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
- AGLC
- Gleeson and Leighton [2007] FamCA 11
- Case
- [2007] FamCA 11
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the children, considering the primary considerations under section 60CC(2) of the *Family Law Act 1975* (Cth), including the benefit of a meaningful relationship with both parents and the need to protect the children from harm. Additionally, the court had to consider various additional factors under section 60CC(3), such as the children's views, the nature of their relationships with each parent and their step-parents, and the practicalities of communication and contact. The court also had to assess the parents' capacity to facilitate a continuing relationship between the children and the other parent, and the potential impact of any change in residence.
Watts J ultimately ordered that the children live with their mother in South Australia from the commencement of the 2007 school term. The court found that the children's views, particularly H's consistent and unwavering desire to live with his mother and J's preference for his mother's household, carried significant weight. While acknowledging the father's concerns regarding the mother's household, the court concluded that the mother's current alcohol consumption, her husband's mental health, and past incidents of aggression did not pose an unacceptable risk to the children. The court also made detailed orders regarding the father's time with the children, including provisions for school holidays, weekends, and communication, aiming to maximise their time together while acknowledging the geographical distance. The court also ordered the continuation of the Independent Children's Lawyer and mandated post-separation counselling for the parents to improve their communication and co-parenting capacity.
Orders
Orders of the court
1.
The orders of 2 May 2002 are discharged from two days before the commencement of school term in 2007.
2.
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.
3.
The children live with the mother from two days before the commencement of their school year in 2007.
4.
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.
5.
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.
6.
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.
7.
The order for the appointment of the Independent Children's Lawyer shall continue until 30 June 2007.
8.
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.
9.
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.
10.
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.
11.
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.
12.
Both parents shall advise the other as soon as practicably possibly of any changes of address or contact details.
13.
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.
14.
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.
15.
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.
16.
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 husband
The 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
1.
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.
2.
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
3.
In February 1950 the father was born. He is currently 56 years of age.
4.
In July 1965 the mother was born. She is currently 41 years of age.
5.
The parents commenced to live together in February 1992.
6.
J was born in December 1992.
7.
H was born on in April 1994.
8.
The parents separated in August 1996.
BACKGROUND FACTS
9.
The father has remarried. His wife, Mrs G was born in August 1957. She is currently 49 years of age.
10.
The mother has also remarried. Her husband, Mr L was born in March 1959. He is currently 47 years of age.
11.
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.
12.
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.
13.
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.
14.
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.
15.
In late 1999 the mother and Mr L commenced living together at H with J and H. They married in February 2000.
16.
The father commenced living with Mrs G in May 2000. They married in Sydney in December 2001.
17.
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.
18.
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.
19.
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.
20.
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.
21.
There have been difficulties with contact arrangements over the past four years.
22.
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.
23.
In May 2003 there are issues that arise around J undergoing a circumcision operation.
24.
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.
25.
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.
26.
In October 2004 H moved from L School to P Primary School.
27.
In December 2004 the father and his wife took the boys on an overland trip to Darwin via the Oodnadatta track.
28.
At the beginning of 2005 J moved from L School to J High School.
29.
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.
30.
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.
31.
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.
32.
In July 2005 the mother and her husband moved from a small house on the W property to the main house.
33.
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.
34.
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.
35.
There were again difficulties in negotiating Christmas holiday contact arrangements for 2005/06.
THE APPLICATIONS
36.
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.
37.
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
38.
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
39.
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
40.
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
41.
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.
42.
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.
43.
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.
44.
The father says he is fit. He plays squash and golf. The boys play sport with him both externally and in the backyard.
45.
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.
46.
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
47.
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.
48.
The mother described J’s interest in tinkering with old motor vehicles which have been parked on the farm property from the 1920s.
49.
Both the boys have helped with farming activities such as “tailing” the sheep.
50.
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.
51.
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.
52.
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.
53.
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.
54.
The mother’s proposal is the mother would generally take the children to school. Her husband would pick them up from school some days.
55.
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.
56.
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.
57.
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
58.
Mullane J made the following orders on 2 May 2002:
1 Any 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.
2 The children are to have reasonable contact with the mother while she resides in Sydney.
3 While 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.
4 School 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.
5 The mother is to pay the air fares of the boys and any accompanying person for contact in South Australia under paragraph 3(b).
6 The 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.
7 Order 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.
8 Orders 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.
9 Order 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.
10 Otherwise the application of the mother filed 24 December 2001 and the response of the father filed 21 January 2002 are dismissed.
11 The proceedings are removed from the Active Pending Cases List.
RICE & ASPLUND
59.
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.
60.
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.
61.
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,
62.
A number of firm proposals that the father put to Mullane J were not honoured.
63.
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.
64.
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’.”
65.
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).
66.
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.
67.
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.
68.
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.”
69.
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.
70.
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.”
71.
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.”
72.
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.
73.
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.
74.
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.
75.
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.
76.
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
77.
The father, his wife, the mother and her husband were all, at times, unconvincing in the evidence which they gave.
Father
78.
There were a number of occasions during the father’s evidence when he was unable to remember things.
79.
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.
80.
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.
81.
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.
82.
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.”
83.
The father suggested in sworn evidence that the distance from O to L School was approximately 6 kilometres.
84.
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.
85.
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.
86.
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.”
87.
The application was signed by the father and dated 3 September 2002.
88.
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.
89.
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.
90.
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.
91.
On a number of occasions, however, the father could not recollect whether or not he had written a particular email even though it might have been signed by him. That was certainly the case up until mid 2003. As already mentioned he gave oral evidence that since about mid 2003 each of them checked each other’s emails before they were sent. At paragraph 365 of Mullane J’s judgment in May 2002 his Honour opined the problems in relation to communications in respect of the children would likely be overcome by the father undertaking the responsibility for all communications with the mother about the children. The father in evidence (on the Friday of the first week) indicated that he believed that he was doing what his Honour said should be done in the last sentence of paragraph 365 of the judgment. On any objective view, that subjective assessment by the father as to what has been happening in communication with the mother since 2002 cannot be sustained.
92.
One very unsatisfactory part of the father’s wife’s evidence was that he said that he had only read parts of the mother’s affidavit and had not fully studied or read all the annexures to her affidavit. Even more extraordinary, notwithstanding the fact that he had been sent a DVD version of the events of 14 May 2004 on 22 July 2005, he claimed he had not watched it (although he seemed to know that there was still frames in the DVD that had been taken out of context). On the fourth morning of the hearing (8 June 2006) the father asked for time so that he could watch the DVD for what he claimed was the first time.
93.
On a number of occasions during his evidence when asked whether or not he had read a particular part of a particular document (for example an affidavit or Dr W’s first report) the father said that he was a “big picture” person. That meant that he took an overview of documents and didn’t necessarily read everything that was in them. He for example on the Friday of the first week of the hearing said that he had never read Dr W’s first report right through.
94.
There has to be some question over the father’s ability to accurately recall things. The father admitted on Friday of the first week that he had no real recall of part of a DVD that he had watched on three occasions on the previous day. When discussing his lack of recall with me he made the comment “I have a problem don’t I”.
95.
The father gave evidence that this wasn’t a new problem. In relation to the DVD he said that he didn’t remember the part that I asked him about because he was concentrating on the mother screaming at his wife.
96.
The father originally attempted to explain his lack of flexibility in relation to not allowing the mother to see J on his birthday in 2002 by saying he may have been in Cairns. It is clear, however, that the email that was sent, including a photograph of the boys on Christmas Day (which couldn’t be opened) was sent from a computer at the father’s home at O. The father’s wife in her evidence confirmed that. There is no evidence the father’s family travelled to Cairns on 26 or 27 December 2002.
97.
The father asserted that he made all the decisions in relation to the boys. He says that if there was a disagreement between he and his wife about anything that was to happen in relation to the boys, his view would prevail. I find it is highly unlikely that that’s the case.
98.
The father made a number of positive assertions and predictions to Mullane J which proved to be inaccurate.
99.
The father was initially inaccurate when representing the amount of time the boys were with their mother prior to seeing Dr W for the first time.
The father’s wife
100.
The father’s wife is an intelligent woman. She listened closely to the questions asked of her and tried to be precise with her answers.
101.
I however find that she attempted to downplay the role that she had in the lives of H and J, particularly as it related to the contact and interaction with the mother.
102.
It was clear the father relied upon her a lot. The father was of the opinion that if his wife wasn’t there it would be very difficult to run the household.
103.
The father’s wife left no doubt that there was no love lost between herself and the mother. She said that after the incident that took place on 14 May 2004 she thought that she was freed from having to go out of her way to accommodate the mother. She felt after that time that she in fact didn’t have to involve herself with the mother at all in any reasonable way.
104.
The father’s wife was cross examined about the incident on 14 May 2004. She denied that she kicked the mother. She was asked questions about submissions made on her behalf to the District Court by solicitor Mr M. The father’s wife conceded that she was aware that Mr M had made a submission on her behalf that the Magistrate could not have been satisfied beyond reasonable doubt that it wasn’t the father who had kicked the mother, rather than his wife. It was disingenuous of the father’s wife to allow that submission to be made to the District Court. She conceded that she well knew that there was never a suggestion that the father kicked the mother.
105.
To the father’s wife’s credit she agreed that she wasn’t an exemplary mother and that she had made mistakes.
106.
The father’s wife was challenged about a letter that she had written to the school which on one reading might have implied that the mother had her own psychiatrist and that was the doctor whom the children needed time off from school to see. She justified the wording of that letter on the basis that it had been the mother who had applied for the appointment of the court expert in this case. She said that she had not closely considered what she wrote in the letter and that the letter could have been better worded. I found that response disingenuous.
107.
It was suggested that the father’s wife had sinister motives in emailing a photograph of the two boys and a dog in front of a Christmas on the first Christmas after the orders had been made by Mullane J. I accept the father’s wife evidence that she only did this (and took some trouble to actually do it) after the boys had asked her to do it. The photograph is of two boys happily posing in front of a Christmas tree with a dog. I accept that the father’s wife had no malicious intent in terms of sending that photograph to the mother on the first Christmas.
108.
I do not accept that the father’s wife accurately reported what happened in the incident between herself and the mother outside court during the Mullane J hearing.
Mother
109.
I approach some of the evidence from the mother with care.
110.
The mother found it very difficult to accept and deal with the decision of Mullane J. She has never really accepted it. Some of her evidence is coloured by her desire that the boys return to live with her.
111.
The mother denied that her emotional state after Mullane J’s orders was bitter. When asked who she blamed for what had happened she said she blamed a number of people from time to time, firstly herself, secondly her husband’s father who had died prematurely, she blamed her husband but said quite clearly that those feelings were quite unfounded (both blaming the death of her father-in-law and blaming her husband). She positively said she didn’t blame her children
112.
The mother in exhibit 24 produced some certificates evidencing her community work and her involvement in the community.
113.
The father showed some emails to the mother. The first are exhibits C and D. There was a line photocopied off the bottom of exhibit C which was on exhibit D. An incomplete email had been annexed to the mother’s affidavit.
114.
The mother’s evidence was that she didn’t know how that error had been made. Exhibit C was an exhibit to her affidavit on 12 March 2004. She said that she had handed all her emails to her previous lawyer and he had collated them. She denied that she had attempted to edit the email in any way. She was asked whether or not as a promoter of books she did editing and proof reading. She said that she didn’t edit, she didn’t write, she wasn’t terribly accurate and she was unable to say why the email that was attached to her affidavit of March 2004 had a line deleted from it. The line deleted read “was she who chose to come here and inflict her ‘unfortunate’ character upon all of us in the first place”.
115.
The word “unfortunate” is a reference to a description Mullane J made of the husband’s wife in his judgment. It is clear that the mother had not, at least, carefully checked that the whole of the email which was attached to the affidavit. The deletion of a page containing an unflattering reference to the husband’s wife raised suspicions as to whether that was deliberate.
116.
The mother was next shown exhibit B to her affidavit of 12 March 2004 (that document was tendered and became exhibit E). The mother agreed that the email that she had given her lawyer had missing from it the final sentence. This sentence was about the boys retaining clothing and possessions. Again, the mother couldn’t explain why that line was missing from what she had given her lawyers. It does appear that exhibit B as attached to the affidavit is in a different format to exhibit E and the line that is missing would have been on the following page of what was exhibit B. The mother, when questioned about whether or not she had read the email properly, said that she had read it and the reason that that email had been attached to the affidavit was because of what it said about passports, not what it said about clothing. I found that to be a plausible explanation.
117.
The mother was taken to paragraph 18 of her current affidavit. It was put to her that that conversation didn’t take place.
118.
