Fournier and Noelle

[2007] FamCA 875

FAMILY COURT OF AUSTRALIA

FOURNIER & NOELLE [2007] FamCA 875

FAMILY LAW – CHILDREN - Competing parenting applications – mother did not participate in the trial after her application for an adjournment was unsuccessful – reversal of long standing status quo – children aged 11 and 8 years ordered to live with father in another state after only having spent time with him spasmodically since 2003 – finding that the mother had not and will not in the future promote or facilitate a meaningful relationship between father and the children – s 60CC does not prescribe how parents ought to behave, it is a legislative provision which refers to matters which must be taken into account by the court when determining what is in a child’s best interests.

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Rules 2004

D & D [2005] FamCA 356
R & R: Children's Wishes (2000) FLC 93-000
H & W (1995) FLC 92-598

APPLICANT: Mr Fournier

RESPONDENT: Ms Noelle

INDEPENDENT CHILDREN’S LAWYER: McBain Lawyers

FILE NUMBER: MLF 6279 of 2003

DATE DELIVERED: 23 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 13, 14 & 16 August 2007

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

INDEPENDENT CHILDREN’S LAWYER’S
COUNSEL: Ms H. Dellidis

INDEPENDENT CHILDREN’S LAWYER’S
SOLICITOR: McBain Lawyers

Orders

1. All previous orders be discharged.

2. The children of the relationship S born … April 1996 and T born … June 1999 live with the father and for that purpose the father forthwith be at liberty to collect the children from school by arrangement with the proper officer of the school or from such other place as the children may be located.

3. The father have sole parental responsibility for matters relating to the education and training of the children.

4. The children communicate and spend time with the mother as follows:-

   (i)     For the first 4 weeks of the 2007/2008 Christmas school holidays, including Christmas day commencing on the first Saturday of the Christmas school holidays and each alternate year thereafter and for the last 4 weeks of the 2008/2009 Christmas school holidays commencing at 12 noon on 28 December and alternate each year thereafter.

   (ii)    For two weeks during the April-March school holidays, for the first week of the June-July school holidays, and two weeks during the September school holidays, in each year commencing at 12.00 noon on the first Saturday of each school term holiday.

   (iii)     In Melbourne, upon the provision of two months written notice for each school term, for not more than one weekend  in each school term, from 6pm Friday until 2pm Sunday or 2.00 p.m. on the day prior to the recommencement of school if the Monday or Tuesday immediately after the weekend is a non-school day;

   (iv)   Upon the provision of four weeks’ written notice for each school term, for not more than two consecutive weekends in each school term from 4pm Friday until 4pm Sunday, in Adelaide, with changeover to take place at …, Victoria Square, Adelaide.

   (v)    By telephone when the father do all acts and things necessary for the children to place a telephone call to the mother:-

   (a)between the hours of 7.00pm and 8.00pm each Monday and Thursday when the children are not spending time with the mother pursuant to these orders or otherwise;

   (b)between 7.00 a.m. and 8.00 a.m. on the birthdays of the children, the mother, Mother’s Day and Christmas Day in the event that the mother is not spending time with the children on those days pursuant to these orders or otherwise;

   (c)otherwise at the reasonable request of the children;

   (d)as may otherwise be agreed between the parties in writing from time to time.

5. The mother be solely responsible for the costs of travel associated with spending time with the children pursuant to paragraphs 4(iii) and 4(iv) herein.

6. The mother be solely responsible for the costs associated with the children’s travel from Adelaide to Melbourne at the commencement of her time with the children pursuant to paragraphs 4(i) and 4(ii) herein and if such travel is to be by airplane, the mother provide to the father the airplane tickets booked for the children at least 28 days’ prior to such travel. 

7. The father be solely responsible for the costs associated with the children’s travel from Melbourne to Adelaide at the conclusion of the mother’s time with the children pursuant to paragraphs 4(i) and 4(ii) herein and if such travel is to be by airplane, the father provide to the mother the airplane tickets booked for the children at least 21 days’ prior to such travel.

8. That if a parent fails or neglects to deliver the children (or either of them) to the airport in sufficient time for the children to meet (check in, pass through security and embark) the specified flight, then that parent be and is hereby solely responsible for and, if necessary will indemnify the other, in relation to the airfare and associated costs of the children being transported on the next available flight to Melbourne or Adelaide (as the case may be) regardless of the fact that the forfeited airfare may have been a discounted airfare with conditions attached and the fare for the next available flight is a full economy or business class airfare.

9. Unless otherwise provided for in these orders, changeovers for the purposes of the mother spending time with the children pursuant to paragraph 4 herein take place as follows:

   (a)    the mother collect the children at the commencement from Melbourne airport if the children are travelling by airplane, or otherwise from …, Victoria Square in Adelaide. 

   (b)    the father collect the children at the conclusion from Adelaide airport if the children are travelling by airplane, or otherwise from Shell Service Station at the intersection of S Street and H Street, M. 

10. That times on which time spent is expressed to commence or to conclude or communication is to take place are, for the purpose of this Order, local times for the state in which the children are located.  The times on which to be spent is expressed to commence and conclude and where children are being transported by commercial airline is, for the purpose of this Order the time on which the children’s flight is scheduled to depart and if no commercial flight leaves at that time is to be varied to the departure time of the flight closest to the time provided for in paragraph 4 of this Order.

11. Each of the father and mother provide to the other 21 days’ prior written notice of any proposed change of address of their residence.

12. Each of the father and mother forthwith advise the other, in writing, of any change in their contact telephone numbers.

13. The father do all acts and things and sign all documents necessary to ensure the mother is provided with all information regarding the children’s health and education, including school reports, school photos and any medical reports and irrevocably authorise and direct the proper officer of the school(s) at which either child attends to send to the mother (at her expense, if any) a copy of school reports, AIM test results, newsletters, order forms for school photographs and other information usually disseminated to parents.

14. The father promptly upon receipt by him of school photographs of the children send to the mother by pre-paid post not less than one such photograph of each child for retention by the mother with the cost of the photograph and the postage to be at the expense of the father. It will be sufficient compliance by the father with his obligations herein if he causes each child to send at least one photograph of herself to the mother by pre-paid post.

15. The mother, her servants and agents, be and are hereby restrained from discussing the allegations or assessments in these proceedings, the father or his present mother, to or in the presence or hearing of the children.

16. The mother, her servants and agents be and are hereby restrained from contacting the children on their mobile telephones on occasions other than Monday and Thursday evenings between 7.00pm and 8.00pm and such other times as may be agreed between the parties and evidenced in writing and the father may, in his discretion, limit access by the children, or either of them, to their mobile telephones at any other time,.

17. Each of the father and mother, their servants and agents be and are hereby restrained from removing the children from the Commonwealth of Australia and it is requested that the Marshall of the Family Court and all officers of the Australian Federal Police give effect to this Order.

18. That for the purpose of enabling compliance with the Orders made in the Family Court of Australia this day whereby the children S born … April 1996 and T born … June 1999 live with the father, a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

    (17.1) to find and recover the children S born … April 1996 and T born … June 1999 and to deliver the child to the father at such place as the father and the person effecting such recovery agree to be appropriate; and

    (17.2) to stop and search any, vehicle, vessel or aircraft and to enter and search any premises or places in which there is at any time reasonable cause to believe that the child may be found.

19. That paragraph 18 hereof be stayed until 12 noon today.  In the event that the independent children’s lawyer notifies the proper officer of the Australian Federal Police that the children have been collected by the father and the recovery order is not required to be executed, the recovery order be and is hereby discharged.  

20. The father serve a copy of this Order upon the Australian Federal Police as soon as practicable.  

21. That until further order each parent be and is hereby restrained from causing, permitting or suffering either child to be known by any family name other than “[Fournier]”. 

22. That until further order the mother by herself her servants or agents be and is hereby restrained from attending at, remaining in or being within 100 metres of D School until after the father has collected the children. 

23. That the independent children’s lawyer facilitate delivery of any clothes or personal possessions of the children from the mother to the father provided that nothing in this Order compels the mother to give the children any belongings or clothes nor for the independent children’s lawyer to remain appointed in these proceedings if no appropriate agreement can be reached. 

24. That pursuant to section 65L of the Family Law Act 1975, the Manager of Child Dispute Services for the Family Court of Australia at Melbourne, at the request of either party to the proceeding, nominate a family consultant to supervise compliance by the parties with the parenting order made this day (“the Order”) and to render to either party such assistance as is reasonably requested by him/her in relation to compliance with, and the carrying out of, the Order, such supervisory counselling to be a period of 2 years and to be reportable, to give either party such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, these parenting orders.

25. The order made 8 April 2004 appointing the Independent Children’s Lawyer be discharged subject to the following:-

    (a)    the independent children’s lawyer explaining to the children in words likely to be understood by them the outcome of these proceedings, such conference to be convened in the presence, and with the assistance of, Ms B, family consultant;

    (b)    advising the proper officer of D School of the outcome of these proceedings providing him/her with a copy of this order;

    (c)    compliance with paragraph 23 of this Order.

26. That liberty be reserved to all parties to make application on short notice in relation to implementation with paragraph 2 of this Order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6279 of 2003

MR FOURNIER

Applicant

And

MS NOELLE

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the children S born in April 1995 and T born in June 1999 and were heard by me on 13, 14 and 16 August 2007. 

2. The applicant father represents himself. 

3. The respondent mother represented herself on the first day of the hearing.  On that day, I refused her application for an adjournment.[1]  After I delivered those reasons, the mother and her partner, Dr W, remained in Court.  The mother said that she was unable to participate in the hearing because she lacked the specialised court room skill and she could not focus on the proceedings because of her anxiety over the recently detected lump in her left breast.  She indicated that the proceedings could go ahead in her absence for the rest of the week and that she may later “appeal or something”.  I adjourned the court at about 3:30pm advising the mother that I wanted her to consider carefully her position overnight and to reconsider her decision not to participate.  In particular I indicated that, if she chose not to participate, either personally or through a lawyer, there may be no-one to put forward on her behalf a case that she would abide orders for the children to spend time with the father into the future.  Moreover, that her failure to participate in the hearing would be a matter which I would necessarily take into account in relation to the discharge by her of her parental responsibilities and her parental capacity in general.

   [1] My ruling in that regard is found at [2007] FamCA 845

4. The mother did not attend court on the second or succeeding days of the hearing.  I did not sit to hear this matter on Wednesday 15 August 2007 because I had earlier told the mother that I would not do so.  

5. The matter proceeded on an unopposed basis. 

6. Pursuant to an order made on 4 April 2004 Robert McBain, solicitor, was appointed as the independent children’s lawyer for S and T within the meaning of Division 10 of Part VII of the Family Law Act 1975 (“the Act”).  As such, his role is to form an independent view, based on available evidence, of what is in S and T’s best interests and then act in these proceedings in what he believes to be the best interests of the children.[2]  He is not a legal representative retained by S and T and he is not bound by any instructions from the children.[3]  The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the court, to analyse documentary evidence, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention.  The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[4] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[5] 

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

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

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

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

7. The independent children’s lawyer is represented by Ms Dellidis of counsel.  

   
   

   I find that the Independent Children’s Lawyer, both personally and through his counsel, discharged his responsibilities to the children and the court in a thorough and professional manner and I was greatly assisted by his participation.  At the conclusion of the trial the independent children’s lawyer and the father proposed that orders be made in the following terms:-

   1.      All previous orders be discharged.

   2.      The children of the relationship [S] born […] April 1996 and [T] born […] June 1999 live with the father and for that purpose the father forthwith collect the children from school by arrangement with the proper officer of the school or from such other place as the children may be located.

