Gleeson and Leighton
[2007] FamCA 11
•16 January 2007
FAMILY COURT OF AUSTRALIA
| GLEESON & LEIGHTON | [2007] FamCA 11 |
| FAMILY LAW - CHILDREN - With whom a child lives; With whom a child spends time with |
| Family Law Act 1975 (Cth) |
Rice v Asplund (1979) FLC 90-725
Griffiths v Griffiths (1981) FLC 91-064
Bennett v Bennett (1991) FLC 92-191
N v R (1991) FLC 92-252
D v Y (1995) FLC 92-581
King v Finneran (2001) FLC 93-079
Bolitho v Cohen (2005) FLC 93-244
F & C and the Child’s Representative [2004] FamCA 568
| APPLICANT: | Mr Gleeson |
| RESPONDENT: | Ms Leighton |
| INDEPENDENT CHILDREN’S LAWYER |
| FILE NUMBER: | SYF | 6845 | of | 2001 |
| DATE DELIVERED: |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 5-9 June 2006; 6-17 November 2006 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | n/a |
| COUNSEL FOR THE RESPONDENT: | Mrs Knox |
| SOLICITOR FOR THE RESPONDENT: | Dettman Longworth |
| COUNSEL FOR THE CHILDREN: | Ms Falloon |
| SOLICITOR FOR THE CHILDREN: | Legal Aid Commission of NSW |
ORDERS
The orders of 2 May 2002 are discharged from two days before the commencement of school term in 2007.
2.1 Subject to this order, both parents have equal shared parental responsibility in relation to the children J born in December 1992 and H born in April 1994 (“the children”).
2.2.Except in circumstances where the immediate welfare of either child is threatened by delay, neither party shall make any decision in relation to an issue regarding the long term care, welfare or development (including schooling arrangements, medical procedures or health treatment) regarding either child without first consulting the other parent, such consultations to be:-
2.2.1.commenced in writing;
2.2.2.commenced at least 42 days in advance of any key or significant date regarding the issue;
2.2.3.concluding with the other parent’s written consent, which consent shall not be unreasonably withheld.
2.3.The mother is permitted to enrol the children at R College South Australia, commencing in Term 1 in 2007.
2.4.The mother shall:-
2.4.1.provide to the father as soon as they are received copies of school reports, school newsletters and school calendar(s);
2.4.2.if necessary, authorise the children’s school to communicate with the other parent;
2.4.3.give the other parent one month advance notice of parent/teacher meetings and school functions such as open days, concerts, school carnivals, sporting carnivals and awards functions.
2.5.Each parent, as soon as is reasonably practicable, advise the other parent of any emergency involving or affecting either of the children and in the event that either parent is not contactable for any period on his or her usual telephone number then that parent will provide to the other parent an urgent contact phone number or numbers for that period.
2.6.In the event of either child suffering illness or injury requiring hospital treatment the parent having care of the child at that time shall inform the other parent as soon as is reasonable practicable and in any event within 12 hours, and shall provide such authorisation as may be necessary for the other parent to obtain information about the child’s condition and treatment.
The children live with the mother from two days before the commencement of their school year in 2007.
Thereafter the children spend time with the father at the following times and subject to the following conditions:-
4.1.Each year, at the father’s option:-
4.1.1.for all of two of the three school holidays between the first and second terms (Term 1 holiday), the second and third terms (Term 2 holiday) and the third and fourth terms (Term 3 holiday);
4.1.2.the father will give notice of which entire holiday periods he choses in accordance with order 4.14;
4.1.3.in relation to that term holiday where the children are not with their father for the entire time, for the first half of that holiday in even numbered years (and for that purpose zero will be an even number) and for the second half in odd numbered years.
4.2.In the December/January holidays for the first half commencing in December in even numbered years (and for that purpose zero will be an even number) and for the second half in odd numbered years.
4.3.When the children are to be with the father for one half of a school holiday period, the number of days they will be with their father will be calculated as follows:-
4.3.1.count the number of days in the holiday period (including the days that the children travel);
4.3.2.divide that number by two and if the result is not a whole number, round that number up to the next whole number;
4.3.3.the number of days will be inclusive of both the days the children travel.
4.4.Unless airline schedules make it impossible or the parties otherwise agree:-
4.4.1.at the commencement of a holiday period of the children’s time with the father in accordance with Orders 4.1 and 4.2, the mother shall deliver the children to Adelaide airport to catch their flight no later than 9am Saturday;
4.4.2.the father or his nominee shall collect the children from Sydney airport or any other airport in Australia nominated by the father;
4.4.3.at the conclusion of that period the father shall ensure that the children are delivered to an airport in order to catch a flight that arrives in Adelaide no later than 6pm on the day in which the children’s time with their father concludes;
4.4.4.the mother or her nominee shall collect the children from Adelaide airport.
4.5.From Friday evening until Sunday afternoon on the weekend containing Father’s Day.
4.6.On every long weekend that includes a gazetted Monday public holiday in South Australia and that occurs during school term time.
4.7.For the whole of the Easter holidays in the event that those holidays are not part of the school holiday between the first and second terms.
4.8.At the father’s option from Friday evening until Sunday afternoon of weekends during school term time so that:-
4.8.1.The children are not required to travel to Sydney to see their father on any more than two occasions each school term (including occasions referred to in orders 4.5 and 4.6;
4.8.2.The father will give notice in accordance with order 4.14;
4.8.3.These additional weekends will be spaced so that the children are not required to travel from and back to Adelaide on consecutive weekends;
4.8.4.The weekend shall not include Mother’s Day or the mother’s birthday.
4.9.Unless airline schedules make it impossible or the parties otherwise agree:-
4.9.1.at the commencement of a weekend period of the children’s time with the father in accordance with orders 4.5, 4.6, 4.7 and 4.8, the mother shall deliver the children to Adelaide airport to catch their flight no later than 6pm Friday;
4.9.2.the father or his nominee shall collect the children from Sydney airport or any other airport in Australia nominated by the father;
4.9.3.at the conclusion of that period the father shall ensure that the children are delivered an airport in order to catch a flight that arrives in Adelaide no later than 6pm on the day in which the children’s time with their father concludes;
4.9.4.the mother or her nominee shall collect the children from Adelaide airport.
4.10.At the father’s option, in each school term for one full week in the W district while the children attend school, provided:-
4.10.1.The father shall give four weeks written notice of his nominated week.
4.10.2.Such nominated week shall not include Mother’s Day or the mother’s birthday;
4.10.3.Such nominated week shall commence after school on a Friday and conclude by delivering the children to school on the following Friday, or if such week immediately proceeds a period of time during school holidays then the children will be with their father, shall continue into that school holiday time without interruption;
4.11.The father and the children have telephone contact by landline connection in the mother’s home on three evenings per week of the father’s choosing for up to one hour on each occasion with the father calling the children, such calls to be completed by 8pm.
4.12.The mother do all things necessary to facilitate unrestricted telephone contact between the children and their father if either or both the children wish to initiate it and both parents use their best endeavours to ensure that mobile phones, dedicated to the communication between the children and their parents, are charged at all times.
4.13.The father and the children have communication by way of email and other electronic means at all reasonable times and in that regard both parents ensure that when the children are at their home the children are able to communicate with their other parent by “webcam” or similar electronic means and for that purpose each parent install in their home the necessary equipment, software and services.
4.14.In relation to holiday and weekend contact, on or before the end of the first week of school term the father provide to the mother in writing notification of the dates that the children will spend time with him in the following twelve month period, including what options he exercises in respect of orders 4.1.1 and 4.8 and whether the children are to be sent to Sydney airport or some other airport in Australia.
4.15.If the mother or the father wishes to take the children overseas they be permitted to take the children out of school for a period not exceeding one week prior to or following their time with the children during a term school holiday period or Christmas school holidays subject to the permission in writing of the school at which each child attends and provided that::-
4.15.1.The mother’s time with the children will not conflict with time the father will be spending with the children under any notice that he has already given to the mother pursuant to order 4.14;
4.15.2.The mother will inform the father in writing 42 days prior to her intention to take the children overseas;
4.15.3.The parent taking the children overseas will provide to the other parent a copy of the written permission they have obtained from the school to have the children out of school.
4.16.That for one of the Term 1, Term 2 or Term 3 school holiday periods (not the Christmas holiday period except by agreement):-
4.16.1.the mother may notify the father that the children will not be available for the whole of that term holiday period;
4.16.2.the mother can only exercise this option if the father has not already given notice under order 4.14 that the children are to be with him for the whole of this holiday period;
4.16.3.if the mother exercises her option under order 4.16, by way of compensation the children will spend additional holiday time with their father in the subsequent Christmas school holiday period equal to the time the children have not spent with their father during that school holiday period when the children were with their mother.
4.17.Either parent be permitted to take the children to any location overseas provided that it is not to or via a location which the Australian Government website lists as being dangerous.
4.18.The mother shall hold the children’s passports and if the father wishes to travel overseas with the children as agreed with the mother then she shall ensure that the children have their passports in their possession when they depart from her
4.19.The parents do all things and execute all documents necessary for any reapplication for expired or soon to be expired passports to be renewed.
4.20.The mother shall book and pay for return air tickets for the children to travel between Adelaide and Sydney or any other airport nominated by the father in the notice referred to in order 4.14 for holidays between the 1st and 2nd school terms and the December-January school holidays, for the weekend containing Father’s Day and for long weekends, and the father shall book and pay for the children’s return air tickets for all other holidays and all other weekends. In this regard the party required to book and pay for the airline tickets shall:
4.20.1.make such booking and payment not less than 21 days prior to the required travel date;
4.20.2.immediately advise the other party of the flight numbers and departure and arrival times;
4.20.3.in the event that the mother is required to pay an airfare exceeding the cost of a Adelaide to Sydney return airfare, the father will pay to the mother 35 days prior to the required travel date the amount of that excess.
The father do all things reasonably necessary to ensure that any interactions which involve:
5.1.the mother;
5.2.the children’s school;
5.3.the children’s health practitioners
be carried out by him and not be delegated to his wife, Mrs G.
Each parent be at liberty to attend the children’s school and the Court notes that such attendance is not to be construed as “time with a child or children” nor a breach of any parenting order.
The order for the appointment of the Independent Children's Lawyer shall continue until 30 June 2007.
The parties shall attend on any professional person or persons nominated by the Independent Children's Lawyer for the purpose of counselling and guidance as to how they can conduct themselves as parents and communicate with each other about matters of parental responsibility in the best interests of the children and in order to protect the children from exposure to any conflict between the parties and the spouses of the parties. In this regard:-
8.1.The father shall within 7 days of the date of this order contact Ms V at Relationships Australia to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.
8.2.The mother shall within 7 days of the date of this order contact the manager or the manager’s delegate at the Family Relationship Centre to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.
8.3.Each of the parties shall attend their assessment at any reasonable location nominated by the service provider and complete the assessment.
8.4.If assessed as suitable and the service provider nominates counselling, mediation or a program(s) to attend, the parties shall attend (as the provider directs) as soon as practicable.
