Khalili & Chatha
[2016] FamCA 230
•4 April 2016
FAMILY COURT OF AUSTRALIA
| KHALILI & CHATHA | [2016] FamCA 230 |
| FAMILY LAW – CHILDREN – where it is agreed that the children should continue living with their mother – how the children are to spend time with their father – where the eldest child is nearly 16 years old – where his time with his father is to be as agreed between him and his father – where the mother asserts that the younger children's time with their father should occur only during the day – where the mother asserts the children are at an unacceptable risk of harm if their time with him is any more extensive than as contended for by her – where the mother alleges the father has engaged in family violence – where the father disputes this – where family violence is found to have occurred – where both parents have contributed to the children’s exposure to family violence – where father to have alternate weekend time and half holidays – where the father seeks to restrain the mother and children from travelling overseas – the children’s wishes – where the mother has been demonstrably unsupportive of the children’s relationship with their father – where the parents have different parenting styles – where each parent is permitted to travel internationally with the children from January 2018 FAMILY LAW – COSTS – application for costs by the independent children’s lawyer – application granted – where the parties are provided time within which to pay. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 117, 121(9)(g) |
| Aldridge & Keaton (2009) FLC 93-421 Baghti & Baghti [2015] FamCAFC 71 Blanding & Blanding [2016] FamCAFC 21 Cox & Pedrana (2013) FLC 93-537 Goode & Goode (2006) FLC 93-286 M & M (1988) 166 CLR 69 MRR v GR (2010) 240 CLR 461 Sayer v Radcliffe and Anor (2013) 48 Fam LR 298 SCVG & KLD (2014) FLC 93-582 The Marriage of N & S (1996) FLC 92-655 |
| APPLICANT: | Mr Khalili |
| RESPONDENT: | Ms Chatha |
| INDEPENDENT CHILDREN’S LAWYER: | Ms MacDonald |
| FILE NUMBER: | PAC | 991 | of | 2010 |
| DATE DELIVERED: | 4 April 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 4 April 2016 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
Orders
Parental responsibility
The mother shall have sole parental responsibility in respect of all major long term issues as that expression is defined in the Family Law Act 1975, as amended (the Act) in respect of the children: S, born on … 2000; B, born … 2006, Y born … 2006 and H, born … 2010, save that the mother shall prior to making the sole decision about any such issue:
(a)advise the father in writing of the decision intended to be made,
(b)invite the father’s written response in relation to thereto,
(c)consider by reference to the best interests of the child any such response prior to making any such decision,
(d)advise the father in writing as soon as reasonably practicable of her ultimate decision.
Live with
The children shall live with the mother.
Time with the father
The father shall spend time with the children at all reasonable times as may be agreed between the parties in writing but, failing agreement not less than:
(a)for S at all such reasonable times as S and the father may arrange;
(b)for the three youngest children:
(i)each alternate weekend from 5.30 pm Friday (subject to paragraph 10 below) until commencement of school on Monday commencing Friday, 8 April 2016,
(i)from 9 am to 5 pm on Father’s Day each year (if the children are not otherwise spending time with the father),
(ii)for the first week of the June/July school holidays commencing in 2016 and in each year thereafter,
(iii)for the first week of the September/October school holidays commencing in 2016 and in each year thereafter,
(iv)for the first two weeks of the December/January school holidays in 2016,
(v)thereafter for the first half of the December/January school holidays in even numbered years and the second half in odd numbered years.
Communication between the three youngest children and the father
The mother shall make the children available for telephone contact with the father each Tuesday between 6 pm and 7 pm.
If the children are not spending time with their father on their respective birthdays, then by telephone between 6 pm and 7 pm.
The mother shall ensure that the father is kept informed of a telephone landline number and mobile telephone number for the children, and ensure that the mobile phone used by the children has credit.
Changeovers during school term
Until S completes his schooling, changeovers other than on Monday mornings, are to occur at such place as may be agreed between the parties in writing. But, failing agreement, at the X Contact Centre at C Street, Suburb P, in the State of New South Wales and if that service is unavailable, then at such other contact service as is available and closest to the X Contact Centre.
The father is to deliver the children to their school at the conclusion of his time on Monday morning by dropping the children off in a designated car park area at the school in time for the commencement of the school day (but he shall not otherwise enter the school).
