Ginty and Sleith
[2017] FCCA 1330
•31 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GINTY & SLEITH | [2017] FCCA 1330 |
| Catchwords: FAMILY LAW – Parenting – final hearing – parental responsibility – live with and spend time with arrangements with father – overseas travel – telephone communication – costs of the Independent Children’s Lawyer. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61B, 61C, 61DA, 64B, 65DAA, 117 |
| Cases cited: In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 Jones & Dunkel (1959) 101 CLR 298 |
| Applicant: | MR GINTY |
| Respondent: | MS SLEITH |
| File Number: | SYC 6655 of 2014 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 29 and 30 March 2017 |
| Date of Last Submission: | 13 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levy |
| Solicitors for the Applicant: | Robertson Saxton Primrose Dunn |
| Counsel for the Respondent: | Ms Giacomo |
| Solicitors for the Respondent: | Gordon & Barry Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Stolier |
| Solicitors for the Independent Children's Lawyer: | Brian Samuel & Associates |
ORDERS
THE COURT ORDERS ON A FINAL BASIS THAT:
All interim parenting orders be discharged.
The parties have equal shared parental responsibility for X born (omitted) 2007 and Y born (omitted) 2010 (“the children”).
Subject to the final orders made by consent on 14 June 2017, the children live with and spend time with the father as agreed, and failing agreement as follows:
(a)During each school term until the end of Term 4 in 2018, commencing as at the date of these Orders and in accordance with the current cycle:
(i)In Week 1 from after school Friday until before school Monday, and each alternate weekend thereafter; and
(ii)In Week 2 from after school Wednesday until before school Thursday, and each alternate week thereafter;
(b)During the long summer school holidays following Term 4 commencing in 2017, 2018 and 2019 on a week about basis as agreed, and failing agreement, for the first week in odd numbered years and the second week in even numbered years and alternating each week thereafter;
(c)During the school holidays following Terms 1, 2 and 3 commencing in 2018 and continuing thereafter, for seven (7) consecutive nights as agreed, and failing agreement, for the first half in odd numbered years and the second half in even numbered years;
(d)Commencing Term 1, 2019 and continuing thereafter during each school term:
(i)Commencing 30 January 2019, from after school Wednesday until before school Thursday, and each week thereafter; and
(ii)Commencing 1 February 2019, from after school Friday until before school Monday, and each alternate weekend thereafter;
(e)During the long summer school holidays following Term 4 commencing in 2020 and continuing thereafter, on a week about basis as agreed for the first two weeks, and then on a two week about basis for the next four weeks and failing agreement as to which period, for the first, third and fourth weeks in odd numbered years and the second, fifth and sixth week in even numbered years (noting that the sixth week may be less than seven days).
Unless otherwise agreed, either party have the option to travel with the children outside Australia during the summer school holidays, and the other party shall not unreasonably withhold consent, provided the party wishing to travel shall inform the other party of the intended location and contact details while away and shall give the other party no less than 28 days' notice, and for the purposes of this Order:
(a)In the long summer school holidays commencing in 2018 and 2019 the travel period not exceed 7 days; and
(b)In the long summer school holidays commencing in 2020 and continuing thereafter, the travel period not exceed 14 days.
While the children are in one party’s care during school holiday periods, the other party may telephone the children via mobile not earlier than 6pm and not later than 7pm up to twice per week during that period.
The parties engage with Dr J for such period as Dr J thinks appropriate and for this purpose, the parties have liberty to provide a copy of these orders and Reasons for Judgment to Dr J.
Within three (3) months of the date of these Orders, the father pay the costs of the Independent Children’s Lawyer fixed in the sum of $2,015.75, less the initial contribution amount being $1,650.00, if already paid.
Subject to Notation B herein, the appointment of the Independent Children’s Lawyer be discharged.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A.These orders should be read in conjunction with the orders made by consent on 14 June 2017.
B.The Independent Children’s Lawyer may wish to explain these orders to the children.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Ginty & Sleith is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6655 of 2014
| MR GINTY |
Applicant
And
| MS SLEITH |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between the Applicant, MR GINTY (“the father”) and the Respondent, MS SLEITH (“the mother”).
The relevant children of the parties’ relationship are X born (omitted) 2007 and Y born (omitted) 2010 (collectively, “the children”).
At the conclusion of the hearing on 30 March 2017, the Court directed the parties to jointly provide Chambers with a Minute of Orders setting out the final orders that were agreed to. On 14 June 2017, that Minute was ultimately provided to Chambers and final orders were made by consent which provided for several ‘ancillary’ orders. Those orders are set out later in these reasons.
The remaining issues in dispute requiring determination are parental responsibility, the children’s live with/spend time with arrangements with the father (including during school holidays), the amount of time either party be permitted to travel with the children outside Australia, telephone communication whilst the children are in the father’s care in school holidays, and the legal costs sought by the Independent Children’s Lawyer (“ICL”).
The details of the orders sought by each party in relation to these remaining issues in dispute are extracted later in these reasons.
At the final hearing each party was represented by counsel; Mr Levy appeared for the father, Ms Giacomo appeared for the mother and Ms Stolier appeared on behalf of the ICL.
Unless otherwise stated, any statutory references in these reasons will be to the Family Law Act 1975 (“the Act”).
Background
Relationship history
The parties each provided the Court with a chronology of relevant events in their case outlines.
The mother was born on (omitted) 1977 and was 39 years of age at the date of the hearing. The father was born on (omitted) 1985 and was 31 years of age at the date of the hearing.
The parties commenced a relationship in 2005. Their first child, X, was born on (omitted) 2007. X was nine years of age at the date of the hearing. Y, the parties’ second child, was born on (omitted) 2010 and was six years of age at the date of the final hearing.
The parties’ relationship ended (on a final basis) in mid-2012.
The father has re-partnered and married Ms N (referred to in the Family Report as Ms G) in (omitted) 2014. They have a child together, A, who was born in (omitted) 2014. Ms N also has a child from a previous relationship, B, who is approximately six years of age.
The mother commenced a relationship with a man named ‘Mr J’ in (omitted) 2013. The mother did not disclose Mr J’s surname to the Court during the course of these proceedings.
Procedural history
The father commenced these proceedings on 23 October 2014. The mother filed her Response on 11 February 2015.
The matter first came before me in my duty list on 12 February 2015. On that date I made orders, inter alia, for the parties to attend a Child Dispute Conference, for the appointment of an ICL and otherwise adjourned the matter to 16 February 2015 for interim hearing.
The matter did proceed to an interim hearing on 16 February 2015 and following determination the Court made certain interim orders. In summary, those interim orders were that:
· The children live with the mother and spend time with the father increasing gradually on each Saturday, from 9am to 5pm, increasing to 9am Saturday to 9am Sunday, then commencing on Saturday 2 May 2015, on a fortnightly basis in week one from 9am Saturday to 5pm on Sunday, and in week two from after school or day care or 3pm Friday to 7pm; and that
· By consent:
oeach party be entitled to attend the children’s school, day care and extracurricular activities and notify the other of any urgent medical treatment required for the children;
osubject to any emergency, each party take the children to the (omitted) Medical Centre in the event that medical attention for the children is required;
oeach party be restrained from denigrating the other party, discussing the proceedings with the children; or physically disciplining the children;
othe parties are to communicate by email except for emergencies, or when a party is running late to collect the children, and the parties to use a communication book;
othe father be in substantial attendance at all times when the children are in his care; and
othe parties to have telephone communication with the children when not in their care, with the mother to telephone the children between 5.30 pm and 6:30 pm on Saturdays and the father to telephone the children between 5:30 pm and 6:30 pm on Wednesdays.
When the matter returned to Court on 22 May 2015, I made orders requesting the preparation of a family report. The matter then returned to Court on 10 September 2015 and the following interim order was made by consent:
‘Subject to any emergency, each party take the children to either (omitted) Medical Centre, and (omitted) Medical Centre, in the event that medical attention for the children is required.’
The father filed an Amended Initiating Application on 16 December 2015.
The family report by regulation 7 family consultant, Dr S, was duly released on 21 December 2015.
After an administrative adjournment on 11 March 2016, the matter returned before me on 21 April 2016. I set the matter down for Final Hearing on 29 March 2017 and the parties entered into further interim parenting orders by consent as follows:
1.All previous parenting orders in respect to the children X born (omitted) 2010 and Y born (omitted) 2007 be discharged.
