression by A that she has not been inappropriately touched by her father. The question of the extent to which any of the parenting arrangements should change was not directly addressed by Ms W with the children.
b)the nature of the relationship with the children with each of their parents and other relevant persons.
In the main, the evidence addressed was that of the relationship with each of the parents. As far as the mother is concerned she has been the primary carer for the children, and the children have a close relationship with her. The incident in Ms W's presence and occurring the weekend before that when the mother effectively rejected A and was angry and distressed with her for retracting the allegations, gives concern for the nature of the relationship with the mother.
As far as the father is concerned, there appears to be, on the evidence, a good and close relationship with the children. He has acted appropriately. There is no suggestion in the evidence that the children feel at risk with him and their relationship was described by Ms W as being more relaxed in his care. I take into account, however, that as a matter of fact the children have not had an opportunity to spend a great deal of time with him since the parties separated, largely as a result of the allegations that were made.
I observe from the father's evidence, in support of what Ms W said, that he has accepted the necessity for the court to make orders from time to time which were protective of the children but which denied him the contact he would otherwise have had with them. Whilst he was distressed about the lack of contact with his children, he was understanding of the reasons why that contact was curtailed.
c)the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship.
I have no doubt that the father will continue to encourage a close relationship with the mother.
There must be some concerns at this point about the capacity of the mother to accept and move on, as she has said, and to foster a close and continuing relationship with the father. But to some extent that is untried at this stage and, in my view, she should be given some opportunity to indicate that she is able to do that.
d)the likely effect of any changes in the children's circumstances.
If I were to accede to the father's application, there would be a significant change for the children, in that they would be changing from the household in which they had spent most of their time to a completely different household with different arrangements and it is not clear what effect this would have on the children.
Ms W expressed some concern that A might feel some responsibility for this arrangement having been brought about, and whilst I think it is important that the children spend as much time as they can with each of their parents, the evidence, in my view, does not at this point support the need to completely change the arrangements around.
Because the orders will be effectively on a trial basis, the children and the parties will have an opportunity to see how these orders work in the best interests of the children and when the matter comes back we will be in a good position to know whether these are the best arrangements or whether there are some other arrangements which might suit the children better. There is no practical difficulty with the children spending time with each of the parents, because of the proximity of their homes.

e)the capacity of each of the child's parents to provide for the needs of the children, including emotional and intellectual needs.

The evidence indicates that the father is capable of meeting these needs, although I observe that, through no fault of his own, he is somewhat untried as a residence parent.
There is a real question in this case about the mother's capacity to meet the emotional needs of the children as a result of what occurred when A indicated to the mother that the father had not acted inappropriately to her. The mother says in her evidence and through counsel that she acted appropriately and protectively in the past, that she was confused and distressed by the retraction of those allegations by A and the fact that she had invested so much emotionally in the past two and a half years, believing that there was cause for her to be concerned. She says that she genuinely accepts the need to move on and to look at the matter in a different way.
In my view, the mother should be given the opportunity to indicate that she can do that in the new arrangements that I will put in place pending the matter coming back before the court. The extent to which that happens and the extent to which the arrangements work well for the children will obviously dictate to a large degree what orders should be put in place when the matter comes back.
I do not need to say anything further about the attitude to the children and responsibilities of parenthood, which I think have already been encompassed by the matters which I have raised. In other respects, the parties have been able to fulfil their responsibilities as parents.
I accept that the mother did comply with the orders that were made in March 2006 up until the time that she believed she needed to act protectively again, and the parties do not appear to have had any difficulties with long‑term decision‑making for the children. It is important that each of them continues to have a significant role and to make decisions jointly about the children's long‑term care, welfare and responsibility.
The conclusion I have reached, having regard to all of these matters, is that I could not, at this stage, change the children's living arrangements so that they live predominantly with the father. On the evidence, it does not seem to me that it is a necessary corollary of what has occurred. However, I think it is important, given the evidence of Ms W and the father's relationship with the children, that they spend significant and substantial time with him in what is close to a shared arrangement. I do so essentially for the following reasons:
a)The mother has been the key parenting figure for the children and I would be concerned about a significant change and the effect that it may have on the children, particularly on A if she took some responsibility for it.
b)The mother has accepted the need to move on and to foster a relationship with the father. She accepts that she needs a psychiatric assessment and needs some assistance to, as Ms W put it, separate her own needs from those of the children. In my view, she should be given the opportunity to do that.
c)I am not convinced from the evidence, in any event, that a major move such as proposed by the father would in fact address the underlying issues. In any event, the trial arrangement will give the mother an opportunity to seek the psychiatric assessment I have referred to and some counselling to assist her. But an arrangement whereby the children spend a significant amount of time with their father will also for them support the view that he is an important part of their life, and I hope, will also support in their mind that it is something that their mother can also support.
One thing in this case is clear, that the children, particularly A, but also N, need to understand that these complex issues are not their responsibility and that they are entitled to simply have a caring and loving relationship with each of their parents. That is their right clearly and the parties should both take responsibility for ensuring that that occurs.
What I propose to do is to make orders that the children live with the father from after school Thursday until the commencement of school on Tuesday in each alternate week and on each other Monday from after school Monday to the commencement of school on Tuesday. The children will spend one half of each school holiday with each of the mother and father.
The parties have agreed in relation to the current school holidays, which commence today, that the children will spend from noon on Saturday, 30 March until noon on Saturday, 7 April with the father, and the following part of the holidays with the mother.
The matter will come back before me on Monday, 6 August 2007 at 10 am. I will make some orders for a telephone directions hearing prior to that date to work out what evidence needs to be available on that date, and I will also order a family report to be prepared by Ms W for that hearing.
A's birthday is in June. It falls on a Sunday. I do not know whose day that will fall on, but, unless anyone else disagrees, I was proposing to order that when a birthday occurs the respective child spend no less than three hours with the parent with whom they are not living at that time. I will make those orders formally. I also need to make an order I think for a psychiatric report for the mother and that the mother attend counselling.
I have not made any orders for affidavits or witness statements at this stage because we will have the directions hearing by telephone and I will be able to identify then what needs to be done for the final hearing.
I will attach the issues as identified by Ms W and the parties with me, to the orders. While I hope that there will not be an issue that requires determination in the interim, if there is, I will deal with it if the case coordinator advises that my assistance is required.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Bryant

Associate:

Date: 4 July 2007

[2007] FamCA 638

30 March 2007

Key Legal Topics

Areas of Law

Family Law