Until S completes his schooling, the mother is to ensure that the children have appropriate school requirements including but not limited to uniform, school shoes and homework at changeover on Fridays. The father shall ensure that any items provided by the mother are returned with the children on Mondays.
Upon S completing his schooling, changeovers on Friday shall occur at the completion of the school day at their school.
Changeover during school holidays and other times when the school is not open.
If the father is spending time with the children during the first half of the school holidays, then until S completes his schooling, changeover at the commencement of his time shall occur at 5.30 pm on the last day of term at the contact centre, and at the conclusion of his time at 10 am in the middle day of the holidays at the contact centre.
Once S completes his schooling, if the father is spending time with the children during the first half of the holidays then changeover at the commencement of his time shall occur at the conclusion of the school day on the last day of term from school and at the conclusion of his time at 10 am at the contact centre.
If the father is spending time with the children during the second half of the school holidays, then changeover at the commencement of his time shall occur at the contact centre at 10 am, and at the conclusion of the time the father shall deliver the children to their school in time for the commencement of the school day.
At any other time when the father is to spend time with the children and the contact centre is not open, changeover shall occur at the McDonald’s Family Restaurant closest to the contact centre, unless an alternative venue is agreed in writing by the parties.
Overseas travel
As and from 31 January 2018 the mother and/or father shall be at liberty to travel overseas with the children B, born … 2006, Y born … 2006 and H, born … 2010 on the following conditions:
(a)no travel shall occur to a country that is listed on the Department of Foreign Affairs travel advice portal as a country to which citizens should not travel, or it is recommended citizens reconsider the need to travel;
(b)a full and detailed itinerary is supplied by the travelling parent to the non-travelling parent no later than 60 days prior to the proposed departure date listing:
(i)the dates of departure and return;
(ii)addresses of all accommodation while overseas;
(iii)a contact email and telephone number while overseas;
(iv)copies of the tickets.
(c)upon production of the said itinerary, the parent with possession of the children’s passports, shall make them available to the travelling parent no later than 30 days prior to the date of departure;
(d)overseas travel with the children is to occur only during school holidays and only during the travelling parent’s school holiday time with the children.
The name B, born … 2006, Y, born … 2006, and H, born … 2010, shall remain on the airport watch list until 31 January 2018.
The mother is to forthwith make available to the father the passports for the children, B, born … 2006, Y, born … 2006, and H, born … 2010, for safe keeping. And the father is to retain possession of the children’s passports at all times, other than when the mother is travelling overseas with the children.
The name S, born … 2000, is to be removed from the airport watch list forthwith.
Either parent may make application for a new passport for the children upon their passports expiring, and the other parent shall sign all documents necessary to enable the passport to issue.
Specific issues.
The mother shall
(a)advise the father and keep him advised of the children’s residential address, school, usual treating general practitioner, any specialist medical practitioner and any counsellor or therapist upon whom they attend,
(b)do all such things and sign all such documents as might be required so as to authorise any and all of the persons referred to in paragraph 20(a) above of these orders so as to facilitate the father receiving any and all such information (including written reports provided in the usual course by any such person) relating to the children’s progress, health, treatment or course of counselling or therapy as the case may be, save that nothing in this order shall be construed so as to require the mother to authorise the provision of any information which in the written professional opinion of any doctor, counsel or therapist is contrary to the children’s best interests,
(c)notify the father as soon as reasonably practicable of any significant injury or serious illness suffered by the children and, in any event, any injury or illness which requires specialist medical treatment or admission to hospital.
The father shall:
(a)notify the mother as soon as reasonably practicable of any significant injury or serious illness suffered by the children and, in any event, any injury or illness which requires specialist medical treatment or admission to hospital,
(b)advise the mother and keep her advised of his residential address and telephone numbers,
(c)be at liberty to access the school information website (including …) and to receive copies of school reports and school photos.
Each parent shall be at liberty to attend all events involving the children, including school functions and events that allow for parental attendance.
Any fees charged by any contact centre involved in the changeover shall be borne by the parties equally.
If it is necessary to change contact centres, each party shall attend for any intake or other interviews required by the said centre.
Injunction.
The father is restrained from attending at or within 100 metres of the mother’s residence, save with the prior consent of the mother in writing.