8.5.Each of the parties shall use their best endeavours to ensure the attendance of any other person or persons at any assessment, counselling, mediation or program as directed by the service provider.
8.6.The Independent Children's Lawyer has leave to provide a sealed copy of these orders, the reasons for judgment and the reports by Dr W dated 2 November 2005 and 30 October 2006 to the relevant service providers.
8.7.The cost of all counselling, mediation and programs shall be shared equally between the parties.
The father’s wife not be present at any time the father indicates with the notice given under order 4.10.1 that he will personally be delivering or collecting the children from the mother’s residence unless the mother otherwise agrees in writing.
The mother shall not remove the children from school until the end of the last days of term except in the case of sickness or emergency.
The mother refrain from sending emails to the father’s work address and only address them in future to his private email address or such other address as he may notify her of and that she instruct her legal advisers accordingly.
Both parents shall advise the other as soon as practicably possibly of any changes of address or contact details.
The mother reveal her telephone number if she calls any phone of the father’s household other that those of her two children and that the father’s wife be excused from answering those calls.
The mother refrain from discussing contact arrangements with the children except as a result of their direct approach to her until such time as the father has given the mother notice of what options he intends to exercise and the mother shall not disclose to the boys or discuss with the boys the fact that the father has not taken up options that these orders have given him.
Unless otherwise agreed, the parties communicate about the children and arrangements about the children directly with each other and the mother make all such approaches about contact direct to the father either in writing or by telephone and not through the children or through the wife’s mother or through the father’s wife.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 6845 of 2001
| Mr Gleeson |
Applicant
And
| Ms Leighton |
Respondent
REASONS FOR JUDGMENT
INDEX
INTRODUCTION
SHORT HISTORY
BACKGROUND FACTS
THE APPLICATIONS
Father
Mother
Independent Children's Lawyer
SOME FEATURES OF THE PROPOSALS OF EACH PARTY
Father
Mother
ORDERS OF MULLANE J
RICE & ASPLUND
CREDIT
Father
The father’s wife
Mother
The mother’s husband
Conclusion about the credit of the father, mother, the father’s wife and the wife’s husband
Mrs A
Dr W
PARTICULAR EVENTS
THE CIRCUMCISION
THE INCIDENT ON 14 MAY 2004
EQUAL SHARED PARENTAL RESPONSIBILITY
Matters to consider if order made for equal shared parental responsibility
DETERMINING WHAT IS IN THE BEST INTEREST OF J AND H (SECTION 60CC FLA)
Primary considerations (Section 60CC(2) FLA)
The benefit to the children of having a meaningful relationship with both of the children’s parents. Section 60CC(2)(a) FLA
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2)(b) FLA
The mother’s use of alcohol
Conclusions about the mother’s use of alcohol
The mother’s husband’s mental health
Carpet burns
The mother’s husband’s violence
Additional considerations (Section 60CC(3) FLA)
(a) views expressed by the children and the weight they should be given
Mullane J’s Reasons for Judgment of 2 May 2002
Dr W’s evidence about the wishes of the children and the weight to be given to those wishes(b) The nature of the relationship of J and H with:
(i) each other
(ii) each of the children’s parents
(iii) The father’s wife
(iv) The mother’s husbandThe boys and their step siblings
Relationship of the parents
The father and his wife
The mother and the father’s wife
The mother and her husband
The father and the maternal grandmother(c) The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent
(d) The likely effect of any changes including effect of separation from parents or others
(e) The practical difficulty and expense of the children spending time with and communicating with a parent and the effect on personal relations and direct contact with both parents on a regular basis.
H school fees
(f) and (i) The capacity of parents and others to provide for needs of the children (including emotional and intellectual needs); the attitude to the children and to the responsibilities of parenthood
(g) The maturity, sex, lifestyle and background of the children and of either of the children’s parents
(h) If the children are an Aboriginal child or a Torres Strait Islander child, the children’s right to enjoy his or her culture.
(j) Family violence
(k) Any family violence order
(l) The order that would be least likely to lead to the institution of further proceedings
(m) Any other fact or circumstance
CONCLUSIONS
PROPOSED ORDERS
INTRODUCTION
This case is about whether or not J born in December 1992 (now aged 13 years and 11 months) and H born in April 1994 (now aged 12 years and 8 months) move from living with their father in Sydney to living with their mother in W, South Australia.
The issue as to where the boys would live has been the subject of a previous four day contested hearing before Justice Mullane on 25-28 February 2002. The boys had been with their mother for six years and she had had a residence order in her favour. His Honour made orders on 2 May 2002 moving the residence of the children from their mother to their father.
SHORT HISTORY
In February 1950 the father was born. He is currently 56 years of age.
In July 1965 the mother was born. She is currently 41 years of age.
The parents commenced to live together in February 1992.
J was born in December 1992.
H was born on in April 1994.
The parents separated in August 1996.
BACKGROUND FACTS
The father has remarried. His wife, Mrs G was born in August 1957. She is currently 49 years of age.
The mother has also remarried. Her husband, Mr L was born in March 1959. He is currently 47 years of age.
F, Mrs G’s daughter from a previous relationship, was born in January 1990 and now 17 years old. She has, until recently, lived in the home in Sydney with the boys. She currently lives at the home of her boyfriend’s parents.
S (the father’s child from a previous relationship) was born in June 1991 and is 15 years and 5 months. He lives with his mother but spends substantial time with his father.
E, a child of the mother’s husband as a result of a single sexual encounter, was born in 1993 and is about 13 years old. E has no contact with the mother’s household.
U, Mrs G’s child from a previous relationship, was born in February 1995. He is 11 years and 10 months. U currently lives in the household in Sydney with the boys.
In late 1999 the mother and Mr L commenced living together at H with J and H. They married in February 2000.
The father commenced living with Mrs G in May 2000. They married in Sydney in December 2001.
The mother and her husband have had a child. N was born in February 2001 and is 5 years and 10 months. He lives in the home at W.
The father and his wife have had a child. I was born in February 2003 and is 3 years old. She lives in the home with the boys in Sydney.
In 2001 the mother made an application to the court to allow the boys to move to South Australia and live with her. The father opposed that application and sought final orders that the children live with him.
After a four day hearing in February 2002, Mullane J made orders on 2 May 2002 that the children live with the father and have reasonable contact with the mother while she resided in Sydney. Orders were also made for the children to have defined contact with the mother whilst she resides in South Australia. On the following day J and H commenced living with the father and his wife in Sydney and by early June 2002 the mother had moved to South Australia with her husband and N. J and H at that time were attending L College at E.
There have been difficulties with contact arrangements over the past four years.
The father wished to take the children overseas for two weeks in September 2002. The mother was overseas at the time the father made an application permitting him to do so. Orders were made on 3 September 2002 by Judicial Registrar Loughnan permitting the father to do so.
In May 2003 there are issues that arise around J undergoing a circumcision operation.
In late 2003 and early 2004 issues arose between the parties in relation to whether or not the father could take the child overseas in 2004. Those issues were resolved by Court orders on 22 March 2004. The children travelled with their father and his wife to Europe between 26 March 2004 and 18 April 2004.
On 14 May 2004 an incident occurred involving the mother and the husband’s wife. In February 2005 assault charges against the husband’s wife were heard in the Y Local Court and the husband’s wife was found guilty of assaulting the mother. That conviction was overturned on appeal by the District Court in May 2005.
In October 2004 H moved from L School to P Primary School.
In December 2004 the father and his wife took the boys on an overland trip to Darwin via the Oodnadatta track.
At the beginning of 2005 J moved from L School to J High School.
The parties couldn’t agree on contact during the 2004/05 Christmas school holidays. Orders were made by Registrar Messner in the mother’s favour for the children to be with her from 3 January 2005 to 29 January 2005.
On 16 March 2005 the mother reported an assault on her by her husband to the police and in April 2005 the mother’s husband visited Dr M, a psychiatrist, whom he had previously seen in 2003.
In April 2005 the mother made an allegation that H reported that U had made a threat to stab him with a knife. During a long hearing this alleged incident got little mention.
In July 2005 the mother and her husband moved from a small house on the W property to the main house.
In September 2005 the father and his wife hire an “Au pair” to assist with household chores and looking after I. They have had two further “au pairs” since that time.
In 2006 J changed schools from J High to Y High School. At the end of the school year in 2005 H concluded primary school at P Primary School. He commenced high school at J High at the commencement of the 2006 school term.
There were again difficulties in negotiating Christmas holiday contact arrangements for 2005/06.
THE APPLICATIONS
There was an issue at the commencement of the hearing as to which party was the applicant. The father filed an application for final orders on 25 February 2004 seeking an order that he be authorised to apply for and receive Australian passports for J and H without the mother’s consent and for an order that he be allowed to take J and H overseas without the mother’s consent upon giving certain notice. The father had also in the same application applied for interim orders in similar terms. Some “pending further orders” were made but the final application was never resolved and remained outstanding. When the matter was dealt with at a pre-trial conference the father was noted as being the applicant. Given that he had the outstanding application for final orders which was filed first in time I treated him as the applicant. The larger issue before me, however, was the mother’s application for change of residence (now an application as to where the boys are to live) which was initiated by the mother on 2 September 2004 in the Federal Magistrates’ Court Adelaide Registry. Her application was amended in September 2004. In November 2004 the matter was transferred to the Sydney Family Court. A children’s representative was appointed on 9 March 2005. An order for the appointment of Dr W as the Court expert was made on 17 June 2005. Dr W carried out his interviews with the boys and relevant adults and other children in September and October 2005 and his first report dated 2 November 2005 was released to the parties shortly after that date.
Upon the application of the Independent Children's Lawyer, on 29 September 2006 I made an order for an updated report. Dr W saw the boys together and separately on 27 September 2006 and 23 October 2006 for the purposes of preparing a report relating to the boys’ current views. That report is dated 30 October 2006.
