Jones and Jones
[2009] FMCAfam 817
•5 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JONES & JONES | [2009] FMCAfam 817 |
| FAMILY LAW – Children – best interests – equal shared parental responsibility – church attendance – weekend arrangements – holiday arrangements – transport and changeover – telephone calls. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65DAA |
| Carpenter and Lunn [2008] FamCAFC 128 Chappell and Chappell (2008) FLC 93-382 Mills & Watson [2008] FMCAfam 2 Mulvany & Lane [2009] FamCAFC 76 Bolitho and Cohen (2005) FLC 93-224 Taylor v Barker (2007) FLC 93-345 |
| Applicant: | MR JONES |
| Respondent: | MS JONES |
| File Number: | HBC1097 of 2007 |
| Judgment of: | Roberts FM |
| Hearing dates: | 16 & 17 March 2009 |
| Date of Last Submission: | 17 March 2009 |
| Delivered at: | Launceston |
| Delivered on: | 5 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr F Dixon SC |
| Solicitors for the Applicant: | Ian Guest & Associates |
| Counsel for the Respondent: | Ms A Trezise |
| Solicitors for the Respondent: | Andrea Trezise |
| Counsel for the Independent Children’s Lawyer: | Mr P Briffa |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of Tasmania |
ORDERS
That MR JONES (“the Father”) and MS JONES (“the Mother”) have equal shared parental responsibility for [V] born in 1991, [W] born in 1996, [X] born in 1998, [Y] born in 1999 and [Z] born in 2001 (“the children”), including but not limited to issues about:
(a)the education of the children, both current and future;
(b)the religion of the children;
(c)the health of the children.
That the children are to live with the Mother.
That [V] is to spend such time and communicate with the Father as agreed between [V] and the Father from time to time.
That the children [W], [Y] and [Z] are to spend time with the Father as follows:
(a)during the school term on a fortnightly cycle from after school on Friday until 15 minutes prior to the commencement of the evening service of the Evangelical Presbyterian Church at [W] (with the time to be extended to 5.00 p.m. on the Monday if that Monday is a public holiday), such to commence on the first Friday of each school term;
(b)during the May/June and August/September school holidays as follows:
(i)in odd numbered years from after school on the last day of school prior to such holiday until 5.00 p.m. on the second Saturday of the school holiday; and
(ii)in even numbered years from 5.00 p.m. on the second Saturday until 15 minutes prior to the commencement of the evening service of the Evangelical Presbyterian Church at [W].
(c)during the children’s Easter school break as follows:
(i)in odd numbered years from after school on the last day of school prior to the Easter school break until 5.00 p.m. on the Tuesday after Easter Sunday; and
(ii)in even numbered years from 5.00 p.m. on Easter Monday until 5.00 p.m. on the following Saturday
(d)during the children’s long summer school holidays that start in odd numbered years as follows:
(i)from 5.00 p.m. on the first Monday of the holiday until 5.00 p.m. on the second Monday of the holiday;
(ii)from 5.00 p.m. on the third Monday of the holiday until 5.00 p.m. on the fifth Monday of the holiday; and
(iii)from 5.00 p.m. on the seventh Monday of the holiday until 15 minutes prior to the commencement of the evening service of the Evangelical Presbyterian Church at [W] on the last Sunday of the holiday.
(e)during the children’s long summer school holidays that start in even numbered years as follows:
(i)from 5.00 p.m. on the second Monday of the holiday until 5.00 p.m. on the fourth Monday of the holiday;
(ii)from 5.00 p.m. on the fifth Monday of the holiday until 5.00 p.m. on the sixth Monday of the holiday; and
(iii)from 5.00 p.m. on the seventh Monday of the holiday until 15 minutes prior to the commencement of the evening service of the Evangelical Presbyterian Church at [W] on the last Sunday of the holiday; and
(f)at such other times as may be agreed between the parties.
That for the purposes of Order No. 4 hereof, whenever the Father is not to collect the children from their school or deliver them to the Evangelical Presbyterian Church at [W], the handover of the children is to occur outside the Police Station in [S].
That the Father may communicate by telephone with the children between 4.00 p.m. and 5.00 p.m. each Tuesday and Thursday when they are not otherwise with him.
That for the purposes of Order No. 6 hereof, the Mother must;
(a)ensure that the children are available to receive the Father’s telephone calls;
(b)ensure that privacy between the children and the Father is maintained; and
(c)keep the Father informed of the landline telephone number that the Father may call in order to communicate with the children.
That in addition to the provisions of Order No. 7 hereof, the Father and the Mother must each ensure that children are able to telephone the other party at reasonable times.
That in the event that either the Father or Mother wishes to travel interstate with the children during any time that he or she is to spend with them pursuant to these Orders, he or she must provide the other parent with a travel itinerary at least twenty-one (21) days prior to such travel.
That the Father and the Mother are each restrained from:
(a)denigrating the other parent, the children’s school or the children’s church either to or in the presence of the children; or
(b)allowing any other person to denigrate the other parent, the children’s school or the children’s church in the presence of the children.
That the Mother must forthwith authorise any school that the children are attending to forward copies all school and other reports to the Father.
That both the Mother and Father are hereby restrained from;
(a)physically disciplining or verbally abusing any of the children; or
(b)denigrating the other parent to or in the presence of the children; or
(c)removing any of the children from the State of Tasmania without first giving notice pursuant to Order No. 9 hereof.
That the child [X] is to continue with such counselling appointments with Ms N as may be required and directed by the Independent Children’s Lawyer and such appointments are to be at the joint expense of both parents.
That, subject to approval by the Legal Aid Commission of Tasmania, the appointment of the Independent Children’s Lawyer is to continue for a period of six months from the date of this Order.
That all extant applications are otherwise dismissed.
AND THE COURT NOTES THAT:
The parties agree that the counselling referred to in Order No.13 hereof is to assist [X] in her physical and emotional wellbeing and that the parties will be encouraging her to increase her time with her father to coincide with that of [W], [Y] and [Z].
The Father is at liberty to attend any activities or functions at the children’s school(s) that parents would normally be at liberty to attend.
IT IS NOTED that publication of this judgment under the pseudonym Jones & Jones is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
HBC1097 of 2007
| MR JONES |
Applicant
And
| MS JONES |
Respondent
REASONS FOR JUDGMENT
The Applicant is MR JONES (“the father”) and the Respondent is his wife, MS JONES (“the mother”).
The parties started living together in February 1984. They were married in August 1987 and separated in June 2007.
The father is aged 70 years and the mother is 47 years old. They have six children. The eldest is now 20 years old and not the subject of these proceedings. She lives independently of them.
The other five children are [V] aged nearly 18 years, [W] aged 13, [X] aged 11, [Y] aged 9 and [Z] aged 7 years.
Prior to the separation the family lived on a rural property near [S] in Tasmania (“the farm”). They were in large part self-sufficient from the produce of the farm and the children were home-schooled for a time. Involvement in church activities was also a significant feature of family members’ lives.
Since separation, the father has continued to live on the farm but the mother and the children have lived approximately 75 minutes drive away. The children have been attending a small Christian school in their district and they have become involved with a local church.
The mother has obtained a Family Violence Order against the father that is effective until the beginning of February 2010. It provides that, inter alia, the father must:
a)not stalk the mother;
b)keep the peace towards the mother;
c)not directly or indirectly threaten, harass, abuse or assault the mother;
d)not approach the mother directly or indirectly including by telephone, email, facsimile or letter except;
i)for the purpose of attending meetings by consent between the mother and the father the presence of a third party to discuss matters arising out of their relationship or relating to the children, including counselling, Family Court conferences and legal aid conferences, and by letter to negotiate such matters;
ii)for the purpose of contact with the children as agreed or as ordered by a court of competent jurisdiction;
iii)during an appearance in court proceedings involving the parties, or discussions in the court precincts for the purpose of those proceedings and consented to by both parties;
e)not enter the premises where the mother is presently living or any other place where she may be staying or living from time to time; and
f)not go within 500 metres of the boundary of the premises where the mother is presently living or any other place where she may be staying or living from time to time.