Publication.
Pursuant to section 121(9)(g) of the Act, the father or the independent children's lawyer is authorised to publish an account of these proceedings, namely these orders and the reasons for judgment delivered herewith, to the X Contact Centre or such other contact service that may from time to time assist at the changeovers.
Interpretation and Implementation.
In the event there is any disagreement about the interpretation or implementation of this order, then the parties shall attend upon a family dispute resolution practitioner in an attempt to resolve that issue prior to filing any application.
And it is further ordered that the independent children's lawyer is discharged on a date two months from the date of these orders.
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated, and all exhibits are returned to the person or persons who tendered same.
Pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order are set out in the fact sheet attached hereto. And these particulars are included in these orders.
Costs
That the father contribute the sum of $10,000 towards the costs incurred by Legal Aid (New South Wales) as the Independent Children’s Lawyer with the father to commence payment by way of instalments on 4 May 2016 with the last payment to be made on or before 30 June 2017.
That the mother contribute the sum of $7,186.60 towards the costs incurred by Legal Aid (New South Wales) as the Independent Children’s Lawyer with the father to commence payment by way of instalments on or before 1 January 2017 with the last payment to be made on or before 30 June 2017.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Khalili & Chatha 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 BRISBANE |
FILE NUMBER: PAC 991 of 2010
| Mr Khalili |
Applicant
And
| Ms Chatha |
Respondent
REASONS FOR JUDGMENT
The parties to this dispute are Mr Khalili, the father, and Ms Chatha, the mother. They have four children together and, in summary, they are unable to agree about parental responsibility, the time the three younger children spend with their father and whether the mother should be at liberty to take the children outside Australia. Neither the father nor the mother is legally represented, but an independent children’s lawyer represents the children.
The father is 41 years of age, having been born in 1975. He is employed as a public servant. The mother is 43 years of age, having been born in 1972. She is a full-time student completing a doctorate. She has some casual work.
In the past she has been employed at the children’s school, D School. She will complete her doctorate at the end of the year and is confident of obtaining employment after the conclusion of these proceedings.
The parties were married in 1994 and divorced on 13 May 2010. The four children, who are the subject of these proceedings, are: S, born in 2000 and now aged 15 years and seven months, B, born in 2006 now nearly 10 years, Y, born in 2006 also nearly 10 years, and H, born in 2010 nearly six.
There is some dispute between the parties as to the actual date of separation, but nothing turns on that for the purposes of this case. The mother and children lived in the Middle East, from late 2008 until January 2012 where the mother worked as a public servant. During that time, she and the children returned to Australia for a few weeks in 2009 to attend her graduation ceremony and for several months in 2010 in the period leading up to and following the birth of the parties’ youngest child, H, before returning to the Middle East with the children in or about September 2010. The father joined the mother and children in the Middle East on a number of short occasions and for an extended period of about seven months in or about 2010/2011 and, on each occasion, stayed with the mother and children. He did not work during these times. The father remained in Australia for the majority of the period the wife and children were in the Middle East.
Upon the mother’s return to Australia in January 2012, it is common ground that the parties resided in the same home on occasions, the last occasion being in November 2012 when the mother and children left the home they had been sharing with the father.
This case has a long history with proceedings first commencing in 2012. The catalyst for the commencement of proceedings was the mother’s wish to return to the Middle East for work, with the children, and the father’s opposition to that course. The proceedings were transferred from the Federal Circuit Court to the Family Court of Australia on 18 February 2014. Various orders have been made since that time and the mother was found to have contravened a parenting order in July 2015.
The substantive factual issues to be determined at this trial are:
a)the mother’s allegations that she and the children have been subjected to family violence by the father;
b)the father’s allegations that the mother has fabricated those allegations;
c)the children’s wishes;
d)the capacity of the parents to co-parent;
e)whether the mother should be at liberty to travel overseas with the children;
f)the impact on the children of an order for alternate weekend time and alternate Wednesday afternoon time with the father, given the nature of the parents’ relationship and the mother’s opposition to anything other than limited daytime with the father.
There are no protection orders in place. At the commencement of this trial the father sensibly, in my view, withdrew an application that the mother be dealt with for an alleged further contravention of a parenting order, enabling the trial of the substantive proceedings to proceed and to be heard in the time allocated.
