Egerton and Hiczewski

[2010] FamCA 1176

FAMILY COURT OF AUSTRALIA

EGERTON & HICZEWSKI [2010] FamCA 1176

FAMILY LAW – CHILDREN – Parenting orders – Where parenting orders previously made by consent – Where father seeks to alter the existing orders – Where there is significant conflict between the parents – Whether parenting orders should be altered

Family Law Act 1975 (Cth)

APPLICANT: Mr Egerton

RESPONDENT: Ms Hiczewski

INDEPENDENT CHILDREN’S LAWYER: Mr G. Couper

FILE NUMBER: BRC 10781 of 2008

DATE DELIVERED: 7 December 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 7 December 2010

REPRESENTATION

THE APPLICANT: In perosn

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Couper of G Couper Solicitor

Orders

1. The matter is adjourned for further mention before Justice Murphy at 10.00am on Tuesday 14 June 2011 in the Brisbane Registry of the Family Court of Australia.

2. A further short updating report pursuant to s 62G of the Family Law Act, be prepared by Ms B, Family Consultant, not later than 21 days prior to 14 June 2011.

3. For the purpose of the updating report, each party do all such things as might be necessary so as to themselves attend and facilitate the children attending such further sessions with Ms B as she might reasonably request.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Each of the parties shall forthwith, do all such things, sign all such documents and pay equally all such fees as might be necessary so as to facilitate changeovers taking place at the C Contact Centre for the purposes of these orders.

2. The father shall spend time with the children L born … November 1999 and E born … May 2001 (“the children”) in accordance with the orders otherwise in existence, but only in circumstances where the C Contact Centre can facilitate changeovers at those times and on those days.

   a.In the event that the C Contact Centre is unable to facilitate changeovers at those times and on those days, then time shall occur from the earliest time on which the C Contact Centre can effect changeover, and conclude at the latest time and on the day on which the C Contact Centre can effect changeover.

   IT IS NOTED THAT:

   (i)Days and times will be dictated by, in the first instance, the orders that currently exist, however, the best arrangements that can be made with the C Contact Centre shall take precedence over those orders.

   (ii)Time shall occur with the frequency of the current orders, but only according to the availability of the C Contact Centre.

3. An injunction is issued restraining the mother and her agents from removing the children from the Commonwealth of Australia unless and until the mother provides to the father, not less than 21 days prior to the date of any intended travel:

   a.A photocopy of return tickets for the children;

   b.A written itinerary in respect of any such visit to New Zealand or elsewhere;

   c.A telephone contact number and an address which can be used for the purposes of the father contacting the children in case of an emergency;

   d.A telephone number with all international global roaming facilities enabled, so as to allow the father to exercise telephone contact in accordance with the orders for telephone time otherwise provided for.

4. In the event that the mother provides in writing, each and all of the information outlined above, the father shall not unreasonably withhold his consent either to the issue of a passort or the children travelling overseas.

5. The mother shall do all such things as are necessary so as to facilitate telephone communication between the children and the father between those times and on those dates otherwise provided for, on mobile number 04…

6. The mother shall do all such things as are necessary so as to faciitate that telephone number and the telephone attached to it, being in the possession of the children so as to enable telephone calls to take place on that number, at those times and on those days.

7. The mother shall do all such things so as to facilitate the father having communication with the children by Skype between the hours of 6.00pm and 7.00pm on Saturdays and Sundays.

8. The mother shall do all such things as are necessasry so as to enable that communication to take place by Skype at those times and on those days, upon the father telephoning the children earlier on each of those days to confirm that a Skype communication will take place at that time and on those dates.

9. The mother shall do all such things, sign all such documents and pay all such fees as might be necessary so as to forthwith arrange for each of the children to obtain their own email account with Yahoo and to forthwith provide details of those email addresses to the father in writing.

IT IS FURTHER ORDERED THAT

1. On Christmas Day 2010, the mother shall deliver the children at 2.00pm to the home of the paternal grandparents, and the father shall deliver the children to the home of the mother at 2.00pm on Boxing Day 2010.