Paragraph 18 is in the following terms:-
On Monday 3 June 2002 I had a phone conversation with [the father] during which he said, ‘I am having [your husband] checked out. I am going to dig up as much dirt as I can to try to build a case against him and get an order that the children not be allowed to visit you at any time in South Australia.”
119.
The father had denied paragraph 18 on 7 June 2006.
120.
The mother agreed that she had made a similar allegation about the father saying he was going to get the dirt on her husband before the hearing before Mullane J occurred. It was put to the mother it was implausible that the father would have said a similar thing after the case was over. The mother said that she understood at that time that what he was threatening was a new application to stop the children going to W.
121.
There is some force in the father’s assertion that it is inherently unlikely that that conversation alleged by the mother took place.
122.
The mother was taken to paragraph 33 of her affidavit sworn 27 February 2006. In that paragraph she had made the statement “on 11 November 2002 I sent an email to [the father] asking if I could see the boys for a few hours on [J’s] birthday [in] December. Due to [the father’s] holiday arrangements I had not seen [J] on his birthday for the previous two years”. The mother when she thought about it admitted that she was wrong about not seeing J for his birthday in December 2001. She had not seen J for his birthdays in 1999 and 2000.
123.
During her evidence the mother said that she had lost all her emails for 2002 and she put that forward as an excuse as to not being able to be absolutely certain of some of the things that she said.
124.
There was an inconsistency in the mother’s evidence about her 2002 trip. The mother said “it gave me something to look forward to” but later she agreed it was a trip that was organised at short notice about one week before.
125.
The mother gave some evidence which might have left an impression that a student at J High had committed suicide whilst at school. She conceded in cross examination on the following day that a student at J High who had committed suicide had taken his or her life outside school hours.
126.
The mother was asked about her use of the video during the May 2004 “assault” incident. She confirmed that she took the video down to protect herself, not for physical protection but so that an incident wouldn’t take place which the father and his wife subsequently would claim never happened or so that they did not completely change the story as to what had happened. The mother wasn’t prepared to acknowledge that what she was doing was provocative. She said that the children’s father would normally have laughed at her doing it.
127.
She made the statement that she “wasn’t really expecting to film anyone”. I found that statement by her lacked credibility. She had already filmed H before she went down the driveway. When I challenged her on that statement she agreed that it was highly probably that the camera was going to be used.
128.
The still frame from the DVD of the father’s wife holding her hand over her head with a clenched fist with an angry look on her face gives me cause for concern. This still frame had been created by the mother to give the impression that the father’s was threatening her when it’s clear that was not what was happening when that footage was shot.
129.
In March 2003 the mother made a number of complaints about the children’s care in the father’s household which the school reported were without foundation.
130.
The mother inaccurately said that her husband had a broken leg in July 2003 when it was actually a pulled ligament. This is an unusual lapse in the mother’s memory.
131.
As set out below, I prefer the father’s version of the events surrounding J’s operation in May 2003. I have concluded the mother has not been truthful about these events.
132.
The mother gave inconsistent evidence about when she was involved in binge drinking.
The mother’s husband
133.
The mother’s husband was asked a number of questions about his consultations with Dr M. I found a number of the answers which he gave were vague and unconvincing.
134.
Answers he gave about the incident on 16th March 2005 and prior occasions involving conflict with his former wife also suffered from a surprising lack of memory.
135.
It was also clear that the mother’s husband managed his own finances and the mother had little detailed knowledge of her husband’s financial circumstances.
136.
The mother’s husband was not comfortable in the witness box but that is consistent with his inability to feel comfortable in circumstances over which he has little control. (This is referred to later).
Conclusion about the credit of the father, mother, the father’s wife and the wife’s husband
137.
If there is an inconsistency in the sworn evidence of these parties about a piece of evidence, I will seek to determine the matter by the use of other evidence or make a decision based on what version is more inherently likely.
Mrs A
138.
Mrs A is the maternal grandmother. She is a former school teacher. The evidence I had from the mother was that she was not currently in good health.
139.
The maternal grandmother gave candid evidence.
140.
The father started the cross examination by apologising to Mrs A for requiring her for cross examination. There is obviously a reasonable degree of respect held by the father for his former mother-in-law.
141.
The maternal grandmother frankly recounted an unpleasant conversation she had had with the mother’s husband.
142.
She agreed that the father’s wife in the last four years must have contributed towards the development of the two boys.
143.
Notwithstanding her mother’s ill health in the last few months, her mother had spent about 2-3 weeks during the 2006 calendar year at her place in Adelaide.
144.
I put some weight on the maternal grandmother’s observations as to how things were in the mother’s household.
Dr W
145.
The father was of the opinion that Dr W was biased because he was selected by the solicitor for the mother. He did however agree that before the order appointing Dr W was made he was given an option to find another single expert to do the report. The father indicated that he thought that Dr W would have known that he had tried to find someone else.
146.
The legal representatives for the parties interviewed Dr W without seeking to dispense with Rule 15.65 (Family Law Rules). Given the father’s attitude to the appointment of Dr W’s report this was unfortunate thing to have happened. I gave the father an equal opportunity to interview Dr W prior to the commencement of cross examination but he declined it.
147.
Dr W had no knowledge of any of the parties prior to the preparation of the first report and there is nothing in his written or oral evidence that would lead me to believe that he was other than an impartial expert witness.
PARTICULAR EVENTS
THE CIRCUMCISION
148.
J was circumcised in May 2003.
149.
Both parties have annexed to their affidavit an email sent by the mother to the father on 20 April 2003. It was in the following terms:
“I have consulted a pediatric [sic] surgeon in Adelaide re: [J’s] continuing phimosis condition. He recommended that [J] have a circumcision as soon as we can arrange it, to avoid future complications… He strongly recommended that this occur before the onset of adolescence.
I have sent his report with [J]…You might want to get a second opinion…Possibly from the same doctor as diagnosed [M’s] similar problem.
He can have the operation here or if you wish, or [Dr F], the surgeon in Adelaide is one of the best and can do it next time [J] comes for holidays.. We have both boys covered for private hospital which will cover the operation.. He will require some time off school if it’s done in Sydney.
He has some time ago tried the steroid cream treatment without success. Could you please advise as to what you want to do about the operation before the next holiday break.
You will also have to keep an eye on his planter wart…Mum’s Doctor, [Dr A] has frozen it off, however he said in about three weeks time if it is starting to hurt again, that means they haven’t got all the roots and it’s growing again and will have to be treated again ASAP. He said not all Doctors have the freezing machine and burning is not so good.”
150.
The husband’s version of events is as set out in annexure O to his affidavit which was a letter written to the mother’s solicitor at the time dated 29 May 2003. He supplemented that with oral evidence which although not as extensive as what is set out in annexure O, was consistent with that.
151.
The father’s story is that the consultation referred to in the email set out above had happened seven months prior. He said there was some urgency in having the operation attended to because of upcoming activities that J was going to be involved in, both on contact with his mother (skiing) and whilst in New South Wales on school holidays (school camp). The father says on 23 May he sent an email to the mother indicating that the operation was on 28 May. On Monday 26 May there was a discussion between the parties about alternative dates but none were suitable and the father decided to go ahead with the operation. He alleges there was an agreement between he and the mother on Monday night 26 May that the operation would go ahead. It was also unclear in the father’s mind as to whether or not the mother would be coming across from Adelaide. He says that he faxed a summary of available flights to her.
152.
The father then says that on the morning of the operation at about 7.30am on 28 May the surgeon telephoned the mother requesting consent. At this stage J had received a pre-operative anaesthesia. The father said he was relaxed and comfortable and was prepared for the operation at 8am.
153.
The father then claims that the mother spent the next three and a half hours haggling with him trying to obtain the various amendments to court orders initially for weekend contact and then for more extensive week contact. The father agreed to the weekend but did not agree to the more extensive contact. In oral evidence the father said at 12 noon the wife agreed to fax a letter of consent to the surgeon and even though it was not in proper form when it arrived the surgeon operated anyway. According to the father during the period from 7.30 until 12 noon J on at least one occasion was involved in a telephone conversation with his mother telling her words to the effect “I want to have the operation”. The father also complains that the mother made no telephone contact with J on the night before the operation nor any telephone contact until the evening of the following night, although the father says that the mother was telephoned immediately after the operation to inform her as to the progress of J’s recovery.
154.
The mother’s version is quite different. At paragraph 47 of her affidavit she alleges that there was an agreement in a telephone conversation between herself and the father on 25 May 2003 that the operation would be scheduled for the last week of term so that both parents could be present at the time of the operation.
155.
The mother asserts in paragraph 48 of her affidavit that on the following evening (26 May 2003) in a telephone conversation with her that father reneged on the agreement asserting that he had made the arrangements and it wasn’t up to the mother to decide when J had the operation. The mother asserts in paragraph 49 of her affidavit that the first time that she knew of the actual date of the operation was on the morning of 28 May 2003 when she received a telephone call from the father at about 7.30am seeking her consent to the operation in an “agitated and demanding tone”. Given the email of 22 May, referred to below, this is untrue. In paragraph 49 of her affidavit the mother gives the impression that there was no delay in her providing consent. A copy of that consent is set out at page 64 of the mother’s affidavit. The consent is addressed to Dr L. The first line of that document gives a consent but the last paragraph of the document says that that consent is given “under duress”.
156.
The document also puts in question the father’s assertion that the operation was needed urgently and needed to be timed so that J still could go to school camp. The mother describes school camp as “in just over a week”. The father said it was 16 days away.
157.
The father has put into evidence a series of emails that were exchanged between he and the mother in May 2003.
158.
They start with an email from the mother to the father dated 18 May 2003 where she seeks to have the children with her over the Christmas/birthday long weekend in June 2003. On 22 May 2003 the father replies as follows:-
“We are going away to a camp with a number of friends and their children that long weekend. We are all looking forward to it, so I am sorry but it won’t be possible for you to see them that weekend.
[J] is having is [sic] operation on Wednesday 28 May and I will get him to ring you as soon as he comes out of recovery. I will be taking the day off to be with him. All the boys are fine.”
159.
On 23 May 2003 the mother replied:
“That is a real pity...the children had hoped we could see them...
Could you supply complete details of doctor, hospital, time and recovery asap.
Thank you...
The family would also like details.”
160.
Relevantly in that email there is no hint of dismay from the mother. She does not ask immediately for the father to consider a delay in the operation for a period of three weeks so she could be with him during school holidays in his recovery period.
161.
However in the letter written by the mother to the doctor dated 28th May 2003 giving consent to the operation “under duress” (part of Exhibit 11 and page 64 of annexure to the mother’s affidavit), paragraph 4 is in the following terms:-
“In the telephone conversation on Sunday May 25th, [the father] refused to give consideration to important issues regarding the timing of [J’s] school camp in just over a week and the possibility of [J] being subjected to teasing and bullying at the camp. [The father] ignored my request that the operation be rescheduled for a few weeks time after [J’s] camp and coinciding with my next normal contact visit in Sydney.”
162.
Given the mother has not been truthful about when she knew of the scheduled date for the operation and the tone of her email on 23 May, I do not accept that there was an agreement between the parties on 25 May 2003 that the operation would be scheduled at a time when the mother could be there. I accept the father’s version about what happened on 28 May 2003. The mother behaved badly on that day.
THE INCIDENT ON 14 MAY 2004
163.
What happened on this day does both the mother and [the father’s wife] no credit. The father described what happened that day in his subsequent telephone voice message to the mother as “a fiasco” and it was. J should not have had to witness the two women behaving in the way which they did.
164.
The father’s version of the incident on 14 May 2004 is contained at paragraph 81 of the affidavit. The text of the father’s written evidence is as follows:-
“On May 14 2004, [J] arrived at our house asking for clothes and equipment saying, “Mum says that we have to have what she wants and I know that there’s going to be a really big fight if you don’t do what she wants”. [H] came into the house, got changed very quickly and ran out again. Immediately afterwards [the mother] arrived, armed with a video camera and proceeded to take video footage of [my wife]. I was trying to protect [J] who kept saying “Mum, please stop this”. He was jumping up and down, shouting and crying whilst trying to switch off the video recorder. Early on [my wife] went back into the house but I asked her to come back out. She said “I’ve called the police. [Mrs L] please stop doing this in front of [J]. Can’t you see how upset he is? You do not have my permission to video me. Please leave my property immediately. Just go – now”. The police only turned up half an hour later after [the mother] had left. [She] continued to video and to conduct her interview in the manner of a belligerent 60 minutes report for approximately 10 minutes. I was present throughout.”
165.
Again the father’s oral evidence was that what had happened was “less then 10% of [my wife’s] fault”.
166.