The material relied upon
The father relied on the following:
a)Amended application for final orders, filed 17 February 2016;
b)Affidavit by him filed 17 February 2016;
c)Affidavit by his girlfriend, Ms E;
d)Affidavit annexed to his affidavit by Ms F, filed 3 October 2014;
e)A statement annexed to his affidavit from Mr G provided to police dated 9 June 2013.
The mother relied on the following:
a)Amended response for final orders, filed 23 February 2016;
b)Affidavit by her filed 29 February 2016;
c)Affidavit by her mother, Ms I, filed 16 October 2012;
d)Affidavit by her sister, Ms J, filed 12 July 2013;
e)Affidavit by Mr K, filed 20 April 2015;
f)Notice of child abuse filed 7 May 2013.
The independent children’s lawyer relied on the following:
a)Child responsive program memorandum dated 26 August 2014;
b)Family report dated 9 June 2015;
c)Order of 16 May 2012, (a final parenting order made in the absence of the father and providing for time as agreed);
d)Order of 10 October 2012 (the father’s knowledge of 16 May 2012 order was put in issue);
e)Order of 31 October 2012, (suspending the 16 May 2012 order until 5 December 2012, placing the children’s names on a watch-list, appointing an independent children’s lawyer and ordering equal shared parental responsibility);
f)Order of 5 December 2012 (continuing paragraphs 4, 5, 8 and 9 of the order made 31 October 2012 by consent);
g)Order of 20 May 2013 (by consent ordering children to attend UNIFAM Anchor program, injunctions restraining each party from discussing in hearing of children either the Court proceedings or any issue in dispute and from passing messages via the children, without prejudice the father was restrained from physically disciplining the children, the father was to provide halal food, without prejudice the father restrained from attending the children’s school other than to an event to which parents were invited. It was noted that the parties agreed that the father would collect the children from and deliver them to the foyer of the mother’s residence);
h)Order of 9 October 2014 (by consent suspending the time as agreed and making order for specific time in preparation of family report);
i)Order of 25 November 2015 (discharging equal shared parental responsibility order for children);
j)Order of 25 June 2015 (reserving judgment for contravention hearing. By consent, changeover to occur at X Contact Centre, upon delivery of the children to X Contact Centre, the mother to immediately leave and remove herself to at least a 500 metres radius from the service, mother and father to accept all reasonable rules and directions from the service, someone other than the mother can deliver the children); and
k)Order of 30 July 2015 (five allegations of the order dated 9 October 2014 proved).
The parties jointly tendered a bundle of documents extracted from material produced from various sources, pursuant to subpoena.
Relevant legal principles
Part VII of the Family Law Act 1975 (as amended) sets out the objects, principles and matters that must be considered when determining what parenting order is proper. The approach to be adopted is well set out by authority.[1] My consideration will focus, in particular, on matters raised as significant by the parties and the independent children’s lawyer.[2] Importantly, section 60B(1) relevantly provides that the objects of the Act 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.
[1] Goode & Goode (2006) FLC 93-286; MRR v GR (2010) 240 CLR 461: Sayer v Radcliffe and Anor (2013) 48 Fam LR 298; Cox & Pedrana (2013) FLC 93-537
[2] SCVG & KLD (2014) FLC 93-582
Section 60B(2) relevantly provides that:
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
(c) parents jointly share the duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to have regard to the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The primary considerations do not outweigh any or all of the additional considerations.[3]
[3] Aldridge & Keaton (2009) FLC 93-421 at [74]
Section 61DA provides that when making a parenting order the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
Where the presumption does apply, the Court is required to consider s.65DAA (equal time or substantial and significant time). Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Proposals of each party
The father is the applicant and he seeks an order, in summary, for equal shared parental responsibility for all four children, for the three youngest children to spend time with him each alternate weekend from Friday after school until Monday morning before school, each alternate Wednesday from after school until 7 pm and half of the school holidays, for time with the eldest child to be in accordance with his wishes, and for the mother to be restrained from taking the children overseas.[4] (Although the father conceded during the trial that he would not object to the mother travelling to a country that is a signatory to the Hague Convention on Civil Aspects of International Abduction as long as he could travel likewise.)