2. The parties are granted liberty to apply on the giving of 7 days notice in writing.

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

IT IS DIRECTED THAT

1. The parties shall each do all such things and sign all such documents and the mother pay all such reasonable fees as might be necessary so as to facilitate the children attending counselling with P Organisation, or such other similar counsellor or counseling organisation as might, from time to time, be recommended by the Independent Children's Lawyer in consultantion with Ms B.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10781 of 2008

MR EGERTON

Applicant

And

MS HICZEWSKI

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Parenting orders were made by consent in this Court on 23 February this year.  Those orders provided that the two children of the parties’ relationship, L, currently age 12, and E, currently age nine, live with the mother and that they spend time and communicate with their father at all times as agreed between the parties, and in particular, at specified alternate weekend times and communicate otherwise by electronic means, such as Skype, email, and telephone. 

2. It was also ordered that the parents attend a post-separation parenting course conducted by Connections.  The father has attended that course.  The mother has not. But, the mother, who lives on the Gold Coast, has been attending the course run through Relationships Australia in that locality.

3. Those orders also provided that neither party was to discuss “adult and legal issues” with the children and that the parents would meet with the family consultant, Ms B, and the Independent Children’s Lawyer (“ICL”) “to establish a shared understanding of what is appropriate and not appropriate to discuss with the children”.  That meeting was to take place at the Child Dispute Services section of this Court. 

4. Subsequently, on 17 June 2010, further orders were made providing for the preparation of a family report and for the variation of the consent orders just referred to so as to provide for time between the father and the children at specified times on specified weekends thereafter.

5. The varied order also provided for changeovers to take place at what might crudely be described as “neutral venues”, including a park.  This matter then returned to Court on 4 November 2010. 

6. On at least two occasions when this matter has been before me, I have, putting it quite simply, begged these two people, who otherwise seem to be intelligent and decent people, to put aside their childish disputes for the benefit of their children.  I use the word “beg” advisedly, because it seemed to me at the time that these parties were capable of receiving, and possessing intelligent input from both the Court and the family consultants and for sanity to prevail in their interrelationship, however much they might dislike each other, for the benefit of their children.

7. It is difficult to know what to do other than to plead with parents to put aside their conflict when that conflict is plainly having such an appalling detrimental effect on their children. 

8. I have attempted to make it plain to the mother that these children have an absolute right to be co-nurtured by their father despite the fact that their parents’ relationship has broken down.  I have tried to make it clear to both parties that the conflict between them is having a very, very serious effect on these children.  I had hoped, naïvely, as it turns out, that hearing these comments from a Judge, who sees cases of this type all the time and has seen cases of this type now for more than 30 years, might have an impact upon two otherwise intelligent and decent people. 

9. That this view was naïve and wrong has been established by events which have occurred subsequent to those pleas to these parents. In particular, an event that occurred at changeover at the park earlier referred to that is the subject of the instant proceedings.

10. Ms B has prepared the report pursuant to section 62G foreshadowed by the earlier orders. At paragraph 20 of that report, Ms B says this of the incident just referred to:

    Sadly, both girls recounted what can only be described as a nightmarish, emotionally distraught experience during the changeover at [the park].  Both girls sobbed [during the interview] as they recounted how distressed and frightened they were when their parents could not agree on where the changeover should occur.  Their descriptions of their father’s behaviour suggest that he was behaving in a highly agitated and emotional state and clearly scared the children. [emphasis added].

    Ms B’s report goes on:

    Again, [L] sobbed as she described how she tried, in vain, to contact her mother and/or [the mother’s partner] and attempt to get one or other parent to concede and drop them off at an agreed location.  When it appeared that [the father] may not return the children (it is alleged that he threatened to return to Brisbane and request that the mother collect the children from the paternal grandparents’ […] residence), [L] called the police and informed them that her father would not return them to their mother. [emphasis added].

11. Judges are human.  Reading that report in respect of two children – who Ms B describes in the report as “delightful, polite, and articulate young ladies” and whose sentiments were reiterated in oral evidence before me this morning – made me want to weep. 

12. Ms B said in oral evidence that she, too, felt like weeping in the preparation of this report.  It is precisely to prevent this sort of harm that I begged these parents to put aside their stupid, childish differences and to act in a way that would benefit their children and not harm them.  It seems abundantly plain to me that neither party is capable of doing so. 

13. That this is tragic for their daughters hardly needs to be said.  That it causes them very significant harm also hardly needs to be said.  That the parents do not seem to understand this at an emotional level appals me, but such is, it seems, the case. 

14. Ms B said in oral evidence that she actually considered reporting this matter to the Department of Child Safety, such were her concerns about the level of emotional abuse of these children by their parents. 