2. That the children live with the mother.
3. That the children spend time with the father during the balance of the 2016 calendar year and until the conclusion of the 2016/2017 summer school holidays as follows […]
4.1During school terms and the current April 2016 and July 2016 school holidays as follows:-
4.2.1 In week 1 from 9.00am on Saturday until 5.00pm on Sunday.
4.2.2 In week 2 from the conclusion of school until 7.00pm on Friday.
4.2During the September/October 2016 school holidays as follows:-
4.2.1From 9.00am on Friday 30 September 2016 until 4.00pm on Monday 3 October 2016.
4.3During the 2016/2017 summer school holidays as follows:-
4.3.1From 9.00am on 24 December 2016 until 2.00pm on 25 December 2016.
4.3.2From 9.00am on Tuesday 27 December 2016 until 3.00pm on Thursday 29 December 2016.
4.3.3From 9.00am on Friday 6 January 2017 until 4.00pm on Monday 9 January 2017.
4.3.4From 9.00am on Friday 20 January 2017 until 4.00pm on Tuesday 24 January 2017.
4.4 At such other times dates and periods as agreed to by the parties.
5.Thereafter the children spend time with the father as follows:-
5.1 During school terms as follows:-
5.1.1 In week 1 from the conclusion of school on Friday until 4.00pm on Sunday.
5.1.2 In week 2 from the conclusion of school on Wednesday until 7.00pm.
5.2For one 4 night block of each mid-year or short school holiday period and in the absence of agreement between the parties during the first half in odd years and the second half in even years.
5.3During the summer school holidays the children to live with/spend time with the father for 2 four night blocks in each of the second and fourth weeks of those holidays.
5.4At such other dates and times as agreed to by the parties.
6.In the event that father’s Day does not fall during a weekend when the father would otherwise spend time with the children pursuant to these orders from 9.00am until 5.00pm on Father’s Day.
7.In the event that mother’s Day falls on a weekend when the father would otherwise spend time with the children pursuant to these orders the father’s time with the children on Mother’s Day to be suspended at 9.00am on Mother’s Day.
8.That so far as is reasonably possible all changeovers are to take place at the children’s school whichever is applicable and when this is not possible the father to collect the children from the mother’s residence at the commencement of the children’s time with him and the mother collect the children from the father’s residence at the conclusion of the children’s time with him.
9.The parties are to each have reasonable telephone communications with the children when they are in the other’s party’s respective care PROVIDED THAT the mother is only to have telephone communications with the children during periods when the children spend more than one (1) night with the father. […]
On 27 February 2017, the matter came before Judge Sexton (on my behalf) for a compliance hearing prior to the final hearing.
As stated, the final hearing was heard on 29 and 30 March 2017, following which I reserved both interim and final judgment. On that date I also directed the parties to jointly provide Chambers with a Minute of Orders setting out the final ‘ancillary’ orders that were agreed to within 14 days.
On 7 April 2017 and following the final hearing, I made interim orders in Chambers varying the orders of 21 April 2016 in relation to the time the children spend with the father to the following:
[…]a. Commencing Term 2, 2017:
i. In Week 1 commencing 28 April 2017, from Friday after school until 5pm Sunday, and each alternate weekend thereafter; and
ii. In Week 2 commencing 3 May 2017, from after school until before school Thursday, and each alternate Wednesday thereafter;
b. During the Term 2 school holidays, for five consecutive nights as agreed, and failing agreement, from 9am Saturday 8 July 2017 until 4pm Thursday 13 July 2017;
c. Commencing Term 3, 2017 and thereafter during each school term:
i. In Week 1 commencing 21 July 2017, from after school Friday until before school Monday, and each alternate weekend thereafter; and
ii. In Week 2 commencing Wednesday 26 July 2017, from after school until before school Thursday, and each alternate Wednesday thereafter; and
d. During the Term 3 school holidays, for six consecutive nights as agreed, and failing agreement, from 9am Saturday 23 September 2017 until 4pm Friday 29 September 2017
[…]
3. In relation to communication time:
a. the parties each facilitate the children telephoning the parent they are not otherwise living with at any reasonable time requested by the children; and, in addition,
b. while the children are in the father’s care during school holiday periods, the mother may telephone the children via mobile telephone between 6pm and 7pm on one occasion only during that period.
Due to the parties’ non-compliance with my direction made on 30 March 2017, the matter was relisted on a part heard basis to 19 June 2017 for further submissions. This listing was subsequently vacated in Chambers on 14 June 2017 as a consequence of the parties entering into the following final parenting consent orders:
2. Thatthe children shall live with the Mother unless they are living with the Father in accordance with these Orders.
3. That school term time orders shall be suspended during the New South Wales Government school holiday period and shall recommence on the first day of the next school term.
4. School holiday periods will be defined as commencing on the day immediately following the last day of each school term, and concluding on the day immediately before the first day of each school term.
5. That any school holiday 'block time' for the Children shall commence at 9.00 am on the first day and conclude at 4.00 pm on the last day, unless otherwise agreed.
6. Subject to these Orders and unless a party is collecting the Children from school, the Father shall collect the Children from the Mother's residence at the commencement of time and the Mother shall collect the children from the Father's residence at the conclusion of time spent.
School
7. In the event of either child being absent from school, the parent whom the child is living with at the time shall notify the other parent by phone or text message as soon as practicable and before school is scheduled to commence on that day of the child's absence from school and the reason(s) for such absence.
8. That the parents will both be entitled to attend events involving the children or either one of them including:
8.1 sporting fixtures;
8.2 extra-curricular activities that allow for parental attendance;
8.3 school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions;
and the parent who has the children in their care on the day of such activity shall be responsible for their day to day care at such event and the children's transportation to and from that event.
Special occasions
9. That the children are to spend time on special occasions with the Father as follows:
9.1 On Father's Day from 9.00 am to 5.00 pm; and
9.1.1 ifthe children would not already be living with the Father on each of their birthdays in accordance with these Orders, that the children shall spend time with the Father on each of their birthdays as follows:
9.1.2 if thebirthday falls on a school day, from after school until 7.00 pm;
9.1.3 ifthe birthday falls on a non-school day, for a block of no less than 4 hours; and
9.2 at any other times as agreed between the parties.
10. Thatthe children are to spend special occasions with the Mother as follows:
10.1 OnMother's Day from 9.00 am to 5.00 pm; and
10.2 If the children would not already be living with their Mother, on the Mother's birthday from 9.00 am to 5.00 pm if not a school day, or if a school day from after school until 7:00pm; and
10.3 Ifthe children would not already be living with the Mother on each of their birthdays in accordance with these Orders, the children shall spend time with the Mother on each of their birthdays as follows:
10.3.1 if thebirthday falls on a school day, from after school until 7.00 pm;
10.3.2 ifthe birthday falls on a non-school day, for a block of no less than 4 hours; and
10.4 at any other times as agreed between the parties.
Christmas
11. That the time that the Children shall spend with the parties pursuant to any final parenting orders is suspended and Children shall spend time with the Mother and Father on Christmas Day as follows:
11.1. in years ending in an even number, from 4.00 pm on Christmas Eve until 12.00 noon on Christmas Day with the Father and from 12.00 noon on Christmas Day until 4.00 pm on Boxing Day with the Mother; and
11.2 in years ending in an odd number, from 4.00 pm on Christmas Eve until 12.00 noon on Christmas Day with the Mother and from 12.00 noon on Christmas Day until 4.00pm on Boxing Day with the Father.
12. For the purpose of subparagraphs 9 i and 9 ii [sic] of these Orders, the parent receiving the Children will collect the Children from the other parent at the commencement of time spent.
Medical
13. The Mother and the Father shall immediately notify the other of any serious illness, accident or injury suffered by the Children or either one of them while in that parent's care and notify the other party of any medication prescribed/administered to any of the Children within 24 hours of the Children becoming unwell, or immediately in case of an emergency.
14. The Mother and the Father shall keep each other informed in ·writing as soon as practical and before the date of the appointment of any medical appointments for the children with any general practitioner, psychologist, psychiatrist, dentist, orthodontist, counsellor or therapist.
Interstate Travel
15. In the event that either party seeks to travel interstate with the children other than to the ACT during the time the children would ordinarily be spending time with that parent pursuant to these orders, upon that party providing to the other parent no less than 7 days' notice of the travel including an itinerary and contact details, the children shall be permitted to travel interstate with that parent.
Overseas travel
16. That any overseas travel shall take place only during the time that the children will be in the care of that parent, unless otherwise agreed.
17. That each parent is restrained from taking the Children outside of the Commonwealth of Australia without the written consent of the other party or a Court Order but the other party cannot unreasonably refuse.
18. Should either party wish to travel overseas with the Children, the party seeking to travel must first obtain the other parties written consent not less than 35 days prior to the proposed departure date.
19. The parent seeking to travel with the Children pursuant to Order 16, shall provide to the other parent an itinerary, together with written details of the destination to which they are travelling with the Children and the accommodation at which they are staying and contact details 28 days prior to the proposed departure date.
20. That within 42 days of the making of these Orders, the parties shall do all such acts and things and sign all such documents required to obtain Australian passports for the Children and the costs of any passports shall be paid for by the Father.
21. That should either child require a new or renewed Australian passport, the parties shall do all such acts and things and sign all such documents required to obtain new or renewed Australian passports for the children and the costs of any passports shall be paid for by the father.
22. Other than when the Children are travelling with the Father pursuant to these Orders, the passport of the Children shall remain in the possession of the Mother with the Father to return the Children's passports to the Mother at the next changeover following the Children's return from overseas.
Communication
23. Theparties shall facilitate the children telephoning the parent they are not otherwise living with at any reasonable time requested by the children.
24. Thatfor the purpose of communicating information between the Parties the Mother and the Father shall:
24.1 Communicate by telephone matters of an urgent nature and otherwise;
24.2 Communicate by email about day to day matters relevant to the Children; or
24.3 Communicate by writing in a communication book that will remain with the Children wherever they may be from time to time, or, if agreed by the patties, by using an electronic application or web-based communication program.
Other
25. That each parent shall do all acts and things necessary to keep the other parent informed at all times of his or her then current address and telephone number within 72 hours of any such change.
26. That each Party shall do all acts and things and sign all documents necessary to ensure that each Parent is aware of any upcoming Children's school and extra-curricular activities and special events including but not limited concerts, games, school assemblies and parent teacher interviews and each party shall be entitled to attend such event.
27. That each Parent do all acts and things and take all steps necessary facilitate the Children attending any agreed extra-curricular activities that they are scheduled to attend including facilitating and arranging the Children's transportation to that event.
28. WITHOUT ADMISSION the Father is to be in substantial attendance at all times when the Children are in his care. In the event that the Father is unable to be in attendance for more than 60% of the time that the Children are in his care pursuant to these Orders he will immediately contact the Mother and give her the option of collecting the Children.
29. That WITHOUT ADMISSIONS both parties be restrained from:
29.1 exposing the Children to violence including but not limited to, physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the Children, the Mother, the Father, or any other members of either party’s household;
29.2 denigrating the other or members of the other party's family in the presence or hearing of the Children and each party shall so all acts and things reasonably necessary to prevent any other person doing so;
29.3 discussing these proceedings or any issues arising out of these proceedings with the Children or permitting any third party to do so;
29.4making critical or derogatory remarks on social media, such as Facebook or Twitter in relation to the other parent or referring in any way to the proceedings; or
29.5 physically disciplining the Children including smacking, hitting, pinching the Children or allowing any third person to physically discipline the children for any reason.
30. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
31. That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
I thereafter reserved my final decision on the remaining issues in dispute being parental responsibility, the children’s live with/spend time with arrangements with the father, the length of overseas travel, telephone communication time in school holidays whilst in the father’s care, and the costs of the Independent Children’s Lawyer.
Evidence
Father
The father relied on the following documents at the final hearing:
·Initiating Application filed 23 October 2014 (and presumably Amended Initiating Application filed 16 December 2016);
·His Affidavit sworn 16 December 2016 and filed 20 December 2016; and
·Affidavit of Ms N sworn 14 December 2016 and filed 16 December 2016.
The father also tendered the following documents:
·Documents produced on subpoena from Clinical Psychologist, Dr J, and (omitted) Psychology (Exhibit “AF1”); and
·Emails between Mr Ginty and Ms Sleith in relation to his back surgery (Exhibit “AF2”).
During cross examination the father presented as quietly spoken and, generally speaking, was able to make concessions to reasonable propositions. The father was clearly frustrated by these on-going proceedings and clearly stated that he holds the mother responsible. The father’s evidence about his relationship with his wife and their alleged separation is noteworthy. While the frustration was obvious, I am not convinced the father was honest about what he may have told the mother. While his explanation for not acting sooner on meeting and working with Dr J appeared genuine, his failure to follow this up was not child focused. His answer that X doesn’t have anxiety in his home was somewhat self-serving. Further, the incidents in September 2014 and April 2016 were poorly handled by the parties.
The father raised concerns about the children going to (omitted) High School based on his own observations. As a response to a question from the ICL, the father indicated he would like X to go to a private school such as (omitted) and be willing to share the costs of the private school fees in addition to child support.
Ms N, the father’s wife, was required for cross-examination. She was well presented, candid, and was prepared to make concessions to reasonable propositions. She was well composed despite her apparent disappointment about the necessity of these parenting proceedings. Her evidence about the mother’s telephone calls raises a question about whether such calls should be made so close after the children leave the mother’s care. Ms N confirmed the children and her child get along well together. Overall, she presented as believable.
Mother
The mother relied on the following documents at the final hearing:
·Response filed 11 February 2015;
·Her affidavit affirmed 30 January 2017 and filed 31 January 2017; and
·Affidavit of Ms L (maternal grandmother) sworn 4 November 2016 and filed 16 November 2016.
The mother also tendered the following documents:
·Documents produced on subpoena from Clinical Psychologist, Dr J, and (omitted) Psychology (Exhibit “RM1”).
The mother presented as quietly spoken and controlled. It was sometimes difficult for the mother to make concessions where appropriate or where the evidence suggested that outcome. The mother chose her words deliberately and on many occasions sought that the questions asked of her be clarified. The mother was hesitant to concede that X could pick up on the mother’s negative feelings about Ms N and said “there is a possibility.” The mother’s response to the allegations put to her about the ‘police’ incident outside the father’s home on 28 September 2014 was poor. Similarly, the mother’s response to her poorly worded email lacked remorse. Her denial that she was in a de facto relationship with the father is not believable.
I note that the mother no longer has a problem with after school care. The mother confirmed that both children are on the father’s private health insurance but was only recently informed by the father.
No cross-examination of the maternal grandmother was required.
Independent Children’s Lawyer
The ICL tendered the following documents:
·The Family Report by Regulation 7 Consultant Dr S (Exhibit “ICL1”);
·Documents produced on subpoena from Dr T, Consultant Paediatrician from (omitted) Hospital (Exhibit “ICL2”); and
·Documents produced on subpoena from Clinical Psychologist, Dr J, and (omitted) Psychology (Exhibit “ICL3”).
Family Consultant
Dr S, a Regulation 7 Family Consultant, prepared a Family Report in this matter that was released on 21 December 2015 (“the Family Report”).
The interviews were conducted over three days. On 3 December 2015, Dr S interviewed the mother, the father, the children, and Mr J, the mother’s current partner. On 9 December 2015, Dr S conducted telephone interviews with Mr U ((omitted)), Ms J (Principal) and Ms B (Class Teacher). On 10 December 2015, Dr S also spoke by telephone with Dr J.
Dr S provides her recommendations in paragraphs 67 to 71 of the Family Report. In summary, Dr S recommended that:
·The mother and father have equal shared parental responsibility for the children.
·The children live with their mother.
·The time the children spend with their father be gradually increased to every second weekend from Friday after school to Monday before school and one midweek overnight stay in the intervening week.
·The children spend additional time with the father in the July 2016 and summer holidays 2016/17.
·The mother, Mr J, the father, and Ms N engage with Dr J to help work cooperatively in terms of supporting the children’s relationship with their father and the father’s current partner.
Dr S’s oral evidence
Dr S gave evidence on the first day of the final hearing and was further cross-examined. She was surprised that the parties were not able to resolve this dispute.
Dr S was confident in her delivery and clear in her recommendations and in responding to the parties’ proposals. Dr S did not change her recommendations made in the Family Report. She indicated that although the recommended transitions of time arrangements apply to both Y and X, the arrangements will have more impact on X.[1]
[1] Transcript, 29 March 2017, pages 14-15.
Dr S was asked several questions about the nature of X’s anxiety and made the following comments:
“[F]rom what I can determine I think she has had symptoms of anxiety since she was probably about five, or at least that’s when I think she – they’re first brought to the attention of – I think it was the paediatrician first. I think at that point, from memory, the anxiety was related to fear of being snatched. From reading the material [produced on subpoena from Dr J] I think she’s a child who has had anxiety about a range of things. She worries about getting things wrong in her own school work. She seems to be at school a very compliant child. I think she has anxiety about dogs. She has also had anxiety about spending time with her father. I think there was some Somatic anxiety related to joint pain. So she has had a range of different anxiety presentations, and generally with children whose anxieties start that early and are quite broad you would probably say she’s a child that has got a genetic predisposition or a sort of underlying vulnerability towards anxiety. And I think I’ve seen in one of the other notes that both mum and dad have had some anxiety at different points. So in a nutshell I think she has probably got a genetic predisposition, and the way her anxiety may manifest itself will partly depend on events in her environment, and it may be just about something she hears or sees or a whole range of factors.” [2]
[2] Transcript, 29 March 2017, page 13.
Dr S was then asked whether the nature of X’s anxiety alters the recommendations made in the Family Report to which she responded with the following:
“I think it reinforces the recommendation that I made, which was about any therapeutic intervention for the child – that all the – all the – both the parents and their various new partners should have some involvement in so that there was a consistency in approach of dealing with her if she does get worried about something. And I suppose it also reinforces the need for the parents to try and be more consistent and work together on the co-parenting, because sometimes children who are anxious can – can – their anxiety can be set off by various conflicts or lack – lack of certainty.”[3]
[3] Transcript, 29 March 2017, pages 13-14.
In relation to the difference in ‘spent time/live with’ arrangements, Dr S recommended the children to spend time with the father during school terms and in a fortnight arrangement from Friday afternoon to Monday morning before school in Week 1, and only Wednesday afternoon in Week 2; effective immediately and for a period of eight (8) weeks. Following this period, the time spent in Week 2 should then be increased to overnight time from Wednesday afternoon to Thursday morning.
Dr S acknowledged there was little difference to both children if an extra night was added on the weekend arrangement. But I note this was not a specific recommendation made by Dr S. Dr S further stated:
“[X] would have an anxiety disorder regardless of the circumstances that her parents found themselves in.”[4]
[4] Transcript, 29 March 2017, page 14.
As to the arrangements for the children to ‘spend time/live with’ the parents in school holidays, Dr S recommended an increase to seven (7) nights for school term holidays and a week-about arrangement during the long holidays. During her oral evidence, Dr S stated “two weeks would probably be too long for [X].”[5]
[5] Transcript, 29 March 2017, page 15.
Dr S supports the use of a communication book but suggests the parties use an electronic version to spare a hard copy book travelling with the children. Dr S further indicated she prefers that the parties and X re-engage with Dr J.
At this point I note and take into account the decision of the Full Court of the Family Court of Australia (“the Full Court”) in In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713. In this case, the Full Court provided an authoritative statement about how Family Reports should be treated in proceedings such as this case.[6]
[6] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-616; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).
Overall, I am satisfied that Dr S is an expert witness. She was clear, concise, knowledgeable of the facts and the issues arising, and her evaluation was balanced. Given that Dr S is an independent party in these proceedings and that the ICL indicated support for Dr S’s recommendations, the Family Report and the recommendations contained therein, are entitled to be given considerable evidentiary weight by the Court.
I will now consider the parenting dispute in light of the statutory pathway and applicable evidence.
Proposals
Father
The father seeks an outcome whereby both parties have equal shared parental responsibility for the children. He also proposes that the children ultimately spend time with him for five (5) nights each fortnight during school terms and for one half of the school holiday periods. The precise ‘live with’ orders sought by the father, excluding the issues in dispute already entered into agreement on a final basis, are as follows:
3. That until the commencement of Term 1 2018, during school terms, the children shall live with the Father on each fortnight of the school term as follows with week 1 being the first week of each term and each second week thereafter and week 2 being the second week of each term and each second week thereafter:
(a) In week 1 - from Friday after school to the commencement of school on the following Monday with the father to collect the children from either school or after school care on the Friday and return the children to school or before school care on the following Monday ;and
(b) In week 2- from Wednesday after school till 7pm with the Father to collect the children from school or after school care on the Wednesday and the mother to collect them from the father's residence.
(c) Commencing eight (8) weeks after the making of these Orders, in week 2 - from Wednesday after school until before school Thursday with the Father to collect the children from school or after school care on the Wednesday and return the children to school or before school care on the Thursday.
(d) On such further or other occasions as the parties may agree.
4. That from the commencement of Term 1 2018, during school terms, the children shall live with the Father on each fortnight of the school term as follows with week 1 being the first week of each term and each second week thereafter and week 2 being the second week of each term and each second week thereafter:
(e) In week 1 - from Friday after school to the commencement of school on the following Monday with the father to collect the children from either school or after school care on the Friday and return the children to school or before school care on the following Monday ; and
(f) In week 1 - from Wednesday after school until before school Thursday with the Father to collect the children from school or after school care on the Wednesday and return the children to school or before school care on the Thursday.
(g) In week 2 - from Wednesday after school until before school Thursday with the Father to collect the children from school or after school care on the Wednesday and return the children to school or before school care on the Thursday.
(h) On such further or other occasions as the parties may agree.
5. That during the April school holidays in 2017 the children shall live with the Father for 3 nights in the first half of that holiday period and that in the July school holidays in 2017, the children shall live with the Father for 5 nights in the first half of each holiday period.
6. That thereafter the children shall live with the father for one half of each New South Wales Government school holiday period following the end of Terms 1, 2 and 3, being the first half in odd numbered years, and the second half in even numbers years.
7. That, subject to Order 14 below, during the school holiday periods following Term 4, the children shall live with each parent on a week - about basis, with the father for the first week in odd numbered years, and with the mother for the first week in even numbers years, and alternating thereafter.
The father’s proposals in relation to overseas travel length and telephone communication during the father’s care in school holidays are as follows:[7]
1. Commencing in 2018, either parent shall have the option to travel with the children outside Australia for up to 14 days during the school holidays following Term 4, and the other party shall not unreasonably withhold consent, provided the parent wishing to travel shall inform the other parent of the intended location and contact details while away and shall give the other parent no less than 28 days' notice.
2. While the Children are in the Father's care during school holiday periods, the Mother may telephone the Children via mobile between 6pm and 7pm once per week during that period.
[7] As received by joint email dated 13 June 2017.
Mother
The mother seeks an order for her to be allocated sole parental responsibility for the children and that the children live with her. The mother ultimately sought an outcome whereby the children spend time with the father three (3) nights per fortnight during school terms in 2017, increasing to four (4) nights in 2018. The precise ‘spend time’ orders sought by the mother in relation to the children’s time with the father are as follows:
3. The Mother shall have sole parental responsibility for the Children subject to paragraph 4 of this order.
4. Parental responsibility shall be exercised in relation to medical decisions as follows:
4.1 Other than in the case of a medical emergency the Mother is to notify the Father in writing of any long term medical decision which she is intends to make, to provide the Father with the relevant information and to notify the Father of the details of any involved medical or related professional/s.
4.2 The Father is authorised to obtain information from the professional/s referred to in Order 4.1 hereof and to make his own appointments or enquiries with any such professional/s within 14 days of being notified by the Mother.
4.3 The Father shall, within 48 hours of attending the professional/s in accordance with Order 4.1, provide to the Mother his input in relation to the relevant issue and the Mother is then permitted to make the decision in relation to any Child or the Children's medical treatment in collaboration with any relevant professional/s.
4.4 Failing the Father's compliance with Order 4.2 and or 4.3 the Mother may within 21 days of providing notification to the Father in accordance with Order 4.1 make long term medical decisions for the Child/Children;
5. Parental responsibility shall be exercised in relation to educational decisions as follows:
5.1 The Mother is to notify the Father in writing of any school at which she proposes to enrol the Children, including providing the Father with the relevant information and to notify the Father of the details of the proposed enrolment date.
5.2 The Father is authorised to obtain information from the relevant school referred to in Order 5.1 and to make his own appointment with the said school, provided he does so within 28 days of being notified by the Mother pursuant to Order 5.1.
5.3 The Father shall, within 28 days of attending upon the school and or making enquiries of the school in accordance with Order 5.2, provide the Mother with his input in writing and the mother is then permitted to make the decision in relation to the Child's enrolment.
5.4 Failing the Father's compliance with Order 5.2 and or 5.3 within 60 days of providing notification to the Father in accordance with Order 5.1 the Mother may make decisions for the Child/Children's education.
6. The Children shall spend time with the Father as follows:
2017
6.1 During the school terms, on a week-about basis as follows:
Week 1:
6.1.1 From 3.00 pm Friday until 4.00 pm on Sunday;
Week 2:
6.1.2 From 3.00 pm or after school on Wednesday until the commencement of school Thursday commencing from the second week of Term 2 2017
6.2 For the purpose of Paragraph 6.1 of this Order the Father shall collect the Children from school at the commencement of time and the Mother shall collect the Children from the Father's residence or school at the conclusion of time spent;
6.3 During the school holiday period, as follows:
6.3.1 In the school holiday periods commencing at the end of terms 2 and 3 from 9.00 am on the day after school finishes (“the second day”) until 3.00 pm on the sixth day of the school holiday period;
6.3.2 The parties note that the Father is having back surgery on (omitted) 2017 and will be unavailable to spend block time with the children during the school holidays commencing at the end of Term 1, as such time will be spent as per arrangement in writing between the parties subject to the Father's recovery.
6.3.3 In the Christmas school holiday period commencing at the end of term 4, from:
6.3.3.l 9.00 am on 18 December 2017 until 4.00 pm on 23 December 2017; and
6.3.3.2 9.00 am on 12 January 2018 until 4.00 pm on 17 January 2018.
2018
6.4 During the school terms, on a week-about basis as follows:
Week 1:
6.4.1 From after school or 3.00 pm on Friday until the commencement of school on Monday;
Week 2:
6.4.2 From 3.00 pm or after school on Wednesday until the commencement of school Thursday;
6.5 During the school holiday period, as follows:
6.5.1 In the school holiday periods commencing at the end of terms 1, 2 and 3 for a block period of 6 nights as per agreement;
6.5.2 In the Christmas school holiday period commencing at the end of term 4, from:
6.5.2.1 From 9.00 am on the day after school concludes (“the second day”) until 4.00pm on the ninth day;
6.5.2.2 From 9.00 am on 6 January 2019 to 4.00 pm on 13 January 2019;
2019
6.6 From 2019 during the school terms on a week-about basis as follows:
Week 1:
6.6.1 From after school or 3.00 pm on Friday until the commencement of school on Monday;
Week 2:
6.6.2 From after school or 3.00 pm on Wednesday until the commencement of school on Thursday
6.7 From 2019 onwards, during the school holidays periods as follows:
6.7.1 In the school holiday periods commencing at the end of terms 1, 2 and 3 in years ending in an even number from 9.00 am on the day after school finishes (the second day) for a block period of 7 nights until 4.00 pm;
6.7.2 In the school holiday periods commencing at the end of terms 1, 2 and 3 in years ending in an odd number, from 9.00 am on the seventh day of the school holiday period until 4.00 pm on thirteenth day of the school holiday period;
6.7.3 In the Christmas school holiday period commencing at the end of term 4 in years ending in an even number:
6.7.3.1 For a week about basis commencing the first day after school finishes for a period of a seven nights, notwithstanding the Christmas Orders made at Paragraph 6.8 of these Orders; and
6.7.4 In the Christmas school holiday period commencing at the end of term 4 in years ending in an odd number:
6.7.4.1 For a week about basis commencing the eighth day after school finishes for a period of a seven nights, notwithstanding the Christmas Orders made at Paragraph 6.8 of these Orders.
The mother’s proposals in relation to overseas travel length and telephone communication during the father’s care in school holidays are as follows:[8]
1. Commencing in 2018, either parent shall have the option to travel with the children outside Australia for up to 7 days during the school holidays following Term 4, and the other party shall not unreasonably withhold consent, provided the parent wishing to travel shall inform the other parent of the intended location and contact details while away and shall give the other parent no less than 28 days' notice.
2. While the Children are in the Father's care during school holiday periods, the Mother may telephone the Children via mobile between 6pm and 7pm twice per week during that period.[9]
[8] As received by joint email dated 13 June 2017.
[9] As received by joint email dated 13 June 2017.
Independent Children’s Lawyer
Each of the parties provided the Court with a written case outline document. Although the father and the mother provided a proposed Minute of Orders, the ICL only made oral comments and did not provide a proposed Minute of Orders. As a consequence the Court has had to make reference to the transcript of the proceedings, thus adding some delay to the delivery of these reasons.
The oral proposals of the ICL, excluding the proposals in relation to the issues that were agreed to on a final basis, are summarised as follows:
·The ICL supports an outcome for the parties to have equal shared parental responsibility;[10]
·In relation to the ‘spend time/live with’ arrangements, the ICL proposes that the children spend one extra night each fortnight, either Sunday or Wednesday and then a further night after an eight week period. The ICL does not support a transition to a fifth night per fortnight as sought by the father.[11]
·The ICL supports the father’s proposal in relation to school holiday time, to occur on a week about basis; however this would be conditional upon the father engaging with Dr J;[12] and
·The ICL further proposes that the father should engage with Dr J, particularly in relation to managing and supporting X’s anxiety, and for school issues to be raised in that therapeutic intervention.[13]
[10] Transcript, 30 March 2017, page 135.
[11] Transcript, 30 March 2017, page 137.
[12] Transcript, 30 March 2017, page 137.
[13] Transcript, 30 March 2017, page 135.
Issues
As stated above, shortly after the final hearing, the parties entered into final consent orders in relation to the following:
·the children to live with the mother when not living with the father;
·the definition of school holidays;
·the parties being permitted to attend school events;
·the spend time arrangements for special days and Christmas Day; interstate and overseas travel arrangements;
·arrangements for telephone communication; and
·the parties each keeping the other being informed of medical illnesses.
As a consequence, the parenting issues that remained in dispute were narrowed to the following:
·Parental responsibility; noting that the ICL and the father seek an order for equal shared parental responsibility and the mother is seeking sole parental responsibility (subject to certain consultative conditions);
·The frequency and circumstances of the ‘live with’ or ‘spend time with’ arrangements with the father, including arrangements during school terms and school holidays and whether the time the children spends with the father should gradually increase;
·Telephone communication time whilst the children are in the father’s care in school holiday periods;
·Overseas holiday travel length;
·Whether an order should be made for the father to attend upon Dr J; and
·The costs of the ICL.
Legislative requirements and discussion
All parenting proceedings are governed by the provisions of Part VII of the Act.
Parenting orders are defined in section 64B of the Act and provide for, inter alia:
·where a child is to live;
·the time a child spends with another person; and/or
·otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that, for the purposes of making a parenting order, the Court must regard the best interests of the child, as the paramount consideration. What is considered to be in the best interests of a child in parenting disputes depends on the particular circumstances in each case, as different circumstances require different resolutions.
That said, to determine the best interests of a child, the Court must consider the primary and secondary considerations in section 60CC of the Act. These will be considered in light of the evidence shortly. Before doing so, however, I will make some general comments about the law relevant to parental responsibility and its allocation.
Parental responsibility
Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order “may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child”.[14] In the absence of a parenting order, section 61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child.”
[14] Section 64B(3) of the Act.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This not only includes those duties and responsibilities relating to such matters as health and education, but also the “general direction in life.”[15]
[15] Lindell & Ranteri [2010] FamCA 52 at [31] (per Cronin J).
In section 4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:
‘major long-term issues’, in relation to a child, means 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 child to spend time with a parent.
It is clear therefore that the effect of the Court not making an order for parental responsibility would be that parental responsibility could be exercised by both parents either jointly or independently. Given the circumstances of this case, that would not be appropriate. That said, it is possible for the Court to order that one or more aspects of parental responsibility (eg. health) be allocated to one parent alone and the remaining aspects either subject to no order or an order for shared parental responsibility. Such possibilities were discussed by the Full Court of the Family Court (“the Full Court”) in Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103.[16]
[16] Newlands & Newlands [2007] FamCA 168 at [84]-[91] (per Bryant CJ, Finn & Boland JJ).
In this case, the father and the ICL propose that the parties have equal shared parental responsibility. This is opposed by the mother who seeks an order for the mother to have sole parental responsibility.
When making a parenting order, section 61DA(1) of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility.
However, section 61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence. While I note that there are some historical allegations raised in the evidence that were untested, I am satisfied that the presumption is not rebutted by this criteria.
In addition, under section 61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to a child’s best interests. Those interests are determined by reference to the matters in section 60CC of the Act in light of the evidence. Clearly, there is a dispute between the parties as to whether they should have equal shared parental responsibility, or not.
If the presumption of equal shared parental responsibility is not applied, or is rebutted, then the Court must still make an order which is in the best interests of the children (again, taking into account the considerations set out in section 60CC of the Act).
I will return to the issue of parental responsibility later in these reasons.
Child spending time with a parent
If a parenting order is to provide for a child’s parents to have equal shared parental responsibility, the Court is then required under s.65DAA of the Act to consider whether the relevant child’s best interests would be served by making an order that the child spend equal time,[17] or alternatively substantial and significant time,[18] with each parent.
[17] Section 65DAA(1) of the Act.
[18] Section 65DAA(2) of the Act.
Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.
I note that the father in this case is seeking an outcome whereby the children would spend time/live with him for five nights in each fortnight in school terms and for half of each school holiday period.
Section 65DAA(3) of the Act stipulates that a child will only be taken to spend “substantial and significant time” with a parent if:
“(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
That said, s.65DAA(4) of the Act stipulates that:
“Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.”
In considering the reasonable practicality issue for both an “equal time” or a “substantial and significant time” order, s.65DAA(5) of the Act requires the Court to have regard to:
“(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.”
The parties in this case are, as stated, in disagreement about the frequency of the ‘spend time/live with’ arrangements between the children and the father.
Best interests of children
As stated, the Court is under an obligation to make parenting orders that it determines is in the child’s best interests. For this purpose, the Court will now turn to consideration of the factors in section 60CC of the Act in the context of this case. At this stage I note that, pursuant to section 60CC(2A) the Court is required to give greater weight to section 60CC(2)(b) as against section 60CC(2)(a).
Primary considerations: Section 60CC(2) of the Act
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents
The Full Court considered this provision and the concept of “meaningful relationship” in McCall & Clark [2009] FamCAFC 92 (“McCall”).[19] In summary, what the Court is required to do is consider and weigh the available evidence (as at the date of the hearing) and determine (assuming the Court is satisfied that it is in X and Y’s best interests) how and what orders can be framed in order to ensure that the children have a meaningful relationship with both of their parents.
[19] The Full Court, comprised of Bryant CJ, Faulks DCJ, Boland J.
It is not in dispute in this matter that the children would benefit from maintaining meaningful relationships with both of their parents.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The mother submits that the father perpetrated family violence as against the mother during the parties’ relationship, which the children were subjected to.
In particular, the mother alleges that an incident occurred in October 2011 which involved the father punching a hole in a door. During cross examination, the father admitted to this incident.
The father otherwise denies that he perpetrated family violence.
In the Family Report, Dr S notes that any family violence that occurred between the parties was “likely conflict instigated violence, rather than a pattern of coercive controlling violence”, stating further that “if the family violence is conflict instigated, the risk of it occurring declines post-separation.” The Court notes that the parties have been separated for approximately five years and both have re-partnered.
Additional considerations: Section 60CC(3)
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
X is aged nine and Y is aged six.
In the Family Report Dr S states in reference to the children that “…they both want to spend time with their father and need more positive encouragement from their mother to enable them to do so.”[20]
[20] Family Report, paragraph 65.
Dr S noted that X expressed some worries about being away from her mother’s house. The mother submits that both children express concern in relation to the father’s wife and that Dr S also noted that X “spoke about not feeling “comfortable” at her father’s house.”[21] That said, Dr S noted that X said she did feel comfortable when she stayed at both her grandparents’ houses.
[21] Family Report, paragraph 49.
The father submits that it is clear from the evidence (including the Family Report) that the mother has sought to influence the children’s views.
(b) the nature of the relationship of the child with each of the child's parents, and other persons
There is no dispute that the children have close relationships with both parties, and that the mother has been their primary carer.
Dr S stated the following in the Family Report following observations of the children with the father:
56. Y presented as being more excitable and exuberant around his father than when observed with his mother. He appeared happy to interact with him and did not appear in any hurry to leave the assessment room and return to his mother.
57. X was noted to behave quite differently when she was observed with her father than when she was with her mother. When seen with her mother she had been very well behaved and appeared relaxed and happy. At the beginning of the observation with her father, she and Y were playing Connect Four. In the middle of the game they disagreed about something and X started repeatedly throwing the game pieces at Y in quite a deliberate and angry way, which placed him at risk of being hurt. Mr Ginty had to be very firm with X in order to get her to stop doing this. X was also noted to show some, subtle antagonism towards her father and Ms G.[22]
[22] Family Report, paragraphs 56 and 57.
The father’s wife, Ms G and the mother’s partner Mr J are also important figures in each party’s households. The children spoke positively about Mr J to Dr S and Y stated that he enjoyed playing with Mr J’s son, C. Dr S also commented that the children confirmed that when Mr J spent time with his son, C, he did so at the children’s home.
The father’s son with Ms G, A, and Ms G’s daughter B also form part of the father’s household.
There is evidence of some issues between the children, particularly X, and Ms G. That said, Dr S expressed the following view at paragraph 64 of the Family Report:
X does appear to be a child who is somewhat prone to a little anxiety but the account from her class teacher and observations in the assessment would suggest that this anxiety is not of such a severity that it is interfering with her day to day life.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate
The father submits that he has taken all opportunities available to him to so participate, and has sought different employment arrangements in order to be more available to the children.
The mother submits that the father has not taken some of the opportunities afforded to him, such as being actively involved in the treatment of X’s anxiety with Dr J.
The father’s case is that the mother has deliberately sought to exclude him from participating in major long term issues for the children.
The Court notes that Dr S recommended that the parties have equal shared parental responsibility for the children. Although she observed that the parties were having difficulty in developing a constructive co-parenting relationship, she considered that the parties do have some capacity to make long term decisions together, particularly with the assistance of Dr J.
Dr S also noted that the parties have also demonstrated that they are able to behave amicable at changeovers and the children’s special events.[23]
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
[23] Family Report, paragraph 66.
The father asserts that he has met such obligations, including paying the mother’s rental costs for a year following separation. The father submits that he has consistently paid child support to the mother as assessed. The mother submits that there have been times when the father has ceased child support payments.
The Court notes that the Annexure ‘F’ of the father’s affidavit sworn and filed on 17 February 2017 appears to show that the father was at that time in credit at the Child Support Agency and had regularly been making child support payments each month since April 2016.
(d) the likely effect of any changes in the child’s circumstances
This is a relevant consideration.
Since late July 2017 the children have been spending four nights per fortnight during school terms with the father. This interim outcome was imposed by the Court in the best interests of the children following the final hearing and reflects the recommendations of Dr S. The father proposes that an additional night per fortnight be added in 2018. This proposal is not supported by the ICL.
As stated, the recommendation by Dr S in the Family Report in relation to the children’s time with the father was a gradual increase in time to every second weekend from Friday after school to Monday before school and one midweek overnight stay in the intervening week. Dr S qualified her recommendations to a certain extent during cross examination by the father’s counsel as follows:
If you recommend four nights a fortnight, there’s precious little difference between that and five, would you agree? ---That’s correct.
So they could go, for example, from Thursday through to Monday and then the alternate – each alternate week and a Wednesday, couldn’t they?---Well, again, the point I’m trying to make is whether you’re looking at in theory or for these children with these parents - - -
My question is about these children and I’m suggesting to you - - -? ---Okay. So - - -
- - - just to be clear - - -?---Yes.
- - - that one could implement a system where there was, say, a four-10 night block and a one-night block or a three-night block and two-night block and that – that five nights a fortnight couldn’t be said to be any less in these particular children’s interests than the four-night block you’re recommending?---I suppose, on one level, you could argue that.[24]
[24] Transcript, 29 March 2017, page 27.
The mother contends that X in particular would be affected by any significant change and that her anxiety would be exacerbated if such was to occur.
The Court notes that an increase in time for the children to spend with their father would enable them not only to build upon their relationship with their father but also their sibling, A.
(e) the practical difficulty and expense issues
There are no geographical issues relevant to the children’s time with the father as the parties live in reasonably close proximity; the father lives in (omitted) and the mother lives in (omitted).
The parties have had past difficulties in communicating with one another and working cooperatively in relation to issues for the children.
Although on the father’s proposal, the children may be required to attend after school care due to the father and his partner working full time, Dr S did not regard this as a concern for the children.
Otherwise, this is not a significant factor in this case.
(f) the capacity of each of the child's parents; and any other person to provide for the needs of the child, including emotional and intellectual needs
The ICL submits that both parties have the capacity to provide for the children’s physical and intellectual needs, however notes that some issues are of concern in relation to providing for the children’s emotional needs.
The ICL submits that the mother’s limited capacity to encourage the children’s relationship with the father may detrimentally impact on the children’s emotional development. The ICL also raises a concern in relation to the father’s capacity to address X’s anxiety issues when separated from her mother.
The mother submits that the father’s ability to “properly take on board this child’s anxiety and what her triggers are” are highly questionable and that his current proposal does not take into account Dr S’s evidence that the higher amount of changeovers, the more opportunities for conflict there would be.[25] In response the father notes that changeovers would occur at school.
[25] Transcript, 30 March 2017, page 150.
It was the mother’s submission that the parents’ incapacity to agree on issues for the children support a finding by the Court that an order for the parties to have equal shared parental responsibility for the children would not be in their best interests.
The father submitted that both parents have the capacity to provide for the children’s emotional and intellectual needs.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
It is not disputed that X is an anxious child. The mother submits that her anxiety is exacerbated by the behaviours of the father’s wife towards her and in the father’s household.
The father submits that the mother overemphasises X’s anxiety and/or fails to understand that her attitude contributes to it.
Dr S recommended that the father engage with Dr J in order to better understand and manage X’s anxiety. She also recommended that both parties and their respective partners engage with Dr J to help them work cooperatively.
Otherwise, I reiterate earlier comments.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
This consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The ICL raises a concern in relation to the capacity of each party and their respective partners to encourage the children’s relationship with the other party and their respective partners.
The father submits that he has put the children’s needs before his own, and that the mother has not. The mother submits that at times the father has not demonstrated a positive attitude towards the responsibilities of parenthood. Neither party elaborated as to the reasons for these submissions.
(j) and (k): family violence and family violence order provisions
As stated, the mother’s counsel submits that the children were subject to family violence when the parties were in a relationship (with the father as the perpetrator). It appears that the mother was granted an interim Apprehended Domestic Violence Order for her protection against the father in 2014, which was dismissed on 7 July 2014.
As previously stated, the father denies that he has perpetrated family violence against the mother. That said, the father did concede that an incident occurred in October 2011 which involved him punching a hole in a door.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The mother submits that any orders for the children to spend time with the father for a frequency and duration that X is unable to cope with are likely to fail.
The ICL submitted that they were “reasonably optimistic that the final resolution of these proceedings will result in some finality being brought to the children’s lives and avoid further litigation between the parties.”[26]
[26] ICL’s Case Outline, page 11.
The father submits that the orders proposed by him will be longer lasting given the children’s ages and that the minimal proposed by the mother will “virtually guarantee the need for further litigation.”[27] The father further submitted that:
…the last thing that these children need is further litigation and this might be one of those unusual cases where that particular subsection of section 60CC(3) is important. Because if your Honour adds the fifth night as requested by the father in 2018, your Honour could do that knowing that that is an order which is most likely to lead to a lower probability of any further proceedings being needed.[28]
(m) any other fact or circumstance that the court thinks is relevant.
[27] Father’s Case Outline, page 6.
[28] Transcript, 30 March 2017, page 144.
The father’s counsel invited the Court to make an adverse inference in relation to the mother’s failure to call the person ‘Mr J’ pursuant to the principles outlined by the High Court in the case of Jones & Dunkel (1959) 101 CLR 298 (“Jones & Dunkel”).
I note that Dr S stated the following at paragraph 61 of the Family Report:
The Regulation 7 Family Consultant could not establish anything which would suggest that Mr Ginty had any significant antagonism to Mr J or that Mr J would be placed at risk of any harm if his details were made available to the court. It is not appropriate for the children to be placed in the position where they feel unable to talk about their relationship with Mr J or possibly even lie to their father about it.
The father’s counsel submitted the following:
“The explanation offered by the mother in the witness box was spurious. We know that she thinks he is so important to the children and to the case that she takes him to see Dr S. She is rapturous about his relationship with the children at paragraph 232 of her affidavit and yet she would ask your Honour to believe that the evidence of her mother, who hasn’t seen or spoken to my client since 2014, is more important than the evidence of someone who has such a close relationship with the children and spends so much time in their household. The only conclusion, in my respectful submission, is that that evidence would not have assisted the mother’s case and that’s for a very particular reason; he clearly lives with the mother, in my respectful submission, and the evidence establishes it. That leads to a further submissions and this rides directly to paragraph 61 of Dr S’s report where the mother, in my respectful submission, seems to have actively led the children into a situation where they have had to participate in a deception, they’ve been placed in a very invidious position, to their detriment, potentially effective of their relationship with their father and, I would say, if there is a cause for anxiety in X, who everyone says is a highly intelligent little girl, that may be it.”[29]
[29] Transcript, 30 March 2017, page 144.
In response, the mother submitted that the evidence was quite clear that ‘Mr J’ did not live with the mother. The Court has difficulty in accepting that submission.
There are a number of other issues which the Court is also required to consider and the Court will separately consider these now.
Whether there are benefits to the father being further ordered to engage with Dr J?
While this issue did not find its way into an order proposed by either party and did not feature in the final submissions of the parties, I note that the ICL orally proposed an order to this effect based on the evidence of Dr S. Indeed, I note that Dr S was very clear in her evidence about the father further engaging in this process, particularly in regards to supporting X.
Whether the parties should be able to travel with the children outside of Australia for 7 or 14 days during the long summer school holidays?
As stated, while the parties were agreeable to a form of order that would conditionally allow overseas travel to occur during the long summer school holidays, they disagreed whether the maximum length should be 7 days (as proposed by the mother) or 14 days (as proposed by the father).
While both parties appear to recognise the benefits of international travel for the children, shortened periods would limit the scope of such travel. Nevertheless, the Court has to be mindful of the children’s ability to spend extended time with the relevant parent in circumstances where orders may be made for the children to spend week about time during the long summer school holidays with each of the parties.
When asked about the long summer school holiday periods, and whether or not a ‘block’ period would be preferred to a ‘week about’ arrangement, I note that Dr S gave the following evidence:
“---I think two weeks would probably be too long for her [X]. So I would say a week at this point. I mean, maybe by the time she’s at high school one would hope that the parents would have moved beyond this level of conflict and would be able to negotiate something, particularly if one or other of them had a – had a sort of trip of some sort planned.”[30]
Whether the mother should be permitted to telephone the children once (as proposed by the father) or twice (as proposed by the mother) per week during school holidays periods they spend with the father?
[30] Transcript, 29 March 2017, page 15.
In relation to the issue of telephone communication between the children and the mother during school holidays whilst in the father’s care, the mother submitted that her proposal for this to occur three times per week (subsequently amended to twice per week[31]) was reasonable. In response, the father submitted that this frequency would be disruptive for the children and that once per week during school holiday periods was sufficient, when considered together with the order for the children to be able to call the mother if they requested (and made as a final order by consent). The ICL supported the father’s position in relation to the telephone communication during school holidays based on concerns raised on the evidence. As stated, this communication dispute needs to be considered in the context of the parties having reached an agreement on a final basis on an order that would enable the children to telephone the other party at any reasonable time requested.
[31] As received by joint email dated 13 June 2017.
Findings
After considering the evidence and submissions in light of the structured discretion contained in the relevant Act, the Court finds as follows.
Firstly, I am satisfied and find that the presumption for equal shared parental responsibility has not been rebutted. There will therefore be an order for the parties to have equal shared parental responsibility for X and Y.
Secondly, the Court finds that it would be in the best interests of the children to spend one additional night per fortnight with the father, being five nights per fortnight, noting that pursuant to the interim orders the children are currently spending four nights per fortnight with the father. The Court finds that the one night increase per fortnight should not occur before Term 1, 2019. This transition will coincide with X’s final year in primary school. While I note that this increase was not a specific recommendation of Dr S, I am satisfied that the delay in its implementation will enable the parties to appropriately prepare the children.
Thirdly, the Court finds that it would also be in the children’s best interests to spend half of each school holidays with the father. During the long summer school holidays, and commencing in December 2017, the children will spend time with the father on a week about basis, commencing the first week in odd numbered years and the second week in even numbered years. This order should be read in conjunction with the relevant final orders for the Christmas period made by consent on 14 June 2017.
Fourthly, the Court finds that it would be in the best interests of the children for an order to be made for the parties to attend upon and engage with Dr J. This engagement should focus particularly on managing and supporting X’s anxiety. I note that pursuant to the interim orders made on 21 April 2016 and the Notation made on 30 March 2017 both parties should already be engaging with Dr J. This order would clearly require the father to recommence engagement with Dr J (in addition to the mother). The Court acknowledges that the mother has been engaging with Dr J and further acknowledges the possibility that the father has already reengaged following the final hearing.
Fifthly, I am persuaded by the mother’s amended proposal in relation to telephone communication time between the children and the mother during school holiday periods whilst the children are in the father’s care. The mother (and the father) will therefore be permitted to telephone the children twice per week during such periods.
