HODSON & HODSON
[2013] FamCA 1162
•21 June 2013
FAMILY COURT OF AUSTRALIA
| HODSON & HODSON | [2013] FamCA 1162 |
| FAMILY LAW ─ CHILDREN ─ Parenting arrangements ─ Best Interests ─ Parental responsibility ─ Where the mother seeks sole parental responsibility ─ Where the father seeks shared parental responsibility ─ Where the s 61DA presumption of equal shared parental responsibility was found to apply but in the Court’s view it was in the best interests of the children that the parents retain their current responsibilities, save for overseas travel, in respect of which the mother will have the casting vote ─ Mother and father to retain joint and several parental responsibility. FAMILY LAW ─ CHILDREN ─ Parenting arrangements ─ Spend time with ─ Whether orders with respect to the father’s time should apply to all three children or just to one of the children ─ Whether the father’s time should be limited to day-time only ─ Spend time with orders made in relation to only one of the children and a middle ground between the parents’ proposals was adopted in relation to the frequency of the child’s time with the father. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA |
| Champness & Hanson (2009) FLC 93-407 G & C [2006] FamCA 994 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 |
| APPLICANT: | Ms Hodson |
| RESPONDENT: | Mr Hodson |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuels & Associates |
| FILE NUMBER: | SYC | 1196 | of | 2010 |
| DATE DELIVERED: | 21 June 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 28, 29, 30 and 31 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Harper |
| SOLICITOR FOR THE APPLICANT: | Delaney Lawyers |
| THE RESPONDENT: | Self represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuels & Associates |
Orders
All current parenting orders in respect of J Hodson, born on … 1996; R Hodson, born on … 1997; and W Hodson, born on … 2000, (the children) are vacated.
The parties shall keep each other informed at all times of the following:
(a)The residential address at which the children will live when with that parent;
(b)A current telephone number at which the children may be contacted while with that parent; and
(c)Any medical issues affecting the children.
Subject to order 5 below, the mother (Ms Hodson, born … 1969) be and is hereby authorised to do all such acts and sign all such documents as may be required by the Australian Passport Office, or any other government body, to apply for the issue of a passport for one or any of the children without first obtaining the consent of the father.
Subject to order 5 below the mother is solely responsible for the renewal and care of the children’s passports.
Prior to taking any step pursuant to order 4 or 5 the mother shall provide the father with at least 21 days prior written notice in relation to proposed overseas travel for any of the children who are under 18 years of age, including the details of the proposed travel and shall afford the father a reasonable opportunity to join in the execution of any application for the issue of a passport for any child.
The children shall live with the mother.
The children shall spend time with the father as follows:
(a)At such times as may be agreed in writing between the parents;
(b) At such further times as may be arranged between the children and the father;
(c)Unless the parties otherwise agree, in addition to the time set out in the preceding Order, W shall spend time with father:
(i) From 9:00 a.m. to 7:00 p.m. on Father’s Day; and
(ii)On one weekend day from 9:00 a.m. to 7:00 p.m. in each third weekend, alternating between Saturday and Sunday. The first occasion of that time shall be Sunday 30 June 2013, the second shall be Saturday 20 July 2013 and so on.
(iii)If Mother’s Day falls on a Sunday when W is to be with the father then on that weekend W will spend time with the father on the Saturday.
The mother will use her best endeavours to ensure that R and J also attend visits with their father at the same time as W.
The mother shall ensure that the children are at liberty to communicate with the father by way of Skype, telephone, text message or any electronic medium that the children and the father may use from time to time.
For avoidance of doubt, the father is at liberty to attend any school or extracurricular activities which parents are permitted to attend.
The parents be and are hereby restrained from:
(a)Exercising any physical discipline on the children or permitting any third party to do so.
(b)Denigrating the other parent to any or all of the children or within their hearing, or allowing a third party to do so or allowing the children to remain in a place where the other parent is being denigrated.
(c)Discussing any Court proceedings between the parents with any or all of the children or within their hearing, or allowing a third party to discuss such proceedings with the children.
Subject to the arrangements referred to in the order made on 31 May 2013, any issues about the wording of the orders and costs, the Independent Children’s Lawyer is discharged.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders 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
Leave is granted to the parties to apply within 28 days, on giving at least 7 days notice to the Court and each other in relation to the wording of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hodson & Hodson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1196 of 2010
| Ms Hodson |
Applicant
And
| Mr Hodson |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to three children, J who was born in 1996 and is currently 17 years of age; R who was born in 1997 and is currently 15 years of age; and W who was born in 2000 and is 13 years of age (“the children”).
Although the parties’ proposals were initially diametrically opposed, by the conclusion of the oral trial the issues were of narrow compass. The mother, Ms Hodson, seeks sole parental responsibility for the children and that the children live with her. She seeks that W spend limited, day-only time with the father, Mr Hodson. The father seeks equal shared parental responsibility and seeks that W’s time with him be more frequent than the mother proposes.
Applications
The applicant mother sought the following orders by way of a minute of orders submitted on 30 May 2013:
Discharge of previous Orders
1.That all previous parenting Orders be discharged.
The Independent Children’s Lawyer
2.That the appointment of the Independent Children’s Lawyer be discharged.
Parental Responsibility
3.That subject to the following Order [Ms Hodson] (“the mother”) have sole parental responsibility for the children (“the children”):
a. [J Hodson], born … 1996 (“[J]”);
b. [R Hodson], born … 1997 (“[R]”); and
c. [W Hodson], born … 2000 (“[W]”).
4.That, except in the case of an emergency, the mother, shall prior to implementing a major decision which relates to the long term welfare of one of the children, seek the views of [Mr Hodson] (“the father”) by email and if he responds in a timely fashion give his views consideration.
5.That the mother keep the father informed at all times of the following:
a. The children’s current residential address;
b. A current telephone number at which the children may be contacted;
c. Any change to the children’s schooling; and,
d. Any medical issues affecting the children.
Living Arrangements for the children
6.That the children live with the mother.