15. These parents should not leave this courtroom without understanding – at every level – that they are emotionally abusing their children.  Emotional abuse of children is just as serious as physically abusing them or sexually abusing them. 

16. I am utterly and completely convinced, and having now read the evidence in these proceedings, having now seen each of the parties (who represent themselves), on a number of occasions, that each of these parents emotionally abuse their children by virtue of their apparent incapacity to behave as adults should behave in the co-parenting and co-nurturing of children when relationships break down.

17. Something must be done.  I will not allow these children to continue to be abused in this manner.  I have begged these parents to take the matter into their own hands; they are the children’s parents and Courts cannot either parent in their stead or micro-manage parenting tasks. At some point adult behaviours and plain common sense and decency must surely, take over.

18. But the parents do not appear capable of, or willing to, behave as parents should.  Thus, it is left to the Court to impose upon the parties “solutions”. That word is used advisedly, because Court “solutions” are plainly not in the children’s best interests when compared to parents cooperating and arriving at arrangements by agreement. 

19. I say, yet again: the co-parenting of children by their separated parents co-operatively and with agreement is plainly and without doubt in their children’s best interests.  To the extent that parents are unable to do so, they fail their children.  When parents fail their children, the Court must step in, however clumsy its footsteps are.

20. In those circumstances, then, the father makes application for a number of orders. They are contained in an Application filed on 14 October 2010. He supplements that application by an outline of argument handed up this morning. 

21. The outline of argument reveals assertions about the conduct of the mother, and the mother in response makes assertions about the conduct of the father.  As I said to each of the parties during the course of the hearing, the material and the argument is redolent of nothing but “he said-she said, she said-he said”. 

22. That the parties continue to assert and counter-assert in this way is, if they only genuinely sought to understand it, at the very heart of what is causing harm to their children. 

23. In truth, what the father seeks is orders that would have the parties, and the mother, in particular, grow up and behave as a cooperative post-separation parent ought behave.  The same might be said of the orders sought by the mother in her Response to an Application in a Case filed 26 November 2010. 

24. This morning, Mr Couper, who is the ICL, handed up a document which became Exhibit A, being draft orders sought by him.  Those orders curtail the time otherwise provided by earlier orders and provide for time to occur on – sorry, for changeovers to occur at the C Contact Centre. 

25. The father says he has contacted the contact centre, and there will be some difficulties associated with the requirements of that centre such that there will be a delay in facilitating time in that fashion.  Secondly, he says that changeovers at a contact centre are not necessary, because, in fact, there have been few problems with changeover.  I couldn’t disagree more. 

26. The incident at the park is, as I said to the parties, an incident that should cause these parties to hang their heads in shame.  It is a disgrace perpetrated by each of them on their children. They should leave this courtroom feeling embarrassed and ashamed of their behaviour, and as I have said earlier in these reasons, the behaviour is abusive of their children. The abusive behaviour must stop.

27. I countenanced the possibility of time starting and finishing at school.  The rationale was, obviously enough, to allow changeovers to occur in circumstances where the parties, sadly, would not need to have any interaction between themselves when changeovers occurred. 

28. It might be interposed that it is entirely beneficial for children to see their parents cooperating in an intelligent, adult way at changeover.  It gives children the message that, despite the separation of their parents, both parents love them.  It gives children the message (as is the law) that despite their parents’ separation, both of their parents have a right to, and are involved in their co-parenting.

29. But, most importantly of all, the children have a right, a legal right to have both parents involved in their co-nurturing post separation. I have sought to emphasise – and re-emphasise – this to the mother today. I have suggested she should provide that message to her partner in equally strong terms.

30. That children receive the overt message at changeover that their parents understand these principles and seek to cooperate is beneficial to them.  Again, these parents have harmed and abused their children by failing to give their children this message. 

31. Unfortunately, however, the father says that the changeovers at school are an impossibility.  He lives in Brisbane; the mother lives on the Gold Coast.  Worse, though, the father works at the moment on the Sunshine Coast, which makes the pickup and delivery after and before school times practically impossible. 

32. Accordingly, if one is to attempt, insofar as orders might do it, to bring this stress for the children to an end, one is left with attempting to find a “solution” whereby these two parents have as little to do with each other as possible while facilitating time between the children and the father. 