The proceedings in this Court were commenced in August 2007 and the parties have participated in interviews with a Family Consultant for two Family Reports and a psychiatric assessment with a consultant psychiatrist. (I am pleased to note that neither party suffers from any psychiatric illness or disorder.)
I am also pleased to note that the parties have been able to narrow the issues in dispute between them considerably. The areas in dispute are set out in more detail in a document that was handed up to me,[1] but essentially the areas of agreement and disagreement are as follows:
a)They agree that they should equally share parental responsibility and that the children will live predominantly with the mother.
b)They agree that [V] (who will be 18 years old shortly) will decide how much time, if any, she wishes to spend with her father.
c)They agree that in general the children should spend time with the father each second weekend and for periods during each school holiday. However, they are not in agreement about the detail. Their disagreements relate to start and finish times, who will transport the children and where changeovers will occur.
d)There was an initial disagreement about Easter but it became apparent during counsels’ closing submissions that the parties now agree that the children should spend half of each Easter break with each parent, with the first and second halves alternating each year.
e)They agree in general that the children should be able to telephone the other at reasonable times, but the father wishes to initiate calls to the mother’s home and the mother does not agree with that. They also differ about the frequency and times of telephone calls between the father and the children.
f)They agree that [X] should continue counselling with her current counsellor (Ms N) and that her time with her father should be encouraged to gradually increase, with a view to it becoming the same as her two brothers and [Z].
g)They agree upon various non-denigration type orders and that neither of them should physically discipline the children.
h)They also agree that they should each be able to take the children interstate during their time allocations provided that they give the other party 21 days notice of their intention to do so.
[1] Now Exhibit “F1”
It became clear that a significant stumbling block to agreement between the father and the mother about the father’s contact – both during term and during school holidays – is whether or not the children should be returned to the mother in time to attend an evening church service on Sundays. I will return to that and the other areas of difference below.
Terminology
Now that the parties have narrowed the issues, their dispute is essentially what was called a “contact dispute” before the legislative changes of 2006.
In both Carpenter and Lunn[2] and Chappell and Chappell[3] slightly differently constituted Full Courts of the Family Court said:
… … The new legislation replaced the legal concept previously known as “contact” with the concept of a child “spending time” with someone. The legislation, however, does not prohibit the use of the noun “contact” in its everyday sense. In these reasons, we propose to use “contact” interchangeably with expressions such as “spend time with”. In doing so, we have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary.
[2] [2008] FamCAFC 128, Finn, Boland & Thackray JJ on 19 August 2008
[3] (2008) FLC 93-382, Warnick, Boland and Thackray JJ on 15 September 2008
In an earlier 2008 decision,[4] FM Walters had expressed a similar view when he said:
Although the law now refers to a child “spending time” with a person (usually a parent) with whom the child does not live, I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[4] Mills & Watson [2008] FMCAfam 2
In my view, those sentiments make grammatical and legal common sense, which I intend to apply. I will therefore use the term “contact with” interchangeably with “spend time with” or “communicate with”.
Having said that, however, I am of the view that the orders that I make should be expressed in terms of the children living with the mother and spending time and communicating with the father. That simply reflects the reality of what the parties have agreed in principle. In my opinion, nothing much turns on the words used, it is the quality of the relationships between the parents and the children that matters.
The evidence
The parties each relied upon one affidavit and each was cross-examined.
In addition to those affidavits, the two Family Reports and the psychiatric report were at admitted into evidence. The Family Consultant was cross-examined but the consultant psychiatrist was not required for cross-examination.