In her written evidence the mother sets out her version of what happened on 14 May 2004 from paragraph 64 through to 75 of her primary affidavit. At paragraph 68 she says that she took the video camera down the driveway “because of incidents including that in late 2003 (referred to in paragraph 59 of this affidavit). I felt intimidated by [the father’s wife]”. I do not accept that explanation.
167.
The incident at paragraph 59 of the affidavit is not one that one would have expected to have intimidated the mother. It was an occasion when the mother claims that clothing had been promised but not sent with the boys for contact. She had gone around to the father’s home. She had beeped the horn on three occasions to such an extent that neighbours on both sides of the home came out into the street. She had gone down to the house, knocked on the door. She claimed the father came out “with a smirk on his face” and “[his wife] stood at the top of the stairs laughing”. She actually obtained clothing and left. The father says he has no recall at all of this incident. He denied that he would have had a smirk on his face. There is no other evidence of any physical intimidation.
168.
I find the mother was not justified in taking a video camera down the driveway. It was a provocative thing to do. It was a thing that was calculated to cause an incident and the mother’s motivation was clearly to collect evidence for use in future litigation. In my view, the mother went down the driveway, very angry at what she perceived to be a wrong committed by the father’s wife and got the reaction she expected.
169.
Having said that the reaction of the father’s wife, whilst in character, was entirely inappropriate. The father’s inability to intervene to defuse the level of emotion that was generated between the two women was wanting.
170.
The father conceded that it was likely that both conversations in paragraph 69 of the mother’s affidavit took place. He agreed he went inside the house. He said that during the major altercation he was right there, right next to both the women. He however doesn’t have a very clear recollection of the incident. The mother was screaming at his wife, his wife was standing at the door. He didn’t think the mother was wary of anybody during the incident and he was of the view that the entire episode was engineered by the mother.
171.
He conceded that “in hindsight” it would have been better to have simply given the clothes and not made any issue over it at all. That is why he sent the voice message which is set out at paragraph 72 of the wife’s affidavit and is recorded on the DVD.
172.
The DVD (Exhibit 5) starts by the mother filming H coming back to the motor vehicle. H was rubbing his inner thighs with his hands as if he was very cold. He says to his mother that clothes would have to be bought from K-Mart and the mother repeats it for the tape as if she is making sure what H said was recorded on tape. Neither boy then appears in the video although J was present when his mother entered the father’s property. The father’s evidence is that H stayed in the car. The father was present outside when some if not all of what was on the video is then recorded. The father’s evidence is that J was trying to get his mother to turn off the video. J seems to have formed the view that the incident that was happening might well have stopped if the video camera had been turned off.
173.
The video itself is not a continuous record of what took place. The father’s evidence is that the incident took place over about a 10 minute period. Although Counsel for the mother originally indicated that she viewed a DVD of about 10 minutes she assured the Court that exhibit 5 is what she watched. Exhibit 5 runs for 1 minute and 43 seconds.
174.
In relation to the alleged assault, on the balance of probabilities there probably was some physical contact between the father’s wife and the mother but that contact was quite minor. That contact does not clearly show on tape, although what clearly does show is a lunge by the father’s wife. The mother did not react straight away. She kept talking and then referred back to it saying, “And thankyou for kicking me”. The father’s wife’s answer was, “This is fine [Mrs L]”. It did not appear on the tape as if the father’s wife denied that contact had been made.
175.
The mother’s affidavit says that she was kicked very hard (see paragraph 71 of her affidavit). Had she been kicked very hard then I would have expected her to have made some sound of pain on the tape. That didn’t happen. I don’t accept the mother’s evidence that she was kicked “very hard”. There is nothing on the video tape which would corroborate the allegation that the father’s wife “raised her arm and swung it towards my head”.
176.
There is also a still frame shot at the end of the footage which is of someone’s leg. I have not been told whose leg it is. I assume it’s the mother’s. There appears to be a large bruise over the knee. Again if an injury of this nature had been inflicted at the time, the mother would have reacted with some sign indicating pain. There was no indication on the video she experienced any pain.
177.
During cross examination the mother referred to:-
“The first part of the tape which showed the altercation between [the father’s wife] and myself and her kicking me basically”.
178.
The mother agreed that the use of the verb “showed” was inaccurate as it applied to the description “her kicking me”. It is common ground that the video does not show the father’s wife’s foot coming into contact with the mother.
179.
At the mid point in the tape both women loose their cool and the mother says some fairly derogatory things about the father’s wife. This part of the tape lends support to the notation that the tape has not been edited.
180.
It’s the mother’s evidence that she transferred the whole of what she recorded onto the DVD in an unedited way.
181.
On balance I don’t accept the father’s assertion that the DVD has been the subject of editing.
182.
There has obviously been some post-production work done. The DVD has a number of stills on it at the end which are taken from the footage that has been shot. I have previously referred to the fact that one of those stills appears to have the father’s wife raising her fist above her head with a angry expression on her face. It is clear that at one point the father’s wife, in order to mock what the mother was doing by bringing the video camera onto her property, did a dance for the camera. The still shot that I have just referred to is in fact a frame of the footage when she was dancing.
183.
The mother conceded during this cross examination that she was motivated by very strong emotions, that she deeply regretted her responses and she conceded that she had done the wrong thing by not withdrawing. She said that when she left she apologised to J and said that she was really sorry. She was having heart palpations at the time. She conceded that her sister, who lived 5 to 10 minutes away, had boys around the same age and had clothing that could have been used but didn’t think about that before hand.
184.
The father conceded that in hindsight it would have been better to give the clothes. He however said that you had to understand the build up to that situation. In his view it wasn’t a situation where the mother did not have clothes available to her at the home of her mother or her sister. The mother quite intentionally did something which was very provocative. The mother’s actions were to some degree motivated by anger and frustration but I have got no doubt that the mother at least to some degree hoped for the reaction that she got. This does not excuse the father’s wife making physical contact with the mother with her foot.
EQUAL SHARED PARENTAL RESPONSIBILITY
185.
Both parties in their own way sought orders that went to the issue of parental responsibility. In the past there has been difficulties in relation to matters concerning education and medical treatment. Section 61DA(1) FLA provides a presumption for equal shared parental responsibility. Consistent with that presumption and the orders sought, I intend to make an order that each party have equal shared parental responsibility. I also intend to make specific orders in relation to schooling, medical treatment and the way parental responsibility should be exercised.
Matters to consider if order made for equal shared parental responsibility
186.
If orders for equal shared parental responsibility are made then Section 65DAA FLA provides that I must consider whether or not it is appropriate for the children to have equal time or substantial and significant time with both parents. In making that determination Section 65DAA(5) FLA provides a list of matters that may be considered. Given that it is both parties’ position that at the end of this case that one of them will be living in Sydney and the other will be living in W, South Australia, the distance that they live apart mitigates against the boys spending equal time with each parent and makes substantial and significant time a impractical proposition. The best that can be done is to attempt to maximise the time the children spend with the parent with whom they are not usually living consistent with other matters relevant to their best interests.
DETERMINING WHAT IS IN THE BEST INTEREST OF J AND H (SECTION 60CC FLA)
187.
In considering what parenting orders to make, J’s and H’s best interest are my paramount consideration. (Section 60CC(1) FLA). In doing so, I must consider the primary considerations set out in Section 60CC(2) FLA and the additional considerations set out in Section 60CC(3) FLA and be mindful of the objects and principles underlying Part VII FLA (s60B 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
188.
At the moment there is no verbal communication between the mother and father. The father indicated that most messages are now relayed through the maternal grandmother with whom the father does speak.
189.
The mother conceded that apart from problems over times and dates there had never been any obstruction by the father in respect of the boys seeing her
190.
It is my view that the benefit to the children of having a meaningful relationship with both parents has been seriously compromised by the level at which the parents communicate.
191.
The father agreed in cross examination that during the six years when the boys were with their mother contact went more or less smoothly with a reasonable degree of flexibility. That can’t be said to have been a feature of the boys’ time with their mother since the boys went to live with their father in May 2002.
192.
The difficulties, of course, have in part been created by the fact that the parties do not live in reasonable proximity to one another anymore. This has increased the need of the parties to plan ahead with one another and be reasonably precise in relation to the times when changeover will take place. Given interstate travel is involved, arrangements are best made ahead of time. On other occasions the father has wanted to take the children out of the country and in order to do so he has wanted to take advantage of cheap airfares. He has been frustrated in not being able to reach agreement with the mother in respect to his medium term plans.
193.
Although communication between the parties as parents became worse after the mother recommenced her application that the boys live with her, the problems with contact started early on. On the weekend after Mullane J made his orders the mother asked the father whether or not she could have the boys for four days over the following weekend. That was Mother’s Day weekend. The mother had her solicitor write a letter. The father responded directly by email (see page 46 of the mother’s affidavit). The father said that:-
“I, against the advice of my solicitor, am reluctantly willing to agree to you collecting them on Saturday morning between 9am and 10am and returning them the next day, ie. Sunday at your convenience, to be communicated to me at or prior to their collection and in any case before 7.30pm.”
194.
That father in that email asks for all further communication in relation to contact to take place in writing. A complaint was made that the children had been involved in the process of arranging this contact.
195.
That email indicates that the father’s motivation in refusing this contact was “it is very very important that they be allowed to settle down properly”. In oral evidence the father had no actual recollection as to why he had otherwise said no to the mother’s request.
196.
In the first school holidays after the orders were made by Mullane J there was a dispute between the parties as to the date which was the mid point date in the school holidays. The father had his lawyer write a letter. The mother originally thought the mid point was 9 July but conceded it was 10 July. The father originally asserted the mid point was 14 July but agreed that the mid point was 10 July.
197.
The father said that they had always had problems with emails and when he tendered his bundle of emails it will be clear that often the mother didn’t reply to emails or replied to them at the last moment. Problems with communication between the parties about time with the boys is far from one-sided.
198.
The maternal grandmother said that unexpected contact, that is contact that had happened by somebody on the mother’s side giving short notice, had happened once in 2006. It is clear that apart from this court case, the maternal grandmother and the father and his wife have a workable relationship. The maternal grandmother defers to any judgments the boys’ father makes in respect of where they will spend their time. She confirmed that in the last 18 months there hasn’t been any arguments on the few occasions that the mother has asked to see the children.
199.
As mentioned above, as early as September 2002, the father brought a court application against the mother, relating to his ability to take the boys overseas. The mother was overseas at this time, but as I have found had the father really wanted to he could have got a message to the mother whilst she was overseas. This is an early example of the parties not being able to communicate about the benefit to the children of them having meaningful time with one of their parents.
200.
After the father obtained the boys passports and had taken them overseas, the parties had an argument about the collection of the boys for contact with their mother during school holidays in September 2002. The mother wanted to collect the boys from the airport. At paragraph 31 of her affidavit the mother gives a version of what happened on the day the boys came to her which reflects poorly on the father. Notwithstanding the father had this affidavit in his possession for some considerable time he said he may not have read paragraph 31. He couldn’t remember a valid reason why the mother couldn’t pick the boys up from the airport, although he asserted that there probably was one. It was his overall view that the matter had been resolved satisfactorily and that a pickup point at N was agreed to. That certainly was the end result. The husband subsequently when given an opportunity to comment specifically on that paragraph denied that he had agreed to drop the children off at the wife’s mother’s home. He generally said that the emails may have led to a misunderstanding or that he had forgotten the arrangements. It is hard to read the emails (page 54) and discover how there could be a misunderstanding arising from the text of those emails. The father has quite clearly promised to drop the children to their maternal grandmother’s home before 9am. The probable explanation is not that the father forgot but that the emails weren’t sent by the father at all but they were sent by his wife and the father was oblivious to their contents. I accept however that the mother’s version accurately records what happened and is an occasion which supports the mother’s contention that contact arrangements between the parties have been significantly more difficult since the orders of May 2002.
201.
The mother sent an email in which she asked for an extra week in the Christmas school holidays for 2002. The orders didn’t allow that extra week. She gave about one month’s notice of her request.
202.
The parties were unable to work out an arrangement that would have accommodated the mother’s request to see the children on the first Christmas Day and J’s first birthday after Mullane J’s orders (28 December 2002). Clearly the parties were in Sydney on Christmas Day because that’s the place from which the father’s wife attempted to send the photograph which is annexure C to the father’s affidavit sworn 1 August 2005. The father says that he thinks he was in Cairns on J’s birthday although as I have mentioned elsewhere there is no independent corroboration of that.
203.
In paragraph 33 and 37 of her affidavit the mother sets out the attempts that she made to see the boys around Christmas Day 2002 to see J for some time on his birthday in December 2002. The text of the emails are set out at pages 56 to 58 of the affidavit. Those emails do not reflect well upon the father. The second paragraph of the email signed by the father on 13 November and the first sentence of his email dated 16 November 2002 in a particularly belligerent tone. These emails evidence a significant lack of flexibility on the father’s behalf.