33. In that respect, I should make it clear that Ms B says in her report, and I accept:

    Despite the tears, despite their traumatic experience, particularly during the September changeover, both girls stated that they want to see their father, but [L] stated, “I just want dad to listen to the Court orders and just cooperate with mum … I am just sick of it.”

    One could hardly blame her.  As, tragically this Court sees so often, this 12 year old child exhibits more apparent wisdom than her parents.  Ms B goes on:

    [E] stated, “He (the father) just does stuff, and I don’t know what he is going to do next … it scares me … I just want the fighting to stop.”

34. Well, E, well, L, you should each receive this message: this Court has begged – begged – your parents to stop fighting.  How I wish I could make them stop fighting, but, it seems, I can’t.

35. It seems to me that it is plainly in the children’s best interests that I bring this fighting to an end in circumstances where the parties apparently are incapable of it.  Tragically, there seems little alternative but to provide a neutral changeover, supervised appropriately.

36. There will be pragmatic difficulties involved in that.  So be it.  That is the price that is paid for predominating the needs and best interests of children over the needs and best interests of parents who apparently are too immature, or stubborn, or whatever, to care for their children appropriately. 

37. I will make provision for time to occur in accordance with the orders otherwise in existence, but only in circumstances where the C Contact Centre can facilitate changeovers at those times and on those days.  In the event that the C Contact Centre is unable to facilitate changeovers at those times and on those days, then time shall occur from the earliest time on which the C Contact Centre can effect a changeover and conclude at the latest time on the day at which the C Contact Centre can effect changeover.

38. So that is plain to each of the parties, the days and times will, then, be dictated by, in the first instance, the orders that currently exist; the days, the times, and the frequency are as per the existing orders.  However, what will, in effect, take precedence over those existing orders is the best arrangements that can be made through the C Contact Centre. 

39. If the C Contact Centre can facilitate changeovers on the Friday evening and the Sunday evening, they are the days and the times at which changeovers and time shall occur.  If the C Contact Centre can only effect changeovers on a Saturday or Sunday at specified times, then they are the days and the times at which time will occur.  Time will also occur with the frequency that it does under the current orders, but again, only if the C Contact Centre can effect changeovers with that frequency.

1. There is already an order in place that I have outlined earlier in these reasons about neither party discussing adult issues with these children.  Please, for the sake of your children, understand that if you do it or if you allow either of your partners to do it, you abuse your children.  I don’t know if I can be any clearer. 

2. I have turned myself inside out trying to be clear to the two parents, but, as I say, it seems to be plainly to no avail.  If you discuss adult issues with your children, you abuse them, and you harm them.  Don’t do it, and don’t permit anyone else to do it.  They could not care less about your stupid disputes.  They just want to receive unconditional love from each of you, and they want to see each of you give due respect to their other parent.

3. I do not consider it appropriate in circumstances where, there is an untested assertion (denied by the wife) those statements have been made that the children will be relocated to New Zealand, to allow travel to New Zealand without there being specificity about any such travel.

4. The mother seeks an order that the father be ordered to sign the children’s passport applications, which I gather is, in effect, an order seeking that either he give his consent to the issue of a passport to the children or that alternatively, his consent be dispensed with.  I am not prepared to make that order.  I will, though, make orders requiring the father to provide consent upon receipt of details as to return trips, contact details and the like.

5. It is, in my view, clear from what Ms B says in her report that these two children want to communicate with their father, provided he doesn’t seek to burden them with adult issues that are of no concern to them. 

6. The current orders provide for telephone communication to take place on Tuesdays and Thursdays each week between 7 pm and 7.30 pm. The mother indicates that there is no impediment to that continuing and also indicates that there in no impediment whatsoever to communication taking place between the children and the father on Skype between 6 pm and 7 pm on Saturdays and Sundays.  I will make an order to that effect.

7. The mother also indicates that there is no difficulty whatsoever in the children obtaining their own email accounts with Yahoo!, the service provider with whom the mother has her own email account. I will similarly make orders designed to facilitate that communication.

8. Each of the parties agree with the recommendation of Ms B that these children need counselling.  Ms B is plainly worried about these two girls, and so am I.  Ms B considers that they each need counselling, as I would have thought, should be plain from what is contained in Ms B’s report and her harrowing descriptions of the distress that the girls exhibited when she saw them. Orders will similarly be made to give effect to the same.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 7 December 2010.

Associate: 

Date:  22 December 2010