Father
The father in a document forwarded to the Court on 4 June 2006 and relied upon by him in final submissions sought orders in the following terms:
Proposed orders should the children live with their father
a)The status quo be maintained and that the children remain resident with their father.
b)That the other have the option of an additional contact weekend in whatever place she chooses, each school term to commence from the end of school day on the Friday until the Sunday evening at 8.30pm after an evening meal or by 6pm if she does not provide them with an evening meal. Such weekend contact to be at least four weeks apart from the week of contact.
c)The weekend or contact week chosen by the mother shall not encompass any birthday of the other persons in the father’s household including [S] or father’s day or any long weekend except by agreement of the father in writing. The father to notify the mother of such dates within 28 days of these orders and upon any changes arising.
d)The mother be obliged to give notice before the commencement of a school term of the contact periods she wishes to avail herself of during that term, subject to a minimum of 14 days clear notice of such contact. If she fails to give proper notice the father will undertake to facilitate contact despite her default, provided that the children agree and that other arrangements have not been made meanwhile.
e)That the mother be responsible for organising and paying for all transport in connection with contact visits from either the children’s school or from the place appointed by the court close to or at the father’s home. If contact is to commence elsewhere than from these places, then he apportionment of costs should be agreed by the parties but, failing such agreement, the children shall be returned to [O] prior to the commencement of contact.
f)That the point of “neutral contact” should be the car park at [O] outside the surf club.
g)That the father notify the mother of his understanding of the school holiday dates by 1 January of each year and the mother raise any objections within 7 days or be obliged to abide by the dates proposed. If the father and the mother cannot agree within 14 days, either party may request the services of a mediator appointed by the family court. This service shall be paid for equally by each party.
h)That for one school holiday contact period (not the Christmas holiday period except by agreement) the father may notify the mother by the beginning of the previous school term or within 7 days of booking flights if earlier that children will not be available for contact for that period. The mother then has the option to take the whole of an immediately subsequent or earlier holiday period (but not the Christmas period except by agreement) provided that she gives at least 6 weeks notice of such period to the father.
i)That for one school holiday contact period (not the Christmas holiday period except by agreement) the mother may notify the father by the beginning of the previous school term or within 7 days of booking flights if earlier, that the children will not be available for contact for that period. The father then has the option to take the whole of an immediately subsequent or earlier holiday period (but not the Christmas period except by agreement) provided that he gives at least 6 weeks notice of such period to the mother.
j)That neither parent be permitted to take the children overseas provided that it is not to or via a location which the Australian Government travel website lists as being dangerous and that the other parent give permission without delay for the passports to be made available for the trip and do all things o execute all documents necessary for any reapplication for expired or soon to be expired passports to be renewed. The passports to be returned to the court upon return until the child reaches the age of 18 at which stage it should be passed to the child himself.
k)If either parent notifies the other aren’t that they wish to take the children away for an overseas trip which encompasses the whole of a school holiday period, they shall be entitled to utilise the last week of school term provided that permission is sought and obtained from the school at the same time as notifying the other parent who shall not attempt to block the use of that week for the trip by requesting contact for that week.
l)That the contact periods otherwise remain as per the orders of 2002 an in particular that the Christmas holiday period remain as listed.
m)That school holiday periods shall be defined as starting at 9am on the day following the last day of term and ceasing a 6.30pm on the day before school recommences, taking into account pupil free days.
n)That [the father’s wife] not be present at any times that the mother indicates with the notice of contact periods that she will personally be delivering or collecting the children.
o)That wherever possible the children will be allowed to return direct to and leave direct from their school or home, by public transport if necessary.
p)That the mother undertake not to remove the children from school even for the last hour or last days of term except in the case of sickness or emergency during her term time contact periods except as provided for under para (i).
q)That the mother refrain from sending emails to the father’s work address and only address them in future to [his private email address] or such other address as he may notify her of and that she instruct her legal advisers accordingly.
r)Both parents shall advise the other as soon as practicably possible of any changes of address or contact details.
s)That the mother reveal her telephone number if she calls any phone of the [father’s] household other that those of her two children and that [the father’s wife] be excused from answering those calls.
t)That the mother refrain from discussing contact arrangements with the children except as a result of their direct approach to her until such time as those arrangements are clearly agreed with the father which would normally be taken to be when they are agreed in writing.
u)That the mother make all such approaches re contact direct to the father either in writing or by telephone and not via the children or via her mother.
v)That the mother make all such approaches re contact direct to the father either in writing or by telephone and not via the children or via her mother.
w)Each parent shall ensure that the other has access to all school reports, newsletters and calendars but will not be responsible for actually getting them to the other party.
x)That the mother be required to make good within 28 days of this order the underpayment of her share of the children’s school fees whilst they were at [L] School.
y)That the mother agree to sign a permission for the father to take 100% of the family tax benefit allowance unless she can show evidence that s[h]e would otherwise be entitled to make a claim.
z)That the mother be responsible for all expert costs above the half share of the estimate provided by her solicitor to the court at the application for the appointment of the expert in June 2005.
aa)That the mother be responsible for all legal costs of the separate children’s representative(s) as requested by her. That the legal aid department repay to the father all amounts paid by him in respect of such costs.
bb)That the father not be responsible for any costs incurred by the mother in this case.
Proposed orders should the children live with their mother
a.The status quo be overturned and that the children relocate to South Australia.
b.That the father have the option of two contact weekends in whatever place he chooses, each school term, to commence from the end of the school day on the Friday until the Sunday (or Monday in the case of a long weekend) evening at 8.30pm after an evening meal or by 6pm if he does not provide them with an evening meal.
c.The father shall be obliged to give notice before the commencement of a school term of the contact weekends he wishes to avail himself of during that term, subject to a minimum of 14 days clear notice of such contact. If he fails to give proper notice the mother will undertake to facilitate contact despite his default, provided that the children agree and that other arrangements have not been made meanwhile but he will be liable for all costs of flight.
d.That the mother be responsible for organising and paying for all transport in connection with contact visits from either the children’s school or their home, to Sydney Airport. The mother shall book the flights at least 21 days before the commencement of the contact period and shall notify the father immediately the booking is made of flight arrangements. If contact is to take place elsewhere than from these places, then the father shall be liable for any costs and bookings arising except that the mother shall deliver and [sic] from the children to Adelaide airport if so required. The father shall notify the mother upon booking of departure and arrival times and flight numbers.
e.That the mother notify the father of her understanding of the school holiday dates by 1 January of each year and the father raise any objections within 7 days or be obliged to abide by the dates proposed. If the father and the mother cannot agree within 14 days, either party may request the services of a mediator appointed by the family court. This service shall be paid for equally by each party.
f.That the children have contact with the father for the whole of two of the spring, summer and autumn school holidays and half each of the third school holiday and the Christmas school holidays. The father to nominate to the mother in writing by 1 February each year of the holidays to be taken.
g.That if the mother or the father wishes to take the children overseas they be permitted to take the children out of school for a period not exceeding one week prior to the holiday period subject to the permission in writing of the school(s) concerned.
h.That if the mother wishes to take the children overseas she will be permitted to do so unless the father has already notified the mother of his intention to take the children overseas for the period. The mother will compensate the children by allowing them additional school holiday contact with their father in the subsequent Christmas school holidays for any contact period lost. That the mother be required to notify the father in writing at least by 1 January of any year in which she wishes to take the children overseas.
i.That either parent be permitted to take the children overseas provided that it is not to or via a location which the Australian Government travel website lists as being dangerous and that the other parent give permission without delay for the passports to be made available for the trip and do all things or execute all documents necessary for any reapplication for expired or soon to be expired passports to be renewed. The passports to be returned to the court upon return.
j.That the Christmas holiday period remain as listed per the orders of 2002. The half of the other holiday period shall be arranged as to be the first or second half of the school holidays to be nominated by the father by 1 February of the year in question so as to allow him to co-ordinate with [F], [S], [U] and [I’s] school holidays.
k.That school holiday periods shall be defined as starting at 9am on the day following the last day of term and ceasing at 6.30pm on the day before school recommences, taking into account pupil free days.
l.That [the father’s wife] not be present at any times that the father indicates with the notice of contact periods that he will personally be delivering or collecting the children from the mother’s residence.
m.That the mother undertakes not to remove the children from school even for the last hour or last days of term except in the case of sickness or emergency.
n.That the mother refrain from sending emails to the father’s work address and only address them in future to [his private email address] or such other address as he may notify her of and that she instruct her legal advisers accordingly.
o.Both parents shall advise the other as soon as practicably possibly of any changes of address or contact details.
p.That the mother reveal her telephone number if she calls any phone of the [the father’s] household other that those of her two children and that [the father’s wife] be excused from answering those calls.
q.That the mother refrain from discussing contact arrangements with the children except as a result of their direct approach to her until such time as those arrangements are clearly agreed with the father which would normally be taken to be when they are agreed in writing.
r.That the mother make all such approaches re contact direct to the father either in writing or by telephone and not via the children or via her mother.
s.That the father make all such approaches re contact direct to the mother either in writing or by telephone. The mother will respond in 48 hours or it will be assumed that the mother agrees unless there is clear evidence that she could not have received that approach.
t.That each parent notify the other at least 28 days in advance in writing of any proposed or necessary medical procedures and any changes to the children’s schooling.
u.Each parent shall ensure that the other has access to all school reports, newsletters and calendars but will not be responsible for actually getting them to the other party.
v.That the mother be required to make good within 28 days of this order the underpayment of her share of the children’s school fees whilst they were at [L] School.
w.That the mother be responsible for all expert costs above the estimate provided by her solicitor to the court at the application for the appointment of the expert in June 2005.
x.That the mother be responsible for all legal costs of the separate children’s representative(s) as requested by her. That the legal aid department repay to the father all amounts paid by him in respect of such costs.
y.That the father not be responsible for any costs incurred by the mother in this case.
Mother
The mother at pages 31-42 of her case outline document and in final submissions sought orders in the following terms:
Orders sought in the event the children live with the mother
1.That:
(a)the children, [J] born [in] December 1992 and [H] born [in] April 1994 (“the children”) live with the mother, [Mrs L].
(b)for the purposes of this Order the mother may change the place of residence of the children to her home in South Australia
2.That the children spend time with the father, [Mr G] as agreed between the father and the mother but failing agreement as follows:
(a)subject to subparagraph (b), for one half of each school holiday period (which shall be defined to include any pupil free days) as agreed and failing agreement:
i.in 2006 (including the 2006/07 the Christmas holiday period) and alternate years thereafter for the 2nd half of the children’s school holidays commencing at 4pm on the middle day of such holidays and concluding at 4pm on the last day of such holidays.
ii.In 2007 (including the 2007/08 the Christmas holiday period) and alternate years thereafter for the 1st half commencing on the first day of such school holidays and concluding at 4pm on the middle day of such school holidays.
iii.That the periods of time the children spend with the father referred to in (i) and (ii) hereof be effected as follows:-:
A.The mother to arrange and pay for the children’s flights from Adelaide to Sydney.
B.the father to arrange and pay for the children’s flights from Sydney to Adelaide.
C.Should the father wish the children to be delivered to or returned from a location other than Sydney, he will be solely responsible for and pay for any additional travel costs.
(b)until each child reaches the end of year 11 of high school, the father may, at his election, spend time with the children for 1 entire school holiday period in each year provided:
i.such shall not be the Christmas holiday period;
ii.the father shall give to the mother written notice of his nominated school holiday period by 14 February in the relevant year.
iii.the nominated school holiday period shall commence on the 1st day after the immediately preceding school term has concluded;
iv.the nominated school holiday period shall conclude on the last day before the immediately following school term commences.
(c)at the father’s option, in each school term for 1 full week in the [W] district while the children attend school, provided:
i.the father shall give to the mother 4 weeks written notice of his nominated week;
iii.such nominated week shall not encompass Mother’s Day or the mother’s birthday.
iv.such nominated week shall commence after school on a Friday and conclude by delivering the children to school on the following Friday or, if such week immediately precedes a school holiday contact period, shall continue straight into such school holiday contact period without interruption.
