HALLEY & HALLEY
[2010] FamCAFC 160
•26 August 2010
FAMILY COURT OF AUSTRALIA
| HALLEY & HALLEY | [2010] FamCAFC 160 |
| FAMILY LAW - APPEAL – against specific parenting orders made by a Federal Magistrate - no appellate error established – appeal dismissed. |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 Norbis v Norbis (1986) 161 CLR 513 |
| APPELLANT: | Ms Halley |
| RESPONDENT: | Mr Halley |
| FILE NUMBER: | MLC | 13613 | of | 2007 |
| APPEAL NUMBER: | SA | 102 | of | 2009 |
| DATE DELIVERED: | 26 August 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 5 March 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 23 November 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1213 |
REPRESENTATION
| THE APPELLANT: | Ms Halley in person |
| THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | Kordell Lawyers |
Orders
The appeal be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Halley & Halley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 102 of 2009
File Number: MLC 13613 of 2007
| MS HALLEY |
Appellant
And
| MR HALLEY |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before me for hearing is an appeal by Ms Halley (“the Mother”) against a judgment pronounced on 23 November 2009 of Federal Magistrate McGuire in parenting proceedings. The Respondent to the appeal is Mr Halley (“the Father”).
In summary, the Mother is appealing against specific parenting orders made by the Federal Magistrate in relation to a number of topics that included communication by telephone; the parents being restrained from taking the children to a specific General Practitioner; restraining the non-resident parent from attending extra-curricular activities; and that the Mother be restrained from taking any of the children to any “psychiatrist, psychologist, counsellor, social worker or other behavioural scientist without the express written consent of the father”.
The Mother appeared before me, and also before the Federal Magistrate, without legal representation. By email dated 23 February 2010 addressed to the Court the Father advised that he would not appear in relation to the appeal proceedings.
The conduct of this appeal has not been without difficulty which included endeavouring to identify the appellate errors contended for by the Mother. Further, the amount of written material was significant. I observe that in a draft index to appeal books filed by the Mother on 13 January 2010 she sought to include affidavits sworn or affirmed by her which were filed on 22 July 2008, 8 September 2008, 13 October 2008, 20 July 2008, 29 July 2009, 11 August 2009, 16 September 2009 and 17 December 2009.
I am also of the view that a number of the controversies which the Federal Magistrate was asked to adjudicate upon were matters that ordinarily would not or should not arise in circumstances where the parents have equal shared parental responsibility. However, in my view, the controversies that the Federal Magistrate was asked to resolve may establish that the presumption of equal shared parental responsibility may be rebutted.
During the hearing of the appeal, the Mother informed me that proceedings for parenting orders have been transferred to the Magellan list in the Family Court of Australia. No application was made to me to adduce further evidence or stay the hearing of the appeal proceedings. However, it may be that given there are pending parenting proceedings in the Family Court, the resolution of the issues before me will have no practical consequence. It may be that an order is made discharging an order made by the Federal Magistrate in earlier proceedings that the parties have equal shared parental responsibility for the children.
BACKGROUND
Introduction
The Father was born in 1972 and is currently 37 years of age. The Mother was born in 1975 and is currently 34 years of age. The parties were married in 1999 and separated in August 2006. They were divorced in May 2008.
There are three children of the marriage, A born in May 2001, B born in February 2003 and C born in October 2004 (“the children”).
The Father has remarried to Ms D. Ms D has three boys from a previous relationship, aged 11 and twins aged 9. The children of the Father and the Mother and the children of Ms D live together with the Father and Ms D.
April 2009 orders
Proceedings were commenced in the Federal Magistrates Court in December 2007 when the Father filed an application for final orders. Those proceedings were concluded on 3 April 2009 when the Federal Magistrate delivered reasons for judgment and made the following final orders:
1. That, subject to order 2 hereof, the father and the mother have equal shared parental responsibility for the children of the marriage namely [A] born … May 2001, [B] born … February 2003 and [C] born … October 2004.
2. That the father be at liberty to enrol the said children at [L] Primary School, …, and in respect of [C], at [P] Kindergarten in 2009.
3. That the father forthwith notify [L] Primary School and [P] Kindergarten of the name, address and telephone numbers for the mother and authorise her being noted on school records as a person for contact and authorise the provision by the school to the mother of copies of all school reports, newsletters and notices.
4. That the children live with the father.
5. That the children spend time with and communicate with the mother as follows:
(a)Fortnightly, commencing Thursday 23 April 2009, from after school on Thursday until the commencement of school on Monday (but extending to the commencement of school on Tuesday in the event of the Monday being a long weekend holiday or a student-free day);
(b)For one half of each term school holidays, but subject to these orders, from Friday at 5.00 pm until the following Saturday at 5.00 pm commencing the second Friday of school holidays if the mother had enjoyed time with the children in the weekend immediately preceding the school holidays and otherwise commencing on the first Friday of school holidays;
(c)On a week-about basis during the summer school holidays with the changeovers to occur at 5.00 pm on a Friday and with the mother’s time to commence on the first Friday of holidays in 2009 and in each alternate year thereafter and to commence on the second Friday of holidays in 2010 and in each alternate year thereafter but subject to these orders;
(d)That the mother’s time with the children pursuant to order 5(a) of these orders be suspended during all school holiday periods;
(e)From 3.00 pm Christmas Day until 5.00 pm Boxing Day in 2009 and in each alternate year thereafter, but should the children be with the mother pursuant to order 5(c) hereof then the children spend time with the father from 5.00 pm Christmas Eve until 3.00 pm Christmas Day;
(f)From 5.00 pm Christmas Eve until 3.00 pm Christmas Day in 2010 and in each alternate year thereafter, but should the children be with the mother pursuant to order 5(c) hereof then the children spend time with the father from 3.00 pm Christmas Day until 5.00 pm Boxing Day;
(g)From 3.00 pm Easter Sunday until 3.00 pm Easter Monday in 2009 and in each alternate year thereafter, but should the children be with the mother pursuant to order 5(b) hereof then the children spend time with the father from 3.00 pm Easter Saturday until 3.00 pm Easter Sunday;
(h)From 3.00 pm Easter Saturday until 3.00 pm Easter Sunday in 2010 and in each alternate year thereafter, but should the children be with the mother pursuant to order 5(b) hereof then the children spend time with the father from 3.00 pm Easter Sunday until 3.00 pm Easter Monday;
(i)That should Mothers Day fall on a weekend when the children would otherwise be with the father then from 5.00 pm on the Saturday eve of Mothers Day until the commencement of school on the Monday but provided that should Fathers Day fall on a weekend when the children are otherwise with their mother then such time shall terminate at 5.00 pm on the Saturday eve of Fathers Day;
(j)For four hours on each of the mother’s and the children’s birthdays if a non-school day and for two hours if a school day the exact times to be agreed between the parties but failing agreement from 3.30 pm until 7.30 pm or from 4.30 pm until 6.30 pm respectively;
(k)Such other times as agreed between the parties from time to time in writing;
(l)By telephone each Tuesday at 7.00 pm with the mother to initiate the telephone calls to the father’s landline number and the father to keep the mother advised of his current landline number and to make the children available to accept the mother’s telephone calls and such calls to be for a duration no longer than a total of 20 minutes unless otherwise with the agreement of the father;
(m)Such other telephone communication as agreed between the parties in writing from time to time.
6. That the mother be and is hereby restrained as follows:
(a)From denigrating the father or [Ms D] to or in the presence of the children;
(b)From providing the children with any documents prepared or used in the Federal Magistrates Court proceedings between her and the father and in any way discussing these proceedings or their content with the children or any of them.
7. That the parents forthwith do all such things and sign all necessary documents so as to enrol in a suitable Relationships Australia mediation or similar process and to attend as directed or advised by the mediator for the purposes of discussing and agreeing important matters in respect of their children.