[4] The precise order sought is as set out in the Amended Application filed 17 February 2016
The mother seeks an order, in summary, for sole parental responsibility, for the three youngest children to spend time with the father each alternate Saturday from 10 am until 4 pm, and to be able to take the children overseas for business or leisure purposes during school holidays without having to obtain the father’s consent.[5]
Particular issues identified by the parties as relevant to the determination[6]
[5] The precise order sought is as set out in the Amended Response file 23 February 2016
[6] SCVG & KLD (2014) FLC 93-582; Blanding & Blanding [2016] FamCAFC 21
Relevant findings sought by the father are as follows:
a)The three youngest children and he have a good relationship when they spend time together;
b)The relationship can improve if the time spent together is increased;
c)Despite the history, he and the mother have the capacity to make joint decisions for the long-term care, welfare and development of the children;
d)He has not subjected the mother and/or children to family violence;
e)The mother has fabricated the allegations of family violence against him; and
f)The mother has been the substantial cause of the children having been exposed to family violence.
Relevant findings sought by the mother are as follows:
a)The father is quick to temper and impatient with the children;
b)The father presents an unacceptable risk of emotional and psychological harm to the children if he has extended time, as sought by him;
c)The father would be unable to attend the children’s day-to-day needs if he were to spend other than limited day time with them;
d)She has and will promote the relationship between the children and the father;
e)The children do not want to spend extended time with the father;
f)There is no capacity for the parents to make joint decisions;
g)She is not a flight risk and ought to be able to travel overseas with the children, including to non-Hague Convention countries, given she was born in Country L and has a sister in the Middle East.
Orders sought by the independent children’s lawyer
At the conclusion of the trial the independent children’s lawyer tendered a minute of order essentially providing for the mother to have sole parental responsibility, the father to have time with the youngest three children each Saturday from 9 am to 4 pm and for the mother to be restrained from travelling overseas.[7]
[7] The precise form of order is as set out in the Minute tendered at the conclusion of the trial
Witnesses required for cross-examination
In the father’s case, the father and his girlfriend, Ms E, were required for cross-examination. In the mother’s case, only the mother and the maternal grandmother were required for cross-examination. Mr K and the mother’s sister were not required for cross-examination. Ms M, the author of the material relied upon by the independent children’s lawyer, was required by both parties for cross-examination.
Evidence from Ms Bernadette M, the family consultant
Ms M had the opportunity to observe this family on two occasions: the first in August 2014 and the second in April 2015. She formed the view that the parents’ relationship was ‘toxic’. She expressed the view that alternate weekend time would not be successful for the following reasons:
a) The father’s interactional difficulties with the children;
b) The mother’s very different parenting style;
c) The high conflict between the parents;
d) The mother’s lack of support for such an arrangement.
Ms M explained that the father’s interactional difficulties related to what she perceived to be his neediness and directional parenting style during observed play. When pressed, she said that the neediness was based on her observations in 2014 of the father insisting that the children open presents he had given them when they wanted to continue playing, and pressing the children to hug him. She conceded that she did not observe those behaviours in 2015. As to the directional play, she said that the father, in 2014, pressed the children to do certain activities when they wanted to do something else.
In 2015 the twins refused to see the father, so her observation was limited to his time with H, and her observations of the father, paternal grandparents and H noted H to be enthusiastic and affectionate to his father and paternal grandparents. H did not want the session to end, but eventually hugged his father and paternal grandparents and separated from them easily to return to his siblings.
In her view, the first two reasons referred to in [26] could be managed if the parents had a better relationship. She also opined that more time would be beneficial for the children if the mother gave her support to it. Her opinion was that the mother presented with a strong sense of entitlement, spoke in an indignant and sometimes angry tone throughout the interview, and presented as extremely hostile towards the father.
Allegations of family violence
The family living arrangements between January to November 2012
The family living arrangements during this period are relevant to understanding the context and circumstances of the allegations of family violence during this period.
The father says that he and the mother lived together as a couple continuously from January 2012 to November 2012 apart from a period of about three weeks when he lived with his sister. I do not accept this evidence, and prefer the mother’s version that they lived in the same house for a period of about five months from July to November 2012, but maintained separate bedrooms.