Legal principles to be applied
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[5].
[5] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [6]
[6] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children[7].
[7] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[8].
[8] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant[9].
[9] Subsection 60CC(3)
There has been some debate about whether the “primary considerations” should be given more weight than the “additional considerations”. No doubt, that debate will continue. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case. Indeed, I am fortified in that view by the Judgment of May and Thackray JJ in Mulvany & Lane[10], in which their Honours said:
76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best.
[10] [2009] FamCAFC 76
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[11]
[11] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[12]
[12] See subsections 65DAA(2) and (3)
It is clear that the court is not bound by either of the parents’ proposals. See Bolitho and Cohen[13].
[13] (2005) FLC 93-224
Discussion
The parties have agreed that there should be an order for equal shared parental responsibility (and I agree that it is appropriate). However, the father is not asking to spend equal time with the children. Consequently, I consider that equal time is not “reasonably practicable”. However, I must give consideration to the spending of “substantial and significant time”.
Sub-section 65DAA(3) provides that a child will be taken to spend “substantial and significant time” with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Because the parties have narrowed the issues so significantly, I do not believe that it is necessary for me to make my way sequentially (and laboriously) through every factor referred to in section 60CC, but rather that I should address each relevant factor in relation to the matters that are the subject of disagreement. This appears to fit with the views of Bryant CJ and Finn J in Taylor v Barker,[14] when they said:
We make it clear, however, that a failure to follow what we see as the logical approach would not lead to appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.
[14] (2007) FLC 93-345, at paragraph 63
In general, when I use the word “children” below, I will be referring only to [W], [Y] and [Z], because the parties are in agreement about arrangements for [V] and [X].
Attendance at church on Sunday evenings
As I have said above, a significant stumbling block to agreement between the parents about the children’s contact with the father, during both school terms and holidays, is whether or not the children should be returned to the mother in time to attend church on Sunday evenings.
It is clear from the oral evidence of the Family Consultant that the children enjoy their time with their father but they also enjoy their church activities (and their school and extra curricular activities). Consequently, there is a clear tension in apportioning their time between being with their father and being involved in those activities. This is especially so because the mother made it abundantly clear that she will not attend any of the children’s activities if the father is present.
It also clear that the children’s church and school activities are closely intertwined. Not surprisingly, there is a heavy emphasis on Christian teaching in their school and it is not unusual for members of the school community to attend both morning and evening services at the church each Sunday.
It was also clear to me from the evidence of the Family Consultant and of the mother herself that, in general, the children will not be adversely affected if they miss evening church services on some occasions. I also note that the father is religious, although it is clear that he does not place quite as much emphasis on actual attendance at religious services as the mother does. It was his evidence that, on occasions, it would be sufficient for the children to attend only one Sunday service with him at another church or to listen to religious recordings.
I am mindful of the fact that the children belong to a very small school and church community, and that they enjoy being part of that community. I therefore conclude that it is not in their interests to miss that evening service every second Sunday, as proposed by the father. However, I also conclude that it is not necessary for them to attend that evening service every Sunday of the year.
On the father’s proposal, he would drive the children to school every second Monday during school terms and that journey would require him and the children to leave his home at 7.00 a.m. for a drive of approximately 75 minutes before school. Given the ages of the children, that will make those days very long for them.
I therefore conclude that a reasonable balance between the children maintaining a meaningful relationship with their father and accommodating the children’s wishes to be involved with their community, is for the father generally to return them in time for the evening service during school terms, but not on those school term contact weekends that will include a Monday as a public holiday, or during school holidays (save for the last Sunday before the next school term starts).
School term weekend contact arrangements
The mother seeks orders that during school terms the children be with their father from 5.00 p.m. on Friday until fifteen minutes prior to the commencement of the evening church service. However, if the weekend is a long weekend then the children are to be returned to a particular Pastor’s home rather than to the church, and the father is to ensure that the children attend a service on the Sunday at either an Evangelical Presbyterian Church or a Southern Presbyterian Church.