In relation to the international travel dispute, I find that it would be in the children’s best interests that either party be permitted to travel with the children for up to a 7 day period commencing in the long summer school holidays in 2018 (and 2019) and for up to a 14 day period commencing in the long summer school holidays in 2020 and continuing beyond. I note that from 2020, this would conflict with the ‘week about’ arrangement for the long summer school holidays. For this reason, to avoid conflict between the parties which would impact upon the children, I find that it would be appropriate for the children’s time with the parties during the long summer school holidays commencing in December 2020 should be in an alternating two-week block period for the month of January. I note that a delay until the end of 2020 will coincide with the completion of X’s first year in high school. I further note that paragraph 16 of the final consent orders made on 14 June 2017 stipulates that “any overseas travel shall take place only during the time that the children will be in the care of that parent, unless otherwise agreed.”
Costs
As stated, in this matter the ICL seeks costs against the father only, as the mother was previously in receipt of Legal Aid in these proceedings and had received a waiver. The ICL seeks that one half of the ICL’s costs be paid by the father. The sum sought is in the amount of $4,858.15, or in the alternative, one half of the final hearing costs, being $2,015.75.
Power of the Court to make a costs order
Pursuant to reg.21.02 of the Federal Circuit Court Rules 2001 (“the FCC Rules”), this Court has the power to make an order for costs at any stage in a proceeding.
In family law matters, the Court also needs to consider s.117(1) of the Family Law Act 1975 (“the Act”), which states the principle that each party shall pay their own costs. The exception to that rule is contained in s.117(2) of the Act, which relates to circumstances where the Court finds there is justification for departing from the principle. This exception is subject to the matters referred to in s.117(2A) of the Act.
Section 117(2A) of the Act states:
“In considering what order, if any, should be made under subsection (2), the Court will have regard to:
(a) The financial circumstances of each of the parties to the proceedings;
(b) Whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) The conduct of the parties to the proceedings in relation to the proceedings, including - without limiting the generality of the foregoing - the conduct of the parties in relation to the pleadings, particulars, discovery, inspection, directions to answer questions, admission of the facts, production of documents and similar matters;
(d) Whether the proceedings were necessitated by a failure of a party to the proceedings to comply with the previous orders of the Court;
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) Any such other matters as the Court considers relevant.”
Costs and the ICL
Pursuant to s.117(2) of the Act, the Court has the power to make a costs order in favour, or against, an ICL. That said, s.117(3), (4) and (5) of the Act are of particular relevance to the issue of costs involving an ICL. The provisions state:
“(3) To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
(4A) [omitted][32]
(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.”
[32] Section 117(4A) is not germane to this dispute as it relates to a situation where a relevant officer intervenes in proceedings pursuant to s.91B of the Act.
The exercise of the Court’s power has been considered in a number of cases.
In Separate Representative v JHE and GAW (1993) 16 Fam LR 485; (1993) FLC 92-376,[33] the Full Court held that a person appointed to separately represent a child in proceedings under the Act is empowered to seek orders in proceedings under the Act and, if necessary, to appeal.[34] In respect of the issue of costs, the Full Court stated, by way of obiter, that the ICL (formerly called the ‘separate representative’) should be treated as, or as analogous to, a ‘party’ for the purpose of s.117 of the Act.[35]
[33] Reported by CCH Australia Ltd as Re P (a child); Separate Representative (1993) FLC 92-376.
[34] (1993) 16 Fam LR 485 at 497 (per Nicholson CJ and Fogarty J).
[35] Ibid, at 508.
In Telfer & Telfer (1996) 20 Fam LR 619; (1996) FLC 92-376 (“Telfer”), an ICL sought a costs order against the parties after the matter settled on the first day of the final hearing. The trial judge, Lindenmayer J, in awarding costs to the ‘child representative’, found that the financial resources of the relevant Legal Aid Office can be taken into account pursuant to s.117(2A)(a). His Honour stated:
“As indicated, the funds of the Legal Aid Office are finite; they are subject to very heavy demands in all areas, not the least of which is the area of legal aid for separate representatives for children in proceedings before this court. I think it is relevant for the court to consider, in the exercise of discretion as to costs, that the funds of such a body ought not to be exhausted in proceedings where there are other available means of providing the funds for the representation of the relevant children, and particularly where the necessity for that representation arises essentially out of conflict between the parties, rather than out of any deep-seated issues relating to the welfare of the children.”[36]
[36] (1996) 20 Fam LR 619 at 623-624; (1996) FLC 92-376 at 83,141.
Telfer was applied and approved by the Full Court in Re David (No.2) (Costs) (1998) 23 Fam LR 139; (1998) FLC 92-809. It was also considered and applied by Steele J in Lyris & Hatziantoniou[1998] FamCA 1311; (1998) 24 Fam LR 391; (1998) FLC 92-840; (“Lyris”). In Lyris, the Court stated that the quantum of the costs reflecting the relevant Legal Aid provider’s services should be calculated by allowing costs on the professional scale.[37]
[37] (1998) 24 Fam LR 391 at 395.
While the applicable wording of s.117(3), quoted above, now makes it clear that an ICL’s costs can be the subject of a costs order, s.117(5) stipulates the Court is required to disregard the fact that the ICL is funded under a Legal Aid scheme. This revised provision was considered by Dawe J in Kest & Olsson [2012] FamCA 148 (“Kest”). The consequence is that, the reasoning discussed in Telfer and subsequent cases no longer appears to be appropriate.
In addition, in NSW, the Legal Aid ICL guidelines oblige ICLs to seek an order for costs unless Legal Aid has waived a party’s liability to contribute to the ICL’s costs.[38]
[38] NSW Legal Aid, ‘Information for Independent Children’s Lawyers’, available at (accessed on 21 August 2017).
Therefore, the question for the Court to decide is, using the words of Dawe J in Kest:
“… in relation to both the mother and the father in these proceedings, whether, considering the provisions of subs (2A), an order for the Independent Children’s Lawyer’s costs to be paid by the father or the mother or both the father and the mother should be considered just.”[39]
[39] Kest & Olsson [2012] FamCA 148 at [7].
Quantum of costs
In the event that the Court decides that the making of a costs order is just, then, unless the Court specifies otherwise, such costs are to be paid on a “party/party” basis.
“Party/party” costs are costs necessarily incurred, paid at a reasonable rate. The FCC Rules incorporates a schedule of costs as a guide to party/party costs in family law proceedings. Party/party costs would not ordinarily cover all the legal costs incurred by a party.
“Solicitor/client” costs or “indemnity” costs are ordered when the Court intends the costs order to cover all the legal costs reasonably incurred by that party. When a costs agreement is involved, the charges to be imposed on the other party are subject to the requirement of reasonableness.
Regulation 21.02 of the FCC Rules allows the Court to refer the costs for assessment via Chapter 19 of the Family Law Rules 2004 (“the Family Law Rules”). Regulation 21.02 of the FCC Rules states:
(1) An application for an order for costs may be made:
(a) at any stage in a proceeding; or
(b) within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Order 62 of the Federal Court Rules or under Chapter 19 of the Family Law Rules; or
(d) set a time for payment of the costs, which may be before the proceeding is concluded.
The Court will now consider the submissions made by the father in light of the relevant legislation and case law.
Submissions
In response to the ICL’s application for costs, the father opposed the application and, in summary, submitted to the Court that the father’s financial circumstances would make it difficult for him to meet a costs order for the following reasons:
·The father and his wife own their home, which has a mortgage attached to it that has been extended to its limit in order to meet his legal fees;
·The mortgage had previously been extended for renovations and there is no more available on that mortgage to be drawn;
·He and his wife have no savings and to meet the increased mortgage payments they have had to convert the mortgage temporarily to an interest only loan (which will convert back to principal and interest in 2018 which will arguably increase their financial burden);
·any costs order would impose a fairly serious financial burden upon the father that would have an indirect impact upon the children; and
·The father is about to undergo back surgery. In order to try and meet all the household bills he had been working two jobs, the second job being as a hire car driver. Part of the consequence of the back surgery is that he won’t be allowed to drive and he has to give up that job, so he has lost that additional income which would make the payment of any costs order an even more onerous burden.[40]
[40] Transcript, 30 March 2017, page 159.
Discussion and findings
Although it would not have been possible to make a submission at the time of the final hearing as to this factor, the Court notes it would be incorrect to state that the father has been ‘wholly unsuccessful’ in these proceedings.
The Court also notes the father’s submissions in relation to his financial pressures.
In the circumstances I find it appropriate that the father pay the costs of the ICL in the sum of $2,015.75, being the ICL’s alternate argument. The Court will allow the father three months to pay this sum, less his initial contribution to the costs of the ICL (being $1,650.00), if already paid.
Conclusion
Having referred to the relevant findings in this decision, the Court makes the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and sixty seven (167) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Date: 31 October 2017
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