Hartnett and Sampson (No 2)
[2009] FamCA 769
•25 August 2009
FAMILY COURT OF AUSTRALIA
| HARTNETT & SAMPSON (NO. 2) | [2009] FamCA 769 |
| FAMILY LAW – CHILDREN – Serious issues family violence – Considered as a preliminary matter – In absence findings family violence consider competing proposals of parties – Living in different States – Stability – Fostering relationships – Consequences of orders – Parental responsibility – Live with father – Wife’s orders for time dependent upon her decision to live near children – If so, equal time |
| APPLICANT: | Mr Hartnett |
| RESPONDENT: | Ms Sampson |
| FILE NUMBER: | (P)SYF | 3827 | of | 2004 |
| DATE DELIVERED: | 25 August 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Jordan J |
| HEARING DATE: | 27, 28, 29 & 30 April, 1 & 4 May, 27, 28, 29, 30 & 31 July and 12, 13 & 14 August 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richardson SC |
| SOLICITOR FOR THE APPLICANT: | Karras Partners |
| COUNSEL FOR THE RESPONDENT: | Ms Haughton |
| SOLICITOR FOR THE RESPONDENT: | Ray Swift Moutrage & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Gardiner |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid NSW |
Orders
That the Husband, MR HARTNETT (hereinafter referred to as “the Husband”), and the Wife, MS SAMPSON (hereinafter referred to as “the Wife”), have equal shared responsibility for decisions affecting the long term care, welfare and development of the children, S born … April 2003 and T born … November 2004 (hereinafter referred to as “the children”), except as otherwise provided in these orders.
That the Wife have responsibility for making decisions for the day to day care, welfare and development of the children at times when they are living with her and the Husband have responsibility for making decisions for the day to day care, welfare and development of the children at times when they are living with him.
That the children live with the Husband.
That subject to Order 5 hereof, the children spend time with the Wife as follows:-
4.1During NSW school term:-
4.1.1In Geelong for two (2) three day weekends per term from 5.00 pm Friday to 5.00 pm Monday and, failing agreement, on the third and sixth weekends of each school term;
4.1.2In Sydney for a period of five (5) consecutive nights per term on the Wife providing to the Husband fourteen (14) days written notice of being in Sydney, being from after school Wednesday to before school Monday.
4.2During NSW school holidays:-
4.2.1For ten (10) consecutive days from the commencement of school holidays at the conclusion of term one;
4.2.2For one half of the school holidays at the conclusion of term two;
4.2.3For ten (10) consecutive days from the commencement of school holidays at the conclusion of term three;
4.2.4For one half of the school holidays commencing at the conclusion of term four, the first half to be in December 2009 and every alternate year thereafter, and in every other year the second half of the school holidays.
4.3For the purpose of Order 4.2, the NSW school holidays shall commence on the Saturday immediately following the last day of school term and conclude on the Sunday immediately prior to the commencement of the next school term.
4.4For the purpose of these Orders unless otherwise provided, the Wife shall during school term collect S from M School in Sydney (“M School”) and T from T Preschool at the commencement of the period the children shall spend with the wife and return the children to M School and T Preschool fifteen minutes prior to the commencement of school/preschool at the conclusion of the period.
4.5At all times other than changeover in accordance with Order 4.4, then the changeover shall be outside the front of St M Church, Sydney.
That in the event the Wife gives the Husband written notice within fourteen (14) days of the date of Order of her intention to reside in Sydney, the following Orders shall apply in substitution to Order 4:-
5.1That during NSW school term, the children shall live with each parent in Sydney on a week on week off basis, with changeover to occur at M School upon completion of S’s schooling on Friday, with the Wife’s period to commence the first Friday immediately after giving written notice in accordance with this Order.
5.2During the NSW school holiday periods:-
5.2.1For one half of the school holiday periods at the end of terms one, two and three as agreed between the parties and failing agreement the children shall be with the Wife for the first half of each school period in 2009 and every alternate year thereafter and in every other year the second half of the school holiday period;
5.2.2For the Christmas holidays as agreed between the parties and failing agreement the children shall be with the Wife for the first half of each school period in 2009 and every alternate year thereafter and in every other year the second half of the school holiday period;
5.2.3For the purpose of this Order, the NSW school holidays shall commence on the Saturday immediately following the last day of school term and conclude on the Sunday immediately prior to the commencement of the next school term.
5.3Should the Wife cease to reside in Sydney, then the provisions of Order 4 shall apply.
That the Wife have telephone contact with the children during the times they spend with the Husband each Tuesday, Thursday and Saturday between 5.00 pm and 6.00 pm and at other agreed times.
That the Husband have telephone contact with the children during the times they spend with the Wife each Tuesday, Thursday and Saturday between 5.00 pm and 6.00 pm and at other agreed times.
That the children spend time with the Husband on each of the children’s birthdays, the Husband’s birthday and J’s birthday (provided that the Husband shall give at least 7 days notice in writing to the Wife that J will be with him on his birthday) as follows:-
8.1From 12.00 noon or after school (if a school day) the day immediately before the birthday until 12.00 noon or the commencement of school (if a school day) on the birthday in 2009 and every alternate year thereafter.
8.2From 12.00 noon or after school (if a school day) on the birthday until 12.00 noon or the commencement of school (if a school day) the day immediately following the birthday in every other year.
That the children spend time with the Wife in Sydney on each of the children’s birthdays, the Wife’s birthday and Z’s birthday as follows:-
9.1From 12.00 noon or after school (if a school day) the day immediately before the birthday until 12.00 noon or the commencement of school (if a school day) on the birthday in 2010 and every alternate year thereafter.
9.2From 12.00 noon or after school (if a school day) on the birthday until 12.00 noon or the commencement of school (if a school day) the day immediately following the birthday in every other year.
That the children spend time with the Wife on Mother’s Day from 6.00 pm Saturday preceding Mother’s Day until 9.00 am at the commencement of school the following Monday.
That the children spend time with the Husband on Father’s Day from 6.00 pm Saturday preceding Father’s Day until 9.00 am at the commencement of school the following Monday.
That the Wife and the Husband notify the other in writing not less than fourteen (14) days prior to any change to their residential address, email address, landline and/or mobile telephone numbers and such notification include the complete address of the proposed new residential address, email address, landline and/or mobile telephone numbers.
That each parent forthwith authorise any school the children may attend to provide to the Husband and the Wife photocopies of reports, newsletters and announcements of school activities, or otherwise pertaining to the education of the children, or if none have been made available in writing, then each parent shall provide written particulars, which includes by email, of such reports and/or activities to the other within three (3) days of such documents or particulars being received from the school, and the parents shall authorise staff members at any school the children may attend to discuss the children’s progress with both parents.
That each of the parents may attend the children’s schools or churches for the purposes of any school or church events parents are permitted to attend.
That during any period during which the children or either of them is living with the Husband, in the event of the child or either of them being hospitalised or receiving medical attention, the Husband shall notify the Wife as soon as practicable (and in any event within two (2) hours) after his first contact with either the medical practitioner, medical centre or hospital, including the details of the illness, injury, the treating doctor and the prognosis and treatment of the child/ren if known.
That during any period during which the children or either of them is living with the Wife, in the event of the child or either of them being hospitalised or receiving medical attention, the Wife shall notify the Husband as soon as practicable (and in any event within two (2) hours) after her first contact with either the medical practitioner, medical centre or hospital, including the details of the illness, injury, the treating doctor and the prognosis and treatment of the child/ren if known.
That the Husband shall ensure the Wife is kept informed as soon as is reasonably practicable of:-
17.1Any medical problems or illness suffered by the child/ren whilst in the care of the Husband.
17.2Any medication that has been prescribed for the child/ren or over the counter medication administered to the children whilst in the care of the Husband.
That the Wife shall ensure the Husband is kept informed as soon as is reasonably practicable of:-
18.1Any medical problems or illness suffered by the child/ren whilst in the care of the Wife.
18.2Any medication that has been prescribed for the child/ren or over the counter medication administered to the children whilst in the care of the Wife.
That pursuant to s65DA(2) and s62B, 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.
IT IS NOTED that publication of this judgment under the pseudonym Hartnett & Sampson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: (P)SYF3827 of 2004
| MR HARTNETT |
Applicant
And
| MS SAMPSON |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
The matters for determination by the Court are the care and living arrangements for two young children, six year old S who was born in 2003 and four and a half year old T who was born in 2004. The parties have been embroiled in endless litigation since prior to the birth of their second child. That process has taken a heavy toll upon the parties, both financially and emotionally. Even more worryingly, that conflict and the arrangements put in place over that five year period have necessarily imposed a great deal of hardship upon their children. Hopefully, the decision of the Court on this occasion may serve to at least reduce that level of hardship in the future.
BACKGROUND
It is relevant to observe that the wife was born overseas and immigrated to Australia and settled in Geelong, Victoria, with her family when she was eight years old. She has a brother and a sister. Her mother and other members of her extended family reside in Geelong. The wife’s sister resides in Sydney, which is also the principal place of residence of her father. The wife’s brother resides overseas. The wife, who is presently 38 years of age, moved to Sydney in the mid-90’s to pursue business and employment activities. She met the husband in or about 1997, when they shared involvement in a project the husband was working on.
The husband, who is 45 years of age, was born in Sydney and has spent most of his life in this city. He has developed a career in communications and has enjoyed some success in those areas. He was previously married and has a son, J, who is 13 years of age, having been born in 1996. In the past, the husband has assumed substantial responsibility for the day to day care of J, who spent much of his time with the parties during the period of their relationship. J also developed close relations with his half-siblings and maintained regular contact with them until more recent times. J has more recently experienced not insignificant behavioural problems and has spent time at boarding school and, for the bulk of this year, he has otherwise been in the sole care of his mother. Difficulties have emerged in the relationship between J and his father and I will discuss that matter in greater detail later.