204.
The father said, as usual, there were problems making arrangements for Christmas in 2004. Emails were sent on 6 November and 9 November 2004 seeking clarification of school holidays. The father had done a calculation that the midpoint was 6 January. The mother thought it was 4 January. The parties weren’t speaking to one another. Exhibit 3 is a copy of emails passing between the parties on 6 November 2004 and 8 November 2004.
205.
The maternal grandmother was asked questions about contact arrangements for March 2006. She confirmed that she had made a request for the boys to be able to go with her to Adelaide in the last week of school term which was the week before H’s birthday. She had planned to go the W festival. The father, who the maternal grandmother referred to as “the boss”, had indicated that he didn’t want the children out of school but he was happy for them to go on the Friday afternoon. The maternal grandmother made the decision that if they had to be back by Monday, which was H’s birthday, it wasn’t worth the trip for the boys to get down there Saturday and have to leave Sunday. She decided that it wasn’t viable and she went on Wednesday without them.
206.
When the mother had come to Sydney to see the boys during school term, she did not always stay in the same place. Normally she rented an apartment for a week and given that the boys go to schools that are one hour apart, she alternates where she stays so that on one occasion she is close to one school and on the next she is closer to the other school. If the boys come to be with her in Adelaide she would probably plan some holidays in NSW. She wouldn’t rule out coming to Sydney for work but her plan is to obtain a job in South Australia so she probably wouldn’t normally be coming to Sydney very much in relation to any activity that wasn’t associated with seeing her mother and other relatives.
207.
The mother said that the father has telephone communications with the boys up to 4 times a week when the boys are with her and that they talk freely to him.
208.
The father agreed there had been problems in relation to telephone communication between the mother and the boys into his household. He said initially they were not of his own making.
209.
In May 2002 the mother gave J a mobile phone. The father says it has been a constant source of conflict. Initially it was left in J’s room and when people were in other parts of the house when it rang it couldn’t be heard. When it was left in the living areas of the house it was initially answered by the father or his wife. The mother instructed J that his stepmother wasn’t allowed to touch the phone. The phone was often uncharged. The father said “in hindsight” that in the future he believes that he will be able to better handle the boys’ use of their mobile phones.
210.
In May 2003 the father’s wife placed a bar on the mother ringing the landline of the home in which the boys lived. The mother was referred to paragraph 47 of her affidavit and asked why she had made telephone calls from the local phone box. She explained that a bar had been put on her telephoning the home of the father and his wife from any of the numbers they knew that she had. The father said that this was because his wife was getting abusive calls from the mother. The father said, after the first block of hearing days in June 2006 and upon the advice of the Independent Children's Lawyer, he insisted that this bar be removed. He cited this as an example as to how he exercised control in his household. It was an agreed fact that that bar is no longer in place.
211.
The father suggested that the mother in July 2003 had deliberately chosen a period of contact which she knew thwarted his plans to take the boys overseas and then didn’t have the boys for contact at that time at all.
212.
The mother’s explanation in her affidavit for her failure to see the boys at this time was that her husband had a broken leg. She was shown an email which indicated that he had pulled a ligament. As mentioned above she agreed that her statement in her affidavit that he had a broken leg was inaccurate. She said however she didn’t have the original email against which she could check her memory. She knew that he was on crutches, that he had a problem with his leg and she felt that he needed her help and support. She had been very disappointed that she hadn’t been able to see the children. This was the only occasion between 2002 and 2006 that she had missed the scheduled contact time.
213.
The father’s wife’s mother had died suddenly in the United Kingdom and a memorial service was organised for her in March/April 2004. The father attempted to negotiate school holidays in order for him to be able to travel overseas with the children. The mother was not flexible on this occasion. She insisted that the boys be flown back from Frankfurt. This meant that the boys were not able to travel with the rest of the father’s household through Germany, France and the United Kingdom. The father had offered to make up time in the next school holidays. This incident demonstrated the level of hostility between the two families at the time and the mother’s inability to consider flexible arrangements.
214.
Consent orders were made by the Court on 16 March 2004. Amongst other things they allow the father to take the children away out of the country from 24 March to 18 April 2004. An order was made that the wife do everything necessary to apply for an Australian passport for the children and that when they come back for the passport to be deposited with the Registrar of the Sydney Registry.
215.
In paragraph 61 of her affidavit the mother refers to the fact that the father wanted to take the boys overseas between 26 March and 18 April 2004. She said on 8 March she met with her South Australian solicitor, Mr G, and completed the passport application (which became exhibit G). She had assumed that he would have witnessed her signature and she assumed that on about 8 March or shortly thereafter that document was forwarded to her current lawyers who were then acting as an agent for Mr G in Sydney. She agreed that court orders were made on 16 March that she do everything to sign the passport application and forward it. Part of exhibit G is also a letter from D & D dated 22 March 2004. It appears that by hand on that day the passport application which the mother says she signed on 8 March 2004 was delivered to the father. The mother was unable to explain why it took from 8 March to 22 March for the passport application, that she had signed, to be delivered to the father. No evidence was provided by either the wife’s former solicitors or her current solicitors that would assist with the explanation as to why that had occurred. The upshot was that the father had to go back to court and obtain a further order in relation to the passport. The mother said that she first knew about the problem with the passport application not being witnessed when the father’s wife rang her up. She made an offer to sign another passport application that day, to have it witnessed correctly and to forward it by overnight express post. The father said that had he waited and not made the court application his travel plans would have had to have been aborted.
216.
I find that the father was justified in feeling quite frustrated by the mother’s lawyer’s inability to expeditiously comply with the Orders of 16 March 2004. The evidence about this incident when viewed as a whole is another example of the dysfunctional relationship the parties have as parents.
217.
On 9 June 2004, 57 consecutive separate text messages were sent by SMS over a two hour 40 minute period between 6.21pm and 9.40pm. They appear in a consolidated form from pages 82 to 93 inclusive of the mother’s primary affidavit. The father’s evidence was that they were sent by F and J. He said that he and his wife were working in the study whilst this was happening. The message itself when put together appears to be something that might have otherwise been prepared to be sent by email or fax. Page 94 of the mother’s affidavit is an email which appears to have come from the father and his wife at 10.16 that evening, which is in the following terms:
“We have spent over an hour sending you text messages because you claim not to be able to receive emails though you send them quite happily. Please ensure that all future correspondence is by post in future or that, if you can send emails that you can receive them. Otherwise could you please get the fax working again.”
218.
It was put to the father that the text messages do not contain language that a child would use and that his wife was the author of the SMS messages. It was suggested that it was a form of harassment by the father’s wife. The mother at paragraph 56 says that they were sent from a mobile phone which she has to pay for. I am satisfied that the message that was being sent was originally drafted in the form of a letter or email by one of the adults. J told his mother about the existence of the proposed email and his mother insisted that she be informed of its contents by SMS (apparently her email was not working). F, who had greater SMS skills, assisted J who became distressed at the time it was taking to send the whole message. This was not harassment by the father or his wife.
219.
In the most recent holiday time, the return air flight had been unilaterally changed by the father’s wife to a flight from Cairns to Adelaide. The father had rung up and said he didn’t have the flight details and they were given to him over the phone, including the booking references. The mother said she was completely surprised about the change.
220.
The father’s wife was attacked about cancelling and re-routing airline arrangements that the mother had made for the children to have time with her in Adelaide. Her response was that that had been done in order to cut down the travelling time and to arrange a direct flight between Cairns and Adelaide. Her explanation seemed to be quite reasonable.
221.
During his oral evidence, the father expressed the view that both the mother and his wife have strong views and are stubborn. He said he was going to take a more active role in tempering his wife’s views.
222.
The father accepted that “in some rare instances” his review of correspondence written by his wife on his behalf to the mother may have been deficient. I find that a categorisation of “some rare instances” to be inaccurate. The problem was more extensive than that.
223.
The father gave assurances that he would be solely responsible for communication with the mother in the future. On a number of occasions during his evidence (probably about six or seven) he said words to the effect that “in hindsight what happened was wrong and I won’t do that in the future”. Order 15 is aimed at reinforcing the father’s current assurance.
224.
The father indicated that in the future he would personally be responsible for making sure that mobile phones, dedicated to the communication between the parents and children, are charged at all times.
225.
I accept the father’s evidence that at least until the parties improve their relationship (if that is possible) it would be sensible to require the mother not to hide her numbers so that the father’s wife did not have to answer calls from her.
226.
As indicated over the last two years the maternal grandmother has been a conduit for discussions between herself and the father. Normally the line of communication is the father ringing the grandmother and giving her a message to pass onto the mother. The grandmother will then pass that information on and convey a reply. Order 15 requires the parties in the future to directly communicate about the children with each other.
227.
In the event that the boys go to live with their mother in South Australia there is a need to maximise the time which they can spend with their father. The orders which I make aim to do that.
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
228.
The father strongly emphasises what he says are the risks in the mother’s household and says that the boys expressed views should be heavily discounted because of those risks. The father’s concerns centre around the mother’s consumption of alcohol, her husband’s mental health and his history of violence.
The mother’s use of alcohol
229.
The father said that when he lived with the mother she got drunk too much. The father expressed the view that the mother has an alcoholic problem. He says that her view that she can drink two to three glasses of alcohol a night gives him concern.
230.
The father sought to lead no evidence in his primary affidavit about that matter. The father in his affidavit in reply makes an assertion that the original reason why a bar was put on telephones into his household was “because we were receiving abusive phone calls from [the mother] who was obviously intoxicated at all hours of the night”. That evidence is a conclusion and little weight can be placed upon it. I also note it was information which the father didn’t think important enough to include in his primary affidavit.
231.
The mother’s use of alcohol does not appear as a relevant matter referred to by Mullane J. I do not know if the father was aware of the mother’s first drink driving conviction at the time of the first hearing.
232.
Apart from the oral evidence of both the mother and her husband to which I will shortly refer, there are three pieces of written evidence in relation to the mother’s use of alcohol.
233.
The first is contained in exhibit W, the mother’s history of court convictions. Those documents show that on 23 December 1998 the mother was convicted of driving a motor vehicle whilst having a high range PCA (in excess of 0.15). The mother was disqualified from driving a motor vehicle for 12 months.
234.
On 26 June 2003 the mother was convicted of driving a motor vehicle with mid range PCA (between .08 and 0.15). The mother received an 18 month bond for that offence.
235.
The second piece of written evidence is contained in the notes of Dr M and are statements made by the mother’s husband to Dr M about his wife’s drinking. He saw Dr M on 4 August 2003. He said the following things about the mother:-
“Relationship with present wife – 4 year marriage. She gets very angry when she misses children and takes it out on him. She drinks > 750ml wine a day – every day – she has family alcoholism. Many years binge drinking. Patient does not drink. She often abused him after drinking. Occasionally attacks him.
Patient gets so frustrated that he verbally attacked her. Patient had suggested they see a relationship counsellor. Wife had been to AA. She hides her alcohol.”
236.
The mother’s husband then tells Dr M about something that had happened on 3 August 2003 in the following terms:-
“Has 2 year old child. Home is a mess. Yesterday patient took opportunity to instigate cleaning. Wife agreed but then postponed cleaning process. She went to drinking later that evening.”
237.
When the mother’s husband saw Dr M again on 14 April 2005 Dr M made no note of the mother’s husband saying anything to him about his wife’s drinking at that time.
238.
The third piece of written evidence is a letter written on 11 August 2003 by Dr M to Mr L’s referring general practitioner. That letter included the following paragraph:-
“According to him, his wife used to binge alcohol drinking. Since the stressful events in the last three years or so, she is now drinking consistently over 750ml of wine per day. When drinking she would become verbally abusive. He alleged that she is now neglecting looking after the house and their relationship is very precarious.”
239.
Dr W was asked to comment upon the expression in Dr M’s notes of 4 August 2003 “she hides her alcohol”. He explained that he thought that Dr M would just have been working through a check list of questions he was asking the wife’ about his wife’s drinking. One of the standard questions would have been “does she hide her alcohol”. He concluded from Dr M’s notes that the mother’s husband gave a positive answer to that question at that time (August 2003).
240.
Dr W said that if there was a pattern of hiding alcohol then that generally denotes an alcohol problem and if that is the current pattern then it is predictive of likely patterns in the future.
241.
Dr W was asked about the expression “many years binge drinking” in the August 2003 notes. Dr W described binge drinking as drinking that has as its central element the feature of somebody starting drinking and not being able to stop drinking until they were in a state of stupor. Binge drinking is normally episodic.
242.