The father’s proposal is that he should collect the children from school on Friday and return them to school on the Monday morning.
I have already indicated that the children should be generally returned in time for the evening service during school terms, so I need to determine whether weekend contact is to commence at 5.00 p.m. on Friday or after school.
It is the father’s evidence that he wishes to be involved in their school lives and I accept that he has had some positive involvement with that particular school in the past. It is also a necessary part of parental responsibility to be involved in children’s schooling.
Providing for him to collect them from the school is in accordance with the definition of “substantial and significant time” set out at paragraph 29 above. Clearly, Friday is not a weekend and collecting the children from the school will allow the father to be involved in some of their daily routines.
I can see no good reason why the father should not collect the children from their school and I propose to order that his contact commence at the conclusion of school on the Friday, with the father collecting the children from their school on that day.
By collecting the children from the school, the father should not be put in a position where he could inadvertently breach the mother’s Family Violence Order, because the mother lives in a small country town that is approximately 10 kilometres from the school.
School holiday contact arrangements
In relation to the school holidays at the end of First and Second Term the parties are generally agreed that the time should be shared. However, they clearly have differences about the mechanics of such an arrangement.
The mother clearly wants the father to ensure that the children attend a church service if they are to be with him for the entirety of a Sunday and on occasions return the children to her so that they can attend a church service on Sunday evening.
I am satisfied from hearing the father’s oral evidence that he is a religious man and that he wants his children to follow Christian beliefs and practices. For that reason I do not believe that it is appropriate to order him to take the children to particular churches. I am confident that he will use his good judgment about their attendance at church or their listening to religious recordings when they are with him.
In relation to school holidays at the ends of the first and second school terms, I am of the view that, for the sake of certainty, the children should spend time with their father in the first and second halves of those holidays on an alternating yearly basis.
When the father is spending time with the children during the first half of any such holiday, he can collect them from the school and then the mother can collect them from him in [S] at the end of his time. If the children are to be with him during the second half of a holiday, then the mother can deliver them to [S] at the approximate mid-point of the holiday and the father can then return them in time for the evening church service on the Sunday prior to the return to school.
The parties have two major areas of dispute in relation to the long summer school holidays. The areas of difference between them are as follows:
a)Whether or not the children should remain with the mother for a few days following the end of term to enable them to take part in school and dancing concerts; and
b)Whether or not the children should be able to spend two week blocks with each parent.
In relation to the former, the mother says that she is heavily involved with a school concert and an end of year dancing concert in which the children are likely to be participants.
Because of the mother’s involvement in the activities, and the distance between the father’s residence and where those activities will take place, it seems appropriate and practical for the children to remain living with the mother for those first few days of the Christmas school holiday. Indeed, in his oral evidence, the father virtually conceded that if the mother is so involved, it would be more practical for the children to stay with her until after those activities have concluded.
However, I can see no reason why the father should not be able to attend those activities and I consider it to be most unfortunate that the mother says that she will not attend them if he does. In my view, she needs to subjugate her own feelings in relation to the father in the interests of her children. Given the difficulties that the parties experienced in relation to their separation, I consider that it would be a good healing gesture for them both to attend such functions and, more importantly, it would be of enormous benefit to the children for them to see their parents co-operating in relation to, and enjoying such activities.
In relation to whether the children should spend up to a fortnight with their father or not, the evidence of the Family Consultant was clear that the two boys would have no difficulty with that. However, she expressed some reservations about [Z]’s ability to adjust. She felt that [Z] would have some adjustment difficulties in relation to her first full-time year at school and that a fortnight away from her mother may compound that. However, [Z] will have been at school full-time for a whole year before the next Christmas school holidays and I consider that she will have had sufficient time to adjust. Consequently, I am of the view that it will not be contrary to their interests for the children to spend periods not exceeding 14 days with each parent during the long summer school holidays.
Transport and changeovers
The father considers that the mother drives too quickly, whereas the mother says that she and the children believe that the father drives too slowly. Nothing in these Reasons is likely to change those perceptions.
In view of what I have said above, it will be clear that I am in favour of the father collecting the children from school where appropriate and returning them when they are to attend church. His evidence was that he was quite willing to do all the travelling, but the mother’s evidence was that she does not want the father to attend at her home, either to collect the children or drop them off. Indeed, my reading of one paragraph of the current Family Violence Order would preclude the father from attending within 500 metres of her home, notwithstanding that another paragraph allows him to approach her for the purposes of having contact with the children. However, it is clear to me that those paragraphs stand alone and are not inconsistent with eachother.
I am therefore of the view that it is appropriate on occasions for the changeover of the children take place in [S]. Although the mother was initially contemplating that such changeovers be at a child care centre, it was generally agreed during the hearing that that was not appropriate and that it would be more appropriate for such to take place outside the [S] Police Station. In those circumstances, the children can simply get out of one party’s car and get into the other.
Telephone contact between the father and the children
The father wishes to be able to communicate with the children by telephone between 7.00 p.m. and 7.30 p.m. each Tuesday and Thursday with him initiating the telephone call. The mother is opposed to that and simply seeks an order that the children telephone him each Tuesday between 4.00 p.m. and 5.00 p.m.
That raises three differences between them. They are:
a)whether communication by telephone between the children and the father should be once or twice per week;
b)at what time it should be; and
c)who should initiate the telephone call.
The mother’s justification for her opposition to the children speaking to their father twice a week was:
I don’t feel the children would want to and they are busy through the week.
I simply do not accept that as a justification for the children speaking to their father only once per week and I can see no good reason why the father should not be able to speak to the children twice per week. The evidence is clear that they wish to continue their meaningful relationships with him and speaking by telephone will promote that.
In relation to the time that the father speaks to the children, the mother’s view is that it should take place between 4.00 p.m. and 5.00 p.m. because that is when they are home from school having a break before doing homework or getting involved in other activities. On the other hand, the father is of the view that between 7.00 p.m. and 7.30 p.m. is a time when the children would be more settled and he thought that restricting the calls to half hour periods each week would be more acceptable to the mother, in any event.
I take the view that the mother is the best judge of what times are appropriate in her household for telephone calls to take place, so I will make orders that they take place between 4.00 p.m. and 5.00 p.m.
The father wishes to initiate the telephone calls and the tenor of his evidence was that he does not trust the mother to ensure that the children initiate any calls. The unchallenged evidence of the psychiatrist would appear to support his view. She said:
…her anger and acrimony towards her husband will almost certainly cause problems for her children. I am concerned that she will not abide by Court Orders as she seems unable to accept that there are any benefits for the children in seeing their father, even though he was closely involved in family life until relatively recently.
Clearly, the mother has moved forward significantly from that position, but she still has a long way to go. Indeed, she made it very clear in her evidence that she did not wish to have any contact with the father at all. Most certainly, she does not wish to speak to him, either on the telephone or otherwise. She begrudgingly conceded that email communication could take place and in relation to that her oral evidence was:
I want as little contact with him as I possibly can have and email is the least personal and it’s the quickest.
Although the mother made it clear that she does not want the father to telephone her home to speak to the children, I can see no difficulty if that telephone communication by the father is at set times on set days. The mother simply needs to avoid answering the telephone during the relevant periods if she wishes to avoid speaking to the father.
Comment
I have dealt with the areas of dispute between the parties in the paragraphs set out above, and the orders that I will make are set out at the start of these Reasons.
However, the parents are to be congratulated for narrowing their dispute quite significantly prior to the hearing. That augurs well for the future and I sincerely hope that they will not need to resort to litigation in the future.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
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