The parties commenced a relationship in or about 1997/98 and spent increasing time together until the year 2000, when they commenced living together on a full-time basis. The parties married in 2001 and finally separated in August 2004, although they had been largely living separate and apart from April 2004, when the wife returned to Geelong with S at a time when she was pregnant with T. The wife returned to Geelong after the final separation and subsequently gave birth to T. The wife has remained in Geelong until recently, when she took up residence in Sydney on a temporary basis.
The husband commenced proceedings for residence in September 2004 and what has followed has been an endless round of applications, orders, appeals, stay applications and enforcement proceedings and the implementation of a variety of contact regimes which would more than test the physical, financial and emotional resolve of the parties. The children have been part of the collateral damage of these processes.
Until more recent times, the parties continued to reside in different States which has posed significant logistical challenges for the family in meeting the task of facilitating the children’s time with their father, particularly when the children were younger. Notwithstanding those difficulties, the husband has spent time with the children largely on a weekly basis for the last five years. The regimes put in place have imposed upon the husband the ordeal of weekly interstate travel for the vast bulk of the period since separation and the children were required to endure that regime for a period of almost two years.
The husband’s time with the children in the early period after separation was quite limited. S was under two and T was a breast-fed baby. Whilst acknowledging some need for a cautious approach, particularly in relation to the new baby, the husband maintains that the limitations imposed upon him by the wife were entirely excessive and, in particular, that her requirement of supervision of his time with S was entirely unjustifiable.
In any event, from October 2004 to December 2005, the husband travelled from Sydney to Geelong every weekend to spend time with the children, including some overnight time on Saturday on one weekend and during the day on Saturday and Sunday of the other weekend.
On 5 December 2005, the wife raised allegations that S had made disclosures to her indicating she had been sexually abused by the husband. This development resulted in the husband’s time with the children being even more limited and supervised and those restrictions prevailed for the following 17 months. Again, the husband continued to be required to travel to Geelong to see the children.
The final hearing of the competing applications of the parties was conducted over a number of weeks in the second half of 2006, and on 14 February 2007 Her Honour Justice Moore published her Reasons. That judgment included findings that the children were not at risk from the husband. Her Honour made orders which were designed to ensure that the husband had increasing and unsupervised time with the children, both in Geelong and in Sydney, culminating in an arrangement where the parties would share the care of the children in Sydney. The effect of Her Honour’s orders was to require the wife to relocate to Sydney.
The wife lodged an appeal against Her Honour’s decision and secured a stay of Her Honour’s final orders. That appeal was successful and the matter was remitted for hearing. A series of orders for contact have been made from time to time in the intervening period.
For a variety of reasons, the husband has been required to undertake the vast majority of the travel commitments, although the wife has shared some of that responsibility in more recent times. In any event, as a consequence of the parties’ adherence to the contact regimes put in place, for a period approaching almost two years, these children were required to live in two different States on a week about basis, spending equal time with each of their parents, one week in Geelong and the other in Sydney.
One of the many problems created by this regime related to the difficulties it caused to the children’s early schooling. The husband secured an order against the wife in December 2007 restraining her from enrolling the children at school in Geelong. By the commencement of the 2009 school year, decisions about S’s schooling could no longer be delayed. The husband brought an application seeking enrolment of S at M School, Sydney, for the commencement of the 2009 school year. Unfortunately, that application could not be determined prior to the commencement of the school year and the husband proposed to the wife that the child should commence at that school pending the determination of the Court. The wife was not agreeable to this proposal and, in light of the impasse, the husband informed the wife that he intended to retain the children after his time with them expired on 23 January to enable S to make a start at her schooling whilst the parties awaited the decision of the Court. The wife’s response was to bring an ex parte application in a Magistrates Court in Geelong and, surprisingly, she was able to secure an ex parte order on 27 January. As a consequence, three Federal police officers attended at the husband’s home at 9.20 pm on a Friday evening and physically removed the children from the husband’s care and placed them with the wife.
The interim proceedings in relation to the children’s placement and schooling pending the final hearing were pursued by the parties and heard by His Honour Justice Watts on 13 and 19 February this year. His Honour made orders which enabled the children to undertake schooling in New South Wales pending the final determination of the parties’ substantive applications. His Honour made orders requiring the children to live with the husband pending the final hearing, but made orders in the alternative enabling the children to spend alternate weeks with each of the parents should the wife choose to reside in Sydney during the interim period. The wife immediately availed herself of that opportunity and she has been residing in Sydney since that time. The orders provided that S attend M School and T attend the T Pre-School. The end result is that, since February this year, the children have been attending the designated schools in Sydney and spending alternate weeks with each of their parents.
What has served to even further complicate the lives of these parties and their children is the fact that the wife now has a young baby from another relationship. Z is nine months old, having been born in late 2008. She is a child of the wife’s relationship with Mr X, with whom she resided for some months in the second half of 2008. The wife and Mr X separated less than one month after Z’s birth and that relationship now appears to be at an end. The wife says, however, that she remains on good terms with Mr X and that she is anxious to ensure that he is able to play an active and substantial role in Z’s life. She says that the desirability of that outcome represents a further imperative in relation to her wish to remain in the Geelong area.
The husband argues that much of the hardship endured by the parties has been brought about by the attitude and conduct of the wife, including her unilateral, unnecessary and calculated decision to move interstate which, he says, was designed to place distance and obstacles between himself and the children. He maintains that the wife has sought to marginalise his relationship with the children and has demonstrated an incapacity to put the interests of the children ahead of her own. It is contended on his behalf that there is a long history of obstruction on the part of the wife and that this Court should be satisfied that his concerns about the wife’s efforts at alienation are justifiable. He says that, should the children remain with the wife in Geelong, his relationship with them would be compromised and the emotional well-being of the children put at risk. At a practical level, he questions his physical, financial and emotional capacity to sustain his relationship with the children should they again move to Geelong.
The wife, of course, provides an entirely different perspective. She says the relationship between the parties was highly conflictual and the separation acrimonious. She says that, once the decision was made to separate, she was excluded from the matrimonial home by the husband. She was pregnant at the time and says she felt alone, unsupported and fragile. She says she turned to the obvious source of support, her mother and family in Geelong. It is argued on her behalf that the evidence establishes that any limitations imposed upon the husband’s time with the children have been reasonable, appropriate and entirely child focussed. It is contended that, with only minor exceptions, the wife has been compliant with the arduous contact regime imposed upon her and the children and has otherwise properly supported the children’s relationship with their father.
It is appropriate to observe that, whilst clearly much of the hardship in this case has been inflicted upon the parties by themselves and they each acknowledge some past errors in that regard, the difficulties inherent in this matter have been compounded by the litigation process itself. Again, whilst much of the complexity in that process has been caused by the inability of the parties to resolve matters and their propensity to have recourse to the Courts at the first sign of difficulty, the parties and their children have, themselves, been victims of delays within the system and have suffered because of the need to implement burdensome orders clearly intended only as short term measures which have, nonetheless, remained in place for many months at a time.
As a consequence of all of these matters, the children have endured a life of conflict, instability, insecurity and uncertainty.
The parties say they are as one in their resolve to bring this to an end. They each say they want this Court to make orders designed to end that instability, insecurity and uncertainty. The parties each agree that the children can no longer live between States. In order to ensure future stability for their children, the parties define two choices for the Court. Their proposals would see the children raised and educated in Geelong in the primary care of their mother or, alternatively, in Sydney in the primary care of their father. Neither party seeks any orders requiring the other to relocate interstate against their wishes. The wife gave evidence that, in the event that the Court determined that the children should live with the husband in Sydney, she would move to that city to live near her children. The husband has maintained that, should the wife choose to remain in Sydney, he is agreeable to a continuation of the shared time arrangements.
Given the circumstances and history of this matter, I am satisfied that the parameters set by the parties represent the proper options to be considered on behalf of these children.
THE PROPOSALS OF THE PARTIES AND THE MATTERS IN ISSUE
(a) Proposals
At the very core of this case are the incompatible aspirations of the parties to live with these children in different cities. The wife wishes to live with, and raise all three of her children in Geelong, whereas the husband wishes to reside in Sydney with the two children of the relationship.
A compelling feature of this case relates to the dysfunctional nature of the relationship between the parties. They operate under an environment of abject mistrust and an inability to communicate and co-operate effectively.
Having made that observation, remarkably, the parties each originally proposed that there should be orders for equal shared parental responsibility. The parties abandoned those proposals during the course of the proceedings and sought orders for sole parental responsibility. Interestingly, the Independent Children’s Lawyer contends that, notwithstanding the high levels of conflict and incompatibility, a shared parental responsibility order still remains the preferred option and I will examine his reasons for so recommending later in this judgment. At the conclusion of the trial, counsel for the husband informed the Court that his client remained unopposed to the prospect of a shared parental responsibility order in the event the parties each resided in Sydney.
In the event that they each remained in their present preferred locations, the party with whom the children primarily reside proposed that the other party should enjoy significant time with the children, albeit limited by the distance between the households and limited by the parties’ shared view that, in future, the children should be spared the rigours of frequent interstate travel.
(b) Issues
Identifying the factual issues and distinguishing those of significance from those of limited value, has remained one of the consuming aspects of the case. The affidavit material filed by the parties is vast and appears to canvass almost every troublesome aspect of the relationship between them for the past 12 years. The wife sought to rely on no less than 26 witnesses, some of whom swore affidavits over three years ago. Some of the complaints of the witnesses were about matters which appeared of little or no current relevance and some affidavits, or portions of them, were excluded. Some of the evidence of the deponents did, however, corroborate some aspects of the wife’s case.
The testimony of a number of the husband’s witnesses also provided dated evidence of marginal relevance.
The material evidence disclosed a vast degree of conflict in relation to almost all aspects of the history of the case. Whilst each party made some faint concessions, in reality, they each sought to hold the other almost entirely responsible for all of the difficulties in the relationship and each of the multitude of problems encountered by each of them and by their children in the five years since separation.