Neither party sought to call Dr M to give evidence and the evidence from his notes has to be treated with some caution given that it is hearsay. Counsel for the mother submitted that the mother wasn’t asked about hiding alcohol. She was and she directly denied that she had ever hidden alcohol from her husband. The mother’s husband’s evidence shed no light on what he might have said to Dr M for Dr M to make the note he did.
243.
The mother denied that she was an alcoholic or had alcoholic tendencies. She was asked whether or not her husband thought she was alcoholic. She replied “Well, Chris doesn’t drink, so he thinks everybody’s an alcoholic who does”.
244.
The mother admitted binge drinking. The wife’s evidence about when her binge drinking occurred is a little unclear. She initially placed it “probably before the children were born”. The first child was born when the mother was 27. Later in her evidence when asked at what age she was binge drinking she said, “Well, I suppose when we were young. I suppose around 18”.
245.
The mother’s sister’s partner had been an alcoholic for 25 years and she had attended an AA meeting with her sister and her partner on one occasion. She had not received any counselling herself in relation to alcohol and she didn’t perceive that she had a problem. She said that she had friends and her sister who has a tertiary degree in psychology with whom she could discuss any problem.
246.
She agreed she had two offences for driving whilst under the influence of alcohol. She said that the second one had happened after a dinner that she had with a girlfriend and that the children weren’t with her. She denied she had ever driven a motor vehicle whilst her licence had been suspended and that she had always only had one licence
247.
Dr W gave evidence that although he didn’t know why, he had not asked the wife about her consumption of alcohol.
248.
In relation to her consumption of alcohol, the mother confirmed that she drank wine. She agreed that there had been periods when she had drunk 4-5 glasses on average per day, although she then put a gloss on that by saying that that wasn’t every day. Her current consumption of alcohol is 1-2 glasses and if there is a special occasion she might go to three glasses.
249.
The mother’s evidence about the timing of recent heavy periods of alcohol use in unclear. Counsel for the mother submitted that “the mother conceded that the two periods, over 18 months to two years ago, that she drank too much in periods of high stress”. These periods were said to be once in 2004 (a week or more) and around March 2005 (4 to 5 weeks).
250.
However, when the mother was asked on 9 November 2006 what her drinking pattern was this time last year (ie November 2005) on an average day her response was:
“Where are we? Can’t remember. Yes, well that was a period when I probably wasn’t too good. Probably, maybe – I don’t know – I might have up to four or five glasses of wine”.
251.
This evidence is not consistent with other evidence that the last period of heavy drinking by the mother (ie consistently more than four standard drinks or two glasses a night) was in March 2005 and given the confusion in the answer set out above I am prepared to accept the last period of heavy drinking by the mother was in March 2005.
252.
Dr W gave evidence that a standard glass of wine is 100mls and that although it was not free from doubt, a woman drinking four standard drinks a day could be considered to have a problem. A woman consuming 7 standard drinks a day (a bottle) would be considered alcoholic.
253.
Although the mother used to be a bar attendant the mother gave confused evidence as to the physical quantity she drank. She was initially unable to say how many standard glasses there were in a bottle of wine. She thought a standard glass of wine was 200mls and her normal glass would fit about 300 mls. The mother when in the witness box physically demonstrated the level to which she would fill a glass. That demonstration showed that she put substantially more in a wine glass than one standard drink. She demonstrated that she filled the glass close to the rim.
254.
The mother’s husband’s evidence relating to the normal quantity in the wife’s glass was not consistent. He initially said he thought the glass contained 250 mls. Overnight, whilst under crossexamination the mother’s husband said he carried out an experiment and he realised that glasses used in the house held between 185 – 200 mls. I accept that he had carried out the experiment and that when the wife referred to “a glass” she was referring to about 200 mls of alcohol.
Conclusions about the mother’s use of alcohol
255.
The mother and her husband gave consistent evidence about the mother’s current use of alcohol.
256.
Her evidence (on 8/11/06) is that she usually drank a couple of glasses of wine with meal in the evenings. That is the mother consuming about 400mls of wine a day.
257.
Dr W is of the view that, although not free from doubt, that level of consumption of alcohol could be considered to be a problem.
258.
In stressful periods, the mother has drunk more than a bottle of wine a day.
259.
Stressful times could happen again in the future but the period of the wife’s acknowledged drinking was during a period of time when there was a particular group of stresses impinging on her household. The major stress was a continuing reaction that she had to not being able to take the boys with her to South Australia when she moved there in 2002 and conflict with her husband who was embroiled in litigation with his stepmother.
260.
The mother’s past history of use of alcohol and her current level of alcohol use gives me some concern but there is no evidence it has posed a risk to the children.
261.
Dr W was asked about drinking at that level of a bottle of wine a day and its affect on children. He said that the effect on teenagers was different to the effect on younger children. With teenagers there was a risk of modelling. There was a risk that the person drinking would become irascible, uncompromising and difficult. It might also lead to a circumstance where somebody was reckless in a motor vehicle.
262.
There is the lack of any reporting by the boys of any incident of problem whilst they were with their mother arising from their mother consuming alcohol.
263.
In terms of reporting as to what was happening in his mother’s household, Dr W would rely on J more than H. He accepted that possibly H presented a very glossy picture of what was happening, a bit of a “sparkly eyed” picture, whereas J was more likely to say “yes this; but that”. Dr W said you got a truer picture from a child who equivocates. J has not said anything about his mother’s use of alcohol.
264.
The maternal grandmother was not asked any question about the mother’s use of alcohol nor about any effect it had on her parenting ability.
265.
I conclude that the mother’s current level of use of alcohol does not give rise to a need to protect the children from exposure to abuse or neglect as a result of its use.
The mother’s husband’s mental health
266.
The father asserted that the mother’s husband’s mental health was a risk to the boys if the boys lived with him full time.
267.
The main evidence of the mother’s husband’s mental health was contained in records from Dr M which received a reasonable amount of attention during the hearing. Dr M was a psychiatrist that the mother’s husband saw on two occasions once in 2003 and once in 2005. I refer above to what the mother’s husband told Dr M in 2003 about the mother’s drinking.
268.
Given the prominence that they played in the evidence, I set a transcript of Dr M’s notes out in full (part of Exhibit L):
“Since 2000 fighting legal battles.
Father died late in Dec 2000. His second wife took his will to court.
Acrimonious, nasty, vicious.
Affected partner and brother.
Pains in head, dull pain, range of emotions, frustrated. Settled on 2/6/03 in court, without trial. Was angry and aggressive last 6 to 8 months.
Father’s brother died intestate several months after father died. He had no family. He had property, probably willed to patient and brother. But his widow was a friend of step-mother and they ganged up together.
Uncle diagnosed with dementia. Late 1998 aunt said brother and patient would inherit grandfather’s farm. After uncle died other family influenced aunt.
Aunt had sold farm properties and given others away. Brother 41, left to go back to NSW after the problem surfaced.
Patient was in Sydney for 8 years
Patient’s wife (2nd) has two children by previous marriage and with patient has 1 child. Her partner refused to let their 2 children leave NSW.
In 2001 Family Court in NSW punished them for not disclosing that they [sic]...to SA for a substantial amount of inheritance.
Step-mother was plaintiff and patient and brother the defendant. She refused to settle until last minute.
Had been in legal battles before years ago. Fought Southcorp for 2 years. Lost first marriage – 1990 – 1992. Saw a psychiatrist 3 times.
People (told him) that (he had) changed.
This time a similar situation. So focused on case he ignored the interpersonal relationship.
First marriage no children. First wife got through university and helped working on case.
Relationship with present wife – 4 year marriage. She gets very angry when she misses children and takes it out on him. She drinks >750ml wine a day – everyday – she has family alcoholism. Many years binge drinking. Patient does not drink. She often abused him after drinking. Occasionally attacks him.
Patient gets so frustrated that he verbally attacked her. Patient had suggested they see a relationship counsellor. Wife had been to AA. She hides her alcohol.
Mental state examination
Small stature. Clean cut. Brown hair. Blue eyes. Anxious. Mildly agitated. Irritable.
Has 2 year old child. Home is a mess. Yesterday patient took opportunity to instigate cleaning. Wife agreed but then postponed cleaning process. She went to drinking later that evening.
She said he needs to see a psychiatrist. That he is obsessive compulsive because he wants some cleanliness and orderliness. Requires more information re diagnosis of PD. PD Adj Dis
8/9/03 DNA
14/4/05
Family said he has OCD and anxiety attacks. Fam gave him a homeopathic tablet, told him to take Anafranil.
Sym
Cleanliness. Upset when children drop stuff on floor and make mess. Wife puts dishes piled up in sink. In laundry clothes pile up everywhere.
Lives in [W]. Commutes to [D] daily to work. Works in finance.
Some weeks would work as late as 6.30pm. Great attention to detail. Very organised.
Wife, mother-in-law, sister-in-law all said he is OCD. Sister-in-law “naturopath” 3 weeks on medication – no change.
Anxiety attacks – feels a frustration not achieving within time frame, more-so outside of work situation. Frustrated by people’s bureaucratic demands. May be short and angry with them at shop, service station, with wife. Not enough time.
Goes for cheapest produces with grocery, can be mean with money according to wife.
Tends to check and re-check work.
Conscientious, high standards, perfectionist.
Given pamphlets and discussed diagnosis.
Relaxes, watches TV, goes out with kids.
3 children, [J] 12, [H] 11 and [N] 4.
Wife: [Mrs L] 39, patient 46.
Very lax in domestic cleanliness, improved over the year, not so disorganised. Father died 2000, was high achiever. Was a spy in Malaysia. Patient born in Kuala Lumpur in 1959. Found out in 1980 when he applied for work with Foreign Affairs.
Diagnosis
Mild OCPD. Zoloft 50mg mane ½. Given a sample of 7 tables and a script for Zoloft.”
269.
Exhibit L also contains two letters written by Dr M to the referring general practitioner. On 11 August 2003 Dr M wrote a letter referring to what he was told about the wife’s drinking which concludes in the following terms:-
“Emotionally, he feels angry all the time, he suffers persistent dull headaches, he is frustrated, especially with his wife’s behaviour, and he feels at wits end as to what he could do. He presented as tense, irritable, with mild psychomotor agitation. No delusional or hallucinatory experiences were noted.
Diagnostically, he suffers an Adjustment Disorder with anxiety symptoms. He wanted to see a psychiatrist, essentially for supportive psychotherapy. I did not prescribe any psychotropic medication for him, but will review him again in the near future.”
270.
On 22 April 2005 Dr M wrote to the wife’s husband’s general practitioner. That letter referred to the previous consultation on 4 August 2003 and noted that he had failed to follow up an appointment on 8 September 2003.
271.
The conclusion of the letter reads as follows:-
“Psychiatric history and assessment revealed that he has a mild Obsessive Compulsive Personality Disorder characterised by him being very organised, perfectionistic with attention to detail, conscientiousness, especially at work and having high moral standards. He is also very clean, neat, tidy, careful with his spending and a stickler to time.
Unfortunately his wife and her family tended to be rather carefree and lackadaisical. His wife and children are somewhat untidy and disorganised. For example the children would drop toys, clothes and other things on the floor and his wife would leave dishes piled up in the kitchen sink overnight. These issues tended to lead to frequent arguments and discord.
We discussed the management of these issues. He is prepared to take Zoloft 50mg mane which would minimise the distress and the mild handicap from his Obsessive Compulsive personality features. He will see me again for brief psychotherapy. At some stage his wife may need to be involved in therapy as the relationship is going through a difficult time.”
272.
Dr W was asked about the level of the prescription of Zoloft, which is an antidepressive medication. He said that Zoloft is used for people who have obsessive compulsive symptoms. The normal adult dose was 100mg. A dosage of 25mg (50mg mane ½) was a very low dose.
273.
Dr W was told that the mother’s husband had stopped taking the drug after a reasonably short period of time as a result of him becoming nauseous. Dr W commented that that was not unusual. He said a third of people who are prescribed Zoloft, Prozac or some like antidepressant medication stopped taking it after a few days because of nauseous.
274.
Dr W of his own motion referred to the final line of the notes from the interview by Dr M with the mother’s husband on 4 August 2003. That line says “requires more information re diagnosis of PD. PD Adj Dis”. The doctor said that the first PD meant personality disorder. The second PD meant provisional diagnosis and Adj Dis meant adjustment disorder. He said this diagnosis was a diagnosis of somebody susceptible to a stress reaction and was the lowest level of problem and involved a rag bag of symptoms. It did not fit a more serious condition. It might mean that the mother’s husband on occasions would exhibit unreasonableness
275.
The diagnosis at the end of Dr M’s notes for the second conference with the mother’s husband contains the conclusion “mild OCPD”. Dr W was asked what that might mean. He said that it was a hybrid term and probably covered two diagnostic thoughts. The first was an obsessive compulsive disorder. People who have that are paralysed by rituals such as hand washing. These rituals are episodic. They respond well to medication that would otherwise ordinarily be prescribed for a depressive illness (although the patient does not have depression).
276.
The other diagnosis that forms part of this hybrid is obsessive personality disorder. These involve traits of somebody being pedantic and normally a disorder of this nature would become progressively worse through life. People are able to function but it is the impact on others that is the important element of the disorder. The personality traits in the mother’s husband were not severe.
277.
Dr W said that the types of behaviour that might trigger a recurrence of the mother’s husband’s problems in the future would be anxiety created if things are not working out a certain way for him, particularly if he doesn’t feel he is in control. Dr W cited court cases as a good example. He said that because of the unpredictable and uncontrollable nature of litigation, people like the mother’s husband can be very upset by litigation. In that regard the doctor was aware that the mother’s husband had been involved in two lots of bitter litigation in 2005. One with his step mother and the other being these proceedings. Unpredictable things on the farm (such as a weather diaster or shearers caught in the Northern Territory and not arriving in time to shear sheep) are the types of unpredictable things that could trigger an anxiety attack. The mother drinking alcohol to excess could also challenge somebody with the mother’s husband’s personality traits. These types of people tend to keep things inside for a while and then there may be an explosion which may just be verbal and there may be irritability.
278.
Dr W had seen Dr M’s notes (exhibit L) prior to seeing the boys for a second time.
279.
The boys have not reported significant problems with the mother’s husband’s behaviour when they have been with him. Again I place weight on the fact that J has not reported any significant problems about the mother’s husband’s mood when J has been with him.
280.
Dr W was asked about the effect of the mother’s husband’s medical condition as diagnosed by Dr M upon the children. Dr W said that it might mean that he was quite pedantic and possibly quite controlling. He added however that the encouraging aspect was that he had recognised the symptoms of his behaviour and had gone to see somebody about it. That showed some degree of insight and showed that the mother’s hsuband didn’t think he was exclusively in the right. Dr W did agree that the mother’s husband’s problems would be less the lower the pressure he was under.
281.
The maternal grandmother gives no adverse evidence about her son-in-law’s mental health.
282.
Dr M’s notes were not available to Dr W at the time he saw the mother’s husband. Exhibit 28 consists of a letter written by the mother’s lawyer dated 4 May 2006 to the father and the Independent Children's Lawyer offering that the mother’s husband would make himself available for either a telephone interview or a face to face interview with Dr W should either the father or the Independent Children's Lawyer have continuing concerns as a result of information or material that may not have been given to Dr W relating to the mother’s husband’s medical condition and behaviour.
283.
On 9 May 2006 the father responded by rejecting that offer on the basis that the matter could only be properly addressed by repeating “the whole process” (by which I take it that the father meant re-interviewing everybody). The father said that he didn’t want to subject the boys to further questioning.
284.
I conclude the mother’s husband’s mental health does not pose any unacceptable risk to the boys living predominantly in the mother’s household.
Carpet burns
289.
Mullane J made findings about an allegation by the father that J had made a statement that his stepfather had caused abrasions on J’s elbow and knees by dragging him around the carpet at high speed.
290.
On balance Mullane J found (at paragraph 243 of his Judgment) that the injuries were caused by a skate board accident outside the H house and the statement that J made was for his father’s consumption.
291.
In Dr W’s first report (p22) the father encourages J to tell Dr W about the incident. J says to Dr W:
∙ [H] had banged a nail into something in a rented house.
∙ Both he and [H] had been dragged by [the mother’s husband].
∙ This happened after the last court case.
∙ The injuries sustained were minor.
∙ [The mother’s husband] had “never lost it like that” previously or since.
270.
On the second day of the hearing the father told me, “I don’t believe it happened twice… I’m not suggesting it happened twice”. On 9/11/06 the father sought to withdraw his concession and wished to submit that there might have been more than one incident.
271.
There is an inconsistency between J saying “this happened after the last court case” and “[The mother’s husband] had never lost it like that previously or since”. The second statement clearly implies there had only ever been one incident. But J had spoken about this incident before the last court case.
272.
Dr W thought that this event took place in 2001. When taken to pages 22 and 23 of his report Dr W was of the view that perhaps J was inaccurate in reporting when the event had occurred
273.
I confirm my previous ruling (on 6/6/06) that there was only one incident. This incident has already been the subject of a finding of fact by Mullane J. Even if the incident did take place, as the father asserts, it is an isolated and minor incident over four years ago.
The mother’s husband’s violence
274.
The father points to two incidents where the mother’s husband has acted in an aggressive way in the mother’s household.
275.
The father had subpoenaed records held by the police which disclosed an incident on 16/3/05. The father unsuccessfully attempted to tender police records of that incident. The mother’s version of what happened is set out at paragraphs 160-163 of her affidavit. Her husband’s version is at paragraph 46-48 and in similar terms. An argument developed about the cost of this litigation. The mother threw half a cup of luke-warm coffee at her husband. It went all over his shirt and the papers he was working on. Her husband reacted by pushing the mother to the ground. When she stood up and continued shouting at her husband, “he grabbed me around the arm and then the neck”. The mother’s oral evidence was that red marks were left on her arm after it had been squeezed. The mother attempted to call the police. Her husband broke the phone and then left the house for 3 to 4 hours. The mother called the police on another telephone. They came to the house after about 15 minutes.
276.
The father rightly makes the point that this is a significant incident in the life of the mother and her husband. Her husband however could not recall what time of day it happened. He could not recall what time of day it was when he came back to the house. He failed to acknowledge when being asked questions about putting his hands on his wife’s throat that such an action on his behalf was an assault. Dr W was concerned that he lacked the insight necessary to acknowledge that as a fact.
277.
The second incident is not mentioned in either the mother or her husband’s affidavit. This incident happened prior to March 2005.
278.
The mother described an argument that she had with the husband where he asked her to clean the house; she hadn’t done it and when he got home he got upset. She started to vacuum and as she was vacuuming she became a bit “cheeky”. Being a very fastidious man, she said her husband pushed her away and took the vacuum.
279.
The mother agreed that in the past she has shouted at her husband in anger. She said it is hard to say how often that has happened. It is depended on the issue. She has rarely shouted at N. N was not present during the vacuuming incident or the incident on the 16th March 2005. These happened during the day when N was in long day care.
280.
As Dr W said, two acts of aggression are two more than many couples (including the father and his wife) have ever had, but the mother’s husband’s reactions are at the low end of the range of domestic violence.
281.
The maternal grandmother was asked about paragraph 44 of her affidavit where she records the following:-
“That [J] and [H] appear comfortable in [their stepfather’s] company. I have heard [him] express his disapproval to the boys if they cause any mess. This is a feature of [my son-in-law] about which the boys and I joke. I have heard [him] express his disapproval to the boys for sitting around for long hours watching TV and/or playing computer games. I have never seen him being physically violent with the children. [My son-in-law] is a fussy person who likes the house to be tidy and clean.”
282.
She accepted that the mother’s husband was inclined to be a greater disciplinarian than any of the other adults. She thought however it was good for the children to have a certain amount of discipline.
283.
She didn’t have much by way of detail in relation to the incident that had happened in March 2005 but she doesn’t think that the mother’s husband is a violent person.
284.
The mother’s husband went back to see Dr M after the March 2005 incident.
285.
The mother’s husband set out at paragraph 34 of his affidavit two incidents that occurred in 1998 at the end of his previous marriage involving himself and his previous wife. He says during the first he “brushed past [her] who stepped back and then fell back onto the couch and bumped her head on the brick wall”. His previous wife’s 9 year old daughter called the police. In the second incident, the mother’s husband had an argument with his previous wife through a window after he discovered her having sex with another man. The police applied for an AVO and the mother’s husband thinks he consented to one. When asked questions about this his memory was vague.
286.
Another incident of alleged aggression by the mother’s husband took place at Court during proceedings before Mullane J. It was not raised as an issue in those proceedings. It became an issue in this case as a result of the mother attempting to tender a report from a security officer made by the father’s wife against the mother’s husband. The father’s wife, the mother’s husband and maternal grandmother gave oral evidence about the incident.
287.
The father’s wife said she thought the mother’s husband when walking past the interview room she was in motioned he wished to speak to her. She said she went to speak to him whereupon he confronted her in a way which frightened her.
288.
The maternal grandmother’s oral evidence was that the mother’s husband was sitting on the floor beside her at right angles to her. She was sitting on a chair. She saw the father’s wife coming towards them. Her view was that the father’s wife had come out of a room that was 2 or 3 interview rooms down the passageway. When the father’s wife walked up to them she pointed her finger at the mother’s husband saying words such as “you wanted to see me”. She appeared very angry. The mother’s husband stood up slowly, he didn’t speak. The father’s wife then ran down the hallway screaming. The mother’s husband and the father’s wife had come within one metre of one another or a little less.
289.
Ten minutes later a security officer came and spoke to them.
290.
Both sides tell different versions as to what happened on this occasion.
291.
The father’s wife’s version of her thinking the mother’s husband wanted to speak to her about something is given some credibility by the evidence of the maternal grandmother where she said that the father’s wife said to him ‘you want to see me’.
292.
It is also agreed that mother’s wife rose to his feet. It is also agreed that no words were said as he rose to his feet.
293.
It may have been a matter of perception as to whether or not the act by the mother’s husband of rising to his feet could be seen as an aggressive act. The father’s wife of course describes his face as he was getting up. The maternal grandmother had a full view of his face and saw nothing untoward in his demeanor.
294.
The father suggested to the maternal grandmother in crossexamination that his wife had her back to her, the grandmother did not agree. It was put to the grandmother in effect that she couldn’t see the mother’s husband’s face when he was standing up. The grandmother didn’t agree with that and affirmed that she was able to see his reaction.
295.
I accept the grandmother’s evidence as to what happened on this occasion.
296.
I find that the risk of acts of aggression by the mother’s husband in the future is low. Litigation between him and his step-mother which he described to Dr M as “vicious” which he rightly or wrongly believed were fuelled by the father and his wife, are over. The boys, and particularly J have not reported any domestic violence when they have been present. Nor has the maternal grandmother.
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
297.
His Honour said the following things about the wishes of J and H in his judgment::-
330. [J] has expressed a clear and consistent wish to remain in Sydney living in the area in which he presently resides and has expressed a wish that he not be separated from his father. He is an intelligent 9 year old and his expressed wishes are genuine. But his level of maturity is such that he is unlikely to have had regard to all the short term and long term implications of the 2 alternative proposals of his parents.
331. [H] has expressed a wish to continue living with his mother and, it appears, to live with her if she moves to South Australia. But one has to have concerns as to how genuine and strong such wishes are. He is ambivalent. He has also expressed wishes to “see everybody in the family all the time” and of most wanting to see his father and to see him “all the time”. He has also given reasons for wanting to move to South Australia; some of which are reproduced from statements by his mother or other adults aligned to her, and some of which arise from his perception of being responsible for his baby brother.
332. [H] is only 8. He is less mature than [J] and his expressed wishes should not be given great weight because of the above matters and because at his level of immaturity there is even less likelihood that he has a real understanding of the implications of moving to [W], and no likelihood that he has made a careful consideration of all the short term and long term implications of the two options.
298.
There are a number of paragraphs in the mother’s affidavit where she sets out statements made to her by one or other of the children about their views. I accept that these things have been said by the boys. There has at times been reluctance to get out of motor vehicles.
299.
On 22 February 2005 H saw his school counsellor. It seems from the notes that the father’s wife arranged for this appointment.
300.
Notwithstanding that the note records:
“([H]) said he didn’t know about seeing me. Sat twisting cord in his shorts throughout the talk – became teary. Said he wants to live with mum in SA.” (exhibit 13)
301.
The father gave evidence about the boys’ views before Dr W saw them in the second set of interviews.
302.
At paragraph 133 of his affidavit the father gives the following evidence:-
“Since the interviews with [Dr W] both [J] and [H] have said words to the effect, “Dad, we want to see more of mum but we aren’t at all sure about going to live with her”. I asked [H] what he liked about the idea of living with his mother and he said, “I would be able to drive over there because they have plenty of room and I could drive on the farm”.”
303.
The father gave oral evidence that in mid to late May 2006 H had said to him words to the effect “I have a lot of friends here. I am going to miss my friends. I want to live here and see more of mum”.
304.
He said that J is a very private person who has simply said words to the effect “I would like to see more of my mother”. He also said words to the effect “I didn’t realise I wouldn’t be seeing as much of you as I thought I would be. I thought I would be seeing you the same way as I have been seeing mum. I don’t know where I want to live”.
305.
It is possible the boys made these statements to their father but given Dr W evidence, these statements if made, do not represent a true expression of the boys views as at October 2006.
Dr W’s evidence about the wishes of the children and the weight to be given to those wishes
306.
Dr W first interviewed the boys in September and October 2005. At page 25 of his first report, Dr W says the following:
“I would note at the outset that I accept that the children have been pressured in both households.
Each time I saw [H], he expressed a strong wish to reside with his mother. Some of his reasons were of a fairly superficial type but he also provided several quite reasoned responses to considerations which I put to him of the implications of a move. For instance in relation to being cut off from his roots in Sydney, he commented that he has been able to keep up with his friends in Sydney by telephone from [W] during the holidays whereas his father has discouraged him from keeping in contact with his old [L School] friends even when he is in Sydney. Similarly in relation to whether seeing his father for vacations would be sufficient, he reasoned that he might see his father for more than a half of the equivalent of the school holidays and also he felt happy with the amount that he had seen of his father when he had been living with his mother in Sydney (although the contact was clearly more extensive then).
I note that [H] has been expressing a desire to live with his mother since the last residence case and he seems to have been unwavering in this wish. At this point, although he is only 11 ½ years old, he is still strong in this view and his reasons do not appear to be trite or superficial. He is of at least average intelligence and has engaged his cognitive abilities to draw on reasonable personal experiences in the present and the past to support his argument. While the reasons themselves may or may not be seen as weighty, it indicates that he has tried to think this matter through and that for an 11 ½ year old, he has tried not just to look at the short-term issues but also at longer-term issues. That is not to say that he has the perspective of an adult, but that he is making a good transition into adult thinking about his short and long term welfare.
[J] expresses a preference to reside with his mother and spoke of perhaps making the wrong choice in 2002. However he softened his choice to 60:40 in favour of his mother later in the assessment. I thought this was due to pressure from his father, particularly in the form of highlighting [his stepfather’s] alleged deficiencies.
Overall I formed the view that although [J] is susceptible to guilt and pressure, and feels insecure in his attachments to both his parents, the weight of his wishes is that he lives with his mother. He is quite bright, but his insecurity undermines the clarity of his thinking about his own welfare, making this a difficult issue to appraise.”
307.
The father said that his wife wasn’t impressed when she initially read Dr W’s report. She was very angry at parts of it. He said that he believed that they were naive in that they had not prepared for the process of the interviews nor had they bribed the children as he believed the mother and her husband had done. He asserted that the mother’s husband had sent the kids on helicopters rides and taken them on many different adventures in the time that they were with their mother prior to the interviews being done. He said that that was a period of two weeks but when challenged on that agreed that although there might have been some block time in weeks immediately before the interviews the actual time that they had spent with their mother prior to the interviews was only 3 days (16-19 September 2005).
308.
The mother agreed that she had thought about getting a dog for the family. She said they did need a dog at the farm. She was thinking about getting a Jack Russell when N was old enough or if the boys came to live with her, whichever was the earlier.
309.
Between the first block of hearing dates and the second block of hearing dates I made an order by consent that the boys be re-interviewed by the single expert.
310.
Dr W produced a second report dated 30 October 2006. He re-interviewed the boys together and separately on 27 September 2006 (brought to the interview by their mother) and on 23 October 2006 (brought to the interview by their father). The doctor under the heading “opinion” at the end of that report made the following comments:-
“When I last saw the boys, almost exactly 12 months ago, [H] was expressing a strong and consistent wish to reside with his mother. While I felt that some of his reasons were of a fairly superficial nature, I felt that he also gave some reasonably mature responses to considerations about the implications of the move. I also noted that this had been his wish since the earlier residence case and he seemed to have be[sic] unwavering in this regard. I was of the view that he is of at least average intellectual abilities and that he applied reasonable maturity to the issues, looking not just at short term issues but also at longer term issues.
[J] initially expressed a preference to reside with his mother and spoke of perhaps making the wrong choice in 2002 however he later softened his view, although still slightly favouring his mother. However I also felt that the change had been due to some pressure from his father as [the father] had outlined [the mother’s husband’s] alleged deficiencies in front of the boys at that second interview. Overall I felt that he was rather more susceptible to guilt and pressure and that he felt some insecurity in his attachments to both of his parents. I felt that although he was quite bright, his insecurity undermined the clarity of his thinking about his own welfare.
On this occasion, once again [H] expressed a strong and relatively unambiguous desire to live with his mother. He is now 12 ½ years and in my view is probably unshakable in that wish. I would also note that on this occasion despite still expressing the same view, when I saw him when he was brought by his father, he was quite anxious and apprehensive although he had been in a very confident mood on the day that he was brought by his mother. I formed the view that this reflects an understandable uncertainty about expressing a view which does not favour his father, not that his father would do anything to harm him, but more that his father would feel rather hurt if he knew what was being said.
[J] once again presents qualified views but again in balance he favours his mother. He impressed as being perhaps a little more settled and thoughtful this year.
Overall I formed the view that both boys have a wish which favours their mother. It is clear to me that they also have a strong relationship with their father which they do not want to jeopardise and that their relationship with their respective stepparents is of a secondary nature. Moreover I think both feel more comfortable with [the mother’s husband] than they do with [the father’s wife], finding his somewhat obsessive manner easier to live with than her nature.
I have also considered whether the boys may have been unduly or overwhelmingly influenced by their mother in forming these views. While it is possible that this is the case, much younger children are generally more susceptible to influence and their views are less independent of the views of the adults around them than are children of this age. Based on the consistency of the children’s accounts over a 12 month period in the course of four interviews with each child, two having been brought by each parent, I felt there was not evidence that the mother has had anything more than a subsidiary influence and that the boys’ views can largely be taken at face value.”
311.
Dr W agreed in his oral evidence that what he said in the first report was that in November 2005 J was ambivalent. Whilst there was a degree of ambivalence in October 2006 it was less marked than on the first occasion.
312.
Dr W said that the emotional bond between the two boys was important, that they had a close relationship and that they talked with each other about where they should be living.
313.
J was certainly aware of H’s views. H however may not be quite as aware of what J is feeling. I have taken into account how J’s knowledge of H’s strong views may have effected his own.
314.
Dr W agreed that there was some degree of fancy (by that I took him to mean idealisation) in H’s views, but he was not completely blinkered and H was aware of a number of his father’s concerns. Dr W said that the father had certainly reminded H about them.
315.
The maternal grandmother described J as a beautiful child who was no longer a little boy and whose voice was changing. She said he now has his own thoughts and is becoming much more independent.
316.
Annexure G to the grandmother’s affidavit is a heart felt note written by J to his grandmother in late 2002 or early 2003. It includes a statement “grandma, you do know the place I want to be don’t you”. The note was primarily a complaint about how he had been treated on his birthday. The father asked the maternal grandmother why this not had not been brought to his attention by her. She said it didn’t occur to her and she had formed the view that discussing its contents with him would not have helped the situation. She agreed that the expression by J in the note had bothered her a bit.
(b) The nature of the relationship of J and H with:
(i) each other
317.
The father gave evidence that J and H are best buddies.
318.
As mentioned above, Dr W referred to the emotional bond and close relationship of J and H. Dr W however did not see J and H as one other’s emotional life rafts.
319.
Neither party even hinted, at any point, that the J and H should be separated.
(ii) each of the children’s parents
320.
The children have a close and loving relationship with each of their parents. Mullane J, four years ago, found J had a stronger attachment to his father. I am unable to make that finding today.
321.
Dr W reported that both boys, but most noticeably Jo, generally seemed more contented when in the vicinity of their mother. Dr W reported that when he saw J on 14 October 2005 after he had been back with his father for some time, “He was at his most unhappy, vexed and I also thought fearful”.
322.
Dr W assessed that the boys had quite a good relationship with their father but that “the quality of their father’s household is dominated by their stepmother and her children, probably to the relative detriment of their relationship with their father”.
(iii) The father’s wife
323.
Dr W formed the view that the boys found the father’s wife and her children hard to live with. Dr W said she presented during the assessment as quite and overbearing woman.
324.
The mother says that J has reported to her words to the following effect:-
“I am having arguments with [my stepmother]. Arguments stem from mentioning you. This creates a situation.”
325.
J doesn’t talk in detail about what happens in his father’s home. His mother believes that he wishes as much as possible to keep the peace. The mother says that J has said to her words to the effect “Why has [she] got such a short fuse?” The mother says she responds “Darling maybe she can’t help that”.
326.
The father said that his wife was empathic to H and J and in fact more bias to H and J than her own children. He denied the suggestion that she put her own needs above H and J’s needs.
327.
At page 13 of the November 2005 family report Dr W says “It was noteworthy that [the father’s wife] made several jokes at the expense of the children. For instance she laughed at [S’s] short stature and she spoke in a slightly disparaging way about [U’s] impulsiveness”. When the father was referred to this passage in the family report he said that the boys themselves often joke about S’s short stature and that Dr W didn’t understand the family dynamics in the amount of time that they had with him.
328.
The father denied that his wife exercised excessive control over the children. He said that her involvement in the children’s lives was necessary when running a family of five children. The father’s position was that he and his wife shared similar opinions and whilst it might appear to the outside world that she was “calling the shots” on occasions when they disagreed “which are quite rare, I make the final decision”. I don’t accept that evidence.
329.
I find that the father’s wife is a forceful personality who plays an over involved role as stepparent. She can also have a short fuse which the boys find confronting.
330.
The father’s wife was cross examined extensively as to how she had mothered her daughter F and her son U.
331.
It emerged during cross examination on 7 November 2006 that F was not living currently at the O property. At the time the father’s wife gave evidence, F was living at the home of her boyfriend with the approval of her mother. F had been asked to leave the home until she agreed to abide by the rules of the home which were said by her mother to be:
1. She tells us where she is;
2. She comes home by an agreed time;
3. She sits through whole meals;
4. Be pleasant and polite.
332.
F had a difficult time when she had gone to boarding school at N School in Victoria. A couple of weeks after she arrived she was caught smoking. She was asked to leave the school when she was involved in an act of fellatio in the boys’ dormitories in the wee hours of the morning. The father’s wife is rightly critical of the school authorities who had not properly supervised a 15 year old girl under their care.
333.
The husband’s wife originally said in her evidence that when F is good she is very very good and when she is bad she is horrid. She took a pragmatic approach to F’s behaviour saying she didn’t make life easy for herself and that in terms of adolescent behaviour, although she had made mistakes she was learning from them and she was growing in maturity.
334.
I conclude however that as at November 2006 the relationship between the husband’s wife and her daughter is somewhat strained in that she at the current time is not able to have F as a part of the father’s household.
335.
The father’s wife was also cross examined about her lack of supervision, particularly in relation to U.
336.
A number of examples were detailed and are referred to in a number of the exhibits that were tendered from the school file.
337.
The lack of proper supervision centred around transportation of U to school by public transport.
338.
Exhibit 20 is a letter setting out the difficulties in relation to U and the school bus. The father’s pointed out that she had delivered her baby about a week after this by caesarean and was pretty distressed at the time.
339.
The father’s wife on one occasion sent U (who was then quite young) with a sandwich box which had not been washed which had the scraps of sandwiches from a previous day, an opened cheese stick and a carton of juice in it. She received a letter from the school which said that in the school’s view the father’s wife had not fulfilled her responsibility as a parent to provide an adequate day time meal for the child. The school, through the school canteen, provided a meal for the child on that day. The box that had been sent by the father’s wife had a note in it to the school asking them to ensure that U ate what was in the box. She did this by way of disciplining the child and attempting to teach U that it was important for him to consume what was given to him. Exhibit 19 is the letter from the head of early childhood education, Miss P, in relation to U’s lunch.
340.
By way of justification, the father’s wife said that her focus in relation to meals was breakfast and a substantial dinner. These were meals at which she could control the consumption of food by the children whereas she had no control over what they ate during the day.
341.
The matters referred to show some flaws in the father’s wife’s parenting which need to be weighed given the role she plays in parenting J and H in the father’s household.
(iv) The mother’s husband
342.
The mother’s husband has not involved himself in a parenting role in the way the father’s wife has. Dr W opined that he has behaved in a way appropriate for a step-parent.
343.
The boys call their stepfather by his first name and neither boy spontaneously expressed any adverse view about him.
344.
The father asked the maternal grandmother how the wife’s husband coped with the boys’ lack of tidiness. She responded by saying that he did a good job in getting them to be a bit more tidy, eat better and do things in a more disciplined manner. When asked how she believed the mother’s husband would cope with adolescent boys who were starting to assert themselves more, she said that he was prepared to listen when you asserted yourself.
345.