8. That the mother forthwith enrol in a recognised post separation parenting course and within four months of the date of these orders provide the father with a certificate of completion of such course.
AND THE COURT NOTES:
A. That the child [A] will continue therapy with [Ms M], psychologist, on such terms and times as suggested by [Ms M] and that the mother will attend such sessions, with or without [A], as directed and advised by [Ms M].
B. Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached and these particulars are included in these orders.
I have read the reasons for judgment delivered on 3 April 2009.
In his reasons of 23 November 2009 the Federal Magistrate observed:
4. Suffice to say at this stage that the evidence at the final hearing was clear and findings made accordingly that these children had been very much embroiled in the conflict between their parents leading up to the hearing and the final orders. There was expert evidence alluding to a real concern as to the children’s emotional health and relative to the mother’s attitude. The theme of the expert evidence was that whilst the children sought a relationship with their mother, they also required stability, routine and a removal from their lives of the stress, anxiety and involvement in the dispute between their parents.
Further proceedings
On 9 April 2009 orders were made in relation to amending the Mother’s time with the child C who was not to attend primary school until 2010.
On 20 July 2009 the Mother filed an Application in a Case which was amended on 16 September 2009.
The Federal Magistrate observed:
6. Against that background, the mother has now filed a further initiating application. In that document she seeks various orders some of which may be considered “mechanical or consequential” in nature but some of which are new in content from the final orders made on 3 April 2009.
7. The nature of the orders sought by the mother, or at least some of them, raises the question as to whether the application, in whole or in part, offends the rule in Rice & Asplund. [(1979) FLC 90-725]. …
8. Nevertheless, as I have also said, the father himself seeks orders. Some of those orders are of a mechanical nature. Others are injunctive orders. To their credit, and somewhat surprisingly given the residual antagonism between the parties, they were able to agree some matters whereupon orders can be made by consent.
On 24 July 2009 a response may have been filed in court on behalf of the Father.
On the 27 July 2009, by consent, order 5(b) of 3 April 2009 was varied to provide for the children’s time with the Mother in school term holidays.
The Federal Magistrate observed at [5] that since the final orders in April 2009 there had been a contravention application successfully prosecuted by the Mother against the Father. The allegation involved the Father failing to make the children available on 21 July 2009 for telephone communication with the Mother.
On 11 August 2009 the parties attended mediation with Relationships Australia. The Federal Magistrate observed at [12] that the Mother said that the mediator saw further mediation to be a “pointless exercise” and attributed the fault in this respect to the Father. The Federal Magistrate observed at [13] that the Father gave a different version and that in paragraph 20 of his affidavit affirmed on 22 September 2009, the Father said: “The wife left the mediation session soon after its commencement on account of her concern that the mediator was not ‘neutral’. I attended the rest of the session on my own with the mediator and discussed methods for focussing on the children and how to help them”.
The hearing before the Federal Magistrate was on 24 September 2009. His Honour observed:
9. Both parties were represented at the previous substantive hearing. The mother now represents herself. The father has the benefit of legal representation. Given the plethora of orders sought, the nature of some of those orders, and the occasional overlap between the application and the response, I propose to deal firstly with the mother’s amended initiating application filed 16 September 2009 by each paragraph in turn. I will then deal with the remaining orders sought by the father.
10. When this matter came before me and after discussions as to the nature of the application, it was agreed that this matter would proceed as a final hearing by way of submissions on the affidavits and without cross-examination.
Before the Federal Magistrate the Father relied on three affidavits, one affirmed by him on 24 July 2009 and one affirmed on 22 September 2009 and an affidavit affirmed on 22 September 2009 by Ms D. The Mother stated that she only received on 23 September 2009 the two affidavits affirmed on 22 September 2009 and “I haven’t had time to respond to that” (Transcript, 24 September 2009, p 3). After discussion between the parties as to whether the affidavits would be read, his Honour said “the first thing to do is to allow [the Mother] to consider it. I’m going to need to read it …” (Transcript, 24 September 2009, p 5).
I observe that the two affidavits relied on by the Father filed on 23 September 2009 were not included in the appeal books before me. The only affidavit of the Father put before me was one dated 31 December 2007.
Reasons for judgment of Federal Magistrate
In his reasons the Federal Magistrate first dealt with the application by the Mother.
The Mother sought an order that both parties be ordered to attend Mediation at Centacare “for a second attempt”. The Federal Magistrate observed:
14. Whilst I consider the jurisdiction of this court in respect of children’s matters in many ways a benevolent one, it is not a paternalistic jurisdiction. These parents sought and were given equal shared parental responsibility for making the important and long-term decisions in their children’s lives. Provision was made in the final orders for them to have the assistance of mediation. This is not a license to “shop” for sympathetic professionals. To put it simply, the process of mediation can only be successful if parties approach it with an objective and bona fide attitude. The opportunity for mediation remains. The order I made was directed at Relationships Australia. If either party wishes to engage in further mediation then it is open to them to use that facility and the benefit of that order. I do not intend to make an order in the terms sought by the mother.
The Mother sought an order that there be a communication diary for both parents to communicate regarding the children, and children’s issues on an ongoing basis during and post the mediation process. The Federal Magistrate dealt with this issue at [15] and [16] and for reasons he gave, refused to make the order.
The Federal Magistrate then at [17] to [23] dealt with the order sought by the Mother that both parties facilitate or arrange attendance of all or any of the children upon Dr G, General Practitioner, or his representative if unavailable, of the GB Practice. His Honour declined to make the order sought by the Mother.
The Federal Magistrate then at [24] and [25] dealt with the order sought by the Mother that both parties facilitate or arrange attendance of all or any of the children upon Dr W, Dentist, or his representative if unavailable, of the T Dental Practice. This was opposed by the Father.
The Federal Magistrate observed:
25. The father says that the children have been taken to a different dentist. He could not recall the name of the dentist but says that they attended in 2009. There was no explanation as to why he did not take the children to [Dr W] who would have had the benefits of their records and has historically been their dentist. I intend to order that the children attend [Dr W] for all dental matters and similarly the parents be restrained from taking the children or any of them to any other dentist except in the case of emergencies.
The Federal Magistrate then at [26] to [30] dealt with the order sought by the Mother that she be permitted to attend upon a psychologist, psychiatrist or counsellor of her choosing for the purposes of her own or any or all of the children’s health and well being. His Honour declined to make the order sought by the Mother. However, his Honour made a specific injunctive order as sought by the Father to prevent the Mother from taking the children to another psychologist, psychiatrist or counsellor.
The Federal Magistrate then at [31] to [38] dealt with the order sought by the Mother that both parties be permitted to attend upon the P Kindergarten or L Primary School for any activity or event where parents are ordinarily involved or invited, at any time. The Mother also sought an order that she attend with the child C, some L Primary School orientation events to which new students and their parents are invited. The Father also sought orders in respect of these matters.
The Federal Magistrate observed at [33] that he would make orders by consent that would provide for the parents to attend orientation days for the child C at the L Primary School.
The Federal Magistrate observed at [34] that more problematical was the issue of the Mother’s attendance at the children’s school and extra-curricular activities, specifically their swimming lessons at times when they are in the care of the Father. His Honour observed that the Father’s concern was that the Mother attends the school on the pretext of formal and invited participation but then seeks the children out for personal time with them. The Father in his affidavit filed on 24 July 2009 referred to a number of particular incidents.
The Federal Magistrate observed at [35] that the Mother argued that she attended the children’s school as parent help, canteen worker, and at public assemblies so as to allow her to have a full and beneficial relationship with the children given the time limitations of the existing orders and the fact that she was now in employment.
The Federal Magistrate observed at [36] that to their credit, and during the hearing, the parties were able to agree that there be an injunctive order in respect of both of them in the terms of the Father’s application. His Honour said that such an order gives some predictability for the children and also allows the Mother to participate in formal events and activities organised or facilitated by the school.