Initially, the parties and their legal representatives chose to limit the scope of the issues canvassed during the trial. They chose not to re-visit issues relating to the conduct of the parties towards one another during the relationship and the focus of the exercise was very much in relation to events post-separation and limited largely to parenting style issues.
However, issues emerged in the lead-up to the trial and some developed in the course of the trial which resulted in a change of approach as the case progressed.
The issue of J’s relevance to these proceedings has been something of a changing feast. His potential significance is, at one level, self-evident, in that he is a half-brother to the children, the subject of these proceedings. He has been a most significant person in the children’s lives, having been a member of the household whilst the parties were together. Subsequent to separation, he was an almost constant resident with the father and the children at those times the younger children were with their father in Sydney. In addition, J undertook the journey to Geelong not infrequently and spent time with the children and the father on those occasions.
In their affidavit material, each of the parties spoke fondly of J and of his relationship with the two younger children. The wife said that she initially enjoyed good relations with J, but observed that those relations deteriorated after separation and she necessarily attributed this development to the influence of the husband. In his earlier material, the husband spoke of a very close and loving relationship between himself and J and of a good working relationship with J’s mother, which he said enabled them to parent together co-operatively for J’s benefit.
Associate Professor Q was retained to provide family reports and she also spoke very positively of J as a consequence of her observations of him as set out in her report of May 2006. Associate Professor Q made very favourable observations about J’s presentation and of the manner in which he related to his younger siblings. She spoke of the obviously close bond between all three children. Associate Professor Q was to observe that J’s positive attributes were to be a reflection of his parenting and it is to be noted at that time that he was in the primary care of his father.
It was intended that J would see Associate Professor Q for the updated reports of 2009. However, he did not attend and it was said that this was as a result of J being with his mother in New Zealand at the time of the supplementary interviews. It appears from Associate Professor Q’s report and notes that the husband informed the Associate Professor that J was living with him full-time at the time of the January interview.
In his affidavit of evidence-in-chief filed on 12 February 2009, the husband devoted a section of that document to describing some developments in J’s life. He informed the Court that he believed that the conflict between the parties and the litigation surrounding S and T had taken a heavy toll upon J. The husband said that J had been affected by the uncertainty, the travel, the interviews and, particularly, the impact of the whole process upon J’s time and relationship with his father. The husband said that J had become resentful and that his behaviour and schooling had suffered. The husband informed the Court that J became disruptive at school and was involved in incidents of fighting and bullying and that such behaviour eventually led to suspensions and a decision to enrol him as a boarder at his school. This occurred in Term 2 of 2008 whilst he was in Year 7. Unfortunately, J was eventually suspended from the school altogether because of his continuing misconduct. J was sent to The BE School and enrolled as a day student. These matters were all disclosed in the husband’s trial affidavit.
In his February affidavit, the husband said that J was spending extended periods with his mother because of the logistics of his attendance at The BE School. The husband said that J was able to move freely between the homes because of the good working relationship between the husband and J’s mother. The impression left in the earlier affidavit was that J and his father continued to enjoy a good relationship and regular contact.
In her affidavit of evidence-in-chief filed on 27 January 2006, the wife did make brief reference to suggested mistreatment of J by the husband, including incidents when he was said to have slapped J about the head, and that on one occasion this led to J suffering a bleeding nose. The wife also talked of bitter disputes about J between the husband and J’s mother. However, these matters were not advanced by or on behalf of the wife as a significant aspect of her case against the husband as originally presented.
However, the wife swore a further affidavit on the eve of trial on 21 April 2009, as a consequence of information gathered during a telephone call with J on 15 April. The wife says that, during that conversation, J informed her that he now lived full-time with his mother and no longer spoke with his father.
This allegation drew a further affidavit in response from the husband sworn on 24 April. In that affidavit, the husband sought to further explain the developments in his relationship with J and to further explain the reasons for J’s non-attendance at the appointment with Associate Professor Q. His explanations were, in part, designed to answer any criticism to the effect that he had covered up the real state of affairs in relation to both J’s behaviour and to his own relationship with his son. He reiterated his belief that it was largely the litigation process and its consequences which had led to the deterioration in J’s presentation.
During the trial, the wife and her legal representatives had access to the school records from both J’s schools and the wife said that, as a result of matters disclosed in that material, she became increasingly concerned about issues relating to J and how they might impact upon the welfare and safety of her own children.
The school records indicated that there were serious concerns with J about bullying and there was reference to J being cruel to one of his younger siblings. There were also worrying references to J’s apparent lack of remorse in relation to his aggressive behaviour.
On the first Friday of the trial, an updated report was provided by Associate Professor Q after she had had access to the more recent material of the parties and to the information from J’s school. Associate Professor Q had also consulted with J’s counsellor and with a Dr WO, Psychiatrist, who had been retained by the school authorities as part of the program put in place to assist J.
Incorporated in this further report were some worrying suggestions, including the proposition that J’s behaviour had become so increasingly difficult to contain that Dr WO felt unable to continue with his therapy. It emerged that Dr WO also felt it necessary to make a report to the Department of Community Services (DoCS) following an incident of violence at the hands of his father reported to him by J. Associate Professor Q expressed the concern that this further information indicated that J may have been exposed to domestic violence and she was clearly concerned about the suggestion that J not only lacked remorse, but experienced feelings of enjoyment arising from his aggressive and bullying behaviour.
Associate Professor Q said that these matters were of considerable concern and alarm and indicated that J appeared to now be a very troubled young man. She suggested that he may be exhibiting symptoms of sociopathic adjustment disorder. She went on to speculate that, if the husband had been violent to J, then it is highly likely that J’s disturbed behaviour was as a consequence, particularly if such treatment was not an isolated incident of family violence. Associate Professor Q suggested further that, if the Court determined that there was substance to these concerns, they raised questions about the husband’s own adjustment and violence issues, such as might represent a risk of harm to the children, the subject of this application. She said, in such circumstances, this would justify a decision reversing her earlier positive assessments of the husband and altering her tentative recommendation that the children should reside with him, to be replaced by a recommendation that the children’s best interests would be served by living with their mother.
These developments in the case posed a significant difficulty, given the initial approach of the parties and the legal representatives to the case generally, and to the issue of past domestic violence, in particular. Upon receiving the material from the schools and the report of Associate Professor Q, the wife indicated that she was left with an enlivened concern that the husband’s propensity for violence represented an ongoing issue for her and a potential risk for her children. In the circumstances, she sought to pursue her case in that regard with particular reference to the following paragraphs of her affidavit filed on 27 January 2006, that is, paragraphs 70-80, 86, 106-108 and 149-150, which canvassed her allegations of the husband’s past violent behaviour.
It was determined that Dr WO should be called to provide particulars of the concerns he expressed to Associate Professor Q and of the factual basis for those expressed concerns.
The trial was set to continue for a second week commencing Monday, 4 May 2009. Unfortunately, I became unwell on Tuesday, 5 May and unable to complete the trial at that time. The matter had to be adjourned and, on 14 May 2009, I allocated further trial dates at the end of July 2009 for the finalisation of the matter and made directions as to the service of notice and the filing of affidavits. Those directions were largely designed to identify the emerging matters in issue relating to family violence.
As the case was originally presented, and notwithstanding the vast array of complaints made by each of the parties in their extensive material, each party acknowledged the other was capable of providing a high standard of day to day care. They each acknowledged that the children had a strong attachment to and love of and affection for, each of their parents. They each asserted that they valued the importance of the relationship between the children and each of their parents. On this latter point, however, there was clear reservation on both sides to varying degrees about the bone fides of the stated positions adopted by the parties. I have earlier identified aspects of the husband’s concerns about the prospects of alienation and likely continued interference. In the wife’s case, the concern was identified as being more in terms of the husband’s lack of respect for her as a person and as a mother, and the likelihood that the children would be adversely affected in their relationship with her as a consequence of being exposed to the husband’s negative attitude in that regard. As the cases were originally presented, the central factual issue for determination related largely to the attitude of each of the parties to the rights of the children to enjoy positive relations with the other parent. That remains a very important aspect of each of the cases presented.
As a consequence of the developments during the trial described above, the wife’s case was to fundamentally change. Family violence became a central theme and she reversed her previous attitude to shared parenting and equal or significant time. She contended that it was necessary to place the children with her for their safety and protection and argued that shared parenting was no longer in the children’s best interests.
During the adjournment of the trial, the wife provided particulars of what she identified as the relevant further matters in issue as a consequence of the revelations emerging during the first stage of the trial. She listed some 13 issues, but there was much duplication in that list. Essentially, the wife’s altered case is to the effect that the children’s welfare would be at risk should they be required to reside primarily with the husband because of his propensity for violence and verbal abuse. She contends that there is a long history of such behaviour on the part of the husband and that his victims have included herself, his previous wife, and his son, J. The wife also raised in those particulars concerns about the husband’s history of cocaine use.
On the latter issue, the husband admits to past use but said that such use was at recreational levels only and, importantly, pre-dated the arrival of the children. The wife also was an occasional user of the drug during that period. The husband says that he has not used drugs for five years and the wife has failed to produce any evidence of use in that period. The husband has maintained a busy, high profile career over that period and managed a most demanding contact and care regime for his two young children for the five years since separation. There is simply no direct or indirect evidence of ongoing use of drugs and, in the circumstances, I do not propose to explore that issue further.
On the question of family violence and abuse raised after the first stage of the trial, the wife filed a further 13 affidavits of varying degrees of relevance to the core allegations. The husband denied all allegations of violence raised against him, both in relation to his partners and in relation to J. His material confirmed that there was a great deal of conflict between the parties, but he says that, on those occasions where such conflict escalated to episodes of domestic violence, he was the victim rather than the perpetrator. He says he was the person assaulted and the one who saw the need for the intervention of police authorities.
There was legal argument at the commencement of the resumption of the trial and the wife’s counsel conceded that much of the affidavit material filed by her client during the adjournment period went beyond the narrow issue of family violence, which was the issue the subject of leave given to re-open cases. As a consequence, counsel for the wife did not rely upon much of the affidavit material filed. There was debate about the remainder and my rulings left most of the wife’s supplementary testimony intact and very little of the affidavits of the third parties admitted on this issue.