7.That pursuant to s.11(1)(b) of the Australian Passports Act 2005:
a. the following children be permitted to travel internationally:
i.[J Hodson], born … 1996;
ii.[R Hodson], born … 1997; and
iii.[W Hodson], born … 2000.
b. The mother ([Ms Hodson] born … 1969) be and is hereby authorised to do all such acts and sign all such documents as may be required by the Australian Passport Office, or any other government body, to apply for the issue of a passport for one or any of the children without first obtaining the consent of the father.
c. The mother be solely responsible for the renewal and care of the children’s passports.
8.That the children spend time with the father as follows:
a. At such times as may be agreed in writing between the parents; and
b. At such further times as may be arranged between the children and the father.
9.That, in addition to the time set out in the preceding Order, [W] shall spend time with father:
a. From 9:00 a.m. to 7:00 p.m. on Father’s Day; and
b. On one weekend day from 9:00 a.m. to 7:00 p.m. in each calendar month nominated by the mother, and for the purposes of this subparagraph the mother will give the father not less than three weeks’ notice of the nominated day in the next month.
c. The Court notes that the mother will use her best endeavours to ensure that [R] and [J] also attend visits with their father at the same time as [W].
10.That the mother ensure that the children be at liberty to communicate with the father by way of Skype, telephone, text message or any electronic medium that the children and the father may use from time to time.
11.The father is at liberty to attend any school or extracurricular activities which parents are permitted to attend.
Injunctions against the parents
12That the parents be and are hereby restrained from:
a. Abusing, harassing or belittling the other parent.
b. Denigrating the other parent to the children or within their hearing, or allowing a third party to denigrate the other parent to the children or within their hearing, or allowing the children to remain in a place where the other parent is being denigrated.
c. Discussing any Court proceedings between the parents with the children, or allowing a third party to discuss such proceedings with the children.
Family counselling
13.That each parent do all such things and sign all such documents necessary to enrol in family counselling with a family counsellor to be agreed between the parties or in the event of disagreement as nominated by Mr L (in the event that he is prepared to make such nomination), and:
a. Attend upon all relevant appointments with the counsellor;
b. Ensure that the children attend all relevant appointments with the counsellor;
c. Comply with all reasonable directions and instructions of the counsellor;
d. Use their best endeavours to ensure the children comply with all reasonable directions and instructions of the counsellor.
14.The parties have leave to release the following documents to the counsellor:
a. The Child Dispute Conference Memorandum dated 21 March 2011;
b. The Family Report of Family Consultant Mr L dated 27 September 2011; and
c. The Reasons for Judgment.
15.Each party is to meet one half of the costs associated with the counsellor.
Costs
16.That the mother and the father each meet half of the costs of the experts Mr L and Dr B forthwith upon receipt of their invoices.
17.That the father pay the mother’s costs of and incidental to this Application.
Parenting Annexure
13.That pursuant to Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
The respondent father sought orders in accordance with a minute of orders submitted on 30 May 2013 as follows:
1.Shared responsibility of children.
2.Children live with the mother.
3.For [W]: Contact every second weekend for ONE day – alternating Saturday/Sunday 8 am – 8 pm. With [R] and [J]: To be at liberty to attend at the same time if they wish.
4.The children be at liberty to have contact with the father (in addition to #3 for [W]) at the children’s request, and to be able to stay for weekends or school holidays for any amount of days the children wish.
5.Father’s Day 9 am – 8 pm (for [W]). [R] and [J] at their liberty.
6.If Mother’s Day falls on the father’s contact day as in #3 then the father have the Saturday prior to the Sunday Mother’s Day.
7.If the children wish to reside with the father at any stage in the future, the mother is to facilitate their wish.
8.A. All parties to attend counselling:
-Parents and children
-Father
-Mother
-Children
8.B. The parties have leave to release the following documents to the counsellor:
-The Child Dispute Conference Memo 21 March 2011
-The Family Report of Family Consultant [Mr L] – 27 September 2011
-The Family Report of Dr [B] – 30 July 2012
-The reasons for judgment.
9.Each party is to meet one half of the costs associated with the counsellor.
10.Each party is to meet one half of the costs associated with Dr [B] and Mr [L].
11.Father to be at liberty to attend any extra-curricular activities or school activities/events.
12.Non denegration.
13.No physical discipline.
14.Not to discuss proceedings with children.
15.That the mother pay her own costs of and incidental to this Application.
The Independent Children’s Lawyer (“ICL”) sought orders in accordance with a minute of orders submitted on 30 May 2013:
1.That all previous parenting orders be discharged.
2.That subject to paragraph 3 of the orders contained herein the parties have equal shared parental responsibility in respect to all long term issues relating to the children [J Hodson] born … 1996, [R Hodson] born … 1997 and [W Hodson] born … 2000.
3.That the father do all things necessary and sign all documents required to ensure that the children have Australian passports and should the father fail to do so the Registrar of the court be empowered to sign any such passport application and that the mother retain the children’s passports at all times.
4.That the children live with the mother.
5.That the father spend time with the children as follows:-
a) Each third Sunday from 9.00am until 7.00pm first such Sunday to be on the second Sunday after the date of these orders and each third Sunday thereafter.
b) During school holiday periods for three (3) consecutive days (two nights) commencing at 9.00am on the first day and ending at 6.00pm on the third day first such period of school holiday time to be in the September/October 2013 school holidays.
c) In the event that Father’s Day does not fall on a Sunday when the father would otherwise spend time with the children pursuant to these orders the father to spend time with the children on Father’s Day from 9.00am until 7.00pm.
d) At such other dates and times as requested by the children.
6.In the event that Mother’s Day falls on a Sunday when the father would otherwise spend time with the children pursuant to these orders the father’s time on such Sunday to be suspended and the father to spend time with the children from 9.00am until 7.00pm on a day to be agreed to by the parties.
7.In the event that the mother seeks to travel on holidays with the children for a period which would include a Sunday when the father would otherwise spend time with the children pursuant to these orders the mother to provide the father with at least 1 months written notice and the father’s time on such Sunday to be suspended with the father too have make up time with the children on a Sunday to be agreed to by the parties.
8.That the mother encourage and facilitate the children to spend time with the father pursuant to paragraph five (5) of the orders contained herein.
9.Unless the parties otherwise agree and in order to effect changeovers pursuant to paragraph five (5) of the orders contained herein the father collect the children from the mother’s residence at the commencement of his time with the children and the mother collect the children from the father’s residence at the conclusion of the father’s time with the children.
10.That each parent do all things and sign all such documents necessary to enrol in family counselling with such counsellor(s) as agreed to by the parties or in the absence of such agreement as nominated by the Independent Children’s Lawyer; and
a) Attend upon all relevant appointments with the counsellor.
b) Ensure that the children attend on all relevant appointments with the counsellor(s).
c) Comply with all reasonable directions and instructions of the counsellor(s).
d) Ensure that the children comply with all reasonable directions and instructions of the counsellor(s).
11.That the parties have leave to release the following documents to the counsellor(s):-
a) The child dispute conference memorandum dated 21 March 2011.
b) The Family report of Family Consultant [Mr L] dated 27 September 2011; and
c) The Family report of Dr [B] dated 30 July 2012.
d) An agreed statement of the oral evidence given by Dr [B] at the hearing of these proceedings.
e) The final Judgement of this Honourable Court in respect to the current parenting proceedings between the parties.
12.That in addition to paragraph five (5) of the orders contained herein the father have telephone communications with the children each Wednesday between 6pm and 7pm NOTING THAT such telephone communications to be in accordance with the children’s wishes.
13.That the father be permitted to attend on the children’s sporting events and activities.
14.That neither party denigrate the other or permit any third party to do so within the presence or hearing of the children.
15.That neither party discuss these proceedings or any issues arising out of these proceedings with the children.
16.That neither party exercise any physical discipline on the children or permit any third party to do so.
17.That the order appointing the Independent Children’s Lawyer continue for a period of three (3) months from the date of these orders.
Written Evidence
The mother relied on:
Affidavit of the mother filed 6 May 2013
The father relied on:
Affidavit of the father filed 24 April 2013
Affidavit of the father filed 15 May 2013
Affidavit of Mrs H filed 24 April 2013
Affidavit of CK filed 26 April 2013
Expert Evidence
The following expert evidence was relied on:
The Report of Dr B dated 30 July 2012
The Report of Family Consultant Mr L dated 9 September 2011
Child Dispute Conference Memorandum dated 28 March 2011
The Hearing
The hearing commenced on 28 May 2013. The father did not have legal representation. He applied to have his wife assist him at the bar table but unfortunately she was a witness in his case and leave was not given. Ultimately, without objection from the advocates for the mother and the ICL, the father had the assistance of his brother at the bar table. On 31 May 2013 judgment was reserved.
Short History
The parents started living together in around early 1992. The parties married on in late 1994 and separated in July 2000. The parties were divorced on 31 May 2004. The father subsequently married Mrs H who is currently 51 years of age. Mrs H has three children from a previous relationship.
Credibility
It was submitted on behalf of the mother that credibility is not a significant issue in the proceedings and I accept that. There are not many important factual disputes, the determination of which relies on the uncorroborated testimony of the parties. There is no doubt that the parties, and the father’s current wife, for that matter, very much reflect on events from their own perspectives. However, I did not detect an attempt by any of the witnesses to mislead the Court.
As to making concessions, it is not entirely clear how much they take it to heart but each of the parties said on many occasions during cross-examination that they have made mistakes and could have dealt with certain events, better.
The Issues
Issues that became apparent during the trial are:
·Live with/spend time with.
·The deterioration of the children’s relationship with their father.
·Possibility that the children could become estranged from the father.
·The children’s wishes – they are 17, 15 and 13.
·The mother’s anxiety.
·Whether there is an issue of enmeshment between the children and the mother.
·Whether counselling would assist the children.
Background Facts
The parties commenced a relationship in around September 1991 and commenced cohabitations in early 1992.
In late 1994 the parties married.
In 1996 J was born. He is currently 17 years of age.
In 1997 R was born. She is currently 15 years of age.
In 2000 W was born. He recently turned 13.
In mid-2000 (a few weeks after W was born) the parties separated for the first time but continued living under one roof at their Suburb F home.
In around late 2000 to early 2001, the father moved out of the family home. He lived in a hotel, a shared house and then a unit. During this period the parties agreed that the children spend time with the father each Tuesday and Thursday afternoon, and each alternate weekend.
In around September 2002 the mother suspended the father’s time with the children on Thursday afternoons and filed an Initiating Application.
In 2002 or 2003 the father first communicated to the mother his desire that the children spend equal time with him.
In around 2003 the father met his current partner, Mrs H.
Mrs H has three children:
YK born in 1992;
CK born in 1994; andEK born in 1997
On 31 May 2004 the parties were divorced.
On 25 November 2005 parenting orders were made for the children to live with the mother and spend time with the father each Tuesday evening and each alternate weekend during school term, and two week blocks with the father during school holidays.
In around 2006 the father married Mrs H.
On 8 February 2010 there was a physical incident between the father and CK, witnessed by the children. The mother suspended the father’s time with the children.
On 26 February 2010 the mother filed her Initiating Application in this court.
On 9 March 2010 an ICL was appointed.
On 23 March 2010 the father filed his Response.
On 20 April 2010 the father’s time with the children resumed each Tuesday evening, pursuant to court orders.
In around June 2010 the mother says that the father elected to cease spending time with the children under the terms of the orders of 20 April 2010 and spent time with them on an ad-hoc basis.
On 21 April 2010 the father filed a Notice of Appeal seeking equal shared care. He abandoned the appeal in around September 2010.
On 28 March 2011 the Family Consultant Memorandum was released.
On 9 September 2011 the Family Report of Mr L was released.
On 30 July 2012 the single expert report of Dr B was released.
On 16 November 2012 the father filed an Application in a Case.
On 1 February 2013 interim orders were made for the children to live with the mother and spend time with the father for one day each month.
The Expert Evidence
The Evidence of the Single Expert – Dr B
Dr B is a child, adult and family psychiatrist. He has considerable experience in the area of family and marital relationships and assessments for Family Law Court proceedings. He has many years experience as an expert witness.
Dr B conducted interviews with the family on 21 June 2012.
Dr B suggested that possible outcomes for the children include:
·The children remain residing with the mother and have little or no contact with the father. Dr B said the biggest loss would be the loss of their relationship with the father and that this would likely impact on their future relationships and mental health.
·Regular contact with the father. Dr B was of the view that the children would be initially resistant because of their anxiety due to their problems in separating from the mother.
·The children reside with the father or a shared parenting arrangement. Dr B believes that the children would resist strongly and it would be difficult to enforce this as the children are too strongly attached to the mother.
·Dr B suggested that the best outcome would be for the children to have some ‘unsatisfactory’ daytime contact with the father on a regular basis that is likely to be enjoyable and that they are able to cope with.
In his written report Dr B made recommendations including:
·That the children see the father for daytime contact on a fortnightly basis. He also recommended that the children spend some block periods of time such as a week in each school holidays with the father.
·That the parents attend some post-separation counselling.
·That the children attend contact with the father together.
·In relation to the children’s possible estrangement from the father, if contact with the father is unsuccessful, that he should be considered as a possible residential parent should the mother be unable to manage this anxious dynamic successfully.
Remarkably, Dr B withdrew from the last recommendation during his oral evidence. In fact, he said that he included that recommendation to bring home to the mother, the importance of her encouragement of the children in relation to the father. Dr B conceded that it was not feasible to change the residence of the children and that his recommendation owed more to his role as a therapist than as an expert.
The Mother
Dr B observed the mother to be open and warm and pleasant in her interaction with him. He detected no abnormality of perception, her affect to be reactive, and there to be no cognitive disturbance.
In Dr B’s opinion the mother appeared to be genuinely concerned about the children but he noted that there were some aspects of her presentation that suggested that she could at times be anxious. He noted reports that the mother had been quite anxious when she was about four or five years of age. Dr B recorded that there were two traumatic events in the mother’s development when she was about ten years of age. Her parents separated at that time and a trusted uncle approached her sexually. He recorded that the mother remembered having guilt feelings about her father leaving the family, as if she had not pleased him enough. The mother did not have any counselling in relation to the attempted abuse by her uncle.
At about the time of those events, when she was ten years of age, the mother traumatically choked on a lolly. Dr B observed that it is possible that that choking was associated with her parents’ separation and the abuse from the uncle.
Dr B recorded that the mother saw a counsellor in 2006 in relation to a panic attack but that the counselling had not continued, and in 2008 she sought counselling for psychological problems. In 2008 the mother had difficulty swallowing, which was diagnosed as an anxiety disorder, consistent with globus hystericus. Dr B noted that globus hystericus is a term to describe a conversion disorder which is an anxiety disorder where there is a phobia about swallowing.
In Dr B’s opinion the mother’s choking experience as a child may well have also predisposed her to develop globus hystericus as an adult. It took several months for that condition to improve. She was initially on a soft diet which gradually increased to a normal diet. The mother saw Ms N, a psychologist, over that period.
Dr B considered that as the globus hystericus developed when the children were away with the father on holiday break, anxiety in relation to the children may have acted as a significant predisposing factor or trigger on the mother.
The mother reported to Dr B that she was sleeping and eating well, her mood was good and her attention was good. She was interested in a wide range of recreational activities. She told him that she had not had any panic attacks since 2008. She displayed no obsessional symptoms. He noted that the mother did have some suicidal thoughts when she was unwell in 2008 but never had any intention (to harm herself).
As to her routine at the time she saw Dr B, the mother was waking at 4.30 am and taking J to sports training. She would then prepare the children for school and take them to school. The mother then did some work at home or would go for a run. She engages in life coaching. In the afternoons there is further children’s sport. On the weekends there is sport. On Sunday there may be choir and some sport. J’s sports training at that time was eight times a week.
The mother reported to Dr B that after separation, contact with the children occurred with the father on a regular basis. The child W was then a baby. The father saw the children Tuesday and Thursday afternoons and every second weekend. For a period the father was living in a hotel. The situation became problematic when the father arrived to see the children at unexpected times. The mother then decided that she would take the matter to court in order to secure orders.
The court process was slow and it took two and a half years to secure an agreement. The parties had difficulty working on the details. In fact, the judge gave the father less than the mother offered. The father was ordered to pay court costs.
From 2005 the final orders provided for the father to see the children on Tuesdays until 8.00 pm, every second weekend from Friday till Sunday and one half of the school holidays. The mother reported that that appeared to be a manageable arrangement but the children were increasingly unhappy. The children pleaded not to go with their father and said that they felt unsafe.
The father remarried and his wife has three children. The mother reported that there was an incident between the father and the stepson (CK) which was traumatic for the children. The mother reported that there had been ongoing concerns for a year after that and then she decided to stop contact. A judge recommended that contact be recommenced slowly, however, the mother reported that the father did not want contact.
The child W
Dr B interviewed all three children together. He reported that W was then a 12 year old boy in Year 6 at S Boys School. He enjoyed playing football. He was friendly and cooperative, his talk was normal in form and sequence, there was no abnormality of perception, he made good eye contact and was quite confident.
Dr B also recorded that W enjoyed water sports and video games and wanted to be a Wallaby when he was an adult. He reported to Dr B that he had a good relationship with his mother, however, his relationship with his father was not good. W said about his father: “He is an angry man. He glares at me. It’s not good. I can tell when he is angry because he glares. I don’t like [Mrs H]”. He recorded that Mrs H’s three children were reasonably pleasant, although he did not care for them a great deal. As to problems with his father, W reported “He smacked me as a child. And when I was in year 2 he didn’t support me. I can’t really remember why but he didn’t”.
As to his wish about seeing his father he reported that his wish was that he would be able to choose whether to see his father and then said “basically never, never. I don’t like to go. I feel better not seeing him”. He said that he felt safer and happier with his mum. He said that his father would put pressure on him to see him and continually asked why he wouldn’t see him. “Mum said you can see him if you want to.”
W said to Dr B that he misses his mother when he goes to see his father. He does not like the way his father glares at him with an angry look. He would be happy not to see his father.
The child R
R presented to Dr B as a pleasant 14 year old in Year 9 at O School. She enjoys singing and sports. She described having a good relationship with her brothers and gets on very well with her mother. Dr B noted that her comments in relation to her father were very similar to those made by W: “He wasn’t very supportive of me. I did dancing and he didn’t like it. He didn’t like it when it was his time on the weekend.” R said that she got on quite well with Mrs H sometimes. R was not quite sure what happened to her parents. They did not get on with each other. As to her wishes, R said: “Same as [W] whatever he wants. I don’t want to feel like I have to see him. It would probably mean I wouldn’t see him.” She said she was not sure whether she would see him at all.
The child J
J presented to the expert as a pleasant, tall, 16 year old boy in Year 10 at S College. He was neatly dressed and looked fit and made good eye contact and appeared confident. He enjoys sport and academics. He liked to do Lego and was interested in flying. He would like to represent Australia in his sport and he would like to study aeronautical engineering. He described a good relationship with his brother and sister and that he got on very well with his mother and had no problems with her.
In relation to his father he said: “It depends on him. It’s good and bad. He doesn’t understand my [sport]. He blames mum. There were some good times but it got spoilt.”
J told Dr B that he was not sure what he wanted. He said that he did enjoy going to see his father at times. They would go camping which was “pretty good”. Sometimes they would have a few laughs at his house. J likes building things. However, his father does get upset with him at times. J saw him about two months ago. Then he said he could not go to see his father because of his school work, in addition to the fact that his father became angry with him.
He said he wished that he would be able to see his father whenever he chooses, although it was not likely that he would have a great deal of time because he is very busy doing Year 11 and Year 12 and he wants to do well in his HSC. He also said that he did not believe his younger brother and sister should be forced to see his father.
The Father
The father presented to Dr B as a friendly amicable man of his 46 years of age. His talk was normal in form and sequence. He had a certain naivety about him. His affect was reactive. Dr B detected no cognitive disturbance and observed that he was pleasant and cooperative.
The father was born in overseas and came to Australia with his parents at the age of 5. He reported a reasonably happy home life. His parents separated when he was 16 but the father said that that did not impact on him greatly. He has his own social circle and denied any traumatic experiences. He was an average student at school and he completed Year 10 at high school. Apart from a polyp in his bowel, the father had not had any medical problems. There was no previous psychiatric history and no family history of psychiatric illness. The father is on no medication but is possibly prone to hypertension and he has been treated for gastric reflux. The father reported sleeping and eating well and having good attention. His mood is good although he worries about his children and he finds it stressful when he sees his children and they worry him a lot.
The father’s main interest is working. He likes cars and going camping. He denied any anxiety of panic attacks. Dr B observed no obsessional symptoms, suicidal feelings or hallucinations. The father has some stress at work. The father wakes at 5.15 am and has breakfast. He gets his work ready at 6.00 am and finishes by about 2.00 pm. He does deliveries in an industrial area and has been there for four years. That goes reasonably well. In the afternoons he may do some things in his garage; in the evenings he watches television; on Saturday he may go shopping with his wife; and on Sunday he visits friends.
The mother was the father’s first serious relationship. Things went well initially, but the father found the mother to be rather clingy. There were difficulties after the children were born and those problems escalated. The family went to live with the maternal grandmother in 1997 and were there for three years. The father says that that caused a big problem. There were problems of financial stress and emotional difficulty. “We couldn’t live with my mother-in-law. We relied on her too much.”
The father believed that the mother had some drinking problems, that she was depressed, and he suggested that she see a psychologist. She saw a doctor who prescribed an anti-depressant. Eventually the problems became insurmountable and the parties separated for a few weeks. There was another argument with his mother-in-law: “I said ‘’I can’t do this.’ She refused for us to move out so I left.”
The father confirmed that after separation he had regular time with the children on Tuesdays, Thursdays and alternate weekends. That continued for some time but one day he received a letter which removed the Thursday contact. That was a bit of a shock but he accepted it. The father said that he was very involved with the children. He said that he bottled fed and bathed them and was very close to them. He had them on the weekends for several years.
In 2002 the father went to court and proposed a shared arrangement but this was denied and the father accepted a substantial arrangement: “[The mother] only wanted me to have four weeks a year.” Dr B inferred that meant the mother wanted him to have two, two week blocks of contact.
The father met Mrs H in 2003 and their relationship developed. The father and the mother had disagreements over the number of activities the children were doing. R was doing several ballet lessons per week. Nevertheless, although with difficulties at times, substantial contact continued until there was a breakdown in 2008. The mother had a health problem. J was constantly calling the mother to check in with her. There was evidence that when he was at his father’s house, each night at a certain time J would ring the mother.
The father reported that handovers had always been a problem. From 2002 at the drop off with the mother, it would always take them five minutes to say goodbye. The father said “the separations were dramatic. And when we returned she would be at the door anxious and they would rush to her and she would “mollycoddle them.”
There were also problems at birthdays and Christmas when the mother wanted to control the presents. There were ongoing problems about the extent of the extra curricular activities the children were doing. “There was no time for me. I couldn’t do everything. It was a nightmare driving them everywhere.”
The father told Dr B that there was an incident with J. They were playing a game of tapping. J hit him hard and he quietly slapped J back in a reaction. He said he never thought this would be a problem. “I never thought about it. The next thing I heard I was in court.”
Then there was another incident when he was reprimanding his stepson CK: “I told him to go to his room. I showed him to in.” He said that he pushed him into the room. This was then reported as some form of abuse.
The father had no contact with the children from 9 February 2010 until April 2010. Thereafter there were problems. W was reluctant to come to contact. R could not be persuaded to go to contact. J, however, was trying to be pleasant.
The father told Dr B that over the two years prior to the interview there had been very little contact. J had seen him twice in that year, but the other children had been reluctant to see him.
The father was not sure what had happened to the children: “I don’t know. It’s my last hope. Two parents should have shared care.”
Mrs H was very supportive of the father and critical of the mother in relation to the circumstances that presented at the day of interview. Mrs H could not see why the father was being restricted in relation to his children. She said that he was a normal loving father who should be able to spend time with his children.
In the interview with the father and the children, Dr B reported that R said: “He said he didn’t want to see us anymore.” Dr R reported that the father looked a little embarrassed and said: “I did cease seeing them. I did go through a depression. I felt bad not seeing them. I felt really bad not seeing them. Then I thought may be I should see them.” He said that it was July 2010 when he did not see the children at all. He reported that contact with the children stopped again in August 2011. He said that he felt that he had lost everything, not seeing the children. The father told Dr B in that interview it had been extremely difficult to attend all these sporting events: “They were tired and exhausted. I found it impacted on us. They lost the fun in what they were doing.”
When the children were seen together without the father Dr R observed that they were supportive of and relaxed with each other and that J appeared to be more conciliatory towards seeing the father than the others. However, J was very controlled and careful. R appeared a little confused and she was supportive of W. W was quite clear that he felt strongly that he did want to stay with his mother and was reluctant to see the father. He could not really explain why, except it seemed to Dr B that there was a certain degree of anxiety from the children about the mother. Dr B noted that the children all related well with the mother and enjoyed spending time with her. He noted that the mother also indicated she enjoyed spending time with them and taking them places and encouraging them to excel with their sport and activities. During the interactions with the mother Dr B observed that they were very positive and comfortable with her. They seemed calm, united and aligned with her.
In cross-examination Dr B said that following his observations of the family members he considered that of the two dynamics, the mother’s anxiety and the father’s difficulty in relating to the children, he considered that the problems that had arisen had more to do with the mother’s anxiety. He thought the problems were 70 – 90 per cent referable to the mother’s anxiety. After his cross-examination, when he was carefully taken through the parties’ evidence, he thought that the influence of those factors was closer to equal. He conceded that Mr L may have been closer to the mark in his identification of the causes of the problem, than he had been.
The Evidence of the Family Consultant – Mr L
Mr L is a social worker by training and a family and child consultant. He is in private practice after a substantial career within the Family Court.
The evaluation of the parents and children which Mr L makes in his written report dated 9 September 2011 is based on a previous meeting with the parents and children and the interviews conducted with the parents and children on 22 August 2011.
Mr L records:
33.[The father] is firmly of the view that the children’s resistance to spending time with him is the product of the mother’s (as he puts it) “alienation” and a disproportionate response to anything he might have said or done. The family consultant has suggested to [the father] that the children’s presentation is inconsistent with the generally acknowledged profile of children who have lived with an alienating parent. In this regard it is noted that the children have consistently indicated that their mother has encouraged them to spend time with their father, even when they were reluctant to do so. It is noted that the children spent time with their father regularly from the time of the parents’ separation in 2000 up until February 2010. This would have been unlikely to have occurred if the children had been exposed to the chronic, persistent and pathological messages that are usually associated with alienation processes. Additionally, each of the children, albeit in different ways and to different degrees, expressed mixed feeling about their father, whereas truly alienated children usually express themselves in a uniformly negative and rehearsed manner that appears to be devoid of authentic and/or ambivalent feelings.
34.[The father] is also of the view that an unhealthy mutual emotional dependence is a feature of the children’s relationship [with] their mother. Whilst it is true that the children, (particularly [J]), are protective of and close to their mother, this has not impeded their capacity to engage confidently and successfully in the outside world – as would have been expected if their relationship with their primary parent involved and an unhealthy enmeshment.
35.The family consultant gained the impression that the children were genuinely distressed and shocked by the apparently explosive and physical manner in which [the father] dealt with an altercation between [EK] and [CK] in February 2010 and they seem to be generally apprehensive about what they perceive to be their father’s potential to lose his temper.
36.It would self evidently be difficult for [the father], because, as he puts it, he cannot be “in thousand places at once”, to regularly attend and facilitate the children’s attendance at extra-curricular activities. [The father] also appears to experience their engagement in such activities as a slight to him as a father. Nevertheless the children’s engagement in and commitment to these activities is consistent with current community norms and peer and school expectations, developmentally appropriate and a source of pleasure and pride for them. It is difficult to understand, even if he could not attend to the children’s activities very often, why [the father] could not do so from time to time and why children were not allowed to attend certain events and activities that were especially important to them or at which they excelled or believed themselves to excel.
37.As has been discussed with [the father] on previous occasions ‘ordering’ the children to spend time with him would be likely to be counterproductive and a source of tension and resentment for them. [J] is likely to continue to spend time with his father irrespective of orders but he is of an age at which he needs to do so flexibly and consistent with his studies and other extra-familial activities. Similarly, [R] is of an age at which her developmental gaze is appropriately focussed on her school and peer pursuits and activities and she is sufficiently mature and intelligent for her views to be accorded considerable weight. It also seems likely that [the mother] will continue to encourage [R] to spend time with her father from time to time. With respect to [W], even though he is not of age at which his views would normally be considered to be determinative, he would no doubt, at the present time, experience spending time with his father, particularly in the absence of his siblings, as overly stressful.
38.As has also been discussed with [the father] on previous occasions, a viable equal time arrangement would require at least a reasonably high level of communication and cooperation between the parents. At the present time there is no communication between him and [the mother].
39.Predictably, [the father] would be likely to perceive a recommendation for there to be no orders with respect to his spending time with the children as a disproportionate and unjust response to anything he might have contributed to the children’s resistance to spending time with him. This perception is understandable, at least as far as the likelihood of the children coming to any physical harm if they were to be ordered to spend time with him. In the family consultant’s opinion it would also be true to say that [the father] is a decent, hard working man who loves his children. Nevertheless, the children, particularly [R] and [W], are, at present time, apprehensive about spending time with their father and their reasons for being so are, from their perspective, experience based and genuinely felt.
Mr L thus made the following recommendations:
40.Even though ordering the children to spend time with the father, at the present time, does not appear to be a viable option, it is recommended that they continue to have telephone contact with their father each Wednesday as currently occurs and that [the mother] advise [the father] of the children’s participation in special events, occasions (such as birthdays) and activities thereby enabling his attendance at such events and activities. This recommendation does not preclude the children from spending additional time with their father as can be agreed between the parents and in consultation with the children.
41.In the family consultant’s view, if [the father] were to be able to relinquish his resentment of the children’s mother, they would be likely to resume spending [time] with him of their own volition.
The Legislation
The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60B sets out the objects of the Part and the principles underlying those objects. Relevantly the section provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
The way in which parenting issues are decided has been discussed in a number of cases. The High Court has provided an outline and some minor differences of approach have been adopted and have survived intermediate appellate attention. For the purposes of the determination of these proceedings, I will adopt the following approach:
a.Set out the proposals, including options not advanced by any party that the parties addressed or could have addressed;
b.Where possible and relevant, consider and make findings about matters set out in s 60CC;
c.Consider and make findings about parental responsibility, including considering the presumption in s 61DA;
d.Apply s 65DAA if relevant and assess the proposals in light of that provision;
e.If 65DAA is not relevant, assess the proposals against the best interests criterion;
f.Make findings about living arrangements; and,
g.Make orders.
The Parties’ Proposals
The mother proposes that the Court order that she have sole parental responsibility; that W spend one day on one weekend each month with the father, with the mother to nominate the particular day; and that she encourage J and R to accompany him.
The father proposes that the parents have shared parental responsibility and that W spend one day each fortnight with him.
The ICL proposes that the Court make an order for equal shared parental responsibility and that all three children spend one day every three weeks with the father; and two days overnight in school holidays.
Thus the range of dispute is relatively narrow – day-only time every two or three weeks or each month; orders dealing with only W or all three children; sole parental responsibility or a level of shared parental responsibility. In that narrow context, I turn to section 60CC.
Section 60CC Considerations
As with some other provisions of Act, s 60CC has been recently amended. The s 60CC amendments apply on and from 7 June 2012 but only for new proceedings[1]. As the legislation related to these proceedings the section specified the following considerations.
[1] Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 - Act No. 189 of 2011. Section 45 of the amending Act provides: “The amendments made by items 1 to 8, 11, 13, 17 to 21, 30 to 34, 37, 38 and 40 to 43 of this Schedule apply in relation to proceedings instituted on or after the commencement.”
Primary Considerations:
(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
In McCall & Clark (2009) FLC 93-405 the Full Court accepted the interpretation of Brown J in Mazorski & Albright[2] to the effect that a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. The Full Court also accepted the interpretation of Bennett J in G & C[3] that the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[2] (2007) 37 Fam LR 518.
[3] [2006] FamCA 994.
In Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at 83,502:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed in that decision at 83,513:
The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.
It appears to be an agreed fact that the mother’s relationship with the children is meaningful.
Dr B considered that J’s attachment with the father is strong. R and particularly W were younger at separation and their relationships with the father are not as strong. Dr B said that all parents must manage contradiction – a child expressing diametrically opposite sentiments. He acknowledged that this is particularly difficult for separated parents.
The father is certainly an important figure for the children. It is common ground that the children will benefit from having a meaningful relationship with the father.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
‘Abuse’ and ‘family violence’ are defined terms. The definitions were changed as of 7 June 2012 but only for new proceedings. As the legislation related to these proceedings s 4 of the Act included the following definitions:
“abuse” , in relation to a child, means:
(a)an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b)a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
“family violence” means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
There is no suggestion that the children have been physically abused. It is not seriously submitted that there has been family violence. There was an incident between the father and Mrs H’s son, CK, on 9 February 2010. CK and his brother EK had an argument, the father stepped in. CK would not comply with a request from the father and answered him back. The father physically manhandled CK to cause him to go to his room. The incident greatly upset the children, particularly J and W who witnessed it but also R, who did not. However, it is the unchallenged evidence of CK that he enjoys a good relationship with the father. In his affidavit, CK provided a ringing endorsement of the father and his role in the household they share with CK’s mother and his siblings.
W’s school counsellor learned of the incident by way of a letter from the mother the next day and heard W’s version, in very similar terms, on that same day. The counsellor reported the incident to DOCS.
There was an incident between the father and J when the father reacted in kind, when the boy hit him. It is noteworthy that of the children, J has the best relationship with the father.
The children were shaken by the incident between the father and CK but they do not appear to hold any significant fear of the father.
Additional Considerations:
(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
J turned 17 years of age in 2013 and is in Year 11.
R is 15 years of age and will be 16 in late 2013. She is in Year 9.
Here the mother seeks sole parental responsibility. The father and the ICL seek that the parents have equal shared responsibility.
Arguing against equal shared parental responsibility is the fact that the parties have very different levels of interest in aspects of the children’s lives. It would not be unfair to say that the mother has dictated the schooling and extra curricular regimes and the father has been left to accommodate those regimes. That said, he has accommodated those arrangements albeit without being wholly involved in or sympathetic to them. As is noted earlier in these reasons, the father is not as interested as the mother in school and extra curricular activities in themselves. Albeit largely on the basis of action by the mother and acquiescence by the father, the parties have been able to manage in relation to schooling and such medical matters as have arisen.
The only significant issue that has caused problems recently was the proposed trip for J to East Timor. It is the mother’s evidence that J reported to her that the father refused to give permission because of the current proceedings. The father would have it that it was largely the impact of the Foreign Affairs travel advisory on East Timor that made him unwilling to agree. The father’s email to the mother on 13 February 2013 mentions ‘Firstly and most importantly’ the current proceedings as the reason and does not mention potential danger in East Timor at all. That suggests that the mother correctly described the dispute.
The parties and the children have suffered through more than 10 years of disputation and that needs to end. There is no evidence that the mother’s judgment failed about significant issues, aside from her ability to provide consistent support to the relationships between the children and the father. Of the parties, for the time being at least, the mother will more likely than the father to be able to facilitate travel, including overseas travel. In any event the children are and will increasingly be, able to have valuable input to such decisions. The father should be consulted and if necessary have the opportunity to seek to intervene but the mother should have the final say. In his final submissions the father expressed a desire to be exercise his role in relation to the issue of passports for the children and I will leave him with that right. However, the mother will have the casting vote on overseas travel. An order to that effect will exclude the option of equal shared parental responsibility.
I flagged with the parties the idea of making no order about parental responsibility save in relation to the issue of travel. That would leave the parties with the joint and several parental responsibility they held to date[5]. It seems to me that that arrangement would reflect the extent of the parties’ cooperation in the past and would provide for the area that has proven difficult.
[5] See s 61C.
Conclusion
The presumption does apply but in my view, the best interests of the children lie with the parents retaining their current responsibilities, save for overseas travel, in respect of which the mother will have the casting vote.
Living Arrangements
There will be not be an order for equal shared parental responsibility. Therefore s 65DAA does not apply.
As to what would be in the children’s best interests, there are the findings made above in respect of the s 60CC matters.
The dispute is of a narrow compass: should the orders apply to all three children or just to W; and should the frequency of the day only visits be fortnightly, every three weeks or once a month.
The mother and the father favour orders that apply only to W. The ICL proposes that the orders apply to all three children.
The ICL believes that the older children will comply with an order and that their involvement will enhance the chance of compliance by W. The mother and father hope and expect that the older children will join in but accept that they are at an age whereby it would be impracticable to enforce their attendance. The parents know their children best. J has demonstrated that he values having time with his father and has cooperated with the various regimes put in place, despite in recent years being of an age where his wishes would be largely determinative of compliance. R has very much aligned herself to W. Both J and R are protective of W. In my view the position of the older children should be respected. The mother is confident that they will largely fall in with orders that apply to W. That should be a matter for them.
The mother proposes that the time spent with the children be once a month but that she be at liberty to appoint the day so as to minimise the conflict with other activities and thereby maximise the likelihood that the children will accept the arrangement. The father proposes that it be fortnightly and the ICL argues for once every three weeks. It seems to me that every three weeks is a good compromise. I accept that the mother is well motivated in her suggestion that she select the particular days. She wants to avoid days of significance to the children so as to maximise the chance of compliance. In my view predictability also has its benefits. On one day in every three weekends the father with have the chance to be involved in the events that the children want to attend. I will order a fixed regime every three weeks but alternating between Saturdays and Sundays.
I will not make different orders for school holidays or most special days but will leave those matters for the parties to agree on.
Injunctions
The parents and the ICL each seek certain orders restraining the parties. The orders sought are in almost identical terms and reflect matters that were raised or at least alleged in the course of the proceedings. They deal with physical discipline, denigration and discussing the proceedings with the children. The proposed orders are sensible and are in general terms, agreed. I will make those orders.
Conclusion
At 17, 15 and 13 years of age, the children are all but beyond the effective power of the Court. If the orders are to be effective the parties need to move quickly. Given the fact that there could have been some delay in the delivery of judgment, at the end of the trial I asked the parties to settle interim orders that put in place the agreed elements of their proposals straight away. In that way progress could be made by way of individual and family therapy, without waiting for the final parenting orders. Thus orders were made in the following terms on 31 May 2013:
1.Judgment is reserved.
2.The parties and their legal representatives are excused on delivery of judgment.
3.Pending further order of the court, orders are made in terms of the orders sought by the Independent Children’s Lawyer in paragraphs 10 and 11 of the document which is Exhibit 5 as follows:
10. That each parent do all things and sign all such documents necessary to enrol in family counselling with such counsellor(s) as agreed to by the parties or in the absence of such agreement as nominated by the Independent Children’s Lawyer; and:
a.Attend upon all relevant appointments with the counsellor.
b.Ensure that the children attend on all relevant appointments with the counsellor(s).
c.Comply with all reasonable directions and instructions of the counsellor(s).
d.Ensure that the children comply with all reasonable directions and instructions of the counsellor(s).
11. That the parties have leave to release the following documents to the counsellor(s):
a.The child dispute conference memorandum dated 21 March 2011.
b.The Family report of Family Consultant [Mr L] dated 27 September 2011.
c.The Family report of Dr [B] dated 30 July 2012.
d.An agreed statement of the oral evidence given by Dr [R] at the hearing of these proceedings.
e.The final Judgment of this Honourable Court in respect to the current parenting proceedings between the parties.
4. The Court NOTED that the Independent Children’s Lawyer will settle a letter of instruction to the counsellor appointed pursuant to Order 10 above and will provide with that letter of instruction those of the documents nominated in the letter that are available to the Independent Children’s Lawyer including, a document to be affixed to the front of the report of Dr [B] setting out the parties agreement about the departure from the report that arose from the oral evidence of the expert.
This family has experienced years of conflict and three years of litigation. The parties’ proposals were initially diametrically opposed but by the conclusion of the trial the issues were of a narrow compass. The court was obliged to decide about parental responsibility and found that, save in relation to overseas travel, where the mother will have the final say, the parties will retain joint and several parental responsibility. There was an issue about orders being made in relation to all three children or only W and the latter course, proposed by both parents, has been adopted. The middle ground between the parents’ proposals has been adopted in relation to the frequency of W’s time with the father.
The detail is not important. This was never a case about time or responsibility. I believe that the parents now understand that they must find a way of resuming a level of cooperative parenting lest there be a very poor outcome for their children. In the case of each parent, the proceedings have revealed things that they need to attend to, not only for their own benefit but so that the critical relationships between them and their children are not permanently damaged. These impressive children are entitled to have loving relationships with each parent and should not be required to manage the individual problems of their parents or the highly dysfunctional relationship between their parents. The parents have committed to counselling that should help them address those issues.
In my view the orders proposed will promote the best interests of the children.
I will provide for the parties to bring the matter back on application made within 28 days in relation to the wording of the orders.
I certify that the preceding one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 21 June 2013.
Associate:
Date: 21 June 2013
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Remedies
-
Costs
0