The mother’s version is consistent with the notation in the order made by Judge Halligan in 2012 at paragraph C, and with the maternal grandmother’s evidence that when she visited in April 2012 the father was not living at the home, but was a frequent visitor. Her evidence was not challenged.
In addition, the father, during cross-examination referred to “my bedroom” which was inconsistent with his version that he and the mother shared a bedroom throughout the time they shared a residence. Annexure H to his affidavit is an email from the mother to the father dated 29 March 2012 stating,
I have never asked you to move out and your room is as you leave it when you come and go, and you slept here a week ago. Please advise about the holidays for the kids. I am seeking the magistrate today for the AVO. You can have 50/50 or have them yourself as sole custody.
Annexure E to the mother’s affidavit is an email from the father to the mother dated 29 March 2012 in which he confirms he is not living at the same house as the mother at that time. He states, “I cannot be in the same house when you are chatting romance with another man.” It would appear to have been a difficult time for the family when they shared the same residence in 2012.
The incident on 31 January 2012
On or about 31 January 2012 an incident occurred where the mother’s laptop was damaged. The father’s version of events is that after the mother returned to Australia in January 2012 it came to his attention that she had formed a relationship with a man in The Middle East and was spending considerable time on her laptop late into the evening and early morning.
On this occasion, he was awoken by the sound of the mother’s laughter. He told her it was late, he was trying to sleep, and that he had to work that day. He saw that the mother was conversing with a man on Skype. He did not know him, but told him that the mother was his partner and they were trying to sleep.
He and the mother then argued and he told her to - “Leave us alone” - in what he describes was an, “assertive tone.” The “us” he was referring to was he and the children. He says the mother became angry and slammed her laptop down, thereby damaging it. He was unaware that the mother made a report to police about the incident, but says the police did not interview him.
The mother’s version is that she was on her mini laptop and mobile. The father was sitting opposite her and as she hung up, he said, “Get off the phone. Who are you talking to? Who are you romancing? You’re such a bitch. You’re so evil.” She says he then walked towards her with a raised fist and punched her in the jaw. She says he hit her across the face and arms, snatched the laptop and smashed it on the ground. She says he left the house, slamming the front door. She says that she was bleeding from her mouth and her arms were bleeding. She says her jaw was swollen.
The mother tendered four photographs to corroborate her version. The photographs provide little corroboration in that no obvious bruising or swelling is apparent on her face and only some very faint minor bruising is apparent on one of her arms. There is no evidence of blood.
Exhibit 9 is the mother’s application for an apprehended violence order dated 23 March 2012. There is no mention therein of the father punching her in the jaw. She says, inter alia, “The father slapped me more than twice. I stopped counting. I was bruised on my mouth, lips and arms.” There are clear inconsistencies in this account compared with the account in her affidavit.
The father conceded during cross-examination by the mother to using words to the effect as alleged by the mother but denies striking her. I do not accept his evidence that his tone was merely assertive. This was also a time where the mother had told the father it was her intention to return overseas with the children and he opposed that course.
The maternal grandmother deposed to having observed bruising on her daughter's arm on the occasion the laptop was broken. Her evidence was not challenged. I am satisfied that this was an occasion of family violence, given the concessions made by the father, and I find it more probable than not that he did cause the slight bruising to the mother’s arm as depicted in the photograph.
It is common ground that the laptop was damaged and that the father purchased a new laptop for the mother. I am satisfied, on the balance of probabilities, that the father caused that damage.
The incident in July 2012
This was an incident during which the mother says the father was displeased that the children did not want to eat the food he had prepared, and he lost his temper, smashing a number of plates. The father denies smashing plates, saying in his oral evidence that he merely scraped the food off the plates and placed the plates in the sink. I note, however, that in the family report he is reported as admitting that he had been angry and that he had thrown the plates in the sink and left.
This was a period when the father wanted the relationship with the mother to continue. The mother annexed a number of emails to her affidavit in which it would appear the father had feelings of affection for her. On his own case, he believed that she had a relationship with a man in the Middle East, and I find that it is more probable than not that he did lose his temper at times during this period and smashed the plates on this occasion as alleged. I accept that the children were exposed to this behaviour and were, no doubt, fearful.