(d)at the father’s option, in each school term for 1 weekend in each term at the location of his choice provided:
i.the father shall give to the mother 4 weeks written notice of his nominated weekend;
ii.such nominated weekend shall commence as soon as practicable after school on a Friday and conclude by the father either delivering the children to school on the following Monday (or Tuesday if a long weekend) OR arranging their travel so that they arrive at Adelaide airport by 8PM on the evening before the next school day.
iii.such nominated weekend shall not encompass Mother’s Day or the mother’s birthday.
iv.that in the event the father exercises such a weekend other than in [W] he shall arrange and pay for the children’s travel.
(e)that for the purposes of these Orders:
i.for periods of time the father spends with the children (“the period” which occur in South Australia:
A.if during a school holiday period, the father shall give to the mother written notice 28 days before the school holiday period commences that the period shall commence or conclude in South Australia thereby not involving flight arrangements.
B.at such times when the period coincides with a school day the father shall collect &/or return the children from &/or to the mother at [W].
ii.for periods of time the father spends with the children (“the period”) which occur outside South Australia:
A.each parent shall give the other 14 days written notice of the flight arrangements for the children.
B.at the commencement of the period the mother shall deliver the children to Adelaide airport to catch their flight and the father shall collect the children from the point of destination;
C.at the conclusion of the period the father shall ensure the children catch the necessary flight to arrive at Adelaide airport for collection by the mother.
3.That the father do all things reasonably necessary to ensure that his wife [Mrs G] does not attend events involving the collection or return of the children for the purposes of spending time with the father where the mother will possibly be present. .
4.The mother shall ensure that at the commencement of any period of time the children are to spend with the father the children have with them their required clothes and equipment for the period.
5.That the father and the children have:
(a) telephone communication by the landline connection in the mother’s home on 3 evenings per week of the father’s choosing at 8pm for 1 hour;
(b) unrestricted email/internet contact
with each other during such times the children are with the mother.
6.That the mother and the children have:
(a)telephone communication by the landline connection in the father’s home on 3 evenings per week of the mother’s choosing at 8pm for 1 hour;
(b)unrestricted email/internet contact
with each other during such times the children are with the father.
7.That the mother and father shall:
(a)not denigrate the other or their partner/spouse in the presence or hearing of the children.
(b)make all reasonable efforts to ensure no other person denigrates the other or their partner/spouse in the presence or hearing of the children
8.That except in circumstances where the immediate welfare of either child is threatened by delay, neither party shall make any decision in relation to the an issue regarding the long-term care, welfare or development (including schooling arrangements, medical procedures or health treatment) regarding either child without first consulting the other parent, such consultations to be:
(a)commenced in writing;
(b)commenced at least 42 days in advance of any key or significant date regarding the issue.
9.That both parents shall:
(a)provide to the other parent as soon as they are received copies of school reports, school newsletters and school calendar(s).
(b)if necessary, authorise the children’s school to communicate with the other parent.
(c)give the other parent 1 month advance notice of parent/teacher meetings and school functions such as open days, concerts, school carnivals, sporting carnivals and awards functions.
(d)advise the other of any changes to their residential or telephone contact details.
(e)advise the other parent of an emergency involving or affecting either of the children, an urgent contact phone number and of any changes to that number.
10.That the father do all things reasonably necessary to ensure that any interactions which involve:
(a)the mother;
(b)the children’s school;
(c)the children’s health practitioners
be carried out by him and not be delegated to his wife, [Mrs G.]..
11.That the parties have liberty to provide a copy of the parenting aspects of these Orders to the children(s) school(s).
12.That each party shall be at liberty to attend the children’s school and the Court notes that such attendance is not is not a period of time spent with the children for the purposes of these orders or is it a breach of any parenting order. .
13.That the parties shall each have responsibility for the daily care, welfare and development during the periods in which the children are with each party respectively.
Orders sought in the event the children live with the father
1.That the children, [J] born [in] December 1992 and [H] born [in] April 1994 live with the father, [Mr G] in Sydney.
2.That the children spend time with the mother, [Mrs L] as agreed between the father and the mother but failing agreement as follows:
(a)subject to subparagraph (b), for one half of each school holiday period (which shall be defined to include any pupil free days) as agreed and failing agreement:
i.in 2006 (including the 2006/07 the Christmas holiday period) and alternate years thereafter for the 1st half of the children’s school holidays commencing on the first day of such school holidays and concluding at 4pm on the middle day of such school holidays.
ii.In 2007 (including the 2007/08 the Christmas holiday period) and alternate years thereafter for the 2nd half commencing at 4pm on the middle day of such holidays and concluding at 4pm on the last day of such holidays.
iii.That the periods of time the children spend with the mother referred to in (i) & (ii) hereof be effected as follows::
1.The mother to arrange and pay for the children’s flights from Sydney to Adelaide.
2.the father to arrange and pay for the children’s flights from Adelaide to Sydney.
3.Should the father wish the children to be delivered to or returned from a location other than Sydney, he will be solely responsible for and pay for any additional travel costs.
(b)until each child reaches the end of year 11 of high school, the mother may, at her election, have contact with the children for 1 entire school holiday period in each year provided:
i.such shall not be the Christmas holiday period;
ii.the mother shall give to the father written notice of her nominated school holiday period by 14 February in the relevant year.
iii.the nominated school holiday period shall commence on the 1st day after the immediately preceding school term has concluded;
iv.the nominated school holiday period shall conclude on the last day before the immediately following school term commences.
(c)at the mother’s option, in each school term for 2 separate full weeks in the Sydney provided:
i.the mother shall give to the father 4 weeks written notice of each of her nominated weeks;
ii.such nominated weeks shall not encompass Father’s Day or the father’s birthday.
iii.such nominated week shall commence after school on a Friday and conclude by her delivering the children to school on the following Friday or, if either such week immediately precedes a school holiday contact period, shall continue straight into such school holiday contact period without interruption.
(d)at the mother’s option, in each school term for 1 weekend at the location of her choice provided:
i.the mother shall give to the father 4 weeks written notice of her nominated weekend;
ii.such nominated weekend shall commence as soon as practicable after school on a Friday and conclude by the mother either delivering the children to school on the following Monday (or Tuesday if a long weekend) OR arranging their travel so that they arrive at Sydney airport by 8PM on the evening before the next school day.
iii.such nominated weekend shall not encompass Father’s Day or the father’s birthday.
iv.in the event the mother exercises such a weekend other than in Sydney she shall arrange and pay for the children’s travel.
(e)that for the purposes of these Orders:
i.for periods of time the mother spends with the children (“the period”) which occur in New South Wales:
A.if during a school holiday period, the mother shall give to the father written notice 28 days before the school holiday period commences that the period shall commence or conclude in Sydney thereby not involving flight arrangements.
B.at such times when the period coincides with a school day the mother shall collect &/or return the children from &/or to their school(s).
C.at such times when the period does not coincide with a school day the mother shall collect &/or return the children from &/or to the father at the park at the end of [V].
ii.for periods of time the mother spends with the child (“the period”) which occur outside Sydney:
A.each parent shall give the other 14 days written notice of the flight arrangements for the children.
B.at the commencement of the period the father shall deliver the children to Sydney airport to catch their flight and the mother shall collect the children from the point of destination;
C.at the conclusion of the period the mother shall ensure either:
1.the children catch the necessary flight to arrive at Sydney airport for collection by the father; or
2.the children are available for collection by the father at a designated place in Sydney (which the Court Notes might be the children’s maternal grandmother’s home at [K].)
3.That the father do all things reasonably necessary to ensure that his wife [Mrs G] does not attend contact changeover events where the mother will possibly be present.
4.The father shall ensure that at the commencement of any period of time the children are to spend time with the mother the children have with them their required clothes and equipment for the period of contact.
5.That the father and the children have:
(a)telephone communication by the landline connection in the mother’s home on 3 evenings per week of the father’s choosing at 8pm for 1 hour;
(b)unrestricted email/internet contact
with each other during such times the children are with the mother.
6.That the mother and the children have:
(a)telephone communication by the landline connection in the father’s home on 3 evenings per week of the mother’s choosing at 8pm for 1 hour;
(b)unrestricted email/internet contact
with each other during such times the children are with the father.
7.That the mother and father shall:
(a)not denigrate the other or their partner/spouse in the presence or hearing of the children.
(b)make all reasonable efforts to ensure no other person denigrates the other or their partner/spouse in the presence or hearing of the children
8.That except in circumstances where the immediate welfare of either child is threatened by delay, neither party shall make any decision in relation to the an issue regarding the long-term care, welfare or development (including schooling arrangements, medical procedures or health treatment) regarding either child without first consulting the other parent, such consultations to be:
(a)commenced in writing;
(b)commenced at least 42 days in advance of any key or significant date regarding the issue.
9.That both parents shall:
(a)provide to the other parent as soon as they are received copies of school reports, school newsletters and school calendar(s).
(b)if necessary, authorise the children’s school to communicate with the other parent.
(c)give the other parent 1 month advance notice of parent/teacher meetings and school functions such as open days, concerts, school carnivals, sporting carnivals and awards functions.
(d)advise the other of any changes to their residential or telephone contact details;
(e)advise the other parent of an emergency involving or affecting either of the children, an urgent contact phone number and of any changes to that number.
10.That the father do all things reasonably necessary to ensure that any interactions which involve:
(a)the mother;
(b)the children’s school;
(c)the children’s health practitioners
be carried out by him and not be delegated to his wife, [Mrs G]..
11.That the parties have liberty to provide a copy of the parenting aspects of these Orders to the children(s) school(s).
12.That each party shall be at liberty to attend the children’s school and the Court notes that such attendance is not a period of time spent with the children for the purposes of these orders nor is it a breach of any parenting order.
13.That the parties shall each have responsibility for the daily care, welfare and development during the periods in which the children are with each party respectively.
Independent Children's Lawyer
At the conclusion of the evidence and at the commencement of her submission, Counsel for the Independent Children's Lawyer sought that the Court make orders in the following terms:-
1.The orders of 2 May 2002 are discharged.
2.The children [J] born [in] December 1992 and [H] born [in] April 1994 shall live with the mother from the commencement of their school year in 2007.
3.Thereafter the children shall spend time with the father:
a. Each year for their entire school holiday between the 1st and 2nd terms;
b. For the first half of their school holidays between the 2nd and 3rd terms and the 3rd and 4th terms;
c. In their December-January school holidays, for the first half commencing in December in even numbered years and for the second half in other years;
d. From Friday evening until Sunday afternoon of the weekend containing Father’s Day;
e. On every long weekend that includes a gazetted Monday public holiday in South Australia and that occurs during school term time;
f. At any time during school terms when the father is in South Australia provided that:
i.The father shall give to the mother not less than 14 days notice of his proposal to spend such time with the children;
ii.Such periods shall not be longer than seven consecutive days;
iii.Such periods shall not include Mother’s Day;
g. In communication by telephone at all reasonable times;
h. In communication by way of e-mail and other electronic means at all reasonable times.
4.Each party shall do all things necessary on his and her part to ensure that while the children are with him or her they are able to maintain communication with the other party.
5.The mother is permitted to enrol the children at [R] College, [W], South Australia, commencing in Term 1 in 2007.
6.The mother shall book and pay for return air tickets for the children to travel between Adelaide and Sydney for holidays between the 1st and 2nd school terms and the December-January school holidays, for the weekend containing Father’s Day and for long weekends, and the father shall book and pay for the children’s return air tickets for all other holidays. In this regard the party required to book and pay for the airline tickets shall:
a. Make such booking and payment not less than 21 days prior to the required travel date; and
b. Immediately advise the other party of the flight numbers and departure and arrival times.
7.The parties shall communicate directly with each other about the children and in particular the father shall not delegate to any other person responsibility for any communication with the mother about the children.
8.Neither party shall make any decisions relating to medical or dental treatment for the children or any other decisions relating to the long-term care, welfare and development of the children including decisions as to their education, or any proposals for overseas travel for the children without first consulting directly with the other party and obtaining the written consent of the other party, and neither party shall unreasonably withhold such consent.
9.In the event of either child suffering illness or injury requiring hospital treatment the parent having care of the child at that time shall inform the other parent as soon as is reasonable practicable and in any event within 12 hours, and shall provide such authorisation as may be necessary for the other parent to obtain information about the child’s condition and treatment.
10.The mother shall hold the children’s passports and if the father wishes to travel overseas with the children as agreed with the mother then she shall ensure that the children have their passports in their possession when they depart from her.
11.The father and mother shall not permit any person to make adverse comment about the other in the presence or hearing of the children.
12.The order for the appointment of the Independent Children's Lawyer shall continue until 30 June 2007.
13.That the parties shall attend on any professional person or persons nominated by the Independent Children's Lawyer for the purpose of counselling and guidance as to how they can conduct themselves as parents and communicate with each other about matters of parental responsibility in the best interests of the children and in order to protect the children from exposure to any conflict between the parties. In this regard:-
a. The father shall within 7 days of the date of this order contact [Ms V] at Relationships Australia at […] to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.
b. The mother shall within 7 days of the date of this order contact the manager or the manager’s delegate at the Family Relationship Centre at [ …] to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.
c. Each of the parties shall attend their assessment at any reasonable location nominated by the service provider and complete the assessment.
d. If assessed as suitable and the service provider nominates counselling, mediation or a program(s) to attend, the parties shall attend (as the provider directs) as soon as practicable.
e. Each of the parties shall ensure the attendance of any other person or persons at any assessment, counselling, mediation or program as directed by the service provider.
f. The Independent Children's Lawyer has leave to provide a sealed copy of this order to the relevant service providers.
g. The cost of all counselling, mediation and programs shall be shared equally between the parties.
SOME FEATURES OF THE PROPOSALS OF EACH PARTY
Father
The father gave evidence that he on average works 40 hours per week. His wife also works 40 hours per week. They don’t take the children to and from school every day. The children often catch a bus.
The father’s wife agreed that a number of new branches of their accountancy business had opened since June. The aim in opening these branches was to work less hours and have more free time.
The father denied that he worked more than 40 hours a week. He did however give inconsistent evidence as to how late he works at night after the children are in bed. He said he works odd hours, normally commencing about 9am after the children have been got off to school. There would be a break at about 3 when he and his wife go and pick I up. He gave evidence that there is often enough time in the afternoons to involve himself in the children’s activities by way of bike rides or occasionally golf with J. He did concede that he could be interrupted by home calls in the afternoon when he is playing with the children. The children were in bed at 8.30 to 9.00pm. He originally said that he might work until midnight or 1am in the morning after the children were in bed at 8.30 to 9pm. Subsequently he said that he would work to 11.00pm.
The father says he is fit. He plays squash and golf. The boys play sport with him both externally and in the backyard.
The father gave evidence that he and his wife would once a month spend time away from Sydney of two nights and two days. During this period of time the children would be minded by the live in au pair or an employee of the business who would come to the home.
The father later gave evidence saying that the normal trip to Queensland started after the kids went to school on a Monday and they were home by Wednesday evening. Accordingly even though they were away for 2 ½ days they were actually only away for two nights (Monday and Tuesday) and two mornings (Tuesday and Wednesday).
Mother
The mother said that she had been in W four years. She loved it there. She described her school term day which can be summarised as attending to N, home duties and community work. On weekends there is farm work as well. She said she wouldn’t go out more than one or two week nights a week and on those occasions her husband would usually look after N. There also has been an 18 year old babysitter, Z, and now a woman by the name of A who is the mother of one of the children in N’s school. The mother described herself as having a large number of supportive friends and contacts in the W region. Her husband, is mainly friends with people who are involved in farming activities. There is a Sudanese refugee couple who live in a cottage on the land who provide some assistance. The father plays golf, goes to the AFL and works on old cars on the property. He likes fishing and the beach. The father is fit, he runs most mornings and the mother also on occasions runs around the farm. The mother makes jams from the fruit trees using a recipe her mother-in-law gave her.
The mother described J’s interest in tinkering with old motor vehicles which have been parked on the farm property from the 1920s.
Both the boys have helped with farming activities such as “tailing” the sheep.
The mother gets $400 per fortnight for herself by way of her own allowance and they are fairly frugal in relation to their expenditure for food (about $150 - $180 a week). If J and H are there it would be more. She has recently employed a cleaner to help her with the big house. Her husband does his owns clothes. N normally eats with the mother and her husband at 7.30 non daylight savings, 8pm daylight savings. Sometimes on very rare occasions (3 or 4 times) it has been 9pm. N normally has a big breakfast cooked for him by his father, tomatoes, bacon, mushrooms and eggs plus Weetbix. He has a packed lunch or a lunch order and they have an evening meal.
The wife said in April 2004 the boys spent a couple of days in the festival office during the W festival that year. She proposes the boys will have some involvement in community activities when in W.
The mother will give up some community activities but not all. She commented that the boys enjoy community activities. She gave as an example that J built a website for one of the community activities.
The mother was asked questions about the configuration of the houses on her property. There is a workman’s house about 2-300 metres away and there is a neighbouring farm house about 400 metres away.
The mother’s proposal is the mother would generally take the children to school. Her husband would pick them up from school some days.
The boys have available to them in W the “maid’s cottage”. This is right next door to the main house and has three broad band computers in it.
Up until this year when the mother has come to Sydney, N has normally come with her. This year when she has been away her husband has looked after him. The number of times that N has been left with the father has been fairly low.
It would be possible for the father to come to the home. She said that there had never really been any problem between her and the father when his wife was not around. She said they got on very well together when his wife was away overseas with the father coming to her house to pick the boys up in a fairly flexible arrangement. At this stage she wouldn’t want his wife coming to the farm but had no problem with the father coming to the farm.
ORDERS OF MULLANE J
Mullane J made the following orders on 2 May 2002:
1Any existing residence or contact orders are discharged and the children [J] born [in] December 1992 and [H] born [in] April 1994 are to reside with the father.
2The children are to have reasonable contact with the mother while she resides in Sydney.
3While the mother resides in South Australia the children are to have contact with her as follows:
a) reasonable contact by telephone, e-mail and letters;
b) contact for the first half of each of their school vacations commencing in an odd numbered year and the second half of vacations commencing in an even numbered year; and
c) at the mother’s option 1 week of contact in Sydney in each school term subject to the mother giving the father at least 2 weeks notice in writing.
4School holiday contact is to be implemented by the boys flying to South Australia except that if the mother is unable to arrange for the maternal grandmother or some other suitable person to accompany the boys on any forward or return flight prior to 31 December 2003, then the period of contact is to take place in Sydney.
5The mother is to pay the air fares of the boys and any accompanying person for contact in South Australia under paragraph 3(b).
6The mother has responsibility for decisions as to the care, welfare and development of the children during contact and the father has that responsibility at all other times.
7Order 1 is a residence order and is to incorporate and have attached to it the standard document used by the Registry to set out the particulars of the obligations that residence orders create and the consequences that may follow if a person breaches a residence order.
8Orders 2 to 5 are contact orders and are to incorporate and have attached to them the document used by the Registry to set out the particulars of the obligations that contact orders create and the consequences that may follow if a person breaches a contact order.
9Order 6 is a specific issues order and is to incorporate and have attached to it the document used by the Registry to set out the particulars of the obligations that specific issues orders create and the consequences that may follow if a person breaches a specific issues order.
10Otherwise the application of the mother filed 24 December 2001 and the response of the father filed 21 January 2002 are dismissed.
11The proceedings are removed from the Active Pending Cases List.
RICE & ASPLUND
In order for the mother to succeed in her application for change of residence, the Court must find that there has been a significant or substantial change to justify such a serious step. There needs to be strong grounds (see Rice & Asplund (1979) FLC 90-725; Griffiths & Griffiths (1981) FLC 91-064; Bennett & Bennett (1991) FLC 92-191; N & R (1991) FLC 92-252; D & Y (1995) FLC 92-581; King & Finneran (2001) FLC 93-079; Bolitho v Cohen (2005) FLC 93-244; F & C and the Child’s Representative [2004] FamCA 568). There has to be more than time that has passed in order for the Court to re-look at the matter.
At the commencement of the trial Counsel for the mother outlined the changes that she relied upon to include:
60.1.The views of the children;
60.2.The relationship that has emerged between the children and the father’s wife;
60.3.The relationship which has developed between the children and Mrs G’s children;
60.4.The children’s changes of school;
60.5.A change in the husband’s parental capacity so that that capacity has been diminished by his wife’s control and involvement with the children;
60.6.The incident leading to assault charges that took place in May 2004.
I exercised my discretion in this case not to deal with the Rice and Asplund threshold issue as a discrete preliminary issue but rather consider it after hearing all the evidence. This was because, although there had been a clear change of views of the boys on the face of Dr W’s evidence, it was the father’s case that these views should be heavily discounted,
A number of firm proposals that the father put to Mullane J were not honoured.
The mother claims that the father gave an unqualified assurance to Mullane J that he would never entertain moving the children from L School and he did without her knowing.
Mullane J at paragraph 261 of his judgment records the following:-
“The father proposes that the boys would continue to attend [L] School at [E], which is an Anglican school. They have been there since the beginning of 2001 year school and in his affidavit he swore that he would be very concerned about any changes to their educational arrangements at this stage. The father swore that ‘under no circumstances would I involve the boys in a change in school in the event that the Court determines that they live in Sydney with me. Maintaining continuity at their current school and in the area in which they have grown up is very important for them so far as I am concerned’.”
The father conceded that that was his evidence as at February 2002 and conceded that he had changed J’s school twice since then. H was moved from L School prior to the conclusion of his primary school. He conceded that it was possible that H would change schools again shortly (although he gave evidence that he hoped that H failed the selective school exam for Y High).
Whilst the explanations given by the father for not complying with what he had promised Mullane J he would do about the boys schooling are less than convincing, the failure of his assurances in this area alone would be insufficient to satisfy the threshold test.
The father gave assurances to Justice Mullane that communications with the mother about the children would be done by him personally and without his wife being involved.
At paragraph 204 of Mullane J’s judgment in May 2002 he says:
“Certainly the mother in her correspondence is at times quite provocative and offensive. But such responses are foreseeable and almost inevitable given the father’s delegation of such responsibilities to his wife and his wife’s unfortunate manner.”