   3.      The father have sole parental responsibility for the children.

   4.      The children communicate and spend time with the mother as follows:-

   i)For the first 4 weeks of the 2007/2008 Christmas school holidays, including Christmas day commencing on the first Saturday of the Christmas school holidays and each alternate year thereafter and for the last 4 weeks of the 2008/2009 Christmas school holidays commencing at 12 noon on 28 December and alternate each year thereafter.

   ii)For two weeks during the April-March school holidays, for the first week of the June-July school holidays, and two weeks during the September school holidays, in each year commencing at 12.00 noon on the first Saturday of each school term holiday.

   iii)In Melbourne, upon the provision of two months written notice for each school term, for not more than one weekend  in each school term, from 6pm Friday until 2pm Sunday or 2.00 p.m. on the day prior to the recommencement of school if the Monday or Tuesday immediately after the weekend is a non-school day;

   iv)Upon the provision of four weeks’ written notice for each school term, for not more than two consecutive weekends in each school term from 4pm Friday until 4pm Sunday, in Adelaide, with changeover to take place at […], Victoria Square, Adelaide.

   v)By telephone when the father do all acts and things necessary for the children to place a telephone call to the mother:-

   a)between the hours of 7.00pm and 8.00pm each Monday and Thursday when the children are not spending time with the mother pursuant to these orders or otherwise;

   b)between 7.00 a.m. and 8.00 a.m. on the birthdays of the children, the mother, Mother’s Day and Christmas Day in the event that the mother is not spending time with the children on those days pursuant to these orders or otherwise;

   c)otherwise at the reasonable request of the children;

   d)as may otherwise be agreed between the parties in writing from time to time.

   5.     The mother be solely responsible for the costs of travel associated with spending time with the children pursuant to paragraphs 4(iii) and 4(iv) herein.

   6.     The mother shall be responsible for the costs associated with the children’s travel from Adelaide to Melbourne at the commencement of her time with the children pursuant to paragraphs 4(i) and 4(ii) herein and if such travel is to be by airplane, the mother shall provide to the father the airplane tickets booked for the children at least 28 days’ prior to such travel.  

   7.     The father shall be responsible for the costs associated with the children’s travel from Melbourne to Adelaide at the conclusion of the mother’s time with the children pursuant to paragraphs 4(i) and 4(ii) herein and if such travel is to be by airplane, the father shall provide to the mother the airplane tickets booked for the children at least 21 days’ prior to such travel.

   8.     That is a parent fails or neglects to deliver the children (or either of them) to the airport in sufficient time for the children to meet (check in, pass through security and embark) the specified flight, then that parent be and is hereby solely responsible for and, if necessary will indemnify the other, in relation to the airfare and associated costs of the children being transported on the next available flight to Melbourne or Adelaide (as the case may be) regardless of the fact that the forfeited airfare may have been a discounted airfare with conditions attached and the fare for the next available flight may be a full economy or business class airfare.

   9.     Unless otherwise provided for in these orders, changeovers for the purposes of the mother spending time with the children pursuant to paragraph 4 herein shall take place as follows:

   a)the mother shall collect the children at the commencement from Melbourne airport if the children are travelling by airplane, or otherwise from […], Victoria Square in Adelaide. 

   b)the father shall collect the children at the conclusion from Adelaide airport if the children are travelling by airplane, or otherwise from Shell Service Station at the intersection of [S] Street and [H] Street, [M]. 

   10.    Each of the father and mother provide to the other 21 days’ prior written notice of any proposed change of address.

   11.    Each of the father and mother forthwith advise the other of any change in their contact telephone numbers.

   12.    The father do all acts and things and sign all documents necessary to ensure the mother is provided with all information regarding the children’s health and education, including school reports, school photos and any medical reports.

   13.    The mother, her servants and agents, be and are hereby restrained from discussing any aspect the allegations or assessments in these proceedings, the father or his present mother, to or in the presence or hearing of the children.

   14.    The mother, her servants and agents be and are hereby restrained from contacting the children on their mobile telephones on occasions other than Monday and Thursday evenings between 7.00pm and 8.00pm. and such other times as may be agreed between the parties and evidenced in writing.

   15.    Each of the father and mother, their servants and agents be and are hereby restrained from removing the children from the Commonwealth of Australia and it is requested that the Marshall of the Family Court and all officers of the Australian Federal Police give effect to this Order.

   16.    A recovery order which is stayed until 1:00pm on the day of judgment. In the event that the independent children’s lawyer notifies the proper officer of the Australian Federal Police that the children have been collected by the father and the recovery order is not required to be executed, the recovery order be and is hereby discharged.

   17.    The father serve a copy of this Order upon the Australian Federal Police as soon as practicable.

   18. Pursuant to s.65L of the Family Law Act, a Family consultant be appointed for a period of 12 months on a reportable basis, to give either party such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, these parenting orders.

   19.    The order made 8 April 2004 appointing the Independent Children’s Lawyer be discharged subject to the following:-

   a)the independent children’s lawyer explaining to the children in words likely to be understood by them the outcome of these proceedings, such conference to be convened in the presence, and with the assistance of, Ms [B], family consultant;

   b)advising the proper officer of [D] School of the outcome of these proceedings providing him/her with a copy of this order.

   20.    That liberty be reserved to all parties to make application on short notice in relation to implementation with paragraph 2 of this Order.

1. That in the event that I do not accede to the father’s application he seeks a mirror image of the orders set out above.  That is that if the children live with their mother and they spend time and communicate with him which he is proposing the mother have.  This is his fall back position.  His primary application is that the children live with him in Adelaide. 

2. The respondent mother did not specify on the first day of the trial precisely what orders she sought although I infer, from paragraph 58 of her affidavit sworn on 9 August 2007, that she sought orders at variance with her formal response.  In her affidavit, she swore:-

   I seek orders as set out in the minute to be provided, including the husband’s relocation to Melbourne, as stated in his last affidavit, to allow a shared parenting arrangement, which is the most appropriate for the children. 

3. At the stage at which the mother ceased to participate in these proceedings she had not provided a minute of the orders which she sought.  However, I regard the general nature of the relief sought by the mother to be something approximating the arrangement provided for in the Order made 19 April 2007 whereby the children live primarily with her but spend time with the father on

   
   

   5 out of 14 nights.

4. Since the parties filed their applications the Family Law Act 1975 (Cth) (“the Act”) has been significantly amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”), the provisions of which came into operation on 1 July 2006. Certain procedural elements of the amending legislation do not apply to this case as it was commenced before

   
   1 July 2006

   .  The new law is complex so I will set out the relevant provisions in this judgment. 

Evidence

1. At the trial the applicant father relied upon the following evidence:

   ·the affidavit of the father sworn 7 August, 2007;

   ·the affidavit of the father sworn 4 March, 2004;

   ·the affidavit of the father sworn 28 April, 2004;

   ·the affidavit of the father sworn 21 July, 2005;

   ·the affidavit of the father sworn 11 April, 2007;

   ·the affidavit of Mrs Fournier (the father’s wife) sworn in South Africa on 12 June, 2006;

   ·the affidavit of Mrs Fournier sworn in Melbourne on 8 August, 2007.

2. The father was given leave to rely on affidavits from earlier proceedings.  Once those were identified a copy of them was made for and given to the mother for ease of reference.  She retained those documents. 

3. On the first day of the trial, the respondent mother said that she relied upon the following evidence:

   ·The affidavit of the mother sworn 9 August 2007;

   ·The affidavit of Dr W (her partner) sworn 9 August 2007;

   ·The affidavit of Ms A (the mother’s friend) sworn 8 August 2007;

   ·the affidavit of Ms M sworn (the mother’s friend) 8 August, 2007;

   ·the mother’s earlier affidavit sworn 26 July, 2005.

4. At the trial the independent children’s lawyer relied upon the following evidence:-

   ·the affidavit of Ms P (contact supervisor) sworn 7 May, 2006;

   ·the affidavit of Michelle Faye Crichton (solicitor from Adelaide) affirmed 16 April, 2007.

5. In addition to affidavit evidence the independent children’s lawyer adduced oral evidence from the deputy principal of the girls’ school, Ms H.  It was necessary for the independent children’s lawyer to adduce this evidence to fill certain gaps in evidence which I expect would not have occurred had the mother remained a participant in the proceedings and the father’s affidavitory evidence not been drawn to include hearsay. 

6. As part of the court’s preparation of this matter for trial there have been three reports prepared by family consultant, Ms B.  They are dated:-

   a)22 June 2006;

   b)26 September 2006;

   c)10 July 2007.

   I received all of those reports into evidence.  The independent children’s lawyer accepted responsibility for arranging Ms B’s attendance at court.  She was, however, a witness of the court and, as such, the independent children’s lawyer was at liberty to cross examine her as did the father. 

7. On the first day of the trial, it was said that all witnesses were required for cross examination.  No party had complied with the requirement to give

   
   

   14 days notice of witnesses required to attend as is provided for by r 15.14(2) of the Family Law Rules 2004.  As the mother had not given notice that she required Michelle Crichton for cross examination until the first day of the hearing.  I granted leave to the independent children’s lawyer to have that evidence given electronically, by telephone link up between Adelaide and Melbourne.  

8. Counsel for the independent children’s lawyer prepared a list of witnesses in the order in which she proposed that they would be called[6].  Ultimately, however, the mother did not participate, did not cross examine anyone and neither she nor her other deponents were available for cross examination.  The father, his wife and the family consultant were cross examined by counsel for the independent children’s lawyer and asked questions by me in a manner which tested their assertions but I am unable to conclude that it was in the same way as the mother may have sought to do so if she had chosen to participate.  

   [6] Exhibit “ICL2”

9. On the first day of the hearing, I mentioned the importance of cross examination and, in particular, how the evidence of a witness who was cross examined may be given more weight than a witness who was not made available.  Given that the mother was aware that she and her deponents were required for cross examination and they did not attend, I propose to take the evidence of the mother’s witnesses into account but to accord it such weight as its terms and the competing or contradictory evidence warrants.  The result is that it is difficult for me to accord the mother’s affidavitory evidence much weight because it is largely drawn in general terms and, of course, the deponents were not available for cross examination. 

Credit & impression of witnesses

1. The father gave evidence in a considered and thoughtful way.  I found him to be a truthful witness.  He did not agree for the sake of agreeing and, where he did not agree, he gave a reasoned explanation as to why that was so.  The family consultant said that she has had numerous discussions with the father.  She described the father as being quiet and insightful man who, in my interpretation of what she said, focussed on the needs of the children.  Her assessment coincides with my own observations of him within a more limited time frame. 

2. The father’s wife, Mrs Fournier, was cross examined.  She is also articulate and softly spoken.  She has a demure and gentle demeanour but her responses to some fairly challenging questions in cross examination demonstrated appropriate levels of self confidence and self reliance.  This was so for instance, in her responses to questions about how she would handle the girls if their residence is changed and they become distraught, withdrawn and grieved for their mother.  Again, her explanation of why she, rather than the father, took time off work to care for the girls during their holiday time in Adelaide was plausible and sensible and, I find, illustrative of a well thought out attitude to herself as their step mother.  I also found her to be a truthful witness. 

3. The family consultant, Ms B, was cross examined.  I am satisfied as to her qualifications and accept that she has considerable relevant experience.  She was not defensive in responding to questions.  She was able to think through new or further propositions and formulate responses to them.  Her reports and her evidence were well reasoned and I am assisted by her evidence.  With one exception, to which I will return in the context of the timing of any change in residence, I accept Ms B’s evidence and I accord her evidence significant weight. 

4. Ms H gave evidence orally, with leave, as the witness of the independent children’s lawyer.  She is the deputy principal of D School in M and was class teacher of a composite Grade One/Two class in 2005 when T was a Grade One student in that class.  She has continued to be involved with T in her capacity as the Literacy Co-ordinator.  Ms H knows S but has not been her class teacher.  

5. Ms H confirmed that the girls commenced at D School on 12 July 2004.  Some months later the school was provided with a copy of parenting orders by the father but, prior to that, the school had no information about Mr Fournier.  Her first personal experience with the father occurred in 2004 when, shortly after the provision of the parenting orders, the school was notified that the children would be collected by Mr Fournier.  She remembers seeing that both girls were upset at the prospect of being collected by their father and that T fell asleep on a beanbag in class sucking her thumb. 

6. Ms H described S’s school participation as “fantastic”.  S had a place on the Student Representative Council and had undertaken a special leaders training program which co-ordinates activities for other children.  She described S as “a real role model in the school”.  She described T as shy, quiet but gradually becoming more open and talkative.  Both children are perfectly well behaved.  The mother attends parent/teacher interviews. 

7. Ms H gave evidence that, in 2005, T was assessed by her and by the reading recovery teacher as requiring intervention to assist with her reading.  She was approximately one year behind the expected standard.  The mother attended for an interview and together the teachers discussed T’s reading abilities as demonstrated in test results and otherwise as placing her literacy skills “at risk” in that she would fall behind to an extent that her literacy skills would be seriously compromised.  Ms H’s firm recollection is that T’s lack of satisfactory progress was clearly demonstrated by the test results which left no room for ambiguity.  Furthermore, the targeted reading levels were carefully explained to the mother as was the fact that T was falling far short of her expected level of development.  The mother refused permission for T to be accepted into the reading recovery program.  Ms H said that she and the other teacher tried numerous ways to explain to the mother all the advantages of T going into reading recovery.  She described the mother’s demeanour as being quite defensive and that the mother’s expressed reasons for refusal was that “[S] has had no problems so [T] will be OK too” and “[T] does not need the program” and “she is young, you are pushing her too hard”. 

8. It does appear that T is chronologically young for school having been born in June 1999 and now having just turned seven years old in Grade Three.  On average, one may expect that a child would be five years old by the end of April in their Prep year and that they would turn eight years old in Grade Three.  T’s predicament may be worsened by the increasing trend, identified by Ms H, of parents holding children back so that they turn 6 years of age in Prep and turn nine years old in Grade Three. 

9. Ms H’s evidence leaves me in no doubt that the teachers persevered with the mother and tried to get her to agree to allow T to enter the remedial literacy program but to no avail. 

10. T’s last report card, dated June 2007[7], indicates that she is approximately one year behind acceptable levels for reading and comprehension expected of Grade Three students at this time of year.  That is consistent with her performance in Grade Two (in 2006) when she was performing at a level expected for a Grade One student.  The upshot is that T is currently functioning at a standard below what is expected of her and is set work at a different level to other children of her Grade level.

    [7] Exhibit “ICL 8”

11. Ms H reports that T does not regularly change her home reading books and nor does the mother regularly sign off on each night’s prescribed home reading as all parents are asked to do.  

12. In short, T’s literacy skills remain “at risk” and I conclude that the mother imprudently failed to access necessary assistance for T when it was offered to her. 

13. Ms H has no concerns about S’s academic progress.  Until recently, these girls were the only African students at D School.  Very recently, several Sudanese families have come to the school.  Ms H was glowing in her praise of S as a mentor and role model for these new students as well as a capable, outgoing and high achieving student. 

14. The timing of any change in living arrangements was raised with

    
    

    Ms H with particular reference to the forthcoming Grade Five/Six school camp and theatrical production in which S has a leading role.  Ms H confirmed that S’s class has a camp at … from Monday 20 August to Wednesday 22 August 2007.  All but one student in the two grade levels will attend the camp.  

15. Ms H also confirmed that the annual school theatrical production will be held on 20 September 2007 in an afternoon performance and an evening performance.  The theme is “Disney on Parade”, S’s grade is performing exerts from Mary Poppins and S has been cast in the leading role of Mary Poppins (without an understudy).  She confirmed that S is excited about her leading role, assessed as well able to perform it and that rehearsals and preparations are underway but will not start in earnest for Grades Five and Six until after they come back from camp on Wednesday 22 August 2007.  Ms H freely acknowledged that S would be “very disappointed” if a change in her living arrangements meant that she would be withdrawn for D School prior to the annual school production on 20 September 2007.  However, she expressed the opinion that S is a mature and capable young lady, who is in the middle of a great year at school but who will take with her to any new school environment the admirable leadership qualities and extensive personal resources which she has displayed during her time at D School and particularly this year.  In short, Ms H said that S will be disappointed if she does not get to perform as Mary Poppins “but she will get over it”.

16. The father deposed:-[8]

    [36]. The girls advise me that the mother, during her telephone calls, had told them that from the next academic year they will be known by their grandfather’s name of […].

    [37]. I have previously been in contact with MRS [V], the Principal of the children’s school on about 19 July 2007, and she confirmed to me that the mother had contacted her on more than one occasion asking for the children’s name of to be changed, but she had refused in the absence of a Court Order.

    [8] Father’s affidavit sworn on 7 August 2007, page 5

17. Ms H was asked to detail her knowledge of any application by the mother to change the children’s family name.  She said that the girls are known by the family Name “[Fournier]” and refer to themselves as such consistently and without embarrassment.  However, on a number of occasions the mother “has come to school and complained about the [use of [Fournier] as a family name] and the school refuses to change the girls’ name”.  The mother usually attends following a document such as a school report being sent home in which the children’s names are set out in full.  The most recent occasion of which

    
    

    Ms H is aware was after the girls’ mid-year reports were sent home in June 2007.  When the mother came to a parent/teacher interview she asked that the girls’ family name be recorded as “[Noelle]”.  On other occasions in relation to this issue, the mother has presented at the front office of the school often in an agitated, persistent and quite forceful manner.  The principal and Ms H have developed a strategy for the secretary in the school’s front office to deal with the mother when she attends and again wants to arrange to alter the girls’ family name.  The secretary has been directed to ask the mother to take a seat and wait to see either Ms H or the principal, Ms V.  The school’s policy is that the girls’ family name cannot be changed without a court order. 

18. I found the evidence of Ms H to be informative and for her opinions to be supported by her own observations and knowledge.  She gave her evidence clearly and thoughtfully and, where she felt unable to comment, she readily said so.  She clearly knows S and T and has a relationship with each of them.  She also has considerable personal experience with the mother.  In fact her exposure to the girls and to the mother is considerably greater than the limited opportunities which have been presented for the family consultant, Ms B, to assess the girls and the mother.  

    
    

    I accord Ms H’s evidence considerable weight. 

19. I did not have an opportunity to assess the mother or any of her deponents in cross examination.

Background

1. The father is 41 years old having been born in December 1965.  He is a professional carer and lives in a suburb of Adelaide in South Australia.  He has previously been employed in Australia by the Department of Human Services, Victoria, in an administrative and managerial capacity.  He was born in Cameroon and arrived in Australia in 2002.  He is a permanent resident or citizen of Australia. He is married to Mrs Fournier and has been since … December 2005.  Mrs Fournier is 31 years old.  She is employed as a carer on a casual basis.  She has an 11 year old son, Y, who is still in Cameroon and being cared for by his maternal grandparents. 

2. The mother is 31 years old having been born in September 1975.  She lives with the two children and her partner, Dr W, in a North West suburb of Melbourne in Victoria.  She is a permanent resident or citizen of Australia, having sponsored the father and children in December 2002.  She is a nurse educator.  She trained for that employment, in Cameroon from 1996 onwards.  Dr W is employed as a medical practitioner and researcher.  He is 49 years old and has known the mother since she was employed as a practice nurse at his clinic in May 2006.  

3. The mother and the father met and married, in Cameroon, on …August 1995.  The father was 29 years old.  The mother was 19 years old.  That marriage has now been dissolved.  The mother asserts that she is of the Catholic faith and monogamous whereas the father is polygamous in accordance with Cameroon culture.  The father disagrees and says that he is a Christian, specifically of the Presbyterian faith, and does not practice polygamy, although his father did.  

4. Their first daughter, S, was born in April 1996 in Cameroon.  She is now 11 years old and in Grade 6 at D School. 

5. When S was about 5 months old, the mother left the family home.  The mother alleges that she took S with her and went to another town to study nursing whilst she employed a nanny to assist her with care of the baby.  The father alleges that S remained with him and he had the assistance of a nanny called G.  Nothing turns on the conflict in the evidence.  The mother deposes that she was required by her family to return to the father, which she did by transferring her studies to X.  Shortly after which she became pregnant again. 

6. The mother gave birth to T in June 1999 in Cameroon.  The father and mother were living as a family at the time.  T is now 8 years old and in Grade Three at D School. 

7. Shortly after T was born (June 1999) the mother left the town in which the family lived, without the girls, and commenced working in South Africa.  The girls remained in the care of the father, in X, although the mother alleges that he was assisted by her sister and a live in nanny, both organised by her.  The father denies that the maternal aunt helped care for the children and agrees that at all material times he had the services of a full time nanny.  The mother deposes that the father refused to allow their daughters to accompany her to South Africa. 

8. In mid- 2001 T was sent to the mother in South Africa and in early 2002, S and the father followed.  The mother deposes to living under the one roof but separately from the father in South Africa until the family migrated to Australia in on 6 December 2002.  She deposes “I was extremely eager to obtain permanent residency as this was the only way I could divorce the husband.  The husband continued to be abusive both physically and verbally”.  She deposes to their final separation having occurred in July 2003. 

1. Orders were made on 23 December 2003 pursuant to which the children lived with the mother and were to spend specific times with the father being each alternate weekend, initially from 9:00am to 7:00pm on one day and then being extended to 9:00am on Saturday to 7:00pm on Sunday once the father had secured appropriate accommodation.  The father’s time with the children was to commence on 4 January 2004.  It did not eventuate. 

2. On 2 April 2004, Kay J found that the mother had contravened the parenting orders made on 23 December 2003 by refusing to provide the girls to spend time with the father on occasions between 4 January 2004 and 29 February 2004.  Kay J’s reasons for judgment contain the following findings:-

   [2]. The application alleges that the mother did without reasonable excuse contravene the order by preventing contact taking place on each of the Saturday and Sunday of the weekends of 3 and 4 January, the weekend of 17 and 18 January, the weekend of 31 January and 1 February and Sunday, 29 February.

   [3]. The mother has denied the contraventions on the basis, she says, she had a reasonable excuse, although she acknowledges that no contact took place on those dates.

   [4]. The father's case is that he attended to collect the children on each of the days, except on one occasion he was told do not bother, and that simply the mother just closed the door in his face basically and said, "Go away," there would be no contact taking place.

