Hawkins and Roe

FAMILY COURT OF AUSTRALIA

HAWKINS & ROE

[2010] FamCA 728

FAMILY LAW – CHILDREN – Application for co-parenting – Best interests of child – Where lack of communication means co-parenting is not possible – Application dismissed

APPLICANT:

Mr Hawkins

RESPONDENT:

Ms Roe

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

BRC

6502

2008

DATE DELIVERED:

3 March 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

2 March 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr A.C. Smith

SOLICITOR FOR THE RESPONDENT:

Richard Gray & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr J. Selfridge

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

That all previous orders be discharged.
That the children Z born … July 1996 and N born … March 1998 live with the mother.
That the father spend time and communicate with the children as follows:-
(a)from after school Thursday until before school Monday each alternate week, such time to be suspended during all gazetted Queensland school holidays;
(b)for one half of all gazetted Queensland school holiday periods, such that the children are with the mother for the April and September school holidays and the second half of the Christmas school holidays in even numbered years and the July school holidays and the first half of the Christmas school holidays in odd numbered years;
(c)from 4.30pm on Christmas Eve until 12 noon Christmas Day in even numbered years;
(d)from 12 noon Christmas Day until 12 noon Boxing Day in odd numbered years;
(e)for a minimum of 3 hours on the father’s birthday with the same arrangement to apply for the benefit of the mother on her birthday;
(f)notwithstanding any other order the children shall spend Mother’s Day with the mother and Father’s Day with the father; and
(g)by telephone at any reasonable time on two (2) occasions each week and with the mother to be able to contact the children similarly when the children are in the father’s care.
That either parent be at liberty to take the children overseas for holidays during that parent’s time with the children conditioned upon the travelling parent providing the other parent with a minimum of two (2) months’ written notice of their intention to travel and at the same time providing to the other parent an itinerary, travel details, contact telephone numbers and addresses for the children for the period of the overseas travel.
That the parents are not permitted to involve the children in any form of psychological or psychiatric interviews without leave of the court.
That neither parent denigrate the other to, or in front of, or within the hearing of, the children.
That the parents notify the other as soon as reasonably practicable of any medical or like emergency involving the children.
That the parents notify the other of any change in contact details within seven (7) days of such change.
That this Order authorises the children’s doctors and school to discuss the children’s progress with the father and obtain documents from them such as school reports at the expense of the father.
That the father pay Legal Aid Queensland the sum of three thousand three hundred dollars ($3,300) within seven (7) days, by depositing such sum into Legal Aid Queensland’s Trust Account.
That the mother arrange for the children to be issued with Australian passports at her own expense and the father shall sign all documentation to allow the issuing of the children’s passport within seven (7) days of being provided with that documentation by the mother. Upon the issuing of the children’s passports the mother shall retain those passports pending the children travelling overseas and the father shall return the children’s passports to the mother no later than seven (7) days after the children have returned from an overseas holiday with him.
That the Independent Children’s Lawyer be discharged.
That the Application in a Case filed by the Mother on 31 March 2010 be adjourned to the Registrar’s Duty List at 10:00am on 12 May 2010.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Hawkins & Roe is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6502 of 2008