At paragraph 301 of his Honour’s judgment he again refers to the father’s incredible insensitivity in delegating the responsibility for correspondence about the children with their mother to his wife.
Mullane J at paragraph 358 made the following finding:-
“The father has in the past failed to provide for the children’s needs for easy and cordial communication between the parents. Instead he has offended and provoked the mother by delegating such responsibilities to [his wife]. From the evidence, both parents have the capacity to deal directly with the other in a way consistent with the children’s needs. It appears from his cross examination that in future the father will ensure that communications with the mother about the children are done by him personally and without [his wife] being involved. If he fails to do that, the mother can easily apply for a Court order to require him to do so, as she could have done in these proceedings.”
At paragraph 365 of his judgment, Mullane J says:-
“[The husband’s wife’s] arrogant manner in her dealings with the mother and lack of insight into the children’s needs to avoid the conflict that resulted from that and the father’s conduct in delegating to her the dealings with the mother are inadequacies in her parenting capacity. But the problems in this regard are likely to be overcome by the father undertaking the responsibility for all communications with the mother about the children, as he should have done.”
Notwithstanding the comments of his Honour, the father has not done much to take the unpleasant tone out of many of the emails sent since 2002. The father told the Counsel for the Children’s Representative that his future intention is to be the sole author of any future written communication about the boys with their mother.
The father says that he now reviews all correspondence and intended in the future to soften what his wife writes. He however said that his recollection of correspondence was not very good. He would now edit nasty comments, he would review things that his wife had written, he would take out inflammatory paragraphs. He however said that didn’t necessarily mean that some of it still did not slip through and the wording has to be seen in the context of what had been sent by the mother.
The father represented to Mullane J (paragraph 264 of the judgment) that he or his wife would be home when the children came home from school and probably they both would be. That assurance was given to his Honour prior to the opening of the Queensland branches of the accountancy business. The father agreed that he and his wife are now away two nights a month. They travel alone. I is also minded by others whilst they are absent.
I deal with relationships later. I also deal with the May 2004 incident later. The May 2004 incident is the high point of the animosity between the mother and the father’s wife. These matters may have coloured the boys’ current views.
It is, however, the boys’ current views which allows the mother to satisfy the Rice and Asplund test. I deal with the boys views in more detail later but, in summary:
1.H continues to strongly express a view that he wishes to live with his mother. This was the case before Mullane J. His Honour discounted his wishes because of his then level of maturity and what His Honour then found to be ambivalence in his wishes. He is now over four years older and still expresses the same view, without any ambivalence.
2.J has changed his view from the one he had four years ago and now prefers to live with his mother.
Given those matters and given my findings as to the weight that needs to be given to the current views of the boys, I find it is appropriate to relook at where the boys should be living.
CREDIT
The father, his wife, the mother and her husband were all, at times, unconvincing in the evidence which they gave.
Father
There were a number of occasions during the father’s evidence when he was unable to remember things.
The Independent Children’s Lawyer inquired of the father as to whether or not he thought he had any medical problem given there were a number of times during his evidence he could not remember things. The father indicated that he believed that he was in very good health. He is the number one squash player in a competition team and played golf and surfed and swam regularly. The father’s oral evidence had completed at the end of the first week. The father undertook to undergo a medical checkup before the resumption of the hearing and to present the results of that medical checkup to the court. That did not happen. The father performed better when conducting his case in the second and third week of the hearing. He was however, during that time assisted by his wife and was prompted by a large amount of preparation on his laptop.
In his affidavit in reply the father said that he was insulted by the Independent Children's Lawyer when it was suggested to him that he had a serious deficiency in his long term memory.
The father gave evidence that he was just recovering from the flu prior to the commencement of the hearing and that he had had “two days of cross examination without any sleep”. I am satisfied with the husband’s evidence that apart from his inability to remember specific details on quite a number of occasions, he is otherwise physically very well.
In the proceedings before Mullane J, the father gave the following evidence at paragraph 29 in an affidavit that he swore on 20 February 2002:
“Our home is only 10 minutes drive from the mother’s residence at [H] and about 10 minute drive to [J] and [H’s] school. [J] and [H] initially attended [H] Public School but moved to [L] School at [E] in January 2001. At some time they made new friends and have progressed well at [L School]. I would be very concerned about any changes to their educational arrangements at this stage.”
The father suggested in sworn evidence that the distance from O to L School was approximately 6 kilometres.
The father’s evidence before me was that actually the trip from home to L School was about a 35 minute bus trip. What flows from that is that the evidence he gave in writing in the first hearing, as set out above, was inaccurate.
In the adjourned period the father checked it. The distance was 16 kilometres. The father’s explanation is that his original evidence was “badly put”. That is a less than satisfactory explanation.
In September 2002 the mother was out of the country. The father made an interim application to obtain the boys’ passports which had been surrendered to the Court by the mother. In the application filed by the father he made a statement in the following terms:
“The respondent is presently overseas and is uncontactable – presently in Egypt.”
The application was signed by the father and dated 3 September 2002.
On 27 August 2002 the mother had sent the father an email message from overseas. On 30 August 2002 the father had replied to the mother (see page 51 of mother’s affidavit). It was put to the father that he was in communication with the mother and the representation he had made to the Court that the respondent was presently overseas and uncontactable was a deliberate misrepresentation. The father (as he did on many occasions during his cross examination) alleged that it was more than likely that his current wife had written the emails.
The representation however made by the father to the Court must have been made in my view in circumstances in which he was aware that he could with not little effort, contact the mother overseas. The father then offered the explanation that the passports were needed to take the boys on a trip to Malaysia. This trip was a spur of the moment decision and he asserted that there wasn’t sufficient time to contact the mother. I find that the father’s representation to the Court that the mother was uncontactable overseas to be untrue. I find that the father’s explanation as to why he said that to the Court to be implausible.
A lot of the father’s written evidence is tainted by the fact that there is a significant blurring as to whose work it is. It is clear that his wife has had a hand in preparing the material that the father has sworn. He said that he and his wife did the affidavits together. He made sure it was right when his wife had finished it. She had written parts of it. They work at two desks next to one another in their study which is separate from the house and they help each other. They are very alike and they always do things together. It was put to him that the court would not be able to know from his affidavit which parts had been prepared by him and which parts had bee prepared by his wife. He agreed with that but said that he had read his affidavit over at the end and he was satisfied that it was correct.
The mother conceded that J might be sad and need some time to adjust after his move to Adelaide. She however said that he is mature and adaptable and would have her and her husband as emotional support. If the children miss their father she would encourage them to talk to their father and reassure them. She also intends to involve them in activities at H School and in the W to give them a focus on settling in their new place.
She was asked what would happen if H got homesick for Sydney. The mother said that she expects that H will miss some aspects of the father’s household. She confirmed that H has a close relationship with I and the family dog (“and of course his dad”). She would deal with this by encouraging H to talk to his dad, and a school counsellor.
She said that if the boys came to live in Adelaide and then one or both of them expressed a further wish to return to Sydney she would try to listen to what the boys’ feelings were and she would try to do what was best for them. She thinks they are mature enough to make decisions about where they want to live. She would contact their father and try and talk things through with their father to reach a solution which was in the best interests of the children.
The father is attempting to argue that the demands on both him and his wife in relation to money and time are such that there will be a dramatic drop in the amount of time that the boys are able to spend with the parent with whom they do not ordinarily live, if the boys go to South Australia..
Those assertions have to be seen against a background where the father and his wife are spending 2 ½ days in Cairns at least 10 months out of every 12. These trips take them away from Sydney and away from their ability to parent in a hands on way. Their responsibility for supervision during these times is left with others.
The father and his wife still seem to have real time away on holidays. At the time of hearing there was a significant road trip planned that would have the family travelling from Sydney across to the coast of Western Australia and then coming back across the Nullarbor Plains. This trip is relevant to the issue of the frequency of future time that H and J will spend with their father.
The mother proposes to re-enter paid employment in a more meaningful way. This, combined with N now not being able to travel to Sydney in school term time means she would probably be coming to Sydney less often, if the boys remain living in Sydney.
The reality is that the boys will probably, in the future, spend less time with the parent with whom they are not ordinarily living whichever parent they live with.
Dr W opined that the boys would cope quite well with a move to W. I conclude that the boys are mature enough to cope with the downsides of a move to Adelaide and that their mother is sensitive to possible problems and has thought through how she would deal with them.
(e) The practical difficulty and expense of the children spending time with and communicating with a parent and the effect on personal relations and direct contact with both parents on a regular basis.
At the moment the mother pays everything to do with the costs of airfares under Mullane J’s orders.
There is an issue between the parties as to how the costs for transport for the boys between Sydney and Adelaide should be paid. The mother’s application is that the costs be borne equally by the parties. The father’s application is that the mother pay them entirely. The mother conceded that if the court found the father did not have a capacity to pay then she had that capacity. The mother’s husband conceded that he was a wealthy man and had the financial resources and intention to support the mother in the cost of airfares.
The father’s position that the mother should pay the entire costs was based on his assertion that he did not have the ability to make the payments. He was examined in relation to his financial circumstances.
I asked the father to make an estimate as to how much would be one half of the travelling expenses for the children. He said the cost of airfares for the two boys would be $240 each one way trip in total. Under the orders proposed by me there could potentially be 12 periods of contact in Sydney and 24 air flights by each boy each year. The overall costs would therefore be in the sum of $5,760.00 ($240 x 24).
The father agreed that in 1999 he had income of $300,000 pa and net assets of $1 million.
The father agreed that he and his wife had taken $205,000 in drawings for personal expenses during the 2005 year. He said however that some of those expenses would have related to payment for negatively geared properties.
He had not filed any written material in relation to his financial circumstances. His most recent tax return (2005) was tendered in evidence and is exhibit 6. The father’s personal notice of assessment for year ended 30 June 2005 shows that his taxable income was nil. It shows that he made $71,877 by way of capital gains from the sale of assets and that he owed the Tax Department $512,251.
The father gave evidence that the source of his financial troubles are retrospective assessments made by the Australian Taxation Office relating to a scheme involving mass marketed arrangements which whilst thought legal at the time they were entered into by the father, were subsequently challenged by the Australian Tax Office. The assessment of $512,251 contained on the father’s 2005 notice of assessment reflects the initial retrospective assessment by the Tax Office going back to 1994.
The father said that between 1994 and 2000 he was very wealthy. In the early 2000s the problem occurred. There was a court case where a compromise was reached. The father says he now owes $260,000. The Australian Tax Office have entered into an arrangement with him where he can trade out of that debt.
The father said that there was another Court case involving a former employee at the I office. The father alleges that that person owes $300,000 to either him or his company and that the father has spent $60-70,000 on legal fees in relation to that case.