   [5]. The mother says on each of the occasions the children told him they were not going and that there were lengthy conversations between the children and their father and eventually he gave up because it was apparent he could not persuade them to go.

   [6]. Both have given evidence. The mother has a disadvantage of appearing in person. She was both the cross examiner in terms of the father's evidence and she gave her own evidence and was cross examined by counsel. Her evidence is full of contradictions and I found it at times difficult to follow. Between the two of them I far prefer the evidence of the father as being more accurate than that of the mother as to the events that occurred on each of these contact periods. I am satisfied that there was no reasonable excuse for refusing contact. Even if the children were expressing a reluctance to go, and I am not satisfied that they were, that of itself is an insufficient basis for not insisting that the contact take place. These children were aged four and seven at the time. The obligations of the mother go beyond simply physically being at the right place at the right time with the children. They require her to encourage the children to have contact with their father and to take all reasonable steps to make sure that the children go on contact.

   [. . .]    

   [10]. Having regard to the conduct of the mother in court, I doubt that sending her off to a program is likely to have the slightest effect upon her. She raises a number of issues which she says are indelibly cultural issues, describing her perception of the father's inability to come to grips with the fact that the relationship is over on the basis that in their culture emanating from their place of origin, which I gather is the Cameroon, it is unacceptable for a male to come to grips with a female wishing to part from him and that because of this cultural issue she having expressed her independence he is not coming to grips with it and all the troubles in their relationship post-separation have flowed from this cultural issue.

   [11]. I am not entirely convinced that is accurate, but I am not in any position to judge it on the limited basis of the material that has been before me today.

   [12]. She makes assertions of violent conduct towards her, but those assertions are not supported by any evidence before me at the moment. An application for an intervention order has been dismissed by a magistrate. She makes assertions that there is ongoing sledging and disparaging remarks being made by the husband to anyone who wants to hear from them. There is nothing in the evidence before me today that would indicate that is likely to have occurred. But at the same time this case has not been professionally run by the wife.

   [13]. Her basis for not being cooperative on contact seems to vary and the sand keeps shifting. First she says that he does not deserve to have contact because he is “not the father”. But when that is challenged she says that she is talking in a metaphorical term. He is not the father because “he is not a responsible parent”. She is not actually saying he is not the biological father, although she was even being a bit coy about making admissions or assertions about that fact.

   [14]. I am thoroughly satisfied that she sent him a text message recently on his machine saying, "You are not the father of my children." Her evidence about the children having sent the message or some stranger having sent the message is so incredible as to be laughable.

   [15]. The issue has arisen as to what I should do vis-a-vis the ongoing enforcement of the orders and I have asked that counsel attend to having a discussion with the parties. As luck would have it, there is a counsellor available and he is present in court at the moment while I give this judgment.

   [16]. Attention moved, prior to the counsellor coming, to the prospect of rearranging the contact orders. The order itself contains an order that once the father obtained accommodation suitable for overnight contact he was to have contact from 9 am Saturday to 7 pm Sunday. The mother's ground moved from

   (a)      "I do not want the children to go," to

   (b)       "He does not deserve to have the children," to

   (c)      "The children do not want to go", to

   (d)      "The difficulties are all at changeover and that if we could only solve the changeover problem there would be no difficulties in contact."

   [17]. As soon as it was mooted that he should start having contact after school Friday to Monday morning the mother said she had arrangements for the next few weekends and that would not work. Then it was mooted that perhaps he should have contact next week during the school holidays given that they have weekend arrangements. Her response to that was, "Well, I booked them in to some child care and I have already paid for it," to which my answer was the money is spent, but that does not mean the children have to go to the child care arrangement. Their father is available to look after them.

   [18]. These logistical issues as to changeover are something that I hope that the counsellor is able to attend to in the course of discussions this afternoon and I wish him smooth sailing, although I suspect from what I have seen so far in court it is going to be a very stormy sea.

   [19]. In a formal sense I propose to make a finding that on each of the seven occasions the mother has without reasonable excuse breached the order. I propose to make an order varying the contact order so that the father has contact on each day and during next week from 9 am until 6 pm or such other time as the parties are able to arrange in counselling, with changeover to take place at the mother's home, unless the parties reach some other agreement.

3. The mother deposes[9] that she was unrepresented before Kay J and unable to explain to Kay J that the father had sought to alter times for contact (as it was then known). The mother did not appeal the determination of the contravention application. It is apparent that she gave evidence. I accept that the mother did contravene the orders as found by Kay J and that failure to comply with orders for the father to spend time with the children it is a matter that I should take into account in the context of s 60CC(3)(i).

   [9] Mother’s affidavit sworn 9 August 2007, paragraph 17

4. On 30 April 2004, the father filed a further contravention application, in which he alleged that the mother had failed or neglected to make the children available for the compensatory contact ordered by Kay J on 8 April 2004.  On

   
   9 June 2004

   Kay J determined that application by finding that the mother had contravened the orders in four respects.  Kay J ordered overnight contact (as it was then known) and, from 16 July 2004 that the children spend time with the father each alternate weekend with the changeovers being effected at the children’s school.  The mother was further required to enter into a bond.  Kay J’s reasons for decision are Exhibit “ICL1” and include the following findings:-

   [1]. These are proceedings asserting contravention of orders made by me on 8 April 2004 for compensatory contact. The applicant is the father of two children: [T], born in June 1999, and [S], born in April 1996.

   [2]. There were proceedings on 8 April 2004 asserting breaches of orders made on 23 December 2003 and I found that I was satisfied that the wife had without reasonable excuse contravened those orders on seven occasions preventing contact between the applicant father and the children. I then ordered compensatory contact on each of 12, 13, 14, 15 and 16 April and part of that order read as follows (emphasis added) -

   "unless other arrangements are made and agreed to in writing between the parties, the children are to be made available for collection by their father from the family carer employed by the wife and returned to the family carer at the conclusion of each contact day."

   […]

   [5]. What is common ground in the proceedings is that no contact took place on 12, 13, 14, 15 or 16 April 2004 and no details were provided to the father as to the whereabouts of the children's family carer so that the father could comply with his obligations under the orders to collect the children from that carer and return them to the carer.

   [6]. It is the mother's case that some agreement was reached in counselling which led her to believe that the collection for the children would be outside her home at 6.30 am on the morning of the 12th. The evidence was never placed before me as to what the return arrangements were to be. The mother says that she waited until 6.50. The father did not show up and so she and the children left. She never heard from him, nor did she make any attempt to contact him or his lawyers over the next five days and therefore no contact took place.

   [7]. The father's case, which I find to be the more credible version of events, is that he telephoned her on the evening of the 11th asking details of the child care centre and where he could collect the children. She refused to give him the details and abused him. He then sent her a text message via his mobile phone to hers. She did not reply to it. I am, on the balance of probabilities, persuaded that such a message was sent. He says he rang her again on the Monday morning but she refused to speak to him. He had no way of then collecting his children. He sent another message on Tuesday morning, to which there was no response. He then telephoned her and he was told that if he wanted the children he could come and get them at her home, which he felt was a little difficult because he was on the other side of Melbourne at the time. He then tried to make some other arrangements to collect the children but the mother was non‑responsive in the sense that she did not answer the telephone any more. He said on the 14th he again telephoned the mother. She refused to take his call. That evening the child [S] spoke to him asking to be collected for contact. He then asked to speak to the mother to confirm the arrangements for collection of the children and he was told that he should not come to her home and she did not want to see him. He did not make any attempt on the 15th or 16th because it would have been fruitless.

   [8]. I am satisfied on the material that the mother is clearly in breach of the orders without reasonable excuse. The orders required the contact to be organised by collection from the family carer unless there was an agreement to the contrary in writing. It is common ground there was no such agreement. To the extent that the mother may have been confused about what occurred in the counselling session, the order itself was clear and if there was confusion in her mind, it was, in my view, her obligation to comply with the order. She thought she was complying with the order on the morning of the 12th. When it became apparent that the father was not there, it ought to have been apparent to her that she would have to revert back to the orders or at least to endeavour to clarify the arrangements. She made no such attempt.

   [9]. I am prepared to find that there may have been confusion in the mind of the mother on the 12th but that confusion must have been dissipated by the events that occurred on the 12th, so I will find the breaches on 13, 14, 15 and 16 April.

5. Kay J’s determination of 9 June 2004 has not been set aside or discharged. I do not accept the mother’s evidence, referred to above, that she was unable to explain adequately to Kay J that difficulties arose as a result of lack of flexibility in application of the orders. I accept that the mother did contravene the orders as found by Kay J. I am satisfied that her failure to comply with orders for the father to spend time with the children it is a matter that I should take into account in the context of s 60CC(3)(i).

6. As indicated, on 9 June 2004 the orders were changed to provide, inter alia, for the father to spend time with the children each alternate weekend with changeovers to be effected at the children’s school.  As at 9 June 2004 the girls were students at M School in an inner Melbourne suburb.  The father alleges[10], and I accept, that the mother changed the children’s school to D School in an outer Western suburb shortly prior to the operation of the orders for spending time on alternate weekend and did so without reference to him.  The independent children’s lawyer tendered the enrolment applications for both girls at D School[11].  The proposed commencement date for both girls is recorded as 12 July 2004 and the date of admission is endorsed as 12 July 2004 and the deputy principal of the school, Ms H confirmed the date in her evidence.  Returning to the enrolment form, all details pertaining to the mother are recorded on the form.  The space referrable to “Father” is crossed out with “N/A” between two wide tramlines.  I accept the father’s evidence that he attended at M School to collect the girls on the first weekend that he was entitled to do so and found that they were no longer students.  The father was advised by M School that the children had been transferred to D School. 

   [10] Father’s affidavit sworn 21 July 2005, paragraph 20

   [11] Exhibit “ICL4”

7. The parenting orders made in on 23 December 2003 provided, inter alia, that the parties retain responsibility for the long term care, welfare and development of the children of the marriage. It was a final order which does not provide that the responsibility be exercised jointly. As such, each parent was at liberty to exercise all such responsibilities, including changing the girls’ school, independently of one another. There was no requirement or obligation on the mother to consult the father. However, I am satisfied that her motivation in changing schools was at least in part to frustrate the orders made by Kay J to effect changeovers at school on the first occasion. I am satisfied that the fact that she changed schools without any notification to the father in circumstances where weekend contact was disrupted and the children would have known that their father was not informed about their education, are actions which reflect poorly on the mother’s ability and preparedness to facilitate the father’s participation in the long term welfare of the girls. It is a matter which I take into account in the context of s 60CC(3)(i) of the Act.

8. On 5 July 2004 the mother initiated contravention proceedings against the father arising out of an alleged incident the previous day.  That application was dismissed when the mother failed to appear to prosecute it on the first return date.  The mother alleges that she was simply late to court and the matter was dealt with in her absence. 

9. Sometime after separation, the mother had commenced a relationship with

   
   

   Mr K.[12]  In mid-2005 the mother commenced a relationship with Mr E.  He remained her partner and a father figure to the girls until sometime in 2006. 

   [12] Father’s affidavit sworn 21 July 2005, paragraph 22.

10. The mother deposes to difficulties with the father spending time with the children; intimidating and abusive behaviour directed to her by him and, finally, the eldest daughter refusing to see the father in December 2004.  He says that the mother was violent to him during the relationship but he was not violent to her.  The mother alleges that there was an incident in which the father kicked her ankle at a contact changeover but the father denies that he did so.  He said that he recalls the particular changeover and he walked past the mother and near to her car but did not make contact with her.  He said that the mother was next to her car as he passed by and the girls were in the car.  The positioning of the girls is relevant because S purports to have seen the incident.  The father’s evidence was that she could not have done so because it did not happen but, even if it did happen, it would not have been within her line of vision.  S would have been about 7 years old at the time.  On the evidence, I am not satisfied that the events alleged by the mother took place. 

11. The father moved to a rural Victorian city in January 2005.  His solicitors wrote on 25 January 2005[13] to the mother’s solicitors to advise that his employment had commenced on 24 January 2005.  There was a compliant that the mother had failed to provide the children to spend time with the father on 31 December 2004 and, somewhat paradoxically, “I refer to your letter of 15 December 2004 in which you suggest that contact occur only by mutual agreement.  My client accepts this proposal pending the further hearing of the matter.”  There was no scheduled further hearing and the father did not see the children again until he returned to Melbourne in July 2005.  The mother deposes that the father “did not bother to contact the children in 6 months.[14]”  The father deposes[15] that:-

    On 14 January 2005 I was offered employment with the Department of Human Services in [a rural Victorian city].  At this stage it was proposed that I would have contact with the girls by mutual agreement.  This proposal was made because the children were becoming increasingly upset because of the influence over them by [the mother] telling them that I was not their father and that I was bad.  I felt that I had no other option at that time.  No proposals were made for contact by [the mother] while I was in [rural Victoria].  She warned me not to call her home so I could not even speak to the children when I was in [rural Victoria].  I believed that if I made any proposals such proposals would be rejected because of [the mother’s] attitude.

    [13] Annexure “C” to the affidavit of the mother sworn 9 August 2007

    [14] Affidavit of the mother sworn 9 August 2007, paragraph 29

    [15] Father’s affidavit sworn 21 July 2005, paragraph 28

12. At the trial, the father’s evidence was that he had been employed by Department of Human Services on consecutive contracts for some time up to 2005 but then his contract was not renewed.  He applied for and obtained employment with the Department, at a higher level, in the rural city.  It was not his desire to leave metropolitan Melbourne but he needed to work and sourced a 12 month contract in the rural city.  In …, he continued to apply for other jobs back in Melbourne.  After 6 months he was offered employment in … (a suburb of Melbourne) and took that position, returning to Melbourne in July 2005.

13. As part of the court’s preparation of the matter for trial, a family report was ordered to be prepared and was allocated to Ms B, family consultant.  Ms B saw the family on 9 June 2005.  This is the only time that Ms B has been able to assess the mother because it is the only occasion on which the mother attended, albeit for a shorter period than that which was contemplated by the family consultant.  The family consultant mentions the circumstances of the interview at paragraph 3 of her report[16] as follows:-

    [3]. On the day of the interview [the mother] stated that she had another appointment at midday and she left the Court with the children at that time. This allowed only 2 hours for interviews with [the mother] and her children. It also limited the time available for observations. [The mother] said she had only become aware of the requirement to attend the Court the day before. However, when the writer had attempted to provide [the mother] with details of the time and date of the interview the previous week, she had terminated the call before any discussion could take place.

    
    

    [the mother’s] solicitor was immediately contacted with the information at that time.

    [16] First report of Ms B, dated 22 June 2005, page 2

1. At the trial, the family consultant gave evidence with the assistance of her notes.  She testified that a letter would have been sent to all parties to advise of the interview date of 9 June 2005 about three weeks prior to the date.  On

   
   27 May 2005

   , the family consultant telephoned the mother but the mother refused to speak with the family consultant and directed the family consultant to speak to her solicitor.  Ms B said that she then telephoned the mother’s solicitor and advised him that the mother was required to attend for the interview.  I accept the evidence of the family consultant and am satisfied that the mother had more than adequate notice of the date of the interview, if she was not told that she and the children would be required all day it was because she refused to speak to the family consultant by fobbing her off onto her solicitor.  I am satisfied that the mother was not a willing participant in the first round of assessments, on her own behalf or for the children. 

2. The family consultant gave evidence of her observation of the family in the reception area.  She observed the father to be sitting and when he spoke his voice was quiet.  However, the mother was over him, raising her voice in an aggressive and argumentative manner and accusing him of having another relationship.  The children were with the mother and aware of the commotion and were observed by the family consultant to be upset and anxious which prompted the family consultant to direct that the children go into the play room. 

3. In the context of the mother’s application for an adjournment of this hearing, the mother described the first report by Ms B as “appalling” and said that, thereafter, she was convinced that it was useless attending any further interviews herself because Ms B had not accurately reported what she or others said on the first occasion.  The report details that when the parents and children arrived at the reception area:

   [14]. Both [the mother] and [the father] were clearly ill at ease in each other’s company, and when [the father] initiated a discussion with

   
   

   Mr [E] ([the mother’s] partner) a prolonged argument between the parties ensued, with each accusing the other of initiating the verbal altercation.  Consequently, almost twenty minutes passed before interviews could commence.  Observation took place in the reception area of the Court and in the playroom.  The animosity between the parties was palpable upon the arrival of [the mother] and this was not lost on the children who glanced uneasily between their parents.  Neither [S] nor [T] initially acknowledged their father’s presence in the reception area, and [he] acted appropriately by giving the children time to become accustomed to him.  They had previously not seen their father for 7 months.  After a brief period [T] smiled at her father and hugged him tightly.  She continued to seek his company for the remainder of their time together.  She kissed and hugged him goodbye pressing into his hand a drawing of a love heart over a rainbow with a love message to him inside it. [S] was more reserved.  However, she did engage in conversation with her father as the morning progressed and played some games with him.  At the end of the observation period she watched him leave the room, quickly waving goodbye before returning to her games.  

4. The family consultant identified 2 major issues.  The first was the disparate lifestyles of the parents.  She identified that the father had adhered to his traditional background whereas the mother had embraced a more Western lifestyle including a Western boyfriend, to the obvious disdain of the father.  The second issue was family violence which she described as follows:-

   [16]. The second and most significant issue relates to [the mother’s] allegations of family violence. Instances of physical violence appear few, but if in fact [the father] kicked [the mother] as alleged, this should be considered very seriously, particularly as it apparently occurred after the parties had separated. It may indicate that [the father] has not accepted the separation. However, there appear to have been faults on both sides. For example, it is difficult to understand why last year [the mother] made the decision not only to inform [S] that her father was not really her father, but instructed her not to call him Dad. This can only have caused [S] further heartache and confusion. It would be in the children’s best interest for [the mother] to attempt to put aside her feelings of hostility toward [the father] and encourage [S] and [T] to renew their relationship with their father. It seemed apparent both parents love their children and the love is reciprocal. It is also likely that both children are missing their father and although it is outside the parameters of this report to examine in depth the reasons for [T’s] insecurities, the stress associated with long term parental separation cannot be eliminated as a contributory factor.

5. There was nothing in the evidence from which I could find that domestic violence as alleged by the mother to the family consultant had occurred.

6. The family consultant made the following recommendations:-

   (a)For [the father’s] contact with the children to commence immediately.  The plan could include [the father] having day contact in Melbourne with the children on alternate weekends.  Gordon Care Contact Centre would be a suitable venue for contact to occur.  

   (b)For contact to be increased to include weekend contact following [the father’s] return to Melbourne.  This plan has been part of a previous Court Order. The children also could have the option of phoning their father or receiving phone calls from their father twice a week.

   (c)For there to be no change in the contact arrangements unless exceptional circumstances prevail.  

7. The proceedings came on for final hearing before Dessau J on 3 October 2005.  The proceedings were adjourned to permit the mother to obtain legal representation.  It appears that Mr Gunasekera, solicitor, had been acting for the mother since May 2005 but ceased to act shortly before the final hearing date.  He went back on the record as the mother’s solicitor on 3 November 2005.  In any event, on 3 October 2005, orders were made that the children spend time with the father for two hours each fortnight, commencing on 12 November 2005, and that changeovers be effected at B Contact Centre. 

8. On 11 December 2005 the father married Mrs Fournier in China.  She arrived in Australia to reside permanently in March 2006.  She has spouse migration visa status which the father says, in effect, confers on her permanent resident status. 

9. On 23 January 2006 the matter was listed for final hearing before Carter J.  The father and the mother both represented themselves.  Carter J suspended all previous contact orders and made further orders providing for the children to spend time with the father under the supervision of A Agency for, inter alia, 4 hours each alternate Sunday commencing 5 March 2006.  The matter was otherwise adjourned to a directions hearing on 19 June 2006.  

10. It is not clear when prior to the hearing on 23 January 2006 Mr Gunasekera ceased to act for the mother.  However, following the appearance before

    
    

    Carter J, he put himself back on the record as the mother’s solicitor by filing a notice of address for service on 19 April 2007. 

11. The supervisor from A Children’s Contact Service, Ms P, prepared 2 reports which are annexed to an affidavit sworn on 7 May 2006.  Ms P reported that on 11 March 2006 the time proceeded without incident and that the children “displayed spontaneously a lot of affection towards their father plus his new wife, especially T, giving them cuddles and kisses, totally without any prompting on any ones part …” and appeared to be looking forward to the next visit.  She reports that the next visit did not eventuate because the mother was not cooperative.  Finally, the Agency spoke to the children.  T said that she would attend if S attended also attended however S refused to attend having said, apparently: “Now that we know that we don’t have to go! We don’t want to!!”  On the first day of the trial the mother indicated, through the independent children’s lawyer that she wanted to cross examine Ms P.  However as the mother did not participate after that day, Ms P did not attend to give evidence.  I regard Ms P’s evidence as unchallenged. 

12. In May 2006, the mother met her current partner, Dr W.  He described their meeting and her abilities and life together in the following passages of his affidavit:-

    [4]. I first met [the mother] in May 2006 when she started to work as Practice Nurse at the […], where I was working as a GP. I found out that she had been handpicked for this difficult work by the Practice Support Worker from the local Division of General Practice, whom I have known well for many year. His other work is accreditation assessments of several hundred medical practices across Australia. Before [the mother] was appointed to the position, he described her to me as “the best practice nurse I have ever come across anywhere”.

    [5]. I soon found out for myself that he was absolutely right, and became very impressed by the quality of her work. She showed great skills and intelligence, an engaging and even inspiring personality, and a capacity to easily empathize with […] people and to encourage them to talk about their most pressing concerns. She was prepared to step outside her job description to provide other sorts of help to […] people, such as helping an intellectually disabled person to apply for appropriate tertiary education courses. I either saw this for myself, or had it described to me by patients that she had cared for. In my opinion after working with her for about 7 months, she is easily the best nurse I have come across in 30 years of medical practice and work with community organizations that has brought me into close contact with many capable nurses.

    [6]. I consider that [the mother] and I have an excellent relationship and friendship. We share many occupational and recreational interests, and in my opinion we work together very well in bringing up [S] and [T].

    […]

    [10]. I feel that I have been totally accepted by the girls from the time

    
    

    I became [the mother’s] partner.  They generally call me “[…]”, and I have never tried to persuade them to think of me as, or call me, “dad”.  

    
    

    I consider it important that I allow them to feel free to call me what they are most comfortable with.

    [11]. I agree with [the mother] that the girls need to be aware that [the father] is their biological father, and that for their own wellbeing they should maintain a relationship with him. Their confusion when they are asked “who is your father?” comes from a saying that seems to me to be common to women from many parts of Africa, because our Sudanese and South African and Nigerian friends also know it well, which goes that any man can get a woman pregnant, but it takes a real father to bring up a child.

    […]

    [23]. I state that the first time that either [the mother] or I saw the relevant Section 60CC of the Act was late on 7^th August 2007 when it was e-mailed to us.  It is only after seeing this that I now clearly understand the point of the Court processes.  I also understand why, when all that [the mother] was trying to do was to avoid contact with [the father] as a result of their controlling and abusive relationship, she has managed to now get herself into such difficulty and has become increasingly frustrated with the process.  I am certain that if this Section and its importance had been explained to her at any time over the past 3 years, she would have acted very differently and the whole matter would have been resolved much more easily long before now. We delivered drafts of our affidavits to our solicitor on the last weekend of July, but it is only today that they have been finalized.  

13. If Dr W is trying to suggest (in paragraph 23 of his affidavit) on behalf of the mother that it was her lack of knowledge of s 60CC of the Family Law Act which caused her to behave in an unacceptable way, I reject that suggestion. The section refers to matters which the court must take into account when determining what is in a child’s best interest – it is not a section which prescribes how parents are to behave.

14. I am surprised that someone in Dr W’s professional position would not appreciate the function of the legislation.  I assess him has having little or no personal insight in relation to matters affecting the children.  I am especially surprised by the assertion implied in the paragraph that the mother should tailor her conduct in order to “pass” an assessment. 

15. On 19 June 2006, Registrar Riddiford conducted a trial notice listing at which a further family report was ordered and the matter made ready for trial.  The further report was commenced by Ms B, family consultant, in September 2006.  The mother did not attend, her evidence is this respect was:-

    [45]. In September 2006 another report has been prepared. Again I was not given sufficient notice of the dates and time and could not rearrange my schedule. The Reporter is critical of this and I say that as the sole carer of the children I have to attend to my employment and I would change times if I was given sufficient notice.

16. The family consultant’s comments are contained in the report at paragraph 2, as follows:-

    [2]. Despite encouragement from the Consultant and the Independent Children’s Lawyer, [the mother] did not attend for interviews stating other commitments as the reason for her absence. This meant that unfortunately the children were not given the opportunity to see their father, and the Consultant was unable to achieve the desired outcome of clarifying the relationship between [the father] and the girls.

17. The family consultant gave evidence about the invitation to the mother to attend the assessment.  A letter was sent by the court to the mother on 31 July 2006 advising the mother of the appointment time on 13 September 2006[17].  The family consultant gave evidence that on 7 September 2006 she received a telephone call from the mother in which the mother advised that she and the children would not attend the appointment but she would not say why.  On the day of the interview, the family consultant received a facsimile transmission from the mother saying that she (the mother) could not keep the appointment on 15 September 2006.  There was no appointment on 15 September 2006. 

    [17] Exhibit “ICL5”

18. I prefer the evidence of the family consultant over the evidence of the mother.  The family consultant’s interpretation is entirely consistent with the mother’s statement to me, from the bar table on the first day of the hearing, that she saw no constructive purpose in attending anymore assessments after her first and only attendance in June 2005.  

19. I find that the mother was given 6 weeks notice of the interview which is sufficient notice in the circumstances of this case.  

20. The family consultant evaluated the matter, obviously somewhat in the abstract because she did not have an opportunity to see the children let alone to observe them with the father.  

    [13]. [S] and [T] are at the centre of a dispute between their mother Ms [Noelle] and their father Mr [Fournier]. The current Court Order allows [the father] to see the children for four hours on alternate weekends. A Family Report was completed in June 2005 following an extended period of time when the children had not seen their father, and the Consultant’s recommendation was that the children’s time with their father should resume immediately, that it should be consistent and that it should include overnights as soon as practicable. This apparently has not occurred and the situation has now deteriorated to the point where urgent action is required.

    [14]. When the children attended the Court for interviews last June, [S] was initially quite ambivalent about being in her father’s presence, but as the day progressed she increasingly enjoyed his company. [T] would not leave her father’s side and pressed a picture of a love heart into his hand when she left. Sadly much more time has passed since the children have seen their father, and one wonders what their reaction would be now. The teacher’s information that the children now refer to

    
    

    Mr [E] as their father is very concerning. [The mothr’s] polarized negative perception of [the father] and her expectation that the children will naturally align themselves with her partner is most unfortunate, and might not only ultimately damage their relationship with her, but in time cause them severe grief and anger at having their father excluded from their lives.

    [15]. [The mother] appears to have disregarded past Court Orders with impunity and regrettably there is no evidence to suggest that she will adhere to future Court Orders. Given the failure of the last Court Order one is reluctant to recommend a slow incremental commencement of an overnight arrangement, and [the father’s] application to have the children live with him and see their mother on a regular basis is not without merit or justification. Perhaps it may be the only way that the Court can ensure that the children spend time with their father. However, this decision does not take into account the distress that the children would experience at being compulsorily relocated to live with a parent from whom they now feel somewhat estranged. Notwithstanding, the children have a right to spend time with their father on a regular basis, and the parenting arrangements should include a plan which involves the girls spending overnight time with their father.

    [16]. There seemed little doubt that at the present time joint responsibility is not being practised and this needs to be addressed immediately.

    
    

    [The mother] needs to understand that she has an obligation to firstly provide the children’s father with current relevant information regarding the children, and secondly to ensure that she includes him in all discussions in the future.  However, the onus is also on [the father] to take all opportunities to ensure that he is involved in the girl’s lives.  He could commence by contacting the school teachers who have stated that they would welcome his involvement.  This would not only provide him with essential scholastic information, but also demonstrate to the girls his interest in their lives.  

    [17]. Finally there has never been any suggestion that the girls have been at risk being in their father’s company, and in the Consultant’s opinion there

    
    

    I no reason why the time he spends with them needs to be supervised. Furthermore, it should be noted that [the father] has moved within close proximity to the school to facilitate a more equitable parenting arrangement, and there is no justifiable reason why his plan cannot be implemented.  To ensure the next Court Order is more closely adhered to and to assist the parents with any difficulties, the Court might consider a Parenting Separation Course through a community agency such as Relationships Australia.  

21. That second report of the family consultant is dated 26 September 2006.  The father deposes[18] that he and his wife, […], relocated to South Australia “in the month of October 2006” staying initially with friends until they moved out into independent accommodation in December 2006.  The father’s evidence, as to why he and his wife moved, is set out as follows in his last affidavit and is evidence which I accept[19]:-

    [11]. My relocation to South Australia was based on two principle factors. The first was that I had, since the separation, been the subject of significant amount of abuse from the wife. She would verbally abuse me each time she saw me. She adopted the practice of sending false emails containing derogatory remarks to our Cameroonian friends.

    [12]. Following the first period of time with the children which took place as a result of the Order made by Her Honour Justice Carter on 23 January 2006, which included my wife [Mrs Fournier], the wife falsely accused her of sexually abusing the children to the Independent Children’s Lawyer and commenced having the children make false statements about this time to the Independent Children’s Lawyer.

    [13]. The second fact is that my wife […] is also pursuing a career as a nurse, as is the wife. She wished to obtain employment in this capacity. It was my belief that on the basis of the antagonism which the wife had shown me that she would work to harm [Mrs Fournier’s] future as a nurse in Victoria through her contacts.

    [14]. There were more employment opportunities for [Mrs Fournier] in South Australia.

    [18] Father’s affidavit sworn 7 August 2007, paragraph 5

    [19] Father’s affidavit sworn 7 August 2007, page 3

Practical difficulties and expense associated with contact[45]

[45] s 60CC(3)(e) Family Law Act 1975 (Cth)

1. I now consider the practical difficulty and expense of S and T spending time with and communicating with the parent with whom they will not be living and whether this will affect their right to maintain personal relations and direct contact with both parents on a regular basis. 

2. Up until now there have been difficulties with the rights of the children to maintain a personal relationship with the father and this has been attributable to the mother’s refusal or inability to accept the legitimate needs and entitlement of the girls in that regard.  

3. It was submitted on behalf of the independent children’s lawyer that, if the children continue to reside in the primary care of the mother, absent the court supervising the matter closely, and more likely than not issuing recovery orders on a continual basis, the children are most unlikely to be able to spend with the father in the terms of any orders that I now make.  I accept that submission as being correct.

4. I am mindful that since 19 April 2007, the father has had 2 extended periods of time with the girls.  However, on both occasions the delivery of the children to the father occurred at court on a closely scrutinised basis and in the context of an upcoming final hearing.  On 19 April 2007, I ordered that the girls be brought to court by the mother immediately upon the court rising and made it clear that I was available to take any application for a recovery order for the balance of the day or after hours.  The mother complied.  On the next occasion, the mother advised the independent children’s lawyer that she would be unable to transport the children to the appointment with the family consultant on

   
   

   29 June 2007 and, the independent children’s lawyer asserts, that there were no arrangements for the mother to deliver the children to the father to commence a period of school holiday time.  The independent children’s lawyer drove to the mother’s home, waited for the children to be ready and brought the children and their suitcases to court.  At the conclusion of the children’s appointment with Ms B, the independent children’s lawyer left them in the care of the father.  The only pro-active role which the mother took in relation to the last period of time between the children and the father was to pay for the girls to travel by aeroplane back to Melbourne at the conclusion of the time spent with the father.  That was more than any order required her to do but, I note, secured the prompt return of the children to her rather than the delivery of the children to the father. 

5. The father chose to drive the children from Melbourne to Adelaide in June 2007.  He says that it is a pleasant drive which he can make enjoyable for the girls with stopovers and sightseeing and the like.  All things being equal, I am not convinced that the 8 to 11 hour car journey for the children is as appropriate as putting them on a commercial flight.  I will not compel the father to transport the children by aeroplane because there are other factors to be considered such as cost, scheduling and regulations about unaccompanied minors as well as the fact that the father and his wife may have driven to Melbourne themselves for the facility of having a car here without the added expense of car hire.  However, the orders which I will make will envisage the children travelling by commercial airline so as to maximise the time that they can spend in each parent’s household.  The parents will have to work co-operatively if they wish to take advantage of discounted airfares including, but not limited to, observing the requirements to have the children checked in for the designated flight within the time prescribed by the carrier and with due regard to the popularity of travel in these times and very long queues to all counters.  I will make an order which, in the event of the children missing a flight, provides for the defaulting or careless parent to ensure that the children are on the next available flight without extra cost to the parent who is not at fault. 

6. The girls should be able to communicate with the parent with whom they are not living or spending time on a regular and private basis.  I am envisaging that the children will be able to telephone the landline of the household in which they are not staying. 

7. This is not a case where I identify practical difficulties arising over and above the attitudes and disinclination of the mother to facilitate the provision of time spent and communication.  If the mother is inclined to make arrangements work, I am confident that they can work in the best interests of the girls. 

Capacity of the parents to meet the children’s needs[46]

[46] s 60CC(3)(f) Family Law Act 1975 (Cth)

1. In determining what is in the best interests of the children, I need to consider the capacity of the parent or of any other person to provide for the needs of the children, including emotional and intellectual needs.  

2. I am satisfied that both parents have the capacity to meet the physical needs of the girls.

3. In closing, the independent children’s lawyer submitted that the mother struggles to meet the emotional needs of the girls and falls short of being able to accommodate the girls having an ongoing and positive relationship with the father.  It is a very significant deficit.  I accept the submission of the independent children’s lawyer. 

4. There are a number of aspects to the mother’s case which I have considered in the context of assessing whether the mother has the capacity to change or improve what I am satisfied has been a failure to permit the girls to have a positive relationship with the father.  The first aspect is that the mother asserts that she wants nothing to do with the father personally but she is content for him to spend time with the girls in the future.  The second but related aspect is that her partner, Dr W, appears to be saying that if the mother had known that she could lose primary care of the girls unless she was able to permit a meaningful relationship between the girls and the father, the she would have acted differently. In particular, he deposes[47]:-

   I state that the first time that either [the mother] or I saw the relevant section, 60CC, of the act was late on 7 August 2007 when it was emailed to us.  It is only after seeing this that I now clearly understand the point of the court processes.  I also understand why, when all that [the mother] was trying to do was to avoid contact with [the father] as a result of their controlling and abusive relationship, she has managed to now get herself into such difficulty and has become increasingly frustrated with the process.  I am certain that if this section and its importance had been explained to her at any time over the past three years, she would have acted very differently and the whole matter would have been resolved much more easily long before now.  […]

   [47]  Affidavit of Dr W sworn 9 August 200, paragraph 23.

5. Of course, the mother’s partner deposes to the realisation of the importance of considerations under s 60CC being a realisation to which he, rather than the mother had come. There is no corresponding statement or sentiment evident from the mother’s own affidavits. However, having read it I must say that at the beginning of the hearing I anticipated that it was likely to be part of the mother’s case that she had not realised that, all other things being equal, one of the most basic responsibilities of the parent with whom the children primarily live is to permit and promote a meaningful relationship between the children and the other parent and, had she known that to be so, she would have facilitated the children spending time with the father. However, it was not the case. The mother did not participate in the proceedings after her application for an adjournment was refused, let alone frame it in terms of her future behaviour being better than her past behaviour.

6. The fact that the mother did not participate in the hearing gives me concerns about the extent of her parental capacities.  The mother’s statement from the bar table, that 7 days  previously Dr W had detected a 3cm lump in her left breast, is no more than a statement from the bar table.  It is not evidence.  Both the mother and Dr W swore affidavits later in the week but did not include any reference to a breast lump, the investigative procedures relating to the lump or why Dr W did not act earlier than the end of that week to make a referral to a specialist for tests and investigations.  It seems an unlikely event for either to minimise or forget and not act on until the end of the working week.  There is also no explanation as to why the mother did not raise the discovery of breast lump with the independent children’s lawyer in her conversation with him later in the same day that it was detected.  The mother says that as the days went by the potential seriousness of the lump dawned on her and now she is too

   
   

   pre-occupied with her survival to be part of a court case.  I find that position to be incongruous given the mother’s training and experience as a medical professional and the fact that she is living with the doctor who detected the lump.  

7. The mother’s state of health is a relevant matter in terms of her capacity to parent the girls generally, as would any course of treatment which she may need for any the lump detected in her breast.  However, as matters stand, the lump in her breast is not a matter of evidence before the court.  Neither the mother nor her partner (and medical practitioner) have put the court in a position to analyse or weigh the implications of any health problem which the mother may have.  The mother has sought to rely on her statements from the bar table only as a justification for an adjournment.  Once the adjournment was refused, she ceased to participate.  That of itself calls into question her ability to withstand the pressures and tribulations of parenthood.  If what the mother says about a lump in her breast is correct, this would be a difficult and extremely upsetting time for her but it does not reflect well on her parental capacity when she quarantines herself from her responsibilities to her daughters by ignoring the court case at which a determination will be made about where and with whom they will live.  

8. I regard her failure to participate in this hearing as a positive act which casts doubt over the mother’s capacity to continue to parent the girls and it gives me absolutely no encouragement vis a vis her capacity to change what has previously been a long standing and effective opposition to the girls spending time with the father. The mother must have known how important the hearing is, as she has been involved in previous proceedings. She also had the albeit misconceived interpretation of s 60CC by her partner, Dr W, and yet she chose to leave and not return.

9. The family consultant’s evidence was to endorse the father’s capacities as a parent as “excellent”.  She assessed him as possessing a good overview of the situation and of the difficulties of having his two young daughters live with him and his wife most of the time after having had such limited experience with them in the past.  The family consultant was not concerned that the limited time which the children have spent in the father’s household in Adelaide, from 29 June to 15 July 2007, was by way of a holiday rather than a daily routine of school and homework and housework and the like.  The father’s evidence left me with the impression that he and his wife have given a lot of thought as to how they will cope with the girls and that one of the most significant parts of their agreed strategy is to support the relationship between the girls and the mother (regardless of whether that support is reciprocated) and to always let the girls know that they will speak to their mother regularly and often and when they can expect to see her again.  I find that to be a realistic and empathetic approach indicative of the personal capacities which a parent must possess to successfully parent children. 

10. I accept the assessment of the family consultant.  Nothing in the father’s court presentation was inconsistent with her assessment although I acknowledge that behaviour in court is not an absolute indicator of parental capacity.  The father has a quiet but firm manner about him.  I accept his evidence that, come what may, he will not permit or encourage his daughters to disrespect the mother nor make them feel as though the mother is treating him, his wife or them unfairly.  In his closing address, he said “I am not going to try to redress any balance,

    
    

    I will create a peaceful, loving and friendly environment for them.” 

11. I accept the opinion of the family consultant to the effect that the father’s wife, Mrs Fournier, will be a very real asset to him in looking after the children.  

The children’s maturity, sex, background and other characteristics[48]

[48] s 60CC(3)(g) Family Law Act 1975(Cth)

1. I now consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of  S and T and their parents.  

2. I have dealt with the girls’ academic and social progress elsewhere, including in my discussion of the evidence of the deputy school principal, Ms H. 

3. Cultural aspects have been mentioned on numerous occasions in the affidavit material and Ms B’s reports.  However they do not play a particularly significant part in my determination.  I am satisfied that each household upholds certain traditions and cultural values.  I am not convinced that any values of the father are harmful.  I accept that he advocates monogamous marriage and women exercising free choice.  I accept his evidence about his own beliefs and I reject the mother’s evidence to the contrary.  On the other hand, I am not convinced that the mother has cast off her traditional values in favour of Western values.  I accept her evidence about her own beliefs.  

4. I consider that it is telling of the mother’s lack of insight into the criticisms of her that she focuses on cultural issues but does not address the strongest criticisms of her in relation encouraging Mr E and now Dr W to usurp the role of father to the girls.  For instance, the mother fails to address the family consultant’s criticism of substituting the father with her partners in the eyes and affections of the children when she deposes[49]:-

   The counsellor is critical of myself for forming new relationships and again implies because I have not re-partnered with a Cameroon man that I am denying the children their heritage. I take great exception to this assertion.

   [49] Mother’s affidavit sworn on 9 August 2007, paragraph 56

5. It does appear that the mother has identified the criticism of her behaviour vis a vis Mr E and Dr W as being that she chose non-African partners, rather than that she promoted her partners to the children as father figures to the exclusion of their real father.  It arises in the context of the children’s cultural background but it is not a racial or cultural issue.  The real issue is the mother’s lack of insight into the emotional needs of the children to have a relationship with the father. 

6. Insofar as Ms B has identified a source of conflict or difficulty for the girls if they experience contrary cultural practises between the father’s household and the mother’s household, I accept that would be the case if it occurred.  However, in the present case, there is no evidence upon which I can be satisfied that there is a conflict of culture experienced, or likely to be experienced, by the girls.  

The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents[50]

[50] s 60CC(3)(i) Family Law Act 1975 (Cth)

1. I must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil his/her responsibilities as a parent.  This factor includes the extent to which each parent has taken or failed to take the opportunity to spend time[51] with and communicate with[52] the child and to participate about major long term issues concerning child[53].  It includes the extent to which the parent has fulfilled or failed to fulfil his/her obligations to support the child financially[54] or otherwise maintain the child.  It also includes the extent to which each parent has facilitated, failed to facilitate or frustrated the other parent’s participation in the long term welfare[55] and the other parent communicating with the children[56] or spending time with the children.[57]. 

   [51] s 60CC(4)(a)(ii) Family Law Act 1975 (Cth).

   [52] s 60CC(4)(a)(iii) Family Law Act 1975 (Cth).

   [53] s 60CC(4)(a)(i) Family Law Act 1975 (Cth).

   [54] s 60CC(4)(c) Family Law Act 1975 (Cth).

   [55] s 60CC(4)(b)(i) Family Law Act 1975 (Cth).

   [56] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).

   [57] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).

2. I am required, [and do,] have particular regard to events which have happened, and circumstances which have existed, since the parties separated.[58] 

   [58] s 60CC(4A) Family Law Act 1975 (Cth).

3. The father has paid child support consistently.  The mother says that he has not paid enough having regard to his income from time to time.  I am unable to make an assessment due to inadequate evidence.  It appears that the father’s liability for child support has decreased recently in spite of his income remaining static but that may well be referrable to some different treatment of the mother’s income.  The mother raised the issue of the extent to which the father has financially contributed to the upkeep of the girls.  She says it is inadequate. I make no finding to that effect. 

4. I have dealt with the multiple findings against the mother in relation to contravention of orders that the children spend time with the father.  As

   
   

   I indicated in my discussion of the background to this case, I accept the findings and reject the mother’s explanations and excuses.  

5. I also have regard to the mother changing the girl’s school on 12 July 2004 without reference to the father.  It did not constitute breach of any order but was a deliberate act to exclude the father from participation in major long term decisions affecting the children. 

6. I do not repeat here all the evidence and instances which make up my negative view of the mother’s history of trying to exclude the father from the lives of the children. My considerations under s 60CC(3)(i) are adverse to the mother’s case.

7. In relation to the father, I note that:-

   a)in December 2004 he moved away to a rural Victorian city for 6 or 7 months;

   b)in late 2006 he moved from Melbourne to South Australia;

   c)in April 2007 he said that he would move back to Melbourne so that, , come what may, the children would be able to see both parents regularly. However, he has now decided to stay in South Australia.

8. Each of those decisions has resulted in him being physically distant from the children which is generally not the best course when one is trying to establish a regime of continuous and meaningful time with children.  I accept his evidence about the rural city.  I also accept his evidence about going to live in Adelaide.  Initially, I was sceptical about his allegations that the mother’s attitude and behaviour to him and his wife was intolerable to the point that they moved State.  Having heard the evidence (albeit without the participation of the mother) I am unable to criticise the father’s move to South Australia or to infer from it that he was not seeking to be involved with the children.  

9. I factor into my evaluation of the father’s household versus the mother’s household the fact that the father and his wife could, but will not, move back to Melbourne.  I conclude that this is one of those rare cases where a significant distance between the parents’ homes, with the effect that time spent is confined to block periods, is consistent with the best interests of the children. 

Any family violence involving the children or any member of the children’s family and family violence orders[59]

[59] ss 60CC(3)(j) and (k) Family Law Act (Cth)

1. As noted above, the definition of family violence provided in s 4 of the Act is broad and may include threatened or actual violence toward a person, members of their family or their property.

2. The mother asserts that the father assaulted her during the marriage and one occasion missed hitting her and hit S.  The father denies having perpetrated any violence on the mother.  He says that she was violent to him. 

3. I am not satisfied on the mother’s affidavit evidence or otherwise, that the father has assaulted or been violent toward the mother.  The father’s case was not presented in such a way that I am required to determine whether the mother has been violent to him.  

4. There are no family violence orders of which I need to take note.  Historically, the father obtained an interim family violence order against the mother but withdrew the proceedings before a final order was made.  The mother made application for a family violence order against the father but did not succeed in obtaining one. 

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[60]

[60] s 60CC(3)(l) Family Law Act (Cth)

1. Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. 

2. Ideally courts should make parenting orders that minimise the prospects of future litigation.  Litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively.  Parents and children are readily distracted by litigation. 

3. In the present case, the children are tired of coming to court and being asked questions.  The court has had the benefit of Ms B’s observations commencing in June 2005 and concluding in June 2007 but enough is enough and the litigation should be brought to an end if at all possible and consistent with the best interests of the girls.  

4. I am not satisfied that there is any good reason in this case to make anything other than final orders.  I have mentioned elsewhere why I find that it would be inappropriate to leave the girls living with the mother in the hope that she would comply with orders which saw the children spend most holidays with the father and his wife.  I am confident that the mother would undermine the benefit of the time and, eventually, it would cease because the children would say that they will not or cannot attend.  My assessment is that too much time has passed already to admit of any further opportunities for either parent.  The emotional risks for the children are potentially too high. 

Any other fact or circumstance the Court thinks relevant[61]

[61] s 60CC(3)(m) Family Law Act (Cth)

1. I accept the submission of the independent children’s lawyer and the father that the girls should go to live with the father in Adelaide as quickly and seamlessly as possible. 

2. I accept the submission of the independent children’s lawyer that, even if the mother appears when judgment is delivered, she is unlikely to co-operate with handing over the children.  I agree that this is one of those rare cases where

   
   

   I should make a recovery order at the same time as I make the substantive orders which will change where the girls live.  I will, however, stay the operation of the recovery order to later in the school day.  My intention is that the children be delivered to the father by Thursday evening which is the day after S returns from her school camp.  That will enable the father and his wife to be back in Adelaide, with the girls, by the end of the weekend. 

3. One thing that has not been fully canvassed before me is how the girls will farewell their fellow students at D School.  I am of the view that it is in their best interests that they do so.  I do not want them to feel embarrassed about making contact with their friends during periods of time spent with the mother in Melbourne in the future.  I do not want the girls to feel awkward or for their friends to worry about them because they disappeared from school one day.  On the other hand, the father and the girls should not linger in Melbourne. 

4. I will order that the independent children’s lawyer immediately advise the school of the outcome of the proceedings and that the children will be collected today.  I will also restrain the mother from attending at or near the school until after the children are collected.  I am satisfied that it is necessary for me to do so given the evidence of Ms H as to the forcefulness of the mother’s presentation at the school when she attends to ask for the family name of the girls to be changed.  

5. It is my hope that upon the independent children’s lawyer advising the proper officer of the school of the outcome, he and she can quickly and co-operatively devise some farewell gesture to be implemented for both children within their respective classrooms either on the day of judgement or the next day.  If that means that the father or his wife have to act quickly to get a gift to be given to each child or to obtain small treats for all of the class, then I hope that they do so.  I express this as a hope, not as an order, because I did not invite submissions on the point nor make known that I think this should occur.  As matters stand, the only evidence which I have is that of Ms B from which I can infer that she considered it appropriate that the girls have an opportunity to farewell their school friends.  

Parental responsibility

1. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[62]  In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[63] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-

   … issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

   a) the child’s education (both current and future); and

   b) the child’s religious and cultural upbringing; and

   c) the child’s health; and

   d) the child’s name; and

   e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.

   This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents. 

   [62] s 61B Family Law Act 1975 (Cth).

   [63] s 61DA(1) Family Law Act 1975 (Cth).

2. Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[64]  The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[65] and to ‘make a genuine effort to come to a joint decision about that issue’.[66]   These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared. 

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

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

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

3. The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-

   a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[67] or abuse of the child or another child who is a member of the parent’s family;[68]

   b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[69] or;

   c)Where evidence is adduced, upon which the court is satisfied 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.[70] 

   [67] s 61DA(2)(b) Family Law Act 1975 (Cth).

   [68] s 61DA(2)(a) Family Law Act 1975 (Cth).

   [69] s 61DA(3) Family Law Act 1975 (Cth).

   [70] s 61DA(4) Family Law Act 1975 (Cth).

4. The situations contemplated in s 61DA(2) and (3) do not apply but I am satisfied, within the meaning of s 61DA(4) that it would not be in the best interests of S and/or T for the mother and the father to have equal shared parental responsibility for them.  As indicated above, a parent who shares parental responsibility must be able to consult with the other parent and try, if possible, to come to agreements about major long term decisions about the children.  In this case, the family consultant, back in June 2005, made the observation that the parents “were clearly ill at ease in each other’s company”[71] and that the “animosity between the parties was palpable”[72].  In the family consultant’s second report, she expressed the opinion that there “seemed little doubt that at the present time joint responsibility is not being practiced and this needs to be addressed immediately.[73]”

   [71] Family consultant’s report dated 22 June 2005, paragraph 14, page 7

   [72] Also in the family consultant’s report dated 22 June 2005, paragraph 14, page 7

   [73] Family consultant’s report dated 22 September 2006, paragraph 16, page 5

5. There is no evidence before me suggestive of the parents having made any progress, toward joint decision making, to date.  

6. Dr W deposes that he and the mother “intend to take [the girls] back to Cameroon to visit [the mother’s] family as soon as we are practically able, and the girls are very much looking forward to this[74].”  The family consultant records the following statements by S on 29 June 2007[75]:-I did

   “… [S] regained her composure and angrily informed the Consultant that she wanted “[the father]” to return her passport, saying that her mother was making arrangements for them to travel to such places as South Africa in 2008 for the world cup, to Dubai, and to Cameroon.”

   [74] Affidavit of Dr W sworn 9 August 2007, paragraph 19

   [75] Family consultant’s report dated 10 June 2007, penultimate paragraph on page 5

7. On the basis of the above statements, I am satisfied that the mother and

   
   

   Dr W have given the children an expectation that they would be able to travel overseas except for the fact that the father has withheld their passports and done so unreasonably.  There is a watch list order currently in force which prohibits either parent removing the children from Australia until further order.  The mother makes no application to the court to discharge or suspend the operation of that order.  If the mother did apply to discharge the watch list order, it is by no means certain that she would be permitted to remove the girls from Australia absent the consent of the father or without offering some security for the return of the girls.  The mother has not bothered to raise her intention to travel overseas with the father in order to seek his permission or otherwise.  The mother’s actions, and those of Dr W, have had the immediate effect of the children thinking negatively about the father for not permitting them to travel overseas.  It is an eloquent example of the mother’s shortcomings in not being able to converse or consult with the father about major long term decisions.  

8. One would hope that, in the event that either parent was in a position to afford to travel internationally with the children, the other parent would be offered some opportunity to meet up with the girls in, say, Cameroon and have the girls spend time with the other side of their family. 

9. The above incident involves international travel.  However, the same sort of mischief can arise in relation to medical or educational issues.  In all respects, any awareness by the children of lack of agreement between their parents about major long term issues, is going to place an unnecessary and unfair burden on the children.  

10. I am satisfied that a sharing of responsibility for major long term decision is unworkable as between the parents and likely to impact adversely on the children. 

11. I am satisfied that the most appropriate order would be for the father to have sole responsibility for major long term decisions affecting the children with other orders being made requiring that the mother be advised of all significant events and a free exchange of information between the mother and the girls’ school(s) and medical practitioners.  That is, in effect, what the father seeks and what the independent children’s lawyer supports.  However, I am not satisfied that the mother has been accorded procedural fairness in relation to that application so I will not accede to it.  Accordingly, I will discharge the previous orders which leave in place the statutory position of each parent having responsibility for major long term decisions.  However, so that there is no confusion or conflict, I will order that the father be solely responsible for all educational issues. 

12. I have considered also making the father the parent solely responsible for the children’s family name.  However, all I wish to achieve is a situation where the children continue to be known by the family name of “Fournier” subject to any written agreement between the parents to the contrary.  I can achieve the same result by enjoining each from changing the family name of the children, or either of them, from “Fournier” without prior written agreement and I will do so. 

Consideration of equal time or substantial and significant time with both parents:-

1. By virtue of having previously determined that it is not in the children’s best interests for the parties to have equal shared parental responsibility, it is not necessary for me to consider whether I should make an order providing for the children to spend equal or substantial and significant time with each of the parents.  [76] 

   [76] s 65DAA(1)(c) Family Law Act 1975 (Cth).

2. In any event, it is abundantly clear from the facts of this case that such as order is not ‘reasonably practicable’, taking into account the factors listed in

   
   

   s 65DAA(5) of the Act, which include the following:-

   a)how far apart the parents live from each other;[77] 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;[78] 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[79] (including the behaviour of a parent, such as their willingness and ability to facilitate and encourage a close, meaningful relationship between the child and the other parent and their attitude to the child and to the responsibilities of parenthood);[80] and

   d)the impact that an arrangement of that kind would have on the child;[81] and

   e)such other matters as the court considers relevant.[82] 

   [77] s 65DAA(5)(a) Family Law Act 1975 (Cth).

   [78] s 65DAA(5)(b) Family Law Act 1975 (Cth).

   [79] s 65DAA(5)(c) Family Law Act 1975 (Cth).

   [80] s 65DAA(5) Note 1 Family Law Act 1975 (Cth).

   [81] s 65DAA(5)(d) Family Law Act 1975 (Cth).

   [82] s 65DAA(5)(e) Family Law Act 1975 (Cth).

3. I have considered the mother’s proposal that the father relocate to Melbourne but I will not order that that occur.  The father and his wife are entitled to make their home in Adelaide and I accept the father’s evidence that there is good reason for him doing so.  I conclude that there are some real advantages for the girls to reside in a different state to their mother, at least for the time being.  It means that the mother’s time with the girls is concentrated in block periods and the day to day, term time routine is not disturbed by the girls chopping and changing between households and parents.  In the unusual circumstances of this case the interstate residence of the girls will result in them being less burdened by parental conflict. 

Conclusion

1. I will make orders which are largely in the terms of those sought by the father and the independent children’s lawyer.  The children will go to live with the father and his wife in Adelaide and be able to see the mother regularly and for most of the school holidays providing that the wishes to spend time with them.  Taking into account the primary and the additional considerations, I am comfortably satisfied that a change in living arrangements for S and T is not only in their best interests but an imperative which should be achieved as quickly as possible.  I cannot see any other means by which the children can be given the much overdue opportunity to have a meaningful relationship with the father as well as the mother and I am satisfied that a meaningful relationship with the father is a very real benefit to the girls. 

2. The mother has not been unsuccessful in this case because she chose not to participate in elements of the reportable counselling assessment process or the final hearing.  She has been unsuccessful because of her parenting of the girls to date and the refusal or inability to recognise that the girls have a need, and a right, to know and have a meaningful relationship with the father as well as with her. 

3. I am satisfied that the parenting orders set out at the beginning of these reasons are consistent with the best interests of the children. 

I certify that the preceding two hundred and twenty six (226) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  23 August 2007