MR HAWKINS

Applicant

And

MS ROE

Respondent

REASONS FOR JUDGMENT

This is an application on the part of Mr Hawkins, hereinafter referred to as “the applicant”, for certain orders in relation to two children of his marriage to the respondent Ms Roe.
The parties were married some time ago and separated in 1999 I think it was but they have been separated for a considerable period. Two children, however, were born of the relationship, they being A, in July 1996 and N born in March 1998.
I must very briefly touch upon some of the pre history. It appears as though the marriage was not very happy right from very shortly after the inception of it. The parties sought marital counselling and as far back as – I make no apologies for this judgment perhaps not being as cut and paste as I would like it but I think it is essential that the matter for the children’s sake be got out of the road.
In her affidavit she sets out a report from a Mr F, a counsellor who came to certain conclusions concerning the husband’s attitude towards the mother.
RECORDED : NOT TRANSCRIBED
Those conclusions are supported by the mother in that affidavit and in a subsequent affidavit which was filed in January of this year – this is in relation to the father’s general attitude towards her and his nature.
The issues before us are that the father wishes to share time with his children on a seven night about. The children are now of an age where he says it is important for them to partake in more daddy-orientated affairs rather than weekend warrior where the father really, as he says, virtually only has holiday access with them. He wishes to be involved in their school teaching and in their general extra‑curricular activities. The mother, on the other hand, opposes that and indicates that she would be accepting of a 10:4 nights which has been in existence by way of an order since 30 October but had, in fact, been in practice for some period of about six months prior to that.
In Ms B’s report at paragraph 8, that is the report dated 24 September 2009, it sets out what she considers the issues are and I read them into these my reasons for judgment:
(a)the communication and capacity of the parents to co-parent under a shared parenting regime;
(b)the parenting style of each parent and its impact on the likely success of a shared equal parenting time arrangement;
(c)Z and N’s relationship with their parents and other significant people such as their parents’ new partners and their half‑brothers, P and D, and Z and N’s expressed views.
The parties divorced and subsequently both have remarried. The applicant has remarried and they have two children, P and D. The mother has remarried and lives with her husband and with the children. They both work as I understand, as does the father.
RECORDED : NOT TRANSCRIBED
The communication and capacity of the parents to co-parent under a shared parenting agreement looms large, in fact, I think it probably, other than for the wishes of the children, is the primary concern in this case. The father has made much of the fact that he views the communication between the parties as improving. I think he has conceded in the past it was not good at all but that it has improved. He says it has improved, for instance, for a period after the Order in 2000 whereby Orders were made for the children to live with the mother and for him to have contact – I am allowed to use the word “contact” according to the Full Court – but he says it has deteriorated and deteriorated particularly around about the time when he applied in July 2008 for orders in relation to shared parenting.
The parties have had, I might say, a tumultuous relationship since then. There have been attempts to mediate which have failed; there have been applications to the court; there have been disputes about virtually everything. I must say that notwithstanding that I am to look upon the shared parental responsibilities as joint, there is no presumption in the court that there should be shared parenting, notwithstanding the fact that many groups, lobby groups and otherwise in the press have considered that there is an established presumption of 50/50. There is not.
I have to consider whether, in fact, there should be equal shared parental time and I will do so and that, as is said, is the primary concern in this case. I have to consider, regrettably, the respective personalities of the parties with a view to ascertaining whether or not they could agree on what day of the week it is.
I must say that as far back as that affidavit to which I have referred, as far back as the counselling in 2000, the mother complains of the father’s talking over people, of his failing to listen, of his aggressive and bullying nature. This, as I have said, and I just say in passing Mr F was of the opinion that perhaps her version of the events was preferable to that of the father. That does not in any way bind me but I say that as far back as the year 2000 someone else came to the certain conclusion which, as I said, does not bind me.
Since that time there has been investigations, a report has been prepared by a Mr E in relation to the father’s personality. I note that at paragraph 65 Z, who was interviewed by Mr E – Z, of course, was only about 11 I think at that time – said “my dad likes to talk about it a lot. I tell him not to talk about it but he doesn’t really listen.” That was Z in 2008 when he was interviewed by Mr E on 29 October 2008.
Since that time the wife has complained, well not only since that time, she has complained that he does not listen. Z and N, in a report prepared by Ms B, not her assessment or issues assessment which took place in February but her full report which took place in September, indicates that that is a complaint of the children, that he does not listen.
Now, one would have thought that the father could quite easily attack such allegations and he has done so but regrettably the whole of his presentation in the court has ruined any defence. He has quite clearly not listened. He has quite clearly talked over people. He has quite clearly adopted what I consider to be a somewhat bullying manner in that his refusal to listen, his refusal to answer questions when proposed to him by me; his dedication to running off on his own little view and not attempting to keep his mind on the case.
Why is this? Well, personally I cannot explain why he will not listen or why he does tend to sort of rattle on, as I said early in the piece but it may be that the truth comes out in what his present wife said to Mr E which, at paragraph 105, Mrs Hawkins, his present wife, said:
When queried concerning her understanding as to why matters had been taken to court Ms [Hawkins] expressed the opinion as follows: “I do not believe that [the father] didn’t think that shared care would be possible, not until the kids became teenagers, but when he looked into it he found out that things had changed and he has become really passionate about it and it has consumed his life.”
That may be a reason for his passionate view of this matter. It may be a reason for his failing to listen, notwithstanding the fact that it appears as though he was doing that before he became aware that he might have a chance for shared parenting and shared time.
The mother, on the other hand, gave me the impression that she was a much more reasonable type of person than the father. She has complained bitterly of periods of intense communications by the father; of his insisting on certain things, of her “fighting” with him over virtually everything. She did give me the impression of being much more placid in the witness box. She was more conceding in the witness box. She did not have heightened criticism of the father to the extent which he says that she displays to everybody else.
It is trite to say that for co-parenting to succeed there must be a degree, one, of communication and secondly, of trust between the parties. In this case I am more than satisfied, notwithstanding, with great respect to the father’s pathetic attempts to suggest otherwise, that communication in this case is fraught with difficulties, that there is no consensus between the parties, that there are difficulties shown in every email that has been put up before me.
He points to one, a text of 18 November 2009 wherein, albeit very late, the mother indicates that there was a presentation to be made to Z at the school. He replied that he was thrilled that she told him and he would be there. He says that this shows that this is a sign of positive communication. Ms B, when that was put to her, said, no, she did not think so. It was something that took place. There is no sign of warmth or communication being easy in this case whatsoever.
I use an example: the father points to – and more of this anon – the Father’s Day debacle, as I refer to it as. He says to have a look at the emails in relation to that. I will. He points out that he was very flexible in his arrangements in relation to that. Well, if we have a look at 3H, number 1, wherein he indicates that he was asking to drop a line re Father’s Day and was wondering whether he could pick the children up early. That in itself was neutral. There was nothing to worry about there. But then he goes on to say “further to this, I would like to discuss the current interim changes” - this is one of the very few of the numerous emails that have been put before me which is not dated but I would think that it would be before 5 September which is the Father’s Day date.
Further to this, I would like to discuss the current interim changes that have been in place since May. We agreed to an interim change of four night, 10 night alternating cycle with the kids. It has been four months since we introduced the time change and I believe the kids have adjusted extremely well to the new pattern of time. In keeping with the view to graduate more of the children’s time with their father, I was wondering if we could look at adding one additional day to the current schedule, four day block. This would mean after school pick-up with me would move to Thursday rather than Wednesday -
I think that is wrong.
If you are agreeable to the change I propose to commence the change on 9 September –
which would be no more than five days after it was raised to her. He pointed this out and said “this shows her inflexibility” because she said in her reply, which was 2 September, “The view to graduate more time with the children is your view, and no-one else’s. We will stick to the arrangement as per the agreement.” I don’t believe that that shows any degree of rich communication – a word that he used. There are others which I could use, one after another, to show that there is no warmth, there is no trust, there is no faith, there is no putting the children first rather than themselves, and the mother does not escape that criticism either.
As far back as Mr E – he was concerned at the effect upon these children, very concerned to such an extent that the father took it upon himself, and the mother does not cavil with this now notwithstanding the fact she did not know, took it upon himself to go and see what he referred to as a health specialist which turns out to be, as a result of subpoenaed documents, a non‑qualified internee at the university in which he underwent a Triple P program as well as, he says, received counselling in relation to the children and to himself.
He points to the fact that the mother did not do it. She has explained why. I would have thought that this type of thing was, if anything, counter-productive to the advancement of the children’s love and respect for the father. Look at the document. The document which is exhibit H, which was prepared, as I understand, by a Ms L who was the internee – no, it is 3B, pages 1, 2 and 3, particularly - have a look at the document, family meeting format.
This is the meeting of which he is inordinately proud. He says he went along and they improved the form of his meeting which he said had been taking place for about some 10 years before. Family meeting format: what you have to do, it suggests, is with these kiddies is one, set the agenda; two, set the rules: turn taking, time limits, switch off telephones; three, nominate a chairperson, note taker, time keeper, mediator. Make sure people keep to the rules.
The agenda, for instance, is behaviour contact, sound proofing, clearing, gapping, rules, no taking out people, one person at a time. The chairman was Z, the time keeper was N. The note taker was the stepmother and the mediator was Ms L.
This is the first one. He says that he is now carrying on this meeting with the children once per week and this is the form. The children do not like it, they say. They say that to the mother, they do not like it. They find it intrusive, they feel as though they are being criticised for their behaviour and I would have thought that the children of the age of Z and N would prefer, when they see their father for four nights a fortnight, to not be involved in setting agendas and nominating chair persons and having discussions as to whether there should be sound proofing, things of that nature.
He says, well, look at the mother, the mother has a similar – she does not. Hers is different. Hers is a meeting, a greeting I think she says or a gathering in which they, being members of the Mormon Church, partake in a hymn and some prayers, they have a general discussion as to what took place during the week, they have a meal and particularly they have dessert. If, in fact, as she said, they have a bad day, they just go straight to the dessert and drop it. That is a warmth-making thing, I would have thought, notwithstanding, as I said before, I am a lapsed Anglican.
Church is discussed, not whether, in fact, we are going to appoint a chair person, however, that is one of the things that concerns me insofar as communication is concerned. The mother refers to the children being upset about that type of thing, that they feel as though they are to look at their fault and those things at which they are wrong, are brought through a court, to the front.
I have made it clear that I am not satisfied that communication between the parties is anywhere near what is necessary for co-parenting. Each person is strong willed. They are both strong willed. They both have their views. They are both trying to do their best. I am not for one moment suggesting to the contrary, but their best is not good enough for these kids. They deserve more, particularly when Z, who is very bright, N is bright too but Z is very - has been showing signs since 2006 of being emotionally damaged. And you know how he is being emotionally damaged by his parents.
After 34 years on this Bench I must confess that this will probably be the last time I will ever make these homilies to parents, because it does not seem to me that they take any notice of it, in 34 years. They have got to get their act together. This boy could collapse. He could. Not that he will, but he could. 2006 Mr E was worried. 2009, Ms B is worried. The children were sullen, they did not want to be involved in this fight any more. They do not want to say as much as they have been, not coerced, but asked to say, because it puts them in an invidious position of deciding between their parents, both of whom they love.

Why should we put a guilt syndrome on them? Why should they be put in the position of having to say, “Well, look, I really don’t like going to dad’s because of so-and-so”? They should not be put in that position, ever.
Back to Ms B. I have already found that I do not believe that that degree of cooperation between the parties exists at this stage for me to make an order for co-parenting, but that is not the end of the matter. The style of the parenting I have already touched upon to a certain extent with the father’s form of formal meeting and the mother’s informal meeting. I think that that shows very much what really different parenting is. The father is more formal. He is a highly intelligent man. He is a man who I think believes that things should be done his way. The mother tends to be that way but not as strong and it is easier for them.
I touch upon Father’s Day. The applicant, the father, has made much of the fact that it seems to be consuming in Ms B’s report, and it is. It takes up a considerable part of Ms B’s report but really I must say as far as I am concerned the father’s behaviour on that weekend was reprehensible.
The facts are this: the father and one of the grandfathers or all the grandfathers were going to be available in Queensland for Father’s Day last year, which I think was 6 September. He wrote to the mother by way, once again, of email, they not being able to talk to each other, and sought that she would give him extra time for Father’s Day and she, rather curtly, replied that she would and we will have a look at that. I have already touched upon the letter concerning Father’s Day. Have a look at 3J and particularly, as I have already referred to, 3H, number 1, page 1, 3H number 2. In request for the extra time the mother replied by email on 2 September at 4:56:05:
The view to graduate more time with the children is your view. The Father’s Day arrangement is for Father’s Day and that is you. What grandfathers are you talking about? When were you planning to return the children?
His reply, which was 3 September:
The plan would be to drop the children back to school on Monday morning. Father’s Day time will be used for the children to celebrate time with me, your father –
that is, the maternal grandfather -
and the children’s other grandfathers. Can you at least agree to the children spending Father’s Day time with me as per my proposal?
On 3 September at 4.02 the mother replied “let me reiterate. Your involvement with my parents is completely inappropriate”. In passing, the mother and her parents do not have a friendly relationship at all at this stage.
They are adults capable of having their own relationship with the children and I. That being said, if you wish to celebrate Father’s Day on Saturday I would like the children back by 2.30 pm as I have to take [N] to ballet again from 3 to 6. That way you can enjoy your Father’s Day celebrations with their step-father and grandfather.
The father replied, “Great to see you have offered some flexibility. I will pick up the kids from your place 4 pm tomorrow.” She replied, “How about in the future you stop patronising me with false wishes. You have always had flexibility from me, it is you who has never offered it.” Another exhibition of warm and friendly cooperation and communication between the parties.
The father took the kiddies at 4 pm and then he sent a text message, see exhibit 3J number 1, to the mother and said:
It turns out the children’s Father’s Day activities on the Gold Coast with me have taken longer than expected. I have rung Ms [V] and explained [N] cannot go to ballet today. She is fine with this and commented, “Many other families are in the same boat being Father’s Day.” I will drop the kids back at your home at 6.30 pm so you can enjoy some Father’s Day time as well.
The mother replied, “No, bring them back as per arranged time.” Nothing, according to the evidence here, was written back in reply to that. That email was sent to the father at 12.55 pm and at 1.06 pm the mother writes:
We changed plans to suit your arrangements. You are doing this on purpose and typically causing more problems. Lying is second nature to you now.
Another exhibit of friendly cooperation and communication between the parties. He did not return the children at 2.30 pm which he had agreed to and returned them, I believe it was, at 6.30 pm that night. He says that he was put in the invidious position of making a decision whether to bring the children back so N could go to her ballet at 2.30 pm or to let them spend time with one of the grandfathers – I am still confused as to which one it was. He decided to let the children spend time with the grandfather in Brisbane, not at the Gold Coast, but they came up to Brisbane at about 2 o'clock and I put it to him would that still have time to get to N’s ballet, “No, she would have to go and see the grandparent.” I think it was the maternal grandparent who was up here.
This caused distress to, in particular, N, who is very keen on ballet. He conceded that N was upset about it but he was put, as he said, in an invidious position of having to make a decision.
Ms B has spoken of it at considerable length. The children have expressed their displeasure at considerable length but the father, once again, with respect to him, does not appear to recognise that his actions were detrimental to the children. They were detrimental to his relationship with the children. They caused distress to the children, because he did what he wanted to do, not what he should do for the children, but what he thought should be done.
I refer to Ms B’s report and the children’s replies, the children’s concerns, particularly when they put themselves into the position of thinking that dad lied to them. I think that was N. That in itself is very hurtful to a child, particularly a girl child who was at that time 10.

RECORDED: NOT TRANSCRIBED
36. [N] mentioned Father’s Day weekend and stated, “He tricked mum on Father’s Day and said he would have me back by 2.30 for ballet at 3. It wasn’t okay with me,” she said.

Z, “I gave up study time on Saturday afternoon” – this is re his going early with the father – “to be with dad thinking I would get Sunday afternoon to catch up.” He did not. He goes on to say he tried to tell his father about this “but I have seen him do it to other people. He just shuts you down, that is just dad, that is just the way he is, he doesn’t listen and he shuts you down. He does it to mum all the time.” He does it to me, he does it to counsel. He does it to the witness. He did it here in court. He has shut people down. He did not listen. That is not good for children. Fathers and mothers and parents are sounding rocks for children. They have to listen. If they do not listen the children get upset and get hurt.
I will not dignify that unfortunate weekend with any more pages or any more recognition. Ms B has explained it perfectly.
I was talking about the question of dishonesty, paragraph 51 of Ms B’s report and I read it in full:
While he had gone to great lengths to organise activities with the children paternal and maternal grandfathers as well as himself for Father’s Day, it appears that he was not honest with his intentions with [the mother] and that the children were aware of his dishonesty. Thus does not facilitate a sense of trust which is vital for any ongoing relationship and for the implementation of effective communication.
The children have had enough. All Z wants, as I read it, is for it to go away and stop. N in her three questions answered the third one, “Mum and dad stop fighting.” N, once again, at paragraph 40:
[N] complained that she doesn’t get to practise her piano when she spends time with her father.
And the father has bought a piano but we understand, according to some evidence, the piano is in a terrible state.
She confirmed that her father does help her with her homework and at times he helps when she doesn’t want him to help her. She stated, “With dad he makes me feel stupid. If I ask him to help he just sits there for the whole time and if I get a question right he says, ‘Good girl, [N],’ like I am really young and stupid.”
She does not want to go because she says, “I don’t want to spend any more time there because I would hate it because it would be like living in two completely different worlds,” (paragraph 39). The children recognise it. I have said on many occasions in this court that children generally act in a more adult fashion than the parents do. She has seen it: “two different worlds”, different parenting, different situation, different. Children need stability. Mr E said that.
It is quite tragic because the father dearly loves his children but he has been consumed with this idea that unless the children get more time with him they are not going to develop as well as they could. Some people might say that is arrogant; some people might say it is conceited; some people say it might smack of vanity. I am sure he could do a lot for his children, he is a very bright man, but he has to recognise that the children come first and not his wishes.
I feel sad for everybody in this case. I feel more sad for the children because they are bright, they are sensitive and I am concerned, as both Mr E and Ms B are, for Z in particular because he is a sensitive boy and so is N but not as sensitive as Z.
I have touched upon number C of Ms B’s issues in dispute. They get on well with D and P, the half-brothers. That appears quite clearly from Ms B’s report and that is much in the father’s submissions that the relationship between the children and P and D should be encouraged. I think it should. I think that that relationship between P and D is going to last longer than the parents because the parents will die one would think, before D and P and Z and N. It appears to me that that relationship is already being fostered, that they are doing well because they get on well. Ms B commented upon the fact the kids were crawling all over them, hugging and kissing and having a lovely time.
D: Z and N’s expressed views. The father is of the view that Z and N’s expressed views not only to Mr E but in particular Ms B, are brought about because (a) they wish to please the mother, or (b), she has brainwashed them into saying these things.
What does it mean if in fact they wish to please the mother? Does it not mean that they love the mother? Does it mean that they do not love the father or is there a third alternative that they are telling the truth as they see it? I think it is the third, that they are telling the truth.
A gentleman by the name of Nadar, a professor of child psychiatry in Melbourne once said that children do not tell lies because they do not know what a lie is. It takes an adult to make one up. It is something for people to consider.
I have already touched upon the fact that children do not want to make these statements. They do not want to make decisions between their parents but they have and I am directed by the legislation that I have to consider their views. I am not bound by them but I take them into consideration, as well as I take into consideration the respective personalities of the parties and as well as I take into consideration, in my view there is little or no warmth, richness or whatever you like to call it, in the communication between the parties.
Perhaps another example of lack of communication: the A College fiasco as some people would say. A College is a college to which Z went in the beginning of 2009 and he has done very well. The reports show that. There has been a fight over whether in fact the fees should be paid equally, whether they should be paid by the mother, whether they should be paid by the mother out of the child support payments which the father has made.
He conceded, in a question by myself, that he has never paid anything by way of medical expenses or educational expenses for the children. He says it all comes out of the child support. He is paying something in excess of $18,000 per year by way of an agreement between the parties, not an assessment by the Child Support Agency but by way of agreement. The mother acquiesced in that and as the father said, the Child Support Agency were apprised of the matter and have approved it.
That means that they consider that the amount that he is paying is within their estimate. I have had put before me by the independent children's lawyer counsel, an estimate, child support estimate. It is headed – I assume it came from the internet – and on the father’s income of $200,000 per year, of the fact that he has two children, that he has other than N and Z, it looks like the child support would be about $23,500 which is some $5000 less than what the father is paying but he points to the fact that he has waived any claim he may have to family tax benefits. I would have thought that a person on $200,000 probably would not get them but nevertheless, he says it is worth several thousand dollars; the mother says $1000.
He does not pay anything for education. He does not pay anything for medical expenses, in fact there was a dispute between them over I think an accident that Z had when he was at his father’s house, went to hospital and the bill was some $400 or thereabouts. The father initially agreed to pay half and then refused to pay any at all saying it was included in child support.
What else can I say? I can only refer the parties, as I am sure they have been referred to by their respective legal advisers and the father on his own, to read the reports, to read how the children are being affected, to read what the children say, to listen to what the children say, to do what the children want.
The father is very concerned that if he does not get equal parenting at this time it will be the last chance. I must say I thought that was a little bit of a histrionic type submission but he pointed out to me that he is of the view that the children are very law abiding, that they will not rock the boat but if, in fact, the court says there is no shared parenting, they will not avail themselves of it.
Well, Mr Hawkins, you have not, as yet, had children which are growing up as I have seen in 34 years on this Bench. They change. They can change next week. In 12 months’ time Z will be 15, N will be 13, a young woman. They can change their minds overnight and their wishes, sometimes they are reasonable and based on reasonable grounds become more and more powerful the older they get. It may be when Z is 16 he says, “I have had this, I am going over to dad.” And if, as the mother says, and she has said it, that if they put up a reasonable case, she will let them do it. She had better. If he wants to go, he goes. If N wants to go, not necessarily at this age, but she is getting onto an age when she can make up her own mind. She can go.
Some of the politicians will have us think that we should be able to allow the children to leave home, at 16 or something of that nature? I have certain views on it but I cannot put those views into my judgment. Children need parents. Parents need children but children need parents who they need to put them first and to forget their own feelings but their own feelings submerged to those of the children.
As I have said, I regret that I have no hesitation in dismissing the application of the applicant for co-parenting. I must say that if, in fact, it had not have been for the mother’s response wherein she suggested the four night, the Thursday to Monday morning continue, I would have closely looked at shortening that period for N, not for Z, but I would have looked closely at it to even drop it down to Friday afternoon to Monday morning, but the mother says no, let them both go together, which is very important because they love each other, even though Z thinks his sister is a bit of a pain which many brothers do, but I would not interfere with the present status quo and I will order accordingly.
ORDERS DELIVERED
RECORDED : NOT TRANSCRIBED
The father will have the first half of Christmas 2010 so that means he has the second half of all school holidays up to Christmas.
RECORDED : NOT TRANSCRIBED
One thing has been brought to my attention by the independent children's lawyer. These children have had enough. Mr E, in a question put by me, I said “does it start smacking of systems abuse?” and he said “yes.” These children do not want to and do not need to be interviewed any more; they do not need to go to mental health specialists; they do not need to see Ms L; they do not need to be taken hither, thither and everywhere; they do not need to go and see Ms B or Mr E or anybody else of a like nature.
ORDERS DELIVERED
RECORDED : NOT TRANSCRIBED
There is one final matter to be determined, or two, rather, and that is the ICL’s claim for costs as against the father. It has been quite properly conceded by counsel for the ICL that the husband’s application was not without merit. Therefore, in those circumstances, taking into consideration the provisions of section 117, I could not order the whole of the costs. However, there has been a determination made by Legal Aid that the parties, because of their financial situation, investigated by the Legal Aid Commission, should pay co-costs of $3300 each.
The mother has already paid that. The father has not. He supplies to me a letter dated 16 March 2009 to the Grants Officer, Legal Aid setting out what he says is material to enable him to be relieved of the lawyers’ costs, due to the financial hardship. The legal aid has not accepted such request. He also refers me to the waiver of court fees application which he says is approved on 30 March.
RECORDED : NOT TRANSCRIBED
Having looked at that document the Registry were of the opinion that he should not have to pay the court fees; however, I am not satisfied that he should not pay the fee of $3300 and I order that he do pay such amount.
ORDERS DELIVERED

Hawkins Addendum

I had overlooked the requirement to consider the orders developing a meaningful; relationship of the children to the parties. I refer to and incorporate in these my reasons for judgment paragraph 62 of to Ms B’s report and emphasise the contents thereof and say that I am of the opinion that any variation of the order in existence in favour of the husband’s application would be counterproductive to the ongoing development of a meaningful relationship between the children and their father.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 3 March 2010.

A/Associate:

Date: 18 August 2010

[2010] FamCA 728

3 March 2010

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Costs

Procedural Fairness