The entry on the family website for the father says that he specialises in audit, taxation, business advisory services and is a Fellow of the Institute of Chartered Accountants in Australia. He graduated from University in the 1970s and holds a Bachelors of Economics degree. He is a registered company auditor and tax agent and advisor. Although he says that he was responsible for a large number of company audits, in evidence he asserted:-
“I am not very good with numbers”
He described himself as a person who looks at the big picture and it is mainly his abilities in that area that he sells to clients. He said that if he went to work for someone else then he would expect a minimum salary of $150,000 pa (that was on Thursday of the first week of the hearing). On Friday during cross examination he volunteered that men of his age cannot get work in the industry unless they work for themselves.
In his affidavit in reply the father sought to correct a number of things that he had said about his financial situation. He advised that he had only $4,000 in superannuation. He sought to retract the statement that he had a potential earning capacity of $150,000 saying that he had since made inquiries it was unlikely he could get a job at aged 56. That in fact was consistent with his earlier evidence that he would be unable to earn $150,000 if employed but that was his earning capacity if he worked for himself.
In his oral evidence the father agreed that he owned, with his current wife, interests in six accountancy offices located in Sydney CBD, regional NSW and Queensland. Between the first and second hearing the business had expanded further. He agreed he was a director of eight companies but said that only two of them traded. They were U Pty Ltd, which was the main trading company and R Pty Ltd, which was a service company that provided services to the main trading entity. In June 2006 the group had about eight accountants or managers and about twenty employees.
It appears from exhibit 6 that the turnover of U Pty Ltd for the June 2005 financial year was $712,486 (including $120,000 in rent), management fees of $820,845 were paid to the associated entity. Overall the operating loss for the main trading entity was $287,084.
The father has interests in three properties in Australia at the date of the first week of the hearing. He had about $100,000 equity in a property at B. It was heavily negatively geared. He said its value was about $1.2 million and he had a 50% interest in it. The interest bill that he paid on an annual basis in relation to B is $41,000 per annum (that is in relation to a negatively geared investment in respect of which he had an equity of $100,000). I find that the father could divest himself of his interest in B so that he no longer had an outgoing on an annual basis of $41,000 in relation to that investment.
The father lead no evidence as to why he couldn’t dispose of his equity in B. Whilst acknowledging that it wouldn’t improve his financial position to the extent of $41,000 per annum because of the negative gearing effect of that interest deduction, it would clearly provide him with sufficient income to cover half the transportation costs for the children.
The father has another property at M which has an equity in it of about $50,000. He has a third property at D in Sydney which is worth about $1.5 million with a mortgage of about $1.2 million. His equity is therefore in the vicinity of $300,000. At the date he gave his evidence, he recently sold a property in S for $410,000 but his evidence was that the whole of those funds went towards paying collateral mortgages, tax and other debts and there is no other funds available from that sale.
The mother said she wished to re-enter the paid workforce part-time in South Australia.
The mother confirmed that her husband would like the mother to re-enter the workforce part time.
When asked what she would earn if she worked full time in Adelaide she said probably about $50,000 per annum. The trip would be 40 minutes to an hour each way from where she is living.
The mother owns a property at H in Sydney which is worth about $650,000. It has a mortgage of about $150,000. She is receiving $18-20,000 rent from that property each year. She has shares that her husband gave her on the birth of N. Those shares are worth about $120,000 and she receives income of about $7,000 per year from that source.
She has recently in her own name purchased an investment property in W for $250,000. The borrowing on that property is $260,000. It is at the moment available for holiday and executive rental. The income that she has received from that property so far as been sufficient to pay the outgoings including interest on the borrowing. It is currently therefore not negatively geared.
The father’s wife is a woman of some means.
She is the head of her family in the United Kingdom from a financial point of view. She is expected to go to the United Kingdom every so often to administer affairs associated with her family’s estate. Her father used to be the chair of a retail chain in the United Kingdom.
It was put to the father’s wife that she had been able to travel overseas. She said that whilst she had travelled overseas on five occasions during the last five years, two of those occasions related to attending the United Kingdom on the occasion of the death of her mother and on the occasion of a memorial service for her mother.
The father’s wife owns properties overseas and earns income from them. The father gave evidence that her UK income was $64,000. The father’s wife’s evidence put that income higher.
The property in which the father and his wife live at O is registered in the name of the father’s wife. The father estimates that its value is approximately $1.5 million with a mortgage of about $900,000. That is, there is an equity in the O property of about $600,000.
The mother’s husband has wealth and will support his wife in the cost of contact if I find the father is unable to make payments.
The father estimated that the loss from his accounting operations in the year ended 30 May 2006 was approximately $150,000. There is no documentary support for that assertion but I accept that the focus that he and his wife have had on this case has created a substantial disruption to their earning capacity. I have no doubt that the father’s earning capacity will trend up towards former levels once the substantial disruption of this litigation is behind he and his wife.
The father has not satisfied me that he does not have the capacity to pay one half of the travelling expenses, either from his capacity to earn or his capital.
My order will require the parties to pay one half of the airfares. The father will have to pay any costs he incurs relating to any time he spends with the boys under order 4.10.
H school fees
The mother gave evidence that she would be paying all the school fees in relation to H School unless she was able to obtain some contribution from the father. There was no application under the Child Support Assessment Act before me.
(f) and (i) The capacity of parents and others to provide for needs of the children (including emotional and intellectual needs); the attitude to the children and to the responsibilities of parenthood
Both the mother and father are capable parents. Both parents can provide for the material and intellectual needs of the children. The father has a passive personality. Despite the father’s wife’s evidence to the contrary, I find that she is the dominant parent within the father’s household. I find that the father’s wife has a much more defining influence on virtually the full range of matters related to the boys than is usual for a step-parent. She has taken the initiative in dealing with the conflict between the parents.
As Dr W points out, in circumstances where a step-parent has taken the role that the father’s wife has, the problem is that a factor which often brings a degree of reality back into biological parents’ conduct in relation to areas of disagreement with an ex-partner is no longer present. That factor is an overriding and intuitive concern for the children’s welfare based on a blood tie. When this factor is relatively absent, it is less available to put a brake on behaviour which leads to an escalation of conflict between the parents which is harmful to the children.
Some time was spent during the hearing discussing the boys’ trip back from Frankfurt in April 2004. There were two questions. Had the father provided them with a change of clothes and had he treated them for head lice?
The mother in paragraph 62 annexes as annexure U an email that she sent, although it is referred to as annexure U in paragraph 62 it is actually annexure V. That email says “as you are also aware, when you return the children to me from their overseas trip, both were AGAIN infested with head lice, they arrived from a 2 day journey from Frankfurt in shorts and a t-shirt with no luggage, no change of clothing, no change of underwear – just a plastic shopping bag containing a few toys”. The response in exhibit F was in the following terms:-
“[H] complained of having itching at the back of his head a day before he left Frankfurt. If it was lice we were not in a position to treat him. I would have assumed that the spray on the plane when it arrived back in Australia would have killed any lice. Anyhow, you treated the children 10 days after they arrived with you in April. If it was so easy to detect, why did you leave it until “[N] and other members of the household” were infected?
The children left Frankfurt in clean tracksuits with clean t-shirts underneath. I understand from the children that when they arrived at your mother’s house, she changed them into shorts and t-shirts. I have no control over what she chose for them. They were not distressed or smelly on the flight from us according to them. Were did you get this idea from?”
The maternal grandmother was asked what she remembered about the boys’ return from Frankfurt. Her evidence wasn’t particularly clear as she wasn’t absolutely certain as to what occasion this was. Doing the best she can she thought that this was an occasion where she met the boys at Sydney airport and they stayed there for some time (and possibly saw a movie) until their flight from Adelaide was available. On this occasion (if it was the Frankfurt occasion) the boys had arrived in summer gear notwithstanding that it was cool at the time. She said they had no extra clothing. They had a plastic bag with them but she didn’t really remember what was in it. She also remembered that they had nits that had to be got rid of because she caught them. She said that it usually was the case that the boys had nits.
On balance I don’t accept that the boys were sent with a change of clothes from Frankfurt. The flight from Frankfurt to Sydney was about 24 hours. The boys arrived without an adequate change of clothing and with head lice.
More generally in relation to the father’s capacity to deal with the issue of head lice, the mother said that J and H had head lice on each occasion they had come from contact in Sydney except for one or two occasions.
Counsel for the mother referred the father to a statement made in an email by his first wife R dated 1 February 2006 about S having head lice. She says:-
”[S] has once again returned home with head lice after his holiday with you. Fortunately we still had a bottle of Head Lice treatment in the bathroom, left over from the other 26 occasions when this situation eventuated and so he was THOROUGHLY treated (AS IN THE PAST) before attending school on Wednesday. Every child becomes a “victim” to these annoying infestations once or twice throughout his school life. However, we have never heard of such long-term problems unless a carer has not been responsible enough to treat the child meticulously and in the proper manner. Anything else is failing in one’s duty of care. You and [your wife] obviously now fall into this category as [U] and [I] have an ongoing problem with head lice. If they were being treated properly, the situation would not keep recurring. We are totally disgusted and repulsed by this whole scenario. It has got to stop and we mean NOW. Start acting like responsible parents and get off your collective butts and clean these poor kids up.”
The father said that the reference to 26 times in his view was an exaggeration. He said that he had children going to five schools and it just wasn’t easy to clean up the head lice. The father however gave no evidence as to what he was actually doing to address the recurrent problem.
I accept the grandmother’s evidence that the boys had a chronic problem with head lice in their father’s household. I am reassured in that finding by the document written to the father by his first wife.
I find that more could have been done in the father’s household to control head lice for the boys.
The mother’s capacity as parent has also been impaired by the reaction she has had to Mullane J’s orders. This has led her to overstate problems in the father’s household. The grandmother said her daughter was very upset to the extent of being distraught at the Mullane J judgment. She accepted that she was still upset and angry. She however did not describe her daughter as being bitter. Exhibit J is a letter dated 2 March 2003 containing a serious list of complaints about the standard of care and supervision of the children in the father’s household. The allegations were serious enough to move the principal of L school to write a notification to Y DoCS to fulfil the mandatory reporting requirements. The principal indicated in the letter to DoCS that a number of the complaints made by the mother were unfounded.
Specifically in March 2003 the school confirmed that J seemed to be a little unhappy and unsettled and unfocused in class but that the father had been supportive at a parent/teacher interview. There was no confirmation by the school that H was getting bad headaches and feeling sick at school. The principal confirmed that J was sometimes tired in class but not all the time. A problem with J’s homework was highlighted but the principal indicated that that problem was currently being addressed by the family and some improvement was evident. The allegations by the mother that both children had reported that they had been sent to school without breakfast and with no packed lunch or money and that J said that he had asked his teacher for money to buy food and H had said that his friend had given him food were not confirmed. The principal reported the teachers were not aware this year of any difficulties with the children not bringing lunch or lunch money to the school
The mother complained that the children’s personal hygiene was being neglected and that weeks went by when the children did not bath or clean their teeth. The principal responded that he was not aware of a problem in personal hygiene with either boy although the boys are at times scruffy in appearance.
At the time the complaint was made the father’s wife had just given birth to I who at the time the complaint was made was less than 3 weeks old.
The principal indicated that the father had initiated discussions in relation to J’s progress.
The effect of the letter from the principal was for him to comply with the obligations that are imposed upon him once he had received the mother’s letter but to indicate to the Department that in his view there was no significant substance to some of the serious complaints contained in that letter.
The mother’s evidence in relation to providing the father with the children’s personal effects at the time of the transition is less than satisfactory. I find the mother was deeply affected by the orders that Mullane J had made. She was not necessarily focused on making the transition as smooth as possible. Whilst I accept that there is something in her evidence that rooms in South Australia had to be furnished and that the boys choose and took what they wanted, I find that the mother did not go out of her way to give over to the father any significant amount of the boys clothing and personal effects.
In 2002 the boys found the transition to their father’s household difficult. I accept that the mother’s evidence at paragraph 36 of her affidavit which is an example of J’s emotional reaction in separating from his mother after contact on 12 December 2002 is accurate.
Exhibit P is a file note from a school file. There was some controversy as to which school file it had come out of and the father told me from the bar table that although it was from the P Primary School file it was actually notes written by L School. The author of the document seems to be … . The document consists of two file note entries. One dated 12 November, the other probably dated 13 October 2003 (although it is slightly unclear).
The cross examination related to the note of 12 November 2003 which is in the following terms:-
“P/C to [the mother]:
Boys coped OK with return to Sydney. Distress settles quickly during plane journey. Ok by time reach home.
Children are distressed by not seeing mum when they were expecting to. Mum says she is upset by this also but feels that ex husband and children’s step mother obstructive to this. Children need to know when they will see mother and have this happen as planned – coping strategy for dealing with the separation.
Wants more contact with children. Wants children to live with her. Preparing to go back to court to change parenting orders – primary residence with mother or more time with children in Sydney.
Not helpful for children to know this – uncertainty – stressful and unsettling.”
It was put to the mother that this note indicated that she had discussed with the children her plans to make a new application to the court to change the parenting orders and had been told by the school counsellor that it was not helpful for the children to know this and them knowing that created uncertainty and it was stressful and unsettling for them.
Although I indicated that that was my original interpretation of the note I agreed with counsel for the mother that the note was ambiguous. The sworn evidence by the mother was that she had not spoken to the children about her intentions to make a court application at that time and she had no memory of the court counsellor speaking to her about the effect on the children if they knew about her preparations to go back to court to change the parenting orders.
Whilst on balance I find it is likely that the school counsellor did have a conversation with the mother about that topic, the last line of the counsellor’s note is more likely to be a warning to the mother against future disclosure to the children of her intentions rather than a historical record of something that has already happened.
Exhibit Q is a email by the mother to the principle of P Primary School. It relates to H. It is dated 5 February 2005 and says in part
“The reason for my email is that I am very concerned about [H]. He seems to be very withdrawn and almost depressed.
When his grandmother spent time with him the other day she also noticed marked changes in him.
Would it be possible to arrange for the school counsellor to spend some time with him?
I think he really needs some support and someone to talk to. Maybe to help him with some coping strategies.
Could you please pass on my contact details as I would be grateful if the school counsellor could give me a call to let me know how he is going and what I might be able to do to help him.”
It was put to the mother that what she was doing in November 2003 and in February 2005 was communicating with the school in a way that would create material that she could usefully use in the litigation. The mother denied that that is what she was doing. Her evidence is that she at those times had a genuine concern for the way the children were coping and that was the sole motivation for her preparing those communications. I accept that was her subjective view.
Whilst the mother has overstated the problems for the boys in the father’s household, I accept Dr W’s opinion that the boys are comparatively more relaxed in their mother’s home. It is this comparative comfort which underpins their expressed views.
(g) The maturity, sex, lifestyle and background of the children and of either of the children’s parents
I have dealt with the issue of the boys maturity when discussing the weight to be placed on their views.
(h) If the children are an Aboriginal child or a Torres Strait Islander child, the children’s right to enjoy his or her culture.
This is not a consideration in this case.
(j) Family violence
This topic has been covered in the discussion of the second primary consideration.
(k) Any family violence order
There is no current family violence order.
(l) The order that would be least likely to lead to the institution of further proceedings
In my view the orders that I propose are no more likely than the orders sought by the father to put and end to the litigation between the parents.
(m) Any other fact or circumstance
There is no other fact or circumstance that has not been dealt with elsewhere.
CONCLUSIONS
The views expressed by the boys are very weighty in this case. Whilst Dr W refers to some ambivalence by J, his current preference is clear. J is a thoughtful and mature adolescent. His views have to be listened to carefully. H has always had a clearly expressed view that he wants to live with his mother. I accept Dr W’s opinion that these views now should be accepted “at face value”. The boys, and particularly H, will be more content living with their mother.
The father’s case is that the boys don’t know what they are getting themselves into by expressing the view that they wish to live in W given the significant risks in the mother’s household.
I have concluded that the mother’s current level of use of alcohol, her husband’s mental health and any past incidence where he has shown aggression do not pose any unacceptable risk to the boys living predominantly in the mother’s household. The wife’s husband adopts a more appropriate approach to the role of step-parent than does the husband’s wife.
PROPOSED ORDERS
I have been invited to make orders which are unusually prescriptive. Dr W suggests that given the history this level of detail is appropriate in this case. Two parents functioning in a healthy way in a post separation environment would not need this level of prescription. It is sad for the boys that both parties seem to think it is necessary in this case. Because of the blended nature of families in the household of both parents, particularly the father’s, it is necessary provide that as much notice as possible is given as to what the arrangements are going to be for the children.
The mother urged that these orders come into effect immediately upon them being made. But summer holidays are now here. The previous orders relating to those holidays will continue until two days before the commencement of 2007 school term.
The mother was asked about H’s proposal for a little longer time during school holiday vacation with his father if he came to live with his mother. She said that she had attempted to accommodate this sentiment in the orders that she had proposed. She had proposed that in one of the term 1, 2 or 3 school holidays the boys spend the whole of the holiday with their father in Sydney.
She was asked how many long weekends there were in the Adelaide school calendar. She was unable to give precise details but there is the Adelaide Cup, the Queens Birthday weekend, the October long weekend.
She said there was bed and breakfast accommodation available near the school, she thought for about $70 per night.
The travel time from door to door she asserted was 4 hours (I think that might be a slight underestimate because it doesn’t really allow much time in either the Sydney or Adelaide terminal. I think it is probably more like 5 hours).
If the boys were to leave Adelaide at or before 6pm on a Friday night on a normal weekend they could spend two nights and one and a half days with their father in Sydney. I intend to allow that five times a year which when aggregated with long weekends in school term will provide eight opportunities for the boys to be with their father during school term. I appreciate this might interfere with some weekend team sports activities but the boys’ relationship with their father should take priority.
I have referred previously for the need for both J and H’s time with their father to be maximised. The boys enjoy time at the beach. That is going to be affected by their move to Adelaide and the fact that traditionally the father’s family holiday mainly inland during school holidays. I intend to allow the father the option to have the boys spend the whole of two out of three term holidays with him. The father will also have the option of having two weekends a term with the boys in Sydney with, on the basis of submissions made by the Independent Children's Lawyer, three of those eight weekends being long weekends.
The father has the difficulty of coordinating, so far as is possible, the school holidays of S, U and I. If F rejoins the father’s household then coordinating her school holidays may also be an issue. In order to cater for this difficulty of the father, he will be allowed, on an annual basis, to set the timetable in relation to when he has the boys with him. I propose that that timetable be delivered to the mother no later than the second week of the first school term each year. The timetable will include the time that he is selecting for the boys to be with him over the following twelve months, during term school holidays and during school term and would include any proposal in relation to having the boys out of school for time overseas. This type of advanced notice might also facilitate some opportunity to obtain cheap airfares.
Under the current arrangements the children spend the whole of Christmas Day in alternate years with one and then the other parent. The parties seek that that arrangement continue. The father will have the first half of these Christmas holidays to facilitate the Perth trip.
The father’s original application in relation to overseas travel and passports was only obliquely referred to in final submissions and was not the subject of any focus during the hearing. Both parties should be free to travel to non dangerous overseas destinations when the boys are with them. Both parties are to do all to ensure passports are current. The mother shall ordinarily hold the passports.
The father has indicated that he has set up technology in his household to enable the boys to communicate by webcam. The mother indicated there would be no problem in providing similar equipment at her end. It wouldn’t be a problem setting up a webcam in the maid’s cottage. I will make an order to facilitate that mode of communication.
In my view it is important that the boys’ school are comfortable with them being out of school for a week if either parent wishes to take them overseas. The school’s written permission should be obtained.
Ms H, the CEO of Relationships Australia was in court during the whole of the morning on Friday 10 November. After the father had finished his cross examination I said to the Independent Children's Lawyer that I needed information about post separation parenting programs were available both in Sydney and in Adelaide. After the morning tea break she informed me that the CEO of Relationships Australia had been in court and there had been discussions and that she expected to hand up a proposed short minute of order in relation to post separation counselling between the parties. I indicated I understood it was a case in which I would probably need to make the final call.
I do not underestimate the damage this case has done to the hope of cooperative parenting in the future. Dr W gave a pessimistic prognosis in relation to the ability of the adults in this matter to move forward with any parenting relationship that could be considered constructive for the children. As I have mentioned, the prescriptive nature of the orders that I will make acknowledge that position. I did however during the 14 days of this hearing see some glimmers of hope. I am of the view that even the most intractable parents might be assisted if they have some professional coaching in respect of how to behave as a better parent in their dealings with the other parent in a post separation environment. For that reason I make the orders proposed by the Independent Children's Lawyer in relation to post separation parenting counselling for the parents and at the discretion of the service providers, for their partners. For that purpose I make an order that a copy of these reasons for judgment as well as the two reports prepared by Dr W be provided by the Independent Children's Lawyer to those providing the parties with professional assistance.
The Independent Children's Lawyer has requested that their appointment continue until 30 June 2007. I am prepared to make that order. Its designed to achieve two purposes:-
450.1.To assist in the facilitation of the post separation parenting counselling; and
450.2.To provide some type of neutral mediation in any dispute that might arise in respect of contact times.
The father made it clear that it was his position that given financial, business and family concerns he may not be able to take up all options that these orders give him. His failure to do so should not be the subject of discussion between the adults in the mother’s household and the children.
The Independent Children's Lawyer made it clear that she will attempt to negotiate with the parties in relation to the Independent Children's Lawyer’s costs. In the event that the Independent Children's Lawyer is unable to conclude a satisfactory negotiation, the matter can be filed under the rules within 28 days of the date of the orders I make in this matter and relisted before me.
In order (x) as sought by the father he requests that I make an order in relation to an alleged underpayment by the mother of school fees at L School. The wife objected to part of paragraph 142 of the father’s affidavit. There is insufficient evidence or argument in this case for me to be able to make any such order.
I certify that the preceding Four hundred and fifty-three (453) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts J
Associate:
Date: 16.1.07
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Gleeson & Leighton
Key Legal Topics
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Family Law
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Civil Procedure
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Jurisdiction
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