The Federal Magistrate observed at [37] that the Father pursued his injunctive order in respect of the children’s extra-curricular activities. The Father contended that the children attend swimming lessons during a time that they are in his care and that his current wife and her children also attend. His Honour observed that the Father alluded to some embarrassment for the children as to the circumstances of the Mother’s attendance at the swimming lessons and also that of the maternal grandmother. His Honour also observed that there “is a clear history of antagonism by both the mother and the maternal grandmother towards the father and [Ms D]”.
The Federal Magistrate gave reasons at [37] and [38] as to why he proposed to make injunctive orders which would prevent each parent from attending at extra-curricular activities enjoyed by the children whilst with the other parent.
The Federal Magistrate then at [39] dealt with the order sought by the Mother that both parties be restrained from denigrating any of the family members in the presence of the children. His Honour observed at [39] that the Father consented to such an order. His Honour did say:
… I should say, however, that the form of my order 6 of the final orders of 3 April 2009 was made on the basis of the weight of evidence in respect of the mother’s denigrating statements to the children about the father and/or [Ms D]. There was no evidence of any probity adduced then or now in respect of the denigration of the mother by the father or [Ms D]. Nevertheless, on the basis that there would be no fundamental prejudice to the father and that he consents to such an order then I am prepared to make an order in the terms sought by the mother.
The Federal Magistrate then at [40] to [44] dealt with an order sought by the Mother that the phone calls made by the Mother to the children occur each Wednesday at 7.00 pm for a duration of 30 minutes, and that the Father be restrained from placing the call on speaker phone or being present in the room while the children speak with the Mother; and that the Father or any person in the house when the call takes place, be restrained from interrupting the call or encouraging the children away from the telephone. The Father opposed this order. His Honour declined to make the order sought by the Mother.
The Federal Magistrate at [45] to [49] dealt with an order sought by the Mother that an order be made that Ms K, the teacher at P Kindergarten, prepare an affidavit with regard to events concerning the child C. The Federal Magistrate observed at [45] that Ms K gave evidence on behalf of the Independent Children’s Lawyer at the substantive hearing. The Federal Magistrate observed at [46] that the Mother sought the order on the basis that the school principal had “not been cooperative voluntarily permitting an affidavit from [Ms K]”. For reasons which the Federal Magistrate gave at [46] to [48], he refused to make the order.
The Federal Magistrate then at [50] to [54] dealt with an order sought by the Mother that “the Court issue engrossed Orders which consolidate the Orders made this day, 3 & 9 April, 27 July, and 20 August 2009”. His Honour observed at [54]: “With the consent of the father I am content for the orders emanating from these reasons to be consolidated with previous parenting orders so as to provide all dealing with the orders the certainty of one set of orders”.
The Federal Magistrate then at [56] dealt with paragraph 6 of the response of the Father in which he sought a variation of order 5(a) of the orders made on 3 April 2009 in respect of the return of the child C following weekends with the Mother.
The Federal Magistrate observed at [56] that the difficulty is that in the 2009 school year the child C is at kindergarten and will not commence at school until 2010. His Honour observed that the Mother agreed to the variation sought by the Father. His Honour observed that the Father also agreed to a minor variation to allow the return of the child C at 3.30 pm at the L Primary School if the day for return was not a day on which he was to attend kindergarten. His Honour set out in full what the result of this amendment and the amendment of 9 April 2009 would cause to order 5(a).
The Federal Magistrate observed at [57] that at paragraph 7 of his response the Father sought an extension of the non-denigration order made at paragraph 6 of the orders of 3 April 2009. His Honour observed that the parties “have wisely agreed to mutual orders in respect of non-denigration and not providing or discussing the court documents to or with the children. I will make those mutual orders accordingly and by consent”.
The Federal Magistrate observed at [58] that during submissions the parties agreed on “another discrete issue in respect of their children but not one which was the subject of an application by either of them”. His Honour was “prepared to make an order which attends to the event of any of the children falling ill”.
On 23 November 2009 the Federal Magistrate made the following orders:
(1) That, subject to order 2 hereof, the father and the mother have equal shared parental responsibility for the children of the marriage namely [A] born … May 2001, [B] born … February 2003 and [C] born … October 2004.
(2) That the father be at liberty to enrol the said children at [L] Primary School, …, and in respect of [C], at [P] Kindergarten in 2009.
(3) That the father forthwith notify [L] Primary School and [P] Kindergarten of the name, address and telephone numbers for the mother and authorise her being noted on school records as a person for contact and authorise the provision by the school to the mother of copies of all school reports, newsletters and notices.
(4) That the children live with the father.
(5) That the children spend time with and communicate with the mother as follows:
(a)Fortnightly, commencing 23 April 2009 from after school on Thursday until the commencement of school on Monday (but extending to the commencement of school Tuesday in the event of the Monday being a long weekend holiday but in respect of the child [C] and for the duration of the 2009 school year the father or his agent make [C] available for collection by the mother at the school of the children [A] and [B] at the designated time AND also for the duration of the 2009 school year the mother return [C] at the [P] kindergarten at 12.15 pm on Monday or Tuesday as appropriate pursuant to these orders but that should the return date for [C] not be a day on which he attends kindergarten then the mother shall return [C] on that day at 3.30 pm at the [L Primary] School.
(b)For one half of each term school holidays commencing:
(i)at 5.00 pm on the second Saturday of said holidays, and conclude at the commencement of school on the first day of the next school term if the mother had time with the children the weekend immediately preceding the school holidays.
(ii)at the conclusion of school on the Thursday immediately prior to the commencement of the term holidays if that was a Thursday when she would otherwise have commenced time with the children pursuant to paragraph 5(a) herein and concluding at 5.00 pm on the second Saturday thereafter.
(c)On a week-about basis during the summer school holidays with the changeovers to occur at 5.00 pm on a Friday and with the mother’s time to commence on the first Friday of holidays in 2009 and in each alternate year thereafter and to commence on the second Friday of holidays in 2010 and in each alternate year thereafter but subject to these orders;
(d)That the mother’s time with the children pursuant to order 5(a) of these orders be suspended during all school holiday periods and resume during school terms as if the holidays had never intervened;
(e)From 3.00 pm Christmas Day until 5.00 pm Boxing Day in 2009 and in each alternate year thereafter, but should the children be with the mother pursuant to order 5(c) hereof then the children spend time with the father from 5.00 pm Christmas Eve until 3.00 pm Christmas Day;
(f)From 5.00 pm Christmas Eve until 3.00 pm Christmas Day in 2010 and in each alternate year thereafter, but should the children be with the mother pursuant to order 5(c) hereof then the children spend time with the father from 3.00 pm Christmas Day until 5.00 pm Boxing Day;
(g)From 3.00 pm Easter Sunday until 3.00 pm Easter Monday in 2009 and in each alternate year thereafter, but should the children be with the mother pursuant to order 5(b) hereof then the children spend time with the father from 3.00 pm Easter Saturday until 3.00 pm Easter Sunday;
(h)From 3.00 pm Easter Saturday until 3.00 pm Easter Sunday in 2010 and in each alternate year thereafter, but should the children be with the mother pursuant to order 5(b) hereof then the children spend time with the father from 3.00 pm Easter Sunday until 3.00 pm Easter Monday;
(i)That should Mothers Day fall on a weekend when the children would otherwise be with the father then from 5.00 pm on the Saturday eve of Mothers Day until the commencement of school on the Monday but provided that should Fathers Day fall on a weekend when the children are otherwise with their mother then such time shall terminate at 5.00 pm on the Saturday eve of Fathers Day;
(j)For four hours on each of the mother’s and the children’s birthdays if a non-school day and for two hours if a school day the exact times to be agreed between the parties but failing agreement from 3.30 pm until 7.30 pm or from 4.30 pm until 6.30 pm respectively;
(k)Such other times as agreed between the parties from time to time in writing;
(l)By telephone each Tuesday at 7.00 pm with the mother to initiate the telephone calls to the father’s landline number and the father to keep the mother advised of his current landline number and to make the children available to accept the mother’s telephone calls and such calls to be for a duration no longer than a total of 20 minutes unless otherwise with the agreement of the father;
(m)Such other telephone communication as agreed between the parties in writing from time to time.
(6) That all changeovers for the purposes of the orders made by this Court on 3 April 2009 and that are not otherwise at the children’s school or kindergarten take place in the car park area of the [a restaurant in …].
(7) That the mother be and is hereby restrained as follows:
(a)From denigrating the father or [Ms D] to or in the presence of the children;
(b)From providing the children with any documents prepared or used in the Federal Magistrates Court proceedings between her and the father and in any way discussing these proceedings or their content with the children or any of them.
(8) BY CONSENT that both parties be restrained from denigrating any of the family members to or in the presence of the said children.
(9) That the parents forthwith do all such things and sign all necessary documents so as to enrol in a suitable Relationships Australia mediation or similar process and to attend as directed or advised by the mediator for the purposes of discussing and agreeing important matters in respect of their children.
(10) That the mother forthwith enrol in a recognised post separation parenting course and within four months of the date of these orders provide the father with a certificate of completion of such course.
(11) That both parties are restrained from inflicting any form of corporal punishment on the children, or any of them, and from permitting any other person to do so.
(12) That the children attend upon Dr [W] of the [T] Dental Practice for all dental matters and that the parents be restrained from taking the children or any of them to any other dentist except in case of emergencies.
(13) That the parents or their agents be and are hereby restrained from taking the children or any of them to a general practitioner other than Dr [J], or if Dr [J] is unavailable then a doctor from that practice, unless in the case of medical emergency and that these orders specifically authorise Dr [J] and her practice to discuss with the mother and disclose to her any and all relevant information regarding the children’s medical matters.
(14) BY CONSENT that each of the parents be permitted to attend with [C] an orientation day at the [L] Primary School, the mother to attend on 24 November 2009 to the exclusion of the father, and the father to attend on 1 December 2009 to the exclusion of the mother.
(15) BY CONSENT that the parents be restrained from spending time with the children at school or kindergarten other than:
(a)in accordance with changeover arrangements as provided for by court order; or
(b)to attend and participate in all such events and activities organised or facilitated by the children’s school or kindergarten to which parents ordinarily attend or assist in but not to exercise contact with the children or any of them; or
(c)during such period of time that the children are entitled to live with or spend time with that parent pursuant to court order; or
(d)by agreement in writing between the parents.
(16) That the parents be restrained from attending at the children’s extra-curricular activities and events (save for those in connection with school/kindergarten as specified in paragraph 15 hereof) other than during such period of time that the children are entitled to live with or spend time with that parent pursuant to court order or otherwise by agreement between the parents in writing.
(17) That the mother by herself or her agents be and is hereby restrained from taking the children or any of them to any psychiatrist, psychologist, counsellor, social worker or other behavioural scientist without the express written consent of the father.
(18) BY CONSENT that should any of the children not attend school on any day on account of illness then the parent having care of the child or children at this time shall notify the other parent of the nature of the child’s illness, details of the proposed medical intervention, and the fact of non-attendance at school not later than 8.30 am on that day.
AND THE COURT NOTES
(A) That the child [A] will continue therapy with [Ms M], psychologist, on such terms and times as suggested by [Ms M] and that the mother will attend such sessions, with or without [A], as directed and advised by [Ms M].
(B) That pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached and these particulars are included in these orders.
On 17 December 2009 the Mother filed a notice of appeal against the judgment of 23 November 2009. The Mother is appealing against orders 5(l), 13, 16 and 17.
If successful, the Mother seeks the following orders:
1. That Order 5 (1) be adjusted to read: “By telephone each Wednesday at 7.00pm with the mother to initiate the telephone calls to the father's landline number and the father to keep the mother advised of his current landline number and to make the children available to accept the mother's telephone calls and such calls to be for a duration of no longer than a total of 30 minutes unless otherwise with the agreement of the father.
2, That another Order is added: “The father and his agents encourage and give the said children time to speak with their mother without distracting them by being present at the phone call and or coaxing them to a different activity.
3. That Order 13 be adjusted to read: “That the parents or their agents be and are hereby restrained from taking the children or any of them to a general practitioner other than Dr [G] of the [GB] Practice, or if Dr [G] is unavailable then a doctor from that practice, unless in the case of medical emergency for all health matters and basis for referral. These orders specifically authorise Dr [G] and his practice to discuss with both the mother and father and disclose to both of them any and all relevant information regarding the children's medical matters.”
4. That Order 16 read: “That the mother is given permission to attend the children's extracurricular activities and events connected with the school, [L] Primary School. The mother is restricted to attend each extracurricular activity organised by the father to three occasions per school term.
5. That Order 17 read: “That the parents be restrained from taking the children or any of them to any health professional without first notifying the other parent.”
6. That a new Order be made: “That the parents commence and contribute to a communication diary which is exchanged upon changeover of the said children. All communication is to remain civil and appropriate in the event the children or any of them inadvertently view the diary, with information pertaining to children's appointments be made via email should the event occur within seven days of the other parent receiving the diary.”
7. That a new Order be made: “THE COURT NOTES (A) It has been found that [Mr Halley] has contravened the orders on one previous occasion and has therefore received his first warning.” (Or name the category of the warning)
On 31 December 2009 the Father filed in the Federal Magistrates Court a notice of abuse or family violence. The Father alleged that between June and November 2009 the Mother physically assaulted the children.
On 11 February 2010 the Chief Justice made an order pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that it is appropriate for this appeal to be heard by a single Judge.
On 23 February 2010 the matter came before me for a directions hearing and I made the following orders:
1. The appeal be listed for hearing at 2.00 pm on Thursday 4 March 2010.
2. It be noted that on 13 January 2010 the Appellant filed a list of documents that were before the Federal Magistrate upon which the Appellant seeks to rely.
3. On or before 2:15 pm on Wednesday 3 March 2010 the Appellant obtain those parts of the transcript of evidence of the hearing before the Federal Magistrate which may be relevant to the appeal and provide copies of such transcript to the Court.
4. On or before 2:15 pm on Wednesday 3 March 2010 the Appellant file and serve a list of the page numbers of the transcript upon which the Appellant seeks to rely.
5. On or before 2:15 pm on Wednesday 3 March 2010 the Appellant file and serve a written summary of argument and list of authorities (if any).
6. On or before 2:15 pm on Wednesday 3 March 2010 the Appellant file and serve any application to lead further evidence and any material in support thereof.
7. It be noted that by email dated 23 February 2010 Kordell Lawyers advised that the Father does not intend to appear in relation to the appeal.
8. A sealed copy of these orders be provided as soon as practicable to Kordell Lawyers.
On 25 February 2010 the Father filed in the Federal Magistrates Court an application for final orders and on that day Federal Magistrate McGuire transferred the proceedings to the Family Court and noted that it should be placed in the Magellan list.
The Mother’s appeal was heard by me on 5 March 2010 and I reserved judgment.
Before proceeding, I observe that an order was made on 3 April 2009 for “equal shared parental responsibility” of the children. This was in circumstances where the Mother complained to the Federal Magistrate on 24 September 2009: “I have sought to have [the Father] agree on certain things, or even discuss certain things. He continually doesn’t … I’m forever trying to chase things up with him, asking him for things. And you might think that I’m doing my part of the shared parental responsibility. I can tell you for sure that he certainly isn’t” (Transcript 24 September 2009, p 23: see also pp 56-61).
In his reasons, the Federal Magistrate was obviously concerned about the order for equal shared parental responsibility given the ongoing controversies between the parties.
RELEVANT PRINCPLES
This is an appeal against a discretionary judgment and the principles to be applied are well established and need not be restated: House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513 and CDJ v VAJ (1998) 197 CLR 172.
GROUNDS OF APPEAL
Grounds 1 & 2
Grounds 1 and 2 are as follows:
1. Appealing Order 5(l) on the grounds that the current day and duration of phone call is limiting and unfair on each child after not having had contact for seven days previous. FM McGuire clearly indicated to me in Court, “All right. I'm going to change your day to Wednesday at seven... So the Order as to Tuesday telephone communication changes to Wednesday...” The respondents excuse was his work commitments and others children’s sporting events, not the children with whom the conversation takes place. This being for the benefit of my work and sleep schedule as I work night duty. With regard to the duration of the call, the children are worried they will miss their turn and then speak over each other, and have recognised that one spoke with me longer than the other. An even 10 minutes will eliminate any discrepancy or perceived favouritism.
2. I seek an extra Order relating to the phonecalls as the nature of the phonecalls have become somewhat hostile since the respondent was found to have contravened the Orders relating to telephone communication. While FM McGuire's statement for not extending the duration of the phone call was simply because “I'm not changing the substance of the Orders at an interim stage,” he clearly makes decisions at this interim hearing and condenses these as final hearing decisions.
The Federal Magistrate made an order that the Mother communicate with the children by telephone each Tuesday at 7.00 pm with the Mother to initiate the telephone calls to the Father’s landline number and the Father to keep the Mother advised of his current landline number and to make the children available to accept the Mother’s telephone calls and such calls to be for a duration no longer than a total of 20 minutes unless with the agreement of the Father.
The Federal Magistrate observed at [41] that on 3 April 2009 he made an order that the Mother communicate with the children each Tuesday at 7.00 pm with the calls to be of a duration no longer than 20 minutes.
The Federal Magistrate observed at [41] that the Mother raised three separate discrete issues:
· The telephone calls take place on a Wednesday.
· The time be extended to 30 minutes.
· An order be made in respect of the Father placing the call on speaker phone or being present in the room when the children speak to the Mother.
The Federal Magistrate observed at [41] that the Mother’s proposal to change from Tuesday to Wednesday was apparently based on the fact that she sleeps on Tuesday after her work shift. His Honour observed that the Father deposed that the children now expect the Mother to call on a Tuesday and the household routine and other activities for the children have been arranged accordingly. His Honour also observed that the children are generally available at 7.00 pm on Tuesday.
The Federal Magistrate concluded at [41] that he was “not persuaded that the orders need to be changed in this sense and the telephone calls will remain to take place at 7.00 pm on Tuesdays”.
The Federal Magistrate observed at [42] that the Mother’s argument for an increase from 20 minutes to 30 minutes was “a mathematical one in that she says it allows her ten minutes with each child”. His Honour observed that his order of 3 April 2009 limited the time to 20 minutes and it “was a considered one and made for reasons that are apparent in my reasons for judgment. Again, I am not persuaded that there should be any change to the time span of the telephone call at this stage”.
As to the injunctive order sought by the Mother, the Federal Magistrate observed at [43] that the Mother sought this relief because of evidence of the Father in the contravention proceedings that the telephone would be placed on speaker and that he might be present in the room when the children were speaking with the Mother. His Honour observed that the Father gave reasons for doing so which were, what he saw as the Mother’s “propensity to espouse her own particular viewpoints directly to the children”. His Honour also observed that in his affidavit affirmed on 22 September 2009 the Father deposed that he no longer supervises the children when they are having telephone communication with the Mother. The Father deposed that he puts the children in a room with the telephone and shuts the door, leaving them in complete privacy.
The Federal Magistrate concluded:
44. I am of the view that the addition of injunctive orders to general parenting orders should only be made when there is good and probative evidence to do so. I note the father’s evidence as to how the telephone communications now take place. The children are, however, in his primary care and his general duty is to act responsibly at all times in caring for them. Generally, it is preferable that he does not monitor and listen into the children’s telephone calls with their mother. I am of the view that he now accepts this to be the case and I see no need to impose an injunctive order.
In the written submissions of the Mother, she submitted that during the hearing the Federal Magistrate, in discussion, said: “All right. I'm going to change your day to Wednesday at 7” (Transcript, 24 September 2009, p 51). Further, during the discussion, his Honour said: “So the order as to Tuesday telephone communication changes to Wednesday at 7pm. That’s not by consent. Just make a note that I was told the children attend a ballet on a Tuesday and the mother sleeps on a Tuesday. All right. Is that it?” (Transcript, 24 September 2009, p 53). The Mother submitted that “this note was not made and transcribed in the form of the orders of 23 November 2009”. The Mother submitted that his Honour “made an error of fact with regard to his own decision”.
The Mother only made submissions in relation to the order that the telephone calls take place on a Tuesday. Further, the only matter the Mother relied upon is what the Federal Magistrate said in discussion during the hearing.
At no point during the hearing on 24 September 2009 did the Federal Magistrate give any reasons for any concluded view he had formed about the numerous issues he was being asked to deal with.
I observe that during the discussion on 24 September 2009 the Federal Magistrate did say: “Right. They are the issues for the court today. I would have hoped to be able to give you a decision now, but quite frankly there are so many issues some of which are by consent, some aren’t. I’m going to need to go and look at this” (Transcript, 24 September 2009, p 54). I also observe that at the conclusion of the hearing on 24 September 2009 the Federal Magistrate said: “Alright. I will give you my orders and reasons in due course” (Transcript, 24 September 2009, p 71).
I observe that the transcript of 24 September 2009 reveals that the hearing before the Federal Magistrate proceeded on the basis of a discussion of each order sought rather than a set piece exchange of submissions. From time to time his Honour participated in the discussion. Further, from time to time his Honour expressed what may appear to be a concluded view about a particular matter. However, I am satisfied that what his Honour did was simply enliven the debate.
In my view, the Mother has not established any appellate error by the Federal Magistrate in relation to order 5 (l) and thus these grounds are rejected.
Ground 3
The Federal Magistrate made an order that the parents be restrained from taking the children to a general practitioner other than Dr J, or if Dr J is unavailable then a doctor from her practice, unless in the case of medical emergency, and that Dr J and her practice were authorised to discuss with the Mother, and disclose to her, any and all relevant information regarding the children’s medical matters.
Ground 3 is as follows:
Appealing Order 13 on the grounds that I have been applying to have the children see one General Practitioner since proceedings began in February 2008. In January 2007 we commenced seeing Dr [G] as a family and he has been my GP for 15 years. Dr [G] is located in […], and works five days. I have always provided his contact details when applying for this Order. Meanwhile the respondent chose to take the children to various medical centres around town. No contact details of the respondents chioce [sic] of GP has ever been given, and upon research I find GP works 45km west of […], [ … ] only three days. As a pensioner will be most difficult for me to take children there, I live within walking distance of our GP, dentist and 200m to hospital. The other party stated they did not have any particular objection to Dr [G].
In the written submissions of the Mother she contended that Dr G has been her medical practitioner for over 17 years. The Mother submitted that when the family returned to central Victoria in January 2007, she managed to enrol the children with Dr G even though his “books were closed” and he was not accepting new patients. The Mother submitted that she provided Dr G’s contact details and noted he works five days per week from a central … location. The Mother submitted that having never requested a similar order for the purposes of continuity for the children, the Father only gave the name of a medical practitioner on 24 September 2009 being Dr J. The Mother submitted that prior to this the Father was comfortable taking the children to various 24 hour medical centre’s around the locality with new medical records being opened each time. The Mother submitted that the Father in paragraph 49 of his affidavit sworn on 15 October 2008 deposed: “The next day I returned to the [R] Medical Centre”.
The Mother also submitted that on one occasion, while in her care: “I indicated our eldest daughter [A] was deemed to potentially have asthma by Dr [G]. When her step mother took [A] to another doctor, the doctor apparently said that [A] does not have asthma”.
The Mother also submitted that during the hearing on 24 September 2009 counsel for the Father said: “We don’t have any particular objection to Dr [G]” (Transcript, 24 September 2009, p 61). The Mother submitted that counsel: “appeared to miss the whole point of the application (being for continuity)” as he also said: “but we should be free and at liberty to take the children to appropriate doctors as we foresee them” (Transcript, 24 September 2009, p 61). The Mother submitted that the Federal. Magistrate said: “I don't necessarily agree. I think the priority is consistency”. Also the Federal Magistrate said: “Dr [G] appears to historically have been the doctor; geographically, he’s available” (Transcript, 24 September 2009, p 61).
The Mother also submitted that she informed the Federal Magistrate that she was unsure as to where Dr J consulted and there was no further detail about this doctor obtained. The Mother submitted that after researching Dr J, she discovered that she consults on two to three days per week in a town located 45 km west….
The Mother submitted that the Federal Magistrate made a considerable error in ordering that the children to be taken to Dr J while he had insufficient evidence of the location of her consulting rooms, and failed to consider the fact that the Mother is a single parent on a pension who is forced to drive 45 km to see a medical practitioner. The Mother contended that the local hospitals are located 200 meters from her home and that Dr G is also within walking distance of her home and is central to both parties.
The Mother repeated the above submissions at the hearing before me.
Consideration of the transcript of the hearing before the Federal Magistrate demonstrates that he discussed this topic with the parties at some length (Transcript, 24 September 2009, pp 61 – 65). On behalf of the Father it was submitted that the children had been seeing Dr J since “April 2007”. Dr J is the general practitioner who the Husband, Ms D and her three children attend upon and she is the doctor to whom the children disclosed alleged inappropriate physical discipline and corporal punishment by the Mother on them. I observe that the following discussion took place (Transcript, 24 September 2009, p 64):
HIS HONOUR: Yes, she has in effect been put in a position – which doctors do. Would it not then be difficult for [Dr J] to deal with the mother having been apprised of those allegations? Or alternatively, and perhaps more relevant, would it not be difficult for the mother to deal with Dr [J]? I don’t know. I mean, GP’s – I know they do this, and they have unenviable jobs where they get confronted with this sort of stuff, but they are also required to deal with colds and ingrown toenails and checkups and the stuff that kids – earaches and whatever. This should be one GP. Is Dr [J] compromised? Objectively. No reflection on your client. Objectively.
MR GRIGG: Yes. Well, I can’t answer that, your Honour.
HIS HONOUR: All right. You’re going to ---
MR GRIGG: I take it as a hypothetical question, but I –
HIS HONOUR: All right. I thought there might be something that appeared to your client, but that’s left for me?
MR GRIGG: Yes.
The Federal Magistrate said:
20. It is obvious that these children, as for all children, must have consistency of medical practitioners. The children’s medical records should be centralised with one surgery.
21. The irony is that each party at the previous trial specifically sought orders for equal shared parental responsibility. In paragraph 138 of my judgment I noted my hesitation in making such an order. I said:
The parties and the Independent Children’s Lawyer all propose an order for equal shared parental responsibility. The evidence suggests a lack of communication and cooperation and primarily at the behest of the mother. The orders sought anticipate cooperation and communication between the parties. The father in his evidence categorically stated a desire to reach such a communicative stage with the mother. Quite simply the evidence does not give me confidence that the mother would be able to reach this stage of objective communication without some assistance. Consequently, I propose to order that the parties attend a course of mediation. Again, the purpose of the order is to assist the parties reaching a stage of joint decision-making in respect of their children rather than as a forum to air negative and unhelpful opinions. (italics in original)
22. Put simply, the obligation on parents having the benefit of a shared parental responsibility order is for them to cooperate, communicate and jointly make decisions concerning important issues in the children’s lives. Commonly such issues include decisions as to matters medical, educational, religious and the like. The choice of a child’s doctor would, in my view, ordinarily constitute such a joint responsibility. They apparently cannot discharge such a basic responsibility as jointly choosing the doctor for their children. It does not augur well for a successful future for these parents as joint decision-makers.
23. Nevertheless, I am called upon to make an order as to who should be the usual doctor for the children. These three children live primarily with their father. It makes good sense therefore that the household have one consistent family doctor. There is no evidence that the court should prefer one or other of the doctors on the basis of expertise. On consideration, I do not believe that [A]’s visit in August to Dr [J] in any way compromises the doctor’s continued therapeutic relationship with the children. Consequently, I intend to order that the children’s usual general practitioner be Dr [J] and that the parties be restrained from taking the children to any other medical practitioner except in case of emergency. The orders will in themselves provide the mother and Dr [J] with the necessary authority for the mother to have the usual access available to a parent to Dr [J] in respect of the children’s health matters.
I am not persuaded that the Federal Magistrate made any error and thus this ground is rejected.
Ground 4
Order 16 made by the Federal Magistrate provided that the parents be restrained from attending at the children’s extra-curricular activities and events, save for those in connection with school/kindergarten as specified in order 15, other than during such period of time that the children are entitled to live with or spend time with that parent pursuant to court order or otherwise by agreement between the parents in writing. This order was sought by the Father.
Ground 4 is as follows:
Appealing Order 16 on the grounds that if 1 cannot attend extracurricular activities I cannot see my children learn, grow, socialise in environment other than school. I started taking [A] to swimming lessons at age 6mths. Why should I not see their progress? How can I consolidate children's practise if I cannot see what they are learning? How can I explain to the children that I am not allowed to go when they ask me to watch them? Limited opportunities to take children to extracurricular activities being fortnightly Thursday (nothing scheduled that children are interested in) and Fridays (nothing scheduled). A method of alienation.
In her written submissions in support of ground 4 the Mother said:
Federal Magistrate McGuire has precluded me from observing my children in an extracurricular activity environment. Federal Magistrate McGuire has failed to recognize that it was I for example, who took our eldest child to swimming lessons from the age of six months to seven years, and the other two children followed suit. Federal Magistrate McGuire has been told yet has failed to consider that it is extremely difficult for me to enrol my children in extracurricular activities as we are limited to fortnightly Thursdays after school (nothing scheduled that any of the children are interested in participating in) and Fridays (nothing scheduled and children too tired to participate after a big week at school).
I am interested in seeing my children participate in extracurricular activities. I enjoy seeing them grow, socialize and learn in a relaxed atmosphere, and an activity of their choice. My children ask me to attend and I am unsure as to how to advise them I’m not allowed to, as I am restricted by discussing court proceedings by order 7(b). By not attending, they think either I am not interested or am not allowed because I have been naughty.
I feel that Federal Magistrate McGuire has made a significant error in judgment by not considering the Primary and Additional considerations of the children's best interests as outlined in the Family Law Act (l975) (Section 60CC). Specifically, (2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents; (3)(a): any views expressed by the child... (3)(b): the nature of the relationship of the child with: (i) each of the child's parents; (3)(c): the willingness and ability of each child's parents to facilitate, and encourage, a close and continuing relationship between the child; etc.
Quite simply, I feel this order will assist in further alienating me from my children. I feel Federal Magistrate McGuire has failed to consider Family Report writer and psychologist [Mr P]'s view of my relationship with my children (4 September 2008, P.4):
I observed [Ms Halley] in the company of her children and this was unequivocally positive. The children were excited, enthusiastic, related warmly, comfortably and confidently with their mother. They very obviously enjoyed the time, and [Ms Halley] revealed herself to be a capable, competent, caring, affectionate, engaged and interactive parent. She related warmly and maintained good control, but was also clearly well attuned to her children. Each of the children approached her easily, enjoyed her attention and physical interaction, and seemed very genuinely pleased to be spending time with her. There was an abundance of affection, emotional reciprocity and a strong bond and attachment behaviour evident ... She clearly loves her children and they love her. She parents at a very high level, and the children are yearning for more time with her. (italics in original)
There was considerable discussion about this issue before the Federal Magistrate (Transcript, 24 September 2009, pp 23 to 24). During the hearing before me, after some discussion about the Federal Magistrate’s reasons, the following exchange took place (Transcript, 5 March 2010, p 10):
HIS HONOUR: I may not agree with that, but what's he - where has he gone wrong?
[MS HALLEY]: Well, clearly in his judgment he hasn't given a balanced view, he's given a view of what the husband, [Mr Halley], says in his affidavits, and he's made no attempt to then add what I say in my affidavits about when I attend extra curricula [sic] activities, and how, indeed, the children do respond to me when I do attend. In his judgment, McGuire FM is seeing only one side of the coin. He also refers to both my mother and I as being antagonistic, and I challenge the court to identify through filed material thus far as to how that has occurred, this supposed antagonism. McGuire FM is giving only the husband's view and how the husband thinks the children respond, or how he perhaps wants them to respond by my attendance, however, he's written nothing about how the children respond, which I've indicated in my filed material relating to extra curricula [sic] activities.
In his reasons, the Federal Magistrate observed:
34. More problematical is the issue of the mother’s attendance at the children’s school and extra-curricular activities, specifically their swimming lessons at times when they are in the care of the father pursuant to my orders. The father’s concern is that the mother attends the school on the pretext of formal and invited participation but then seeks the children out for personal time with them. The father in his affidavit filed 24 July 2009 refers to a number of particular incidents in this context.
35. The mother argues that she attends the children’s school as parent help, canteen worker, and at public assemblies so as to allow her to have a full and beneficial relationship with the children given the time limitations of the existing orders and the fact that she is now in employment.
36. Again, to their credit, and during the hearing of this matter, the parties were able to agree that there be an injunctive order in respect of both of them in the terms of the father’s application set out above. Such an order gives some predictability for the children. It also allows the mother to participate in formal events and activities organised or facilitated by the school. There will be an order accordingly.
37. The father pursues his injunctive order in respect of the children’s extra-curricular activities. He says that the children attend swimming lessons during a time that they are in his care. His current wife and her children also attend. He alludes to some embarrassment for the children as to the circumstances of their mother’s attendance at the swimming lessons and also that of the maternal grandmother. There is a clear history of antagonism by both the mother and the maternal grandmother towards the father and [Ms D]. In my view, the mother’s attendance at extra-curricular activities gives the potential for further conflict to occur in the presence of the children. The children’s best interests dictate that such conflict should be avoided. To my mind, the mother’s interpretation of and reliance on “the letter of the orders of the 3 April 2009” is disingenuous and simply a further example of her rigid and obsessive behaviour focused on what she perceives to be her own rights rather than the best interests of her children.
38. I propose to make injunctive orders which prevent each parent from attending at extra-curricular activities enjoyed by the children whilst with the other parent. By way of comment, I say that the need for such an order is unfortunate and the court hopes that the flux of time will assist the mother in taking a more child-focused view of the regime and arrangements imposed by the court orders. For the time being, however, the interests of the children are best served by there being such an injunctive order.
Again, I am not persuaded that the Federal Magistrate made any error and am of the view that, in the circumstances of this case, the order was well within his Honour’s discretion. This ground is rejected.
Ground 5
Order 17 made by the Federal Magistrate provided that the Mother by herself or her agents be restrained from taking the children or any of them to any psychiatrist, psychologist, counsellor, social worker or other behavioural scientist without the express written consent of the Father.
Ground 5 is as follows:
Appealing Order 17 on the grounds that 1 commenced taking children to family counselling as a method of children expressing their thoughts and feelings whilst in my care. An opportunity to voice their opinion in a safe environment and to someone other than their mother or grandparents. The counsellor could then assist in offering strategies to deal with certain emotions, sibling rivalry etc. Also, [A]'s current psychologist is refusing to give me any information regarding her mental wellbeing. Currently, I have no options to seek outside assistance in this area; no way of being informed.
In her written submissions the Mother submitted:
The children and I commenced with a family counselor [sic] in April 2009. The reasons for this were several; to allow the children and I an opportunity to come together as a family under the guidance and direction of a professional in the field, to voice our opinions and monitor our progress and direction as a family, to ensure a healthy relationships and to highlight the children's' needs and feelings in order for them to be met.
At the time of commencement, [A] was not seeing her psychologist [Ms M]. [A] had stopped seeing Ms [M] in February 2009 at the conclusion of the Final Hearing, and did not recommence with Ms [M] until August 2009 at the time that the children’s father discovered the children and I were seeing Ms [F]. There was no order precluding me from taking the children to an alternative health professional, and having equal shared parental responsibility, I did not consider there would be a problem with this. Given Mr [P]'s outlook of my performance as a mother (see above), I was able to monitor and put a stop to appointments should I consider Ms [F] was having a detrimental affect on the progress Ms [M] was making with [A] (her fathers’ main concern).
For over eight months now, I have been sending Ms [M] correspondence requesting information regarding [A]’s progress with her. This has been documented in various affidavits and appears in the court transcript (Pp. 21-22). Ms [M] refuses to give me information, and also refuses to meet with me. Therefore, I am unable to determine how best I can assist my daughter in her time of need. Whilst [A]'s attendance upon Ms [M] is with regard to her individual needs, as their mother, I feel we also require a family, or holistic approach.
Federal Magistrate McGuire (Judgment delivered 3 April 2009, P.18, paragraph 76) had previously accused me of not considering the children's needs and feelings. While I disagree and maintain informal ways of achieving this, a more formal way was to attend upon Ms [F].
Therefore, I feel Federal Magistrate McGuire has made several errors in judgment to conclude this order should be applied. He has not recognized my willingness and desire to achieve and maintain a healthy relationship with my children, has not recalled my difficulty in obtaining information from the only psychologist available, and available to only one of three children, and he has not given any credence to the fact I have equal shared parental responsibility. On the contrary, Federal Magistrate McGuire clearly denies the facts brought before him to conclude only one parent has the right to decide what is best for one child's psychological health. He has failed to consider all parties individual and familial psychological requirements in this order.
The Mother repeated these written submissions in her oral submission before me. Again I observe that there was considerable discussion before the Federal Magistrate about this issue (Transcript, 24 September 2009, pp 15 to 23).
The Federal Magistrate said:
26. Firstly, the mother is at liberty to attend any psychologist or psychiatrist of her choice in respect of her own health matters.
27. The children’s health issues are a different matter all together. The mother candidly admits that since the final orders of 3 April 2009 she has been taking the children to a psychologist namely Ms [F]. It is clear that the mother has done so without the knowledge or consent of the father.
28. I have serious concerns as to the mother’s behaviour in this regard, particularly given the evidence of Ms [M], psychologist, at the final hearing earlier this year in respect of [A]’s delicate mental and emotional state. The clear evidence of Ms [M] was that the child’s emotional difficulties related to the nature of her relationship with her mother. There is a clear notation to the final order from 3 April 2009 that [A] would continue therapy with Ms [M], psychologist, on terms at the discretion of Ms [M] and that the mother would attend such sessions as directed and advised by Ms [M]. For the mother to now unilaterally take the children, including [A], to a completely different psychologist, and in light of the findings and concerns set out in my reasons, is unacceptable.
29. The court has previously expressed concerns as to both the rigidity of the mother’s views and her lack of insight into the children’s needs. Those concerns are highlighted by the mother’s behaviour in taking the children to a psychologist without the involvement of or the consent of their father with whom they primarily live.
30. The father seeks a specific injunctive order to prevent the mother from taking the children to another psychologist, psychiatrist or counsellor. Such an order is appropriate.
I am satisfied that the Federal Magistrate was not in error and this ground is rejected. The Mother sought to agitate an issue that should have been addressed in the proceedings concluded in April 2009. It is another example of why it may be demonstrated that the presumption of equal shared parental responsibility should be rebutted.
Ground 6
Ground 6 is as follows:
Appealing against FM McGuire’s reasoning for not ordering a communication diary. FM McGuire indicates neither party had previously applied for such, and certainly not in a strong sense of the word. I have previously applied and asked verbally on several occasions. The respondent clearly opposes further mediation, including any avenues which may assist in improved communication between both parties. Currently, although shared parental responsibility, I do not have any avenue of communication with the respondent, and FM McGuire in his biased jugement [sic], continually concludes that I am at fault for that despite the evidence I have annexed to my Affidavits over the duration of proceedings. By not offering any further Order regarding communication, the FM is condoning the respondents attempt at further controlling all decisions with regard to the children, from which he feels very powerful.
During oral submissions before me, the Mother, when discussing issues relating to communication stated (Transcript, 5 March 2010, p 11):
So then if we go on to order (17) your Honour, which is with regard to the children attending only one psychologist and not - me not being able to take the children to any other allied health practitioner within that field, as in a psychologist, psychiatrist, counsellor, social worker and the like, and I am not able to do that without the express written consent of the father. And I guess, your Honour, you're not at an advantage to understand fully that because you haven't been involved with the other proceedings, however, communication between the father and myself is basically non-existent. (emphasis added)
I have asked several times for - and this is in a desperate attempt, to have a communication diary so that we can communicate. However, the father in his applications or responses, always says no and he prefers not to communicate so - - -
In response to this statement I said:
HIS HONOUR: I know it's an aside, but I know glibly, and I only use that word to indicate that I hadn't really looked at it, it was just a prima facie glance at it, but now listening to you and reading it in more detail since, I do find it strange that you and he have equal shared parental responsibility.
During the proceedings before the Federal Magistrate the issue of a communication diary was raised by the Mother (Transcript, 24 September 2009, pp 56 to 57). The issue was discussed with the parties and the following took place (Transcript, 24 September 2009, pp 59 to 61):
[HIS HONOUR]: Right, communication book. Let me interrupt. These parties cannot communicate. There could be a – there is often a need, and perhaps we wouldn’t be back here, to convey information. Unfortunately, it would have to be in the sense that the children are not – are protected from being, and made aware of the contents of the book. Someone asked me to make an order I think yesterday that the book be transferred in a sealed envelope. The mind boggles, but I don’t – the background of this matter is that I would avoid at all costs any opportunity for these children to become aware of the contents of their parents’ discussion.
Now, communication book is a good idea, but it’ll only be done under those restrictions. Sometimes a communication book can be as cumbersome and destructive of the need to communicate, it doesn’t encourage communication. It just says, “Well, I’ve got a book. I’ll use that.” You want a communication book?
[MS HALLEY]: Yes, please, your Honour.
HIS HONOUR: All right. What do you say?
MR GRIGG: We don’t, your Honour. And we don’t for the same reasons your Honour just enunciated.
[MS HALLEY]: Your Honour, I can’t speak for the other party, but I’m not planning to write anything in it that – even if the children would see it would be detrimental to them, okay? It’s more about, “Can you please remember [A]’s runners for the weekend,” you know. It’s ---
HIS HONOUR: Well ---
[MS HALLEY]: I know, you Honour. I’ve tried. I’ve sent various emails. I don’t get replies, your Honour. It’s my only – and failing mediation, and mediation can’t go on forever. But why not? Why can’t we communicate about the children? They’re both our shared responsibility.
HIS HONOUR: Yes, that sounds nice, [Ms Halley], but it’s what I’ve been saying for the last six months.
[MS HALLEY]: And I agree with you.
HIS HONOUR: but that begs the question as to a book, why there needs to be a book. I need to be convinced in this case there needs to be a book.
[MS HALLEY]: Well, we can’t seem to manage any other avenue, your Honour. It’s – I don’t particularly like ---
HIS HONOUR: Well, that doesn’t mean that a book is going to be successful, is it?
[MS HALLEY]: Well, I’ve tried emailing, I’ve tried phoning, we’ve ---
HIS HONOUR: How would a book ---
[MS HALLEY]: --- we’ve tried ---
HIS HONOUR: If I was to accept everything you say, why would a book be successful?
[MS HALLEY]: I don’t – that’s the last thing I can think of, your Honour. If you can think of something we haven’t tried, I’ll be happy to try it. But it’s an absolute last resort. I can’t think of anything else.
HIS HONOUR: All right. Thank you. I’ll consider that …
In his reasons the Federal Magistrate said:
15. The mother seeks the facility of communication book. The father opposes such an order. This issue was not raised at the substantive hearing or, at least, not raised in any detail or force. No such orders were sought by either party in the final submissions of their counsel.
16. Whilst it is true that communication between the parties is virtually non-existent, my findings set out in my reasons of 3 April 2009 place much of the fault in this regard at the feet of the mother. There was disturbing evidence adduced during the trial of the mother denigrating the father and his new wife in letters from her to the children. The evidence at that trial was such that it was open to find that the mother exhibited personality traits of rigidity of viewpoint and obsession. The evidence before me then and now strongly suggest that the mother does not allow the father to parent the children on a day-to-day basis without her input. In my view there is no evidence to suggest any benefits to the children by way of a communication book. The dangers are that the mother will use that facility to impose on the children’s time with their father.
I am of the view that the Federal Magistrate was not in error in coming to the conclusion that, in the circumstances, he make no order for a communication book arrangement.
Ground 7
As I have already observed the Federal Magistrate at [50] to [54] dealt with an order sought by the Mother that “the Court issue engrossed Orders which consolidate the Orders made this day, 3 & 9 April, 27 July, and 20 August 2009”. As I have also observed his Honour observed at [54]: “With the consent of the father I am content for the orders emanating from these reasons to be consolidated with previous parenting orders so as to provide all dealing with the orders the certainty of one set of orders”.
Ground 7 is as follows:
Appealing against FM McGuire's decision not to make mention in the Orders, the respondents previous contravention of the Orders, so as to try to maintain the respondents' appearance. In the writing of two judgments, FM McGuire’s bias is clear. He tries to further protect the image of the respondent while making Orders that attempt to continue to tarnish my reputation. On the grounds that it is suitable to do to one, then why not the other? Contravening the current Court orders is not a separate issue by any means.
There was discussion before the Federal Magistrate in relation to a “consolidation” of parenting orders (Transcript, 24 September 2009, pp 47 – 49). The Mother sought to include orders made on 20 August 2009 whereby the Father was found guilty of contravening order 5(l) of the orders made on 3 April 2009.
I observe that before the Federal Magistrate the following discussion took place (Transcript, 24 September 2009, pp 48 – 49):
HIS HONOUR: [Mrs Halley], it would make it easier to read.
[MS HALLEY]: Well, it would, and so we don’t add into that the orders of 20 August?
HIS HONOUR: Are they the contravention orders? No, they’re ---
[MS HALLEY]: That’s right.
HIS HONOUR: --- a different creature altogether.
[MS HALLEY]: Okay.
HIS HONOUR: No, what’s proposed is that I – that there be a consolidation of all orders that deal with the parenting of the children. A contravention application is a different – as I said – a different creature.
[MS HALLEY]: Okay, you Honour. Sure.
HIS HONOUR: That sits aligned to – it’s self explanatory aligned.
[MS HALLEY]: Okay.
HIS HONOUR: All right. So you agree with that?
[MS HALLEY]: Yes, your Honour.
HIS HONOUR: All right.
From this discussion I infer that the Mother agreed with the Federal Magistrate that the order not be included. In any event, what the Federal Magistrate said about inclusion in the consolidated parenting orders of the orders made in the contravention proceedings was correct. This ground will be rejected.
I also do not accept the allegation of the Mother that she has established “bias” by the Federal Magistrate.
CONCLUSION
Given the findings I have made the appeal by the Mother will be dismissed.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan delivered on 26 August 2010.
Associate:
Date:26 August 2010
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