Dr W was of the view that the children had a fair grasp about their stepfather’s character. Dr W was certainly more comfortable with the reporting of the mother’s husband by J. He thought that H might be reporting his stepfather through rosier coloured glasses.
346.
The father’s evidence was that (presumably based on conversations with the children) the children had not spent very much time with their stepfather. When they went to Adelaide they mainly went on holidays with their mother and it was his opinion that the mother’s husband wasn’t there a lot of the time whilst they were on holidays. He said holidays were also an artificial situation which didn’t expose the children to what the father thought was the longer term risk of being in a household with the mother’s husband.
347.
The father agreed that when going for the interview the father told J to try and remember what it was like when he was living with his stepfather when talking to Dr W.
348.
The father is of the view that the mother’s husband can cover up his problems in the short term but that they will manifest themselves if the boys live in that household in the longer term.
349.
The maternal grandmother said that the mother’s husband regularly came to holidays with the family in Adelaide. She couldn’t remember him having holidays in Sydney with the boys. She gave as examples him coming to Victor Harbour and coming on a fishing holiday. This was at a time when they weren’t on the farm. The father was attempting to establish that the wife’s husband didn’t holiday with the boys and their mother but based on the grandmother’s evidence and her husband’s evidence I am satisfied that that assertion is not correct.
350.
I accept Dr W’s opinion that the wife’s husband has behaved appropriately as a step-parent. I have elsewhere found that he poses no unacceptable risk to the boys.
The boys and their step siblings
351.
Whilst closest to one another, the boys have good relationships with N and I. The boys have reasonable relationships with U, but are not particularly drawn to him. (Dr W comments that this is the reality of a blended family). The same applies to F, although she is not currently part of the father’s household. Their relationship with S, when he visits, is also reasonable.
Relationship of the parents
352.
The mother and father met in 1990/91. The mother was asked by the father for her to describe him. She said that there was two of him. There was one between 1990 and 2000 who was decent, kind, they got on pretty well, they never argued about the children even after they had been separated three years, he loved the boys. She then said that there was the one from 2000. She said there was still the underlying aspect of him being kind and decent but because of some of the things that he had done and some of the things that he had said there had been a major shift in his character. She said that in her view this was due to the influence of his wife.
353.
The relationship between the parents has in recent times been stressed by the conduct of the parties in pursuing this litigation and the alliance that developed between the father, his wife and Q, Mr L’s estranged step-mother.
354.
When asked whether or not he had ever been to W the father said that the family as a whole had taken a trip to see an eclipse which was 600 kms from Adelaide and he thinks they may have driven through W on that occasion but otherwise he hasn’t gone there.
355.
He and his wife however during the last four years have been in regular contact with Q, the step-mother of the wife’s husband. He and his step-mother have during that period been involved in litigation between themselves in respect of Mr L’s father’s estate. Q is now a good friend of the father and his wife. The father estimated that he had spoken to her about eight or nine times. He put the first contact with Q at June 2002. Q has stayed at his place in Sydney. She is English and his wife and her have got on well together. Of course they both had a common cause against the mother’s husband.
356.
The mother had obtained telephone records in relation to calls made from the father’s household to the W area. It was put that there had been 50 telephone calls made between June 2002 and December 2004. The majority were made on the father’s wife’s mobile.
357.
Phone calls were also made to the W publication, which is the local newspaper in W. The father didn’t make those calls which meant that his wife almost certainly did. He wasn’t able to say what the purpose of those calls were.
358.
The mother had annexed to her affidavit (at page 62) an email from the father’s wife to her dated 12 March 2003. The text of that email was as follows:-
“Want to know what your husband is up to? Oh what fun we are having!!!!”
359.
The father was asked about this email on the Wednesday of the first week of the hearing. His evidence was that he had only seen it the day before (Tuesday). He described it as silly and agreed with the proposition that it was offensive. The only defence he raised to it was that he was unsure as to the context in which the email was sent. The email had surprised him.
360.
At the resumption of the hearing it was plain that this language had been used in reaction to an email from the mother. I have referred to this evidence earlier when dealing with the mother’s credit.
361.
At paragraph 86 of her affidavit the mother gives the following evidence of a conversation she had with the father:
“[The father]: “We know everything you do in South Australia.”
Me: “How can you?”
[The father]: “We are Chartered Accountants we are part of a club, we have developed people down there who ring us up and give us information about you, we know all about [your husband] as well. I even know after the [W] festival you went to a pub with production people and you didn’t go home till late.”
Me: “I said how can you possibly know that?”
[The father]: “A South African woman we developed in Adelaide rang [my wife] and told her, if you want information you have to be strategic and develop people.”
362.
The father said that a South African woman rang him out of the blue. From what he said he presumed that she lived at W. What she said to him was mumbo jumbo and related to the mother and her husband.
363.
The evidence of both parties differs dramatically in relation to the conversation. I prefer the evidence of the mother in relation to this conversation. I find it would have been very unsettling for the mother to know that the father and his wife were developing contacts in the W area to provide information to the father and his wife about what the mother was doing.
364.
The father concedes that his wife rang Q in order to get some information. His wife frankly said in cross examination that that’s what you do when you are involved in litigation. I have no doubt that whilst parallel sets of litigation were happening involving the mother’s household that information was being exchanged between the father, his wife and Q.
365.
During his oral evidence, the father expressed the view that both the mother and his wife have strong views and are stubborn. He said he was going to take a more active role in tempering his wife’s views.
The father and his wife
366.
The father has a very close relationship with his wife and admires many of her qualities. He said that she had taken on five boys and been a mother to them and there is not many women who would do that. She has involved herself in organising the boys and looking after them on overseas trips. He conceded that everybody has faults. He said that people take a while to understand his wife. He wishes that her fuse was longer but then again he said that some say that he has the fault of having a fuse that is too long.
367.
The father said that his wife was not a subtle person. She was from a prominent family and had the confidence to say what she thought about things. The father denied that she was a domineering, insensitive bully. He thought she was a strong and kind person.
368.
It was put to the father that his wife is a formidable woman and the children see in her that way. His reaction was that some people may find her that way but he certainly didn’t and he didn’t believe any of the children found her that way. She was a woman of firm opinions but that those opinions can be changed.
369.
I find that the father underestimates the effect that the strength of his wife’s personality has on the dynamics of their parenting relationship.
The mother and the father’s wife
370.
The tone of the relationship between the mother and the father’s wife is clearly evident in the exchange of emails between them on 22 September 2003 (see page 71 of the mother’s affidavit; Annexure “R”).
371.
The full text of the emails is:-
“From [the father and his wife]:
I hear from the children that the reason that we have to pay the fees is to support the community of [W] in the promotion of [the mother]. Do they know that the mother of two children is unwilling to work for a living to help support them so that she can work for free to support the community of [W]. Maybe they should be informed.
You talked about responsibility. Grownups do that; look after children properly, inform others as to what is going on in a timely manner and then they make commitments, stick to them. All the talk in the world doesn’t work if you can’t even keep to the basics. Time to grow up [Ms L]. Stop putting all your insecurities on to the kids, pull yourself together and face up to what is right, rather than you you you. Before long they’ll start seeing through you.
Reply from the mother:
You are incredibly ungracious and unkind individual, your abuse and continual nasty comments only serve to reflect on your own character and inadequacies. Please do not send me anymore abusive emails. The children do not believe the nasty stories you tell them and it is very sad indeed you feel the need to cast aspersions my [sic] character.”
372.
It was suggested to the husband in cross examination that the email sent by his wife on that day to the mother suggested that maybe the children should be informed about their mother paying significant money for the support of the W community whilst at the same time quibbling about school fees.
373.
At the time I raised with Counsel for the mother as to whether or not that was a proper interpretation of the email. The email is ambiguous. The “they” expression “maybe they should be informed” might refer to the community of [W], just as it might refer to the children.
374.
The mother said that she would have no problem with the father’s wife coming to Adelaide and being involved in school activities there when the father was with her as long as she was civil and some work was done to attempt to repair the relationship between her and the father’s wife.
375.
The mother was asked about the third last paragraph in Dr W’ second report. That paragraph records a conversation between Dr W and J in the following terms:-
“I asked him about the relationship between his parents at the moment. He said it has not been as bad this year, nothing like the way things were in Easter 2005 between his mother and step-mother. He described them as both having been extreme then.”
376.
The mother commented that this was just after the Y Court proceedings when the father’s wife had been convicted of assaulting her (which conviction was overturned on appeal)..
377.
The father conceded that the relationship between the mother and his wife had got a lot worse since the father and she had married. The father said on a number of occasions during the hearing that he had a long fuse and his former wife had a short fuse. He would walk away from an argument, the women did not.
The mother and her husband
378.
Mullane J found that four years ago the father’s new relationship was closer and stronger than was the mother’s new relationship. (See Para 339(v) and 364). His Honour commented upon the fact that the mother’s husband withheld financial information from the mother and that appears still to be the case. However, the mother’s relationship with her husband has now survived almost seven years, through some troubled times (exacerbated by this and other litigation) and seems at the current time to be settled and stable.
The father and the maternal grandmother
379.
The father alleges that he has a very good relationship with the maternal grandmother and he also has a good relationship with the mother’s sister. The maternal grandmother only lives 5 minutes away from his place.
(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
380.
This topic has been covered in the discussion of the first primary consideration.
(d) The likely effect of any changes including effect of separation from parents or others
381.
One big change for J, if he goes to Adelaide is the change of schools. He is settled in Y High which is a top ranking selective high school in Sydney.
382.
The father’s proposal for H’s schooling is a little unclear. The father says H might go to Y (H currently doesn’t have a position there) but the father hopes he stays at his current school.
383.
The material from H School and the oral evidence of the mother and her husband would indicate it is more than adequate academically. Both boys are familiar with the physical location of the school and express a wish to go there.
384.
In the second page of Dr W’s second report (dated 30 October 2006) he records that J was “worried” that Adelaide might be a bit boring but he said that there is a lot of sport available, referring to squash, tennis and cricket through the proposed school. He contrasted this with Sydney where he has to run around a lot to access these activities. He also indicated that he would be leaving some friends behind. The mother was asked about what friends were being left behind. She said that although she had been introduced to a couple (whom she named) she didn’t remember the names of most of the friends that she had been introduced to. These are friends that he has made at Y this year.
385.
The mother agreed that the two households have a very different way of running and the boys will be coming to a new routine. She said that J knew the routine and that J and her husband get on very well. H is less organised and there is the potential of there being some friction between her husband and H. As previously discussed her husband places a particular emphasis on neatness and orderliness.
386.
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.
387.
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.
388.
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.
389.
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..
390.
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.
391.
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.
392.
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.
393.
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.
394.
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.
395.
At the moment the mother pays everything to do with the costs of airfares under Mullane J’s orders.
396.
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.
397.
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.
398.
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).
399.
The father agreed that in 1999 he had income of $300,000 pa and net assets of $1 million.
400.
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.
401.
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.
402.
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.
403.
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.
404.
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.
405.
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”
406.
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.
407.
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.
408.
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.
409.
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.
410.
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.
411.
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.
412.
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.
413.
The mother said she wished to re-enter the paid workforce part-time in South Australia.
414.
The mother confirmed that her husband would like the mother to re-enter the workforce part time.
415.
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.
416.
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.
417.
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.
418.
The father’s wife is a woman of some means.
419.
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.
420.
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.
421.
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.
422.
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.
423.
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.
424.
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.
425.
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.
426.
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
408.
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
409.
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.
410.
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.
411.
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?
412.
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?”
413.
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.
414.
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.
415.
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.
416.
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.”
417.
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.
418.
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.
419.
I find that more could have been done in the father’s household to control head lice for the boys.
420.
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.
421.
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
422.
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.
423.
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.
424.
The principal indicated that the father had initiated discussions in relation to J’s progress.
425.
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.
426.
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.
427.
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.
428.
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).
429.
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.”
430.
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.
431.
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.
432.
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.
433.
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.”
434.
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.
435.
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
426.
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.
427.
This is not a consideration in this case.
(j) Family violence
428.
This topic has been covered in the discussion of the second primary consideration.
(k) Any family violence order
429.
There is no current family violence order.
(l) The order that would be least likely to lead to the institution of further proceedings
430.
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
431.
There is no other fact or circumstance that has not been dealt with elsewhere.
CONCLUSIONS
432.
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.
433.
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.
434.
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
435.
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.
436.
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.
437.
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.
438.
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.
439.
She said there was bed and breakfast accommodation available near the school, she thought for about $70 per night.
440.
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).
441.
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.
442.
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.
443.
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.
444.
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.
445.
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.
446.
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.
447.
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.
448.
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.
449.
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.
450.
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.
451.
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.
452.
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.
453.
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
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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