The incident on 9 June 2013
This was an occasion when, on the father’s evidence, he had made prior arrangement with the children to collect them. He had a telephone conversation with the children the evening before and he understood that the children had asked their mother and that she consented. Despite indicating during the trial that he thought he had an email or an SMS corroborating the arrangement with the mother, he failed to produce either. I note that on 20 May 2013 the parties had agreed that the father would collect the children from the foyer at the mother’s residence by pressing the buzzer and waiting for the children to come to the foyer.
The order also restrained the parties from using the children as a conduit for messages or information. On this occasion, upon arrival at her residence he pressed the buzzer and all four children came downstairs. S said he had to do an assignment and the twins went upstairs to get changed. H was put into the car and the father waited for the twins to return. He says the next thing he knew, the mother was coming towards his car screaming. She was in her pyjamas. He says he started to drive off and she was holding onto the car and partially jumped on the bonnet, whereupon he stopped.
At some point the mother put her arm in through the window on the front passenger window which was ajar. As the father put up the window, the mother’s arm was injured. The police attended and the father provided an interview and statement to police. No charges were laid, although a provisional apprehended violence order was made in favour of the mother on 9 June 2013. The mother says she knew nothing of the arrangement for the children to spend time with the father. The mother says the three older children told her they did not want to go with the father, but H had been left with the father in his car.
The mother says she ran downstairs screaming, “Give me my baby”, and, “My baby is being kidnapped.” The mother says, at paragraph 22 of her affidavit, “I was shouting as much as I could because I was fearful for H’s safety, and he was being forcefully removed from my care. I put myself in harm’s way in order to protect my son and would do it again.” The evidence from the witness to the incident, Mr G, is largely consistent with the father’s version, and the mother did not really take issue with his evidence.
All the children witnessed the incident. The three older children were on the balcony of their residence. H was in the car and, as the father describes it, his face was white with fright.
Both parents bear responsibility, in my view, for exposing the children to what must have been a very distressing incident; the father, for not making the arrangement with the mother and relying on what the children told him, and then driving the car forward when the mother was at least touching the car; the mother, for overreacting in the way she did by screaming, swearing and putting her arm in the car. Neither of the parents can be commended for their actions on this occasion.
The apprehended violence order was not extended. The mother says this was because S was unwell and she was unable to attend court.
Rape allegation
The mother states in her affidavit, paragraph 8, “I naively thought that the nightmare was going to be over when he got divorced in a joint application because I was able to prove that we had been separated for over a year in the preceding time. He got much worse; got physically violent and raped me with the children in the house.”
In paragraph 9 she states, “When we briefly reconciled in July 2009 the father saw it as a win, and the emotional abuse continued and escalated to physical abuse when the children were in the house as well. The father knows that, but he denies it when the children were there during some of the assaults on me.”
The mother relied upon a discharge referral from O Town Health Service dated 27 April 2010 as corroborative of the alleged rape. That document makes no reference to any alleged rape and relevantly states,
Admit date: 26 April 2010. Discharge date: 27 April 2010. Reason for admission: abdo pain/PV bleeding. Principal diagnosis: endometritis. Summary of patient progress: thank you for R/V this 35 year old who presented with vaginal bleeding and abdominal pain two weeks post-partum. At admission well, aferil, abdomen IV Abs. improved symptomatically. At discharge well, pain is decreasing. Discharged on oral Keflex 500 mg qid.
The mother conceded that annexure C to her affidavit does not corroborate that she was raped. All it indicates is that she went to hospital because she was bleeding post-partum. The mother had given birth to H on 12 April 2010.
The mother responds to the father’s trial affidavit and at page 7 refers to annexure E to the father’s affidavit, being an email from the father discussing court date/orders/service of documents dated 29 March 2012, and she states:
It also shows my state of mind even back then that I knew we could never have share [sic] parental responsibility, even when under severe trauma having been raped by the father recently.
During the family report interviews in July 2015, the mother told the report writer:
He has raped me on at least three very distinct occasions.
In the report writer’s view, the mother “impressed as inauthentic and somewhat theatrical” during her account of alleged assaults.