The conflict in the evidence on the issue of family violence is stark and fundamental. I have already earlier referred to the husband’s response. The wife, on the other hand, describes a history of most serious incidents of physical abuse, most graphically illustrated in paragraphs 70–80 of her affidavit filed on 27 January 2006. In those paragraphs, the wife describes episodes where she was seriously assaulted, wherein she alleges that the husband on occasions pulled her by the hair, threw her to the ground, kicked her in the body and head, punched her in the body and head and dragged her along the ground. The wife describes how she was often injured during these assaults and suffered bruising, cuts to her lip and a broken tooth. She says that some of the assaults occurred when she was either heavily pregnant or shortly after a Caesarean birth. She also describes being spat upon and being denigrated and verbally abused in the most derogatory ways, including being called a stupid black bitch. The wife stressed that the incidents of abuse referred to in the identified paragraphs of her January 2006 affidavit represented selected examples only of a pattern of mistreatment endured by her during the relationship.
In the circumstances, the conflict in the evidence on issues of family violence appears fundamental. There appears to be little middle ground. There would seem to be little scope for doubt. At face value, either the husband is a man prone to gross domestic violence and abuse of largely defenceless and even pregnant women and an abuser of a young child or, alternatively, he is the victim of both physical abuse and false accusations.
I will return to these specific issues later.
PRINCIPLES APPLICABLE IN CHILDREN’S MATTERS AND PROPER APPROACH IN THIS CASE
Recent amendments to the Family Law Act have both reaffirmed long-standing principles and also introduced new concepts and emphasis to guide the Courts in determining issues relating to children.
Best Interests
The one constant, the one absolute is that, in determining what parenting orders should be made, the Court must regard the best interests of the child as the paramount consideration. (Section 60CA)
The Objects and Principles
The objects of the provisions of the Family Law Act relating to children are to ensure that the best interests of children are met by:
(a)enabling children to enjoy the benefit of having both parents meaningfully involved in their lives;
(b)protecting children from harm;
(c)ensuring children receive adequate and proper parenting;
(d)ensuring parents fulfil their duties and responsibilities concerning the care, welfare and development of their children.
(Section 60B)
The principles underlying those objects include acknowledging that, ordinarily:
(a)children have the right to know and be cared for by both their parents;
(b)children have a right to spend time with and communicate on a regular basis with both their parents and other significant people in their lives;
(c)parents share jointly the duties and responsibilities of parenthood;
(d)parents should agree about future parenting;
(e)children have a right to enjoy their culture.
In determining what is in the best interests of children, the Court is obliged to have regard to all relevant primary and additional considerations set out in section 60CC of the Family Law Act.
The primary matters for consideration are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
(b)the need to protect children from harm.
The additional matters to be considered include:
(a)any views of the child;
(b)the nature of the child’s relationship with their parents and other persons;
(c)the willingness and ability of each parent to facilitate and encourage a child’s close, continuing relationship with the other parent;
(d)the likely effect of any change in the child’s circumstances;
(e)the practical difficulty and expense of facilitating the child’s communication and time with each parent;
(f) & (i)the capacity of the parents and other persons to provide for the needs of the child and the attitude of the parents to the child and to the responsibilities of parenthood;
(g)the maturity, sex, lifestyle and background of the child and parents;
(h)Aboriginal and Torres Strait Islander considerations;
(j) & (k)any family violence or family violence orders;
(l)whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings;
(m)any other relevant circumstances.
Subsections 4 and 4A of section 60CC prescribe the matters the Court must take into account in considering the issues raised by paragraphs 63 (c) and (i).
Matters to be Taken into Account in Assessing Parents’ Willingness to Facilitate Relationships
Without limiting paragraphs 63 (c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child: and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(a) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Those matters referred to in the Objects and Principles are at the core of the matters relevant to this case. Of the section 60CC factors, those most relevant to this case are as identified in paragraphs 63 (b), (c), (f) & (i) and (j) & (k).
The Proper Approach in this Case
In some ways, the issues raised by the wife during the course of the trial have the effect of dictating the approach to this matter. The episodes of violence which she says permeated the relationship were so serious that, if established, they would necessarily result in a finding that the husband is a man capable of the grossest violence and abuse of a woman, to the point that it represented a gross flaw in his character and in his parenting capacity. Any man who saw fit to repeatedly submit a woman to such treatment and was so lacking in self-control, would not only be a poor role model, but would also be a danger to those he might have under his care. If the husband has also abused his previous wife, that only exacerbates the concern. If he has abused the child, J, that adds a whole new dimension and would represent evidence of a direct potential risk to the younger children.
One of the primary matters for consideration is the need to protect children from harm, which includes the risk of future harm. The allegations of abuse of women and children in this case are so serious as to justify a focus upon that issue as a staring point of the inquiry. If the case against the husband is established, such findings of abuse are likely to have a decisive effect upon the outcome for obvious reasons.
In the event that no such findings are made, one would then need to turn to consider the remainder of the issues raised by the parties, the competing proposals of the parties and those other considerations identified in the legislation which are relevant to this case.
In the process of evaluating those issues relating to family violence and risk of harm to the children, I propose to explore such matters under the following headings:-
(a) The nature of the task to be undertaken.
(b) The presentation and testimony of the parties generally.
(c)The specific allegations of abuse by the wife and the circumstantial evidence surrounding those allegations.
(d)The testimony of the husband’s first wife, Mrs C Hartnett, and the circumstances surrounding those allegations of abuse and their relevance to these proceedings.
(e)The evidence of mistreatment of J and its relevance to these proceedings.
(f) Conclusions.
(a) The Nature of the Task to be Undertaken
The allegations of family violence in this case are most serious. The consequences of positive findings of abuse, or unacceptable risk of abuse, are most serious, particularly for the husband and for the children’s relationship with their father. The implications for the wife, if her concerns are wrongly rejected, are equally serious.
The wife makes the allegations and carries the onus of proving them.
Section 140 of the Evidence Act prescribes that the standard of proof in relation to such matters is that the case of family violence must be proved beyond reasonable doubt. Section 140(2) provides that, in deciding whether it is so satisfied, the Court may take into account matters such as the subject matter of the proceedings and the gravity of the matters alleged.
In this case, the matters alleged are most grave and the subject matter is the welfare of two very young children.
In the circumstances, I should neither make such findings lightly, nor should I lightly dismiss the wife’s allegations. I should analyse the evidence carefully and avoid findings based on equivocal evidence.
In the main, I am left to determine this matter on the strength of the versions presented by the parties themselves. As is so often the case in such matters, I do not have the benefit of admissions, photographs or medical evidence proving or disproving the respective cases advanced. There are reports to the Police but, in the main, they do little but reinforce the fact that there is a history of unresolved, competing allegations which have, from time to time, been reported to the authorities. Those authorities have apparently determined that there was not a proper basis upon which proceedings could be commenced against either party.
(b) The Presentation and Testimony of the Parties Generally
In a general sense, I should firstly observe that, given the scope of the conflict between the parties continuing as it has for more than a decade, one could safely predict that it is inherently highly improbable that the responsibility for such calamity rests with one party alone. This case is clearly no exception and it is entirely apparent that each party has made a significant contribution to that conflict. In a similar vein, given the scope of the disputed questions of fact on the evidence of the parties, it is unlikely in the extreme that one party has been entirely honest and the other is to be completely disbelieved wherever there are differences. Some of the conflict on the evidence is likely to have more to do with differences of perception, personality and power in certain situations. On the other hand, I have concluded that there have been aspects of the presentation and evidence of each of the parties which have been a cause of concern.
As to the presentation and testimony of the parties, the husband was, in so many ways, a thoroughly impressive witness. His presentation was that of an intelligent man, confident in his ability to communicate to the Court and convinced of his story. He gave his account in a clear, considered and convincing manner. He had a good memory for detail and was often able to produce or refer to documentary evidence which tended to provide support for his accounts. The husband survived the lengthy cross-examination process largely unscathed.
The wife was, in so many ways, a much less impressive witness than the husband. She was at times quite hesitant, and at other times simply unconvincing. There were significant discrepancies between her account in her affidavits and those in her oral testimony. Documentary evidence produced on a number of topics tended to demonstrate error on her part. Some of the discrepancies between the wife’s affidavit evidence and her oral testimony were so stark that the wife was left to resort to the excuse that she did not read, or did not carefully read, her documents before signing. At other times, her explanation would be to the effect that discrepancies arose because of her lack of attention to detail, lack of legal representation from time to time, or inadequate legal representation at other times. There were some objective indicators of some of these matters, as there was ample evidence of much cut and paste. At the same time, however, the wife is necessarily confronted with the consequences of executing on oath flawed documents.
At first glance, this overview might suggest that resolving issues of credit would be fairly straightforward. All the more so, when one factors in the assessment of the consultant psychiatrist, Associate Professor Q, to the effect that, clinically, the wife exhibits histrionic traits and, further, that there were indications that the wife might be capable of extravagant behaviour and claims. Associate Professor Q was particularly concerned about the presentation of the wife and the information provided by her in the February 2009 interview.
On the other hand, the husband is a consummate public performer, and Associate Professor Q assessed that, clinically, the husband “would have the capacity to present extremely well and persuasively in the face of allegations against him”.
On the issue of credibility, the wife is, however, burdened by a most serious finding against her based upon admissions made during the course of the proceedings before me. She admitted that she knowingly gave false testimony during her earlier trial before Moore J when questioned about the circumstances surrounding taped conversations between the parties. In the earlier trial, the wife asserted that she had never taped such conversations and that the tapes produced at Court had, in fact, been recorded by the husband. In her evidence before me, the wife admitted that she had recorded those conversations and admitted that her denials before Moore J were deliberately false. Obviously, this is a most serious matter. The wife has demonstrated that she is capable of engaging in deliberately deceptive conduct, to the point of committing perjury to advance her case. It is something that weighs heavily with me and weighs strongly against the wife.
At the same time, I take the view that life and litigation are rarely simple. Having regard to the history of the parties and the scope of the conflict in the evidence, I feel a need to resist the temptation to follow the easy path and conclude that the existence of that lie, as serious as it is, must result in the wife being disbelieved about everything. Having regard to the gravity of the wife’s allegations about family violence, in particular, and having regard to my obligations to these children to take proper account of their right to protection from the risk of harm, I must proceed to consider the totality of the evidence, armed with this serious finding of credit against the wife, but not blinded by it.
Included in that body of evidence, I must observe that the wife was quite compelling and very convincing when recounting incidents of domestic violence. Her levels of distress in the telling were proportionate and certainly added weight to the process.
Further, on the issue of credibility, the husband’s standing is tarnished, in my view, by my assessment that, at best, he deliberately withheld information about his current relationship with J because of its likely damaging impact upon his case. At best, he was less than full and frank in the detail he provided about J’s circumstances. Indeed, it is difficult to avoid the conclusion that the husband sought to actively mislead the Court about aspects of his relationships with both J and his former wife. The statement to Associate Professor Q at the interviews at the beginning of this year, to the effect that J was living with him full-time, is entirely incompatible with the fact that J and his father had rarely spoken to one another for the bulk of the preceding twelve months and did not regularly spend time together over that same period.
(c)The Specific Allegations of Abuse by the Wife and the Circumstantial Evidence Surrounding those Allegations
Given the sensitive nature of family violence and the way perpetrators and victims tend to hide such matters from the public, it is hardly surprising that the vast bulk of evidence on these matters is merely the sworn evidence of the individual parties containing allegations, denials and counter-allegations. In analysing this issue, I will focus upon some of the examples highlighted by the wife as part of her case as referred to in Exhibit 49 and in her affidavit filed on 6 July 2009, and the husband’s responses as they appear in his affidavits of 30 June 2009 and 27 July 2009.
Of course, given the nature of family violence, there is rarely direct evidence such as photographs, eye witnesses and medical records. The absence of such evidence should never be used as a basis for rejecting such allegations. Nevertheless, it remains legitimate to give consideration to such matters. Such an exercise gains added significance in cases such as this, where the allegations are of repeated assaults involving substantial physical beatings over a period of many years. As a matter of logic, issues such as increasing frequency and severity of episodes of abuse provides for an increased prospect of detection or, alternatively, a decreasing prospect that such gross abuse can continue without coming to the notice of others.
In this case, there were reports to the Police. Such reports were made by each of the parties. The records indicate that the Police were confronted with the same prospect as I am now, that is, allegation, denial and counter-allegation. It is to be noted that, in the end, the Police authorities did not take any action against the husband. There are, however, some aspects of the intervention of the Police which are of potentially some significance in the analysis process.
The first matter to observe is that it is at least unexpected that the perpetrator of violence against a woman would be the one who sought to engage the involvement of the Police. That was the fact on more than one occasion, when the wife alleged she had been the victim of abuse. The prospect of being both perpetrator and reporter are, of course, not mutually exclusive, but it is somewhat unusual and provides one matter which might cause one to question some of the wife’s assertions.
Secondly, the wife was adamant that, after the incident in which she alleged she was punched in the face by the husband in the car on the way home from the function, she says she suffered a swollen lip. The parties attended at the Police Station after that incident, although, of course, they each alleged that they had been assaulted by the other. The wife is adamant that a photo was taken of her swollen lip. The husband expressly denied that any photograph was taken. No such photograph has been produced at trial and I have not been provided with any explanation for its absence, or of any efforts to secure it. It was potentially a decisive piece of evidence which would have completely destroyed the husband’s case. The husband denied that he struck the wife in the face, or at all, and asserted that it was he who was punched in the face by the wife. The husband’s credit could not have survived in the face of the production of that document. Its unexplained absence in the two cases that have lasted thirty days, where millions of dollars have been spent on legal fees and where a cabinet full of documents have been produced, including many upon subpoena, sees the damage being done to the wife’s case, not the husband’s.
Further, in relation to this incident, in her material, the wife expressly denied that she struck the husband prior to being hit by him. The Police records report the wife as admitting she hit the husband first.
Finally, in relation to this incident, there is something in the proposition raised by the husband in his evidence. He informed the Court that a Police officer from the Police Station subsequently informed him that, had he attended with the wife at a Police Station, and had the wife shown facial injuries and reported to the Police that she was struck by the husband, and had the husband been intoxicated and agitated as suggested, and had the wife been nine months pregnant, the husband would not have been allowed to walk out of the Police Station with his wife. Whilst that evidence is, clearly, hearsay and of no direct value in these proceedings, the proposition is worth considering on its own merits. The wife asserted each of the ingredients of the scenario referred to. She says she was injured and she was photographed. It is difficult to imagine that the Police would not take any action to protect an injured, pregnant woman against the intoxicated, alleged perpetrator.
There was Police involvement in another incident where the wife asserted that the husband had slammed a door on her pregnant stomach during the course of an altercation. She informed the Court that, at the time, possible injury to the unborn child was a matter of grave concern to her. Further, in her affidavit, she swore that at no time during the course of the altercation did she assault the husband. In her statement to the Police, however, the wife admitted assaulting the husband and, remarkably, omitted to inform the Police about the alleged incident where the door was slammed against her pregnant body, notwithstanding it was an assault which caused her to have grave concerns for her baby.
It is also noteworthy that, whilst some of the lesser altercations of the parties were reported to the Police, the much more serious assaults involving severe beatings were not.
In the end, there is nothing in the Police records which serves to establish the wife’s account, or even to provide clear support for her case. At best for the wife, all evidence which emerges from those sources, is equivocal. To the extent that such information provides support to either party, both individually and collectively, the matters I have highlighted from that source tend to provide some support for the husband’s accounts and tend to undermine the wife’s versions.
As to medical evidence, there is only one episode which resulted in medical treatment. Before I turn to that evidence, I take the view that the lack of medical evidence itself is worthy of note. Whilst I have acknowledged in my earlier observations about the obvious reluctance of victims to come forward in cases of family violence, the lack of medical evidence in this case is noteworthy, in the sense that what the wife describes in her evidence is literally years of abuse, which regularly included assaults and often included what can only be described as severe beatings. Those beatings included the delivery of regular blows by a man to the body and, particularly, the head, of a woman using his fists and feet. That a woman could continually survive such beatings from a man without receiving injury which necessitated medical treatment seems improbable.
The one incident which required medical treatment was as a result of damage to a tooth. That damage was alleged to have occurred during the course of one of the severe beatings administered by the husband, who is said to have attacked the wife while she was on the ground and there he rained upon her multiple blows to the head and face, using both his fists and feet. The wife says that one blow snapped one of her teeth clean in half. The husband said that the wife had been drinking heavily that night and stumbled into a wall and fell to her knees. He said it was he who noticed that the porcelain veneer on the bottom of a tooth was missing and he retrieved it from the floor.
The differences between the parties are stark. The wife said her tooth was split in half from the force of a blow to the mouth. The husband said that only some surface porcelain was dislodged after a stumble against the wall.
It is common ground that the wife attended upon a dentist the next day to have the damage repaired. Again, one would have anticipated that this clear conflict would be resolved by the report from the dentist. It is not. There is nothing in the evidence that indicates the wife was in need of the type of major repair which might be anticipated as being necessary to reconstitute a broken tooth. Whilst the report of Dr G dated 28 September 2004 refers to a “fracture” in the upper left tooth, the balance of the report appears to indicate that that reference is to a displacement of the veneer attached to the tooth and that this was repaired simply by some adhesive bonding. In totality, the affidavit and report of Dr G appears to provide greater support for the husband’s account than for that of the wife.
Further, there is no mention in either the affidavit of the wife or in the report of Dr G of any collateral damage to the lips or mouth. One would ordinarily expect that, if the wife had been struck about the face numerous times with both fists and feet, and if one of the blows was sufficient to break a tooth in half, there would be likely to be some other signs of damage to the lips or mouth of the wife. It is surprising that none are recorded by the wife or by Dr G.
Further, it is common ground that the parties were in Melbourne for a social event at the time of this incident. It is also common ground that they attended at a social event and it appears that the urgent repairs were undertaken to enable the parties to attend that function. The husband produced in Exhibit 1 a photograph of the parties at the function and I accept that the photograph was on the night after the alleged assault. Whilst it is possible that, notwithstanding such a beating, and with some good luck and good make-up, there may be no signs of such an assault, the wife’s pristine, unmarked presentation in the close-up photograph provided is yet another matter to be weighed up when considering the inherent probabilities of the allegations of a severe beating to the head less than twenty-four hours earlier.
Similarly, it is appropriate to observe the apparent incongruity of the wife’s attendance at the function with the husband and the fact that she appeared content to be with a man who had so brutally beaten and injured her that morning. Again, given the insidious nature of family violence, clearly such an outcome is not inconceivable, but it is yet another less than likely scenario.
I should observe that, on the issue of family violence between the parties, there is nothing in the remainder of the collateral evidence which provides assistance one way or another.
On the issue of inherent probabilities, however, I have had regard to one other feature of this case. During the course of the hearing proper, I specifically acknowledged the difficult situation some clients find themselves in when embarking upon litigation. Necessarily, they need to take advice in relation to issues to be canvassed at trial. I accept that, sometimes, clients are persuaded not to pursue issues which may, nonetheless, be important to them when they accept legal advice. Those considerations are, necessarily, even more complex in re-trials, where issues have been previously canvassed and determined. However, notwithstanding all of those matters, given the duration and the severity of family violence alleged in this case against both the wife and J, it remains somewhat difficult to reconcile the grave aspect of the history against the wife’s decision to not only abandon family violence as an issue in her case but, perhaps more importantly, to also take that decision much further by initially proposing equal time and shared care. What the wife told me and the way she told it in the second stage of the trial does not sit comfortably with her approach in the first stage of the trial. Associate Professor Q struggled with like considerations when comparing the content and presentation differences between her 2006 and 2009 interviews. She said she regarded the differences as entirely remarkable and was inclined to the view that she was being misled by the wife either at the time of the complaints of family violence or at the time of the second interviews.
(d)The Testimony of the husband’s former wife Ms Hartnett and the Circumstances Surrounding those Allegations of Abuse and their Relevance to these Proceedings
I deal, firstly, with Ms Hartnett’s evidence in relation to family violence. She described two incidents where she says the husband was violent to her. The first was on the day of separation. At that time, J was only eight months old. I gather Ms Hartnett had endured difficulties that day and was looking to some assistance from Mr Hartnett when he arrived home from work. Ms Hartnett apparently took a bath and an argument ensued. Ms Hartnett says that, whilst she was seated in the bath, Mr Hartnett struck out with his foot and hit her on the left side of the head, with sufficient force to cause her some pain and to leave a bruise on the side of her head. There was later that day a further altercation in the kitchen, when she alleges that Mr Hartnett either hit her, or pushed her vigorously, so as to cause her to stumble across the room, but not fall.
Ms Hartnett said that there was a second episode of violence approximately two years later at a handover. She said that, on that occasion, during another altercation, Mr Hartnett placed his hand around her throat and held her up against the wall for, what I gather, was a comparatively short period.
In his response, the husband denied that there was any such incident at any handover. As to the night of separation, the husband denied that there was any altercation and rather described an event when Ms Hartnett informed him that she was leaving the marriage, with the result that each became distressed and sought to comfort one another.
Ms Hartnett presented as a reliable witness. Correspondence indicated that she was a reluctant participant in the hearing before me, which is not consistent with any notion of her being on some campaign to harm the husband’s case. There were, however, a number of inconsistencies between the information apparently provided by Ms Hartnett to Dr WO and the information provided by her to this Court. It would appear that some of the information gathered by Dr WO from Ms Hartnett on topics relating to the husband included areas of exaggeration and gratuitous criticism.
I am, nevertheless, inclined to accept her evidence to the effect that there have been two incidents where she has been subjected to episodes of significant physical abuse at the hands of the husband. It is a little more difficult to gain an accurate sense of the gravity of such abuse. The incidents were not the subject of detailed examination or cross-examination. When describing the bath incident to the Independent Children’s Lawyer, Ms Hartnett said that the husband had footwear on at the time and that he “hit” her on the left side of the head by “striking” her with his foot. She did not describe the husband’s actions as a “kicking” motion. It may be that I am allowing myself to be distracted by too great a focus on the words used. Of course, there is no excuse for hitting or striking a woman on the side of the head with a foot. However, given the limits on the evidence led, I am left with some uncertainty about the severity of the assault. I do not have a clear appreciation, for example, whether this is a case where the husband carelessly struck out with his foot and inadvertently came into contact with Ms Hartnett’s head, or whether this was a vicious attack by the husband deliberately and forcefully kicking his former wife in the head. The second incident two years later, whilst again described only in very limited detail, would appear to suffer from less uncertainty. The husband necessarily would have had to make a conscious decision to place his hand around Ms Hartnett’s neck and apply some upward pressure to lift her against the wall. Again, however, I remain unclear whether this was a momentary or sustained assault.
It is not my intention to minimise these incidents, but in evaluating the severity and significance of this aspect of the case, it is necessary to consider such issues relating to the circumstances surrounding these episodes and the severity and frequency of any past episodes of violence.
It is clear that the bath incident was the first and only episode of violence during the relationship between the husband and Ms Hartnett. The second incident after separation also remains the only episode of violence in the twelve years since separation. The seriousness of the two episodes is not diminished by the isolated nature of those incidents, but the history of those events is not sufficient, in my view, to establish that the prospect that the husband assaulted the wife in these proceedings is rendered more probable by virtue of the evidence of the altercations with his former wife.
On any view, the husband behaved very badly and in a physically abusive way towards Ms Hartnett in 1997 and again some time around 1999. The fact that he did so represents a serious flaw in his history and demonstrates a capacity to mistreat a woman in the course of conflict. The husband’s denial of his involvement in such incidents is also a matter which reflects adversely against his credit.
However, those findings, whilst of significance, do not alone enable me to conclude that the husband assaulted the wife in these proceedings as alleged or at all. I must continue to apply proper scrutiny to the primary evidence in this case and the husband’s past history is a mater which requires consideration against the totality of the evidence.
(e)The Evidence of Mistreatment of J and its Relevance to these Proceedings
I have reached the firm conclusion that it would be entirely unsafe to draw any conclusion about the cause or causes of J’s current presentation. I have similarly concluded that it would be entirely unfair to draw any adverse inferences against the husband because of that presentation. I was forming that view from early in the process and my opinions were reinforced and confirmed by the evidence of Dr WO and Associate Professor Q. J has, in every sense, been surrounded by chaos all his life. As Dr WO said, he feels devalued, angry and fearful because the adults around him, who should have been in control of him, have been out of control themselves. He has endured the separation of his parents and the never-ending verbal and physical altercations between the parties in these proceedings. He has been estranged from his mother for extended periods and he is currently estranged from his father. He personally endured much of the ordeal of weekly travel to Geelong and he was otherwise disadvantaged by the absences of his father in pursuit of his relationships with his other children. He has observed firsthand his father’s considerable and longstanding stress in relation to his ongoing dealings with the wife and with this litigation. Associate Professor Q confirmed it would be entirely dangerous to attribute J’s problems to any single event and that it would be impossible for the Court to unscramble the factors likely to be contributing to his difficulties.
Of course, those findings do not enable the Court to ignore the specific allegations of physical abuse of J.
I accept that J has made allegations of physical abuse to both Dr WO and the wife. Again, however, it is difficult to place much weight upon those assertions. J clearly is in the habit of telling his parents, school authorities and Dr WO lies. He fantasizes and appears to enjoy role-playing the tough guy. It is clear that the husband intervened when J and S had an encounter, but it is impossible to determine the extent of any mistreatment.
In this case, it is simply impossible to determine whether J’s deterioration is as a result of having experienced abuse at the hands of his father, or whether his deterioration is as a result of some or all of the other challenges thrown his way and that his allegations against his father are a by-product of that deterioration.
What does seem clear on the evidence is that, prior to 2007, there was absolutely no evidence of mistreatment of J by his father and, to the contrary, everything indicates that their relationship was entirely positive and the husband’s parenting commendable.
I have regard to the evidence of Associate Professor Q that everything she observed over the long course of her interviews with all three children would be contra-indicative of any violence towards the children.
I am less favourably disposed to the husband on the issue of his denigration of J once he learned of the report of abuse to the Department. The husband acknowledges he admonished J and I am inclined to accept that he used entirely inappropriate language in doing so, which verbal abuse caused J a great deal of stress. Having said that, I do need to take account of the fact that this incident of verbal abuse appears to have been an isolated incident, and whilst one could never excuse the husband’s conduct on that occasion, one needs to have an understanding of the fact that the husband was in the middle of protracted and extremely stressful litigation at that time, and the husband at that time particularly would have been only too well aware of the potentially devastating consequences of the report made by J and Dr WO’s reference of the matter to the Department.
(f) Conclusions
On the specific allegations of the physical assaults upon the wife, I am not satisfied, on the evidence, that a case has been made out against the husband. Whilst I have concerns about aspects of the husband’s testimony, particularly that relating to his relationships with his previous wife and J, and whilst I have preferred Ms Hartnett’s account of past incidents of violence and aggression, I am not satisfied that those matters are such as to draw me to conclude that the husband has lied about his history between the parties in these proceedings.
In a general sense, I have been left with a far greater concern about aspects of the wife’s reliability. She seriously mislead the Court in a most fundamental way in relation to the tape recordings. She further seriously undermined the reliance which can be placed upon her own affidavit material by explaining away difficulties with assertions that she did not carefully convey instructions or carefully read affidavits before she signed them.
In adopting a less critical overview of this aspect of the case than was contended for by the husband, I have concluded that the most telling aspect of the history is, firstly, the fact that, in the main, the wife has complied with all orders for contact. That is noteworthy in itself, because the prescribed Court regimes have been extremely onerous and required a great deal of effort on both sides, and the wife has consistently met her side of the bargain, albeit that there have been continual squabbles about aspects of implementation.
Secondly, and even more importantly, as I have observed in earlier contexts, despite the wife’s issues with the husband personally, the children enjoy entirely positive and close relationships with their father and with J. Of course, no doubt, that is, in part, as a consequence of the inherent quality of the husband’s relationship with his own children but, in my view, the wife is also necessarily entitled to some credit in that regard. The husband’s case would suggest that the wife is a person who has incessantly sought to undermine him. She has had five years and two young, impressionable children to work with, if that was, indeed, her endeavour. The total absence of any flaws in the children’s relationship with the husband and their secure attachment to him is entirely inconsistent with that proposition.
In all the circumstances, I have proceeded on the basis that each of the parties retains the capacity to fulfil this very important role, however, I acknowledge that, as between the parties, the only uncertainty about appropriate commitment in this area demonstrated on the evidence is in relation to the wife. There have been a number of decisions made by the wife which are capable of providing some support for his concerns.
(d)The Likely Effect of any Changes in the Child’s Circumstances, including the Likely Effect on the Child of any Separation from either of their Parents or any other Person with whom They have been Living
In some ways, this is a difficult proposition to address. The children’s lives have been in a state of flux, if not turmoil, from birth to this day. For some time, they were literally living between States. There has been very little stability in their lives.
Perhaps the children have enjoyed the greatest period of stability in the last seven months of their lives. During that time, they have been resident in one State and in one city. They have been attending schools and have, apparently, settled into those schools well and are progressing in a positive way.
Given that modest degree of stability enjoyed by the children in more recent times, I am anxious about the prospect of yet further significant disruption. I acknowledge that, given the early stages of the children’s schooling and pre-schooling, a removal from those institutions would not be a factor of significance academically. However, I am of the view that disruption to the children’s schooling in a broader sense is highly undesirable. From the chaos and uncertainty which surrounded the children’s schooling at the beginning of this year, the children have arrived at, and enjoyed, the stability of the decisions made at that time. They have made friends and are now familiar with their teachers. It may well be that schooling has represented to these children something of a sanctuary from the turmoil that has surrounded them. In that sense, for these children, it renders the prospect of uprooting them yet again and requiring them to attend at different schools, with different students and different teachers, is a most troublesome prospect indeed.
Associate Professer Q identified the importance of stability in early schooling and expressed the opinion that a disruption to the current arrangements should be avoided.
In this context, I should also make reference to the comparisons between the parties. Obviously, each of the parties has been greatly unsettled by the ongoing conflict between them and by this entire litigation process. In other respects, however, as between the parties, the husband appears to have been able to maintain greater stability. He has continued to reside in the matrimonial home, although there is the prospect that those arrangements may need to come to an end because of his current financial circumstances. The husband has continued to pursue his career. There is no evidence that he has entered into any other relationships of significance.
The wife’s life has continued to be much more chaotic. Of course, this is partly as a result of her poor financial circumstances and she cannot be blamed for that state of affairs. Nevertheless, it has impacted upon her past stability and is likely to continue to do so. The wife has occupied a number of premises since she left New South Wales. She was engaged to be married to one man and introduced him to the children as a person to be of significance in their lives. That relationship failed and, shortly thereafter, she entered into a new relationship with one Mr X. It appears that Mr X moved into the home with the children shortly thereafter and he, again, became a person of significance in the children’s lives. The wife described in her material the fact that the children became close to each of those gentlemen. Shortly after the wife commenced her relationship with Mr X, she made an apparent decision to have a child to him. Mr X abruptly separated from the wife just four weeks after the birth of his daughter, Z. He had been residing with the wife and children only for a period of some months.
One of the most curious aspects of the wife’s case related to her future associations with Mr X. She was unclear and avoidant when asked questions about her future proposals for the relationship and her future proposals for contact between Mr X and Z. She said she hopes he plays a significant role in Z’s life, but one cannot have a great deal of confidence about that, given he abandoned his partner and child after four weeks and given he has, apparently, only seen the child twice since that time. The whole issue of Mr X is one of great uncertainty. Of course, if he is to play a role indirectly in the lives of S and T, this Court has been deprived the opportunity to make any assessments whether this is likely to be a negative or positive factor.
Further, the wife announced during the course of the trial that she has chosen to abandon accommodation previously shared with Mr X and return to reside with her mother. One suspects this is unlikely to be a long-term arrangement but, necessarily, this too, is difficult to predict.
An order placing the children with their mother in Geelong carries with it a great deal of uncertainty and represents a prospect that is likely to expose these children to a higher level of instability than would prevail should they be permitted to remain in Sydney.
(e)The Practical Difficulty and Expense of a Child Spending Time With and Communicating With a Parent
In his oral evidence before me, the Husband explained with a great deal of emotion and conviction that, given the history of this case, he did not believe that he any longer had the physical, emotional and financial capacity to sustain his relationship with the children if they lived interstate. The husband was not challenged in relation to that assertion, which is hardly surprising, given his undertakings in the past. Whilst I have little doubt that, if required to do so, the husband would not abandon his relationship with his children, I accept that it would remain a significant burden for him and that this is a matter legitimately taken into account in this case. The children would need to travel accompanied for some time to come yet.
Of course, the husband’s proposals, as supplemented by the wife’s decision to reside in New South Wales, would remove this burden of regular travel from the husband and from the children.
(f)The Capacity of the Parents to Provide for the Needs of a Child, including the Emotional and Intellectual Needs
I refer to my earlier comments in relation to the capacity of the parents to meet the children’s physical and emotional needs. I am satisfied that each of the parents is capable of meeting the children’s intellectual needs.
(i)The Attitude to the Child and the Responsibilities of Parenthood Demonstrated by Each of the Child’s Parents
I have made extensive comments upon the deficits of the parties, principally relating to their respective contributions to the continuing conflict, which have impacted upon these children.
In other respects, I reiterate my assessment of the capabilities of these committed parents.
(j)Family Violence
Issues of family violence and risks to these children have been canvassed elsewhere in this judgment.
(k)The Order Least Likely to Lead to the Institution of Further Proceedings
Given the history of litigation in this case, one could not confidently predict that any particular order will bring an end to the litigation in this matter. For the sake of these children and for the sake of the parties, I hope that this judgment does bring the process to an end.
As between the competing proposals, it seems to me that an order which results in the parties living in the same city and with the children spending equal time between their parents is a less problematic set of arrangements than one which has the parents living in different States and the children continuing to move between those States. As a matter of logic, the lesser the scope for problems, the lesser the scope for litigation.
RECOMMENDATIONS
It is appropriate to take account of the submissions and recommendations of the Independent Children’s Lawyer. Counsel for the Independent Children’s Lawyer supported the proposals of the husband and submitted that they better met the interests of the children. Amongst the matters highlighted in support of those submissions, the Independent Children’s Lawyer expressed concerns about the evidence indicating that there was the prospect that the wife may be intent on alienating the children from their father. The Independent Children’s Lawyer was satisfied that the husband was better able to foster the children’s relationship with their mother. The Independent Children’s Lawyer also pointed to the greater stability in the husband’s life and proposals. The Independent Children’s Lawyer stressed that the children were presenting as being well-settled in Sydney and was anxious about the prospect of further disruption to their lives. The Independent Children’s Lawyer also supported the husband’s proposals on the basis that it provided a better opportunity for the children to renew their important relationship with their brother, J.
Prior to the speculation surrounding J, Associate Professor Q had indicated in her reports a preference for the husband, and she confirmed that position again in her oral evidence in the event that the Court found that the children were not exposed to the risk of harm in the husband’s care. In terms of parenting, she assessed the relationship between the children and their father was healthier and more secure than that enjoyed by them with their mother. In other respects, she opined that the husband’s proposals in Sydney provided the children with a greater degree of stability and certainty, and she was particularly concerned about a change of schooling, given the history of this case.
PARENTAL RESPONSIBILITY
It is to be noted that the parties originally each applied for joint shared parental responsibility. Throughout the trial, I had made it known to the parties and their legal representatives that I was not favourably disposed to that prospect. As I explained at the time, I was of that view for all the obvious reasons arising from the history and the evidence, all of which seemed to establish that the parties were largely unable to co-operate and communicate, and that efforts to do so often resulted in serious conflict, which was frequently observed by the children. I was concerned that the evidence indicated that there was a distinct mutual lack of trust and respect.
Associate Professor Q was also to express serious reservations about the prospect of a shared parenting order, given the above matters.
I was advised that, partly as a result of my comments from time to time and partly as a result of her emerging concerns about family violence, the wife changed her mind during the course of the proceedings and sought to amend her application to seek orders for sole parental responsibility. At the final stage of the trial, the husband also provided amended minutes of orders, including an order for sole parental responsibility.
At the conclusion of the trial, the Independent Children’s Lawyer adopted a most interesting position. He acknowledged the legitimacy of the concerns expressed by myself and by Associate Professor Q, but he nevertheless submitted that the Court should make an order for joint shared parental responsibility. He approached that proposition on two separate premises. Firstly, in a negative sense, he argued that there was nothing to lose by imposing such an order. He pointed to the fact that the Court had provided a great deal of prescription in the past, in terms of a number of specific issues orders, and that that device had not avoided conflict. He argued that a shared parental responsibility order certainly could not be any worse than a more prescriptive approach.
In a positive sense, he identified all of the advantages which, potentially, flow from such an order, giving both parents ownership of responsibility for all major decisions affecting the welfare of their children.
In response to the submissions of the Independent Children’s Lawyer, counsel for the husband informed the Court that his instructions were that, should the Court be persuaded to the propositions advanced by the Independent Children’s Lawyer, the husband remained unopposed to that notion.
As for the wife’s position, I take account of the fact that her application for sole parental responsibility was based upon the premise that the children would reside with her in Geelong and that, in those circumstances, she should be vested with the responsibility for decision-making. I feel safe in assuming that, should the Court otherwise decide that the children should reside in Sydney, she would like to have the opportunity to be involved in the decision-making process, an option which is better facilitated by a shared parental responsibility order.
I acknowledge that I have had a major re-think on this issue, given the Independent Children’s Lawyer’s recommendations and the fact that the husband is not opposed to that prospect and the wife is likely to support such an order if the children remain in Sydney. I also take account of the fact that, despite the long history of difficulties, the parties originally approached the Court at the commencement of these proceedings before me with applications for orders for joint parental responsibility.
I have concluded that, despite all of the difficulties in this case, I am dealing with two basically decent people, who have struggled with the challenges of co-parenting whilst locked into litigation. That litigation is, hopefully, coming to an end. I am hopeful that that new environment will eliminate scope for strategising and that the parties will have no alternative but to move forward. I have determined that they are each very committed, very capable parents. I was impressed by each of their opening statements, where they each acknowledged the damage ongoing conflict was causing to their children, and I believe they were genuine in their statements at that time, that they would desperately like it to end. Unfortunately, they were unable to eliminate that conflict during the unfortunately long duration of this trial. However, I am hoping that, given the conclusion of the litigation and for the sake of these children, the underlying decency and capabilities of these parents will enable them to positively embrace a joint parental responsibility order. In that sense, I adopt the approach of the Independent Children’s Lawyer that, in reality, there may be little to lose by such an order and, potentially, so much to gain if these parents can gain a level of respect and co-operation and manage a co-parenting regime.
CONCLUSION
Given the turmoil which has surrounded these young children throughout their lives, an overwhelming consideration for me has been to look to those orders which are most likely to provide the children with the opportunity to enjoy increased levels of stability and certainty. In my view, the husband’s proposals offer more of each. The children have been resident in New South Wales for the last seven months and they have commenced their schooling in that time. I would be gravely concerned about imposing upon these children the ordeal of being removed from their friends and their school and required to start again in new schools in Geelong. The wife’s circumstances in Geelong appear much less certain and stable. I do not know whether the new plans to reside with her mother will persist for a long time or only a short time. I have a concern about the great deal of uncertainty surrounding the future of Mr X’s relationship with the wife and any of the children in her household. I take account of Associate Professor Q’s assessment of the more secure attachment in the children’s relationship with their father. An order leaving the children in Sydney with their father produces an arrangement which provides the best opportunity for renewal of their relationship with J. To the extent there are any question marks about capacity to foster the children’s relationship with the other parent, they are with the wife and not the husband. An order separating the children from their father and having them reside in Geelong and to limit their time with their father is an arrangement which is more prone to the prospect that a less than enthusiastic support for the children’s relationship with the husband would have an adverse impact upon the children and their ongoing relationship with their father. I take account of the inherently problematic nature of the task of parenting from different States. I agree with Associate Professor Q’s assessment that the best outcome for these children would be to have their parents residing in the same State. The wife’s acknowledgement that she would reside in New South Wales if necessary indicates that the only orders which would achieve that outcome are orders leaving the children in New South Wales. That concession was not a primary consideration, as I am otherwise persuaded that the husband’s proposals with the children in Sydney are to be preferred to the many uncertainties and downsides of a return to Geelong. It is, however, a significant bonus for these children that the wife’s generous concession will best enable these children to avoid the inevitable difficulties associated with interstate parenting and is an arrangement which will enable them to continue to enjoy meaningful relations and substantial time with each of their parents and with their half-siblings.
ORDERS
In the circumstances, I propose to make orders largely in terms of those proposed by the husband as modified in certain respects in accordance with the minute of orders submitted by the Independent Children’s Lawyer. There is one matter, however, that I should make clear. The husband’s proposed orders required the wife to meet two pre-conditions prior to the commencement of the week-about arrangements. The wife was required, firstly, to give notice of her willingness to commit to permanently live in Sydney and, secondly, to have established permanent residence. I am of the view that those requirements, taken literally, are potentially too onerous. The wife should not be required to commit to forever reside in Sydney as a pre-condition to equal time. Further, I anticipate that the wife might experience difficulties and delays in securing fixed permanent accommodation. I do not want a situation to arise where the wife remains in Sydney but without permanent fixed accommodation, with the consequence that the children are only permitted to see their mother during school holidays. I have, therefore, modified the orders to require the wife to only give notice of an intention to reside in Sydney and have deleted any reference to permanent residence. I have sought to safeguard the spirit of the arrangements by requiring the week-about living arrangements during school term to be in Sydney. Obviously, it will be incumbent upon the wife to make appropriate living arrangements so as to ensure the children’s continuing attendance at school is reasonably accommodated.
The Orders of the Court will be as follows:-
1That the Husband, MR HARTNETT (hereinafter referred to as “the Husband”), and the Wife, MS SAMPSON (hereinafter referred to as “the Wife”), have equal shared responsibility for decisions affecting the long term care, welfare and development of the children, S born … April 2003 and T born … November 2004 (hereinafter referred to as “the children”), except as otherwise provided in these orders.
2That the Wife have responsibility for making decisions for the day to day care, welfare and development of the children at times when they are living with her and the Husband have responsibility for making decisions for the day to day care, welfare and development of the children at times when they are living with him.
3That the children live with the Husband.
4That subject to Order 5 hereof, the children spend time with the Wife as follows:-
4.1During NSW school term:-
4.1.1In Geelong for two (2) three day weekends per term from 5.00 pm Friday to 5.00 pm Monday and, failing agreement, on the third and sixth weekends of each school term;
4.1.2In Sydney for a period of five (5) consecutive nights per term on the Wife providing to the Husband fourteen (14) days written notice of being in Sydney, being from after school Wednesday to before school Monday.
4.2During NSW school holidays:-
4.2.1For ten (10) consecutive days from the commencement of school holidays at the conclusion of term one;
4.2.2For one half of the school holidays at the conclusion of term two;
4.2.3For ten (10) consecutive days from the commencement of school holidays at the conclusion of term three;
4.2.4For one half of the school holidays commencing at the conclusion of term four, the first half to be in December 2009 and every alternate year thereafter, and in every other year the second half of the school holidays.
4.3For the purpose of Order 4.2, the NSW school holidays shall commence on the Saturday immediately following the last day of school term and conclude on the Sunday immediately prior to the commencement of the next school term.
4.4For the purpose of these Orders unless otherwise provided, the Wife shall during school term collect S from M School and T from T Preschool at the commencement of the period the children shall spend with the wife and return the children to M School and T Preschool fifteen minutes prior to the commencement of school/preschool at the conclusion of the period.
4.5At all times other than changeover in accordance with Order 4.4, then the changeover shall be outside the front of St M Church, Sydney.
5.That in the event the Wife gives the Husband written notice within fourteen (14) days of the date of Order of her intention to reside in Sydney, the following Orders shall apply in substitution to Order 4:-
5.1That during NSW school term, the children shall live with each parent in Sydney on a week on week off basis, with changeover to occur at M School upon completion of S’s schooling on Friday, with the Wife’s period to commence the first Friday immediately after giving written notice in accordance with this Order.
5.2During the NSW school holiday periods:-
5.2.1For one half of the school holiday periods at the end of terms one, two and three as agreed between the parties and failing agreement the children shall be with the Wife for the first half of each school period in 2009 and every alternate year thereafter and in every other year the second half of the school holiday period;
5.2.2For the Christmas holidays as agreed between the parties and failing agreement the children shall be with the Wife for the first half of each school period in 2009 and every alternate year thereafter and in every other year the second half of the school holiday period;
5.2.3For the purpose of this Order, the NSW school holidays shall commence on the Saturday immediately following the last day of school term and conclude on the Sunday immediately prior to the commencement of the next school term.
5.3Should the Wife cease to reside in Sydney, then the provisions of Order 4 shall apply.
6That the Wife have telephone contact with the children during the times they spend with the Husband each Tuesday, Thursday and Saturday between 5.00 pm and 6.00 pm and at other agreed times.
7That the Husband have telephone contact with the children during the times they spend with the Wife each Tuesday, Thursday and Saturday between 5.00 pm and 6.00 pm and at other agreed times.
8That the children spend time with the Husband on each of the children’s birthdays, the Husband’s birthday and J’s birthday (provided that the Husband shall give at least 7 days notice in writing to the Wife that J will be with him on his birthday) as follows:-
8.1From 12.00 noon or after school (if a school day) the day immediately before the birthday until 12.00 noon or the commencement of school (if a school day) on the birthday in 2009 and every alternate year thereafter.
8.2From 12.00 noon or after school (if a school day) on the birthday until 12.00 noon or the commencement of school (if a school day) the day immediately following the birthday in every other year.
9That the children spend time with the Wife in Sydney on each of the children’s birthdays, the Wife’s birthday and Z’s birthday as follows:-
9.1From 12.00 noon or after school (if a school day) the day immediately before the birthday until 12.00 noon or the commencement of school (if a school day) on the birthday in 2010 and every alternate year thereafter.
9.2From 12.00 noon or after school (if a school day) on the birthday until 12.00 noon or the commencement of school (if a school day) the day immediately following the birthday in every other year.
10That the children spend time with the Wife on Mother’s Day from 6.00 pm Saturday preceding Mother’s Day until 9.00 am at the commencement of school the following Monday.
11That the children spend time with the Husband on Father’s Day from 6.00 pm Saturday preceding Father’s Day until 9.00 am at the commencement of school the following Monday.
12That the Wife and the Husband notify the other in writing not less than fourteen (14) days prior to any change to their residential address, email address, landline and/or mobile telephone numbers and such notification include the complete address of the proposed new residential address, email address, landline and/or mobile telephone numbers.
13That each parent forthwith authorise any school the children may attend to provide to the Husband and the Wife photocopies of reports, newsletters and announcements of school activities, or otherwise pertaining to the education of the children, or if none have been made available in writing, then each parent shall provide written particulars, which includes by email, of such reports and/or activities to the other within three (3) days of such documents or particulars being received from the school, and the parents shall authorise staff members at any school the children may attend to discuss the children’s progress with both parents.
14That each of the parents may attend the children’s schools or churches for the purposes of any school or church events parents are permitted to attend.
15That during any period during which the children or either of them is living with the Husband, in the event of the child or either of them being hospitalised or receiving medical attention, the Husband shall notify the Wife as soon as practicable (and in any event within two (2) hours) after his first contact with either the medical practitioner, medical centre or hospital, including the details of the illness, injury, the treating doctor and the prognosis and treatment of the child/ren if known.
16That during any period during which the children or either of them is living with the Wife, in the event of the child or either of them being hospitalised or receiving medical attention, the Wife shall notify the Husband as soon as practicable (and in any event within two (2) hours) after her first contact with either the medical practitioner, medical centre or hospital, including the details of the illness, injury, the treating doctor and the prognosis and treatment of the child/ren if known.
17That the Husband shall ensure the Wife is kept informed as soon as is reasonably practicable of:-
17.1Any medical problems or illness suffered by the child/ren whilst in the care of the Husband.
17.2Any medication that has been prescribed for the child/ren or over the counter medication administered to the children whilst in the care of the Husband.
18That the Wife shall ensure the Husband is kept informed as soon as is reasonably practicable of:-
18.1Any medical problems or illness suffered by the child/ren whilst in the care of the Wife.
18.2Any medication that has been prescribed for the child/ren or over the counter medication administered to the children whilst in the care of the Wife.
I certify that the preceding one hundred and eighty-seven (187) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan
Associate:
Date: 25 August 2009
0
0