Despite being given the opportunity to put particulars of the alleged rape/s during cross-examination, the mother declined to do so. The mother conceded that she did not tell anyone about the alleged rape or rapes, despite going to the P Hospital shortly after an alleged rape and being interviewed by police about their investigation of her having left the two boys unattended in the car park at the hospital, although this appears to have occurred in 2012 rather than 2010. The mother declined to ask any further questions about the alleged rapes and conceded that on the state of the evidence I would be unable to make a finding that the father had raped her. The father denied raping the mother.
In the tendered material from the Department of Community Service, there is record of a conversation with a caller in which it is alleged the father “used to rape mother throughout her marriage of 16 years”. While it is not apparent who the caller was, I note that during cross-examination of the mother by counsel for the independent children's lawyer the mother specifically denied there had been any physical abuse during the marriage. This accords with what she told the family report writer in 2015.
Also in the paragraph of her affidavit quoted above, the mother states that the father’s conduct “escalated” to physical abuse after the divorce. I find it inconceivable that if the mother had, in fact, been raped throughout her marriage, she would deny any physical violence during the marriage. Subsequent to the alleged rape in 2010, the father and mother lived in the same house together for at least the period November 2010 to May 2011 in the Middle East and again in July 2012 to November 2012 in Australia, and there were other occasions that the father stayed overnight in the same house as the mother and children. While this evidence of itself does not disprove the allegations of rape, taken with the evidence on this issue as a whole, it seems inconsistent with the mother’s allegations.
The mother has failed to produce evidence to support her serious allegations of rape. It does her little credit to make such serious allegations and not pursue them.
Allegation of sexually inappropriate behaviour
The mother says that during the marriage, when the twins were about two years of age and perhaps older, the father would step out of the shower and, while naked, wiggle his hips in front of the twins, exposing his genitals. While some may consider this to be inappropriate behaviour, and the mother certainly does, there is no suggestion by the mother that the father’s behaviour amounted to sexual abuse of the children. Rather, her concern was that it was inappropriate, given the ages of the children.
The father denies wiggling his hips, but concedes the girls may have seen his genitalia while he was drying himself. I accept the father’s evidence that he would not and did not act in a sexually inappropriate way.
The mother alleges that the father told her that when he was a child he had been sexually abused by a family member, and she expressed concern that the children might be exposed to that person during extended time with the father. The father denies telling the mother this and denies he was ever sexually abused. I accept the father’s denial of having been sexually abused.
Unacceptable Risk
The mother submits that the children will be at risk of emotional harm if they have alternate weekend holiday and holiday time with the father. The High Court said in M & M (1988) 166 CLR 69 at 76:
The resolution of an allegation of … abuse against a person is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of … abuse …
In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in the child's interests to maintain a filial relationship with both parents.
In The Marriage of N & S (1996) FLC 92-655, Fogarty J said at 82713-4:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.
While the past conduct of the father is worthy of criticism on occasion, as noted above, I am satisfied that his past conduct is not such that it will place the children at an unacceptable risk of harm in future. Indeed, the evidence as to the father’s interaction with the children in the last two years in particular impresses as a parent who is deeply committed to maintaining a relationship with his children and being able to provide for the emotional wellbeing of them.
I am satisfied that the children were exposed in the past to family violence as defined in s4AB of the Family Law Act, but I find that both parents share some responsibility for that situation on occasions, as identified earlier in these reasons.
The mother’s disregard for court orders
On 30 July 2015, the mother was found to have contravened a parenting order on five counts, and an order was made for make-up time. Since that order, the mother has failed to deliver the child pursuant to the order on a number of occasions. For example:
a) On 14 August 2015, the mother did not deliver the children to the X Contact Centre, leaving a message with the service that there had been a death in the family. Her explanation during the trial was that a friend of the family died of cancer, so she went to Melbourne and left the children with a friend. She did not even make a request of the friend or anyone else to deliver the children to the X Contact Centre.
b) On 17 October 2015, the mother did not deliver the children because the twins had a school excursion to attend.
c) On 23 October 2015, the mother did not deliver the children, because she had purchased tickets for the Lion King for them seven months before and took them to the show instead.
d) On 28 November 2015, the children were not delivered to the X Contact Centre, because the mother allegedly underwent emergency surgery. No evidence to corroborate this surgery was produced by the mother.
e) On 16 January 2016, the mother insisted the children be returned by 1 pm so that she could undergo emergency root canal treatment. No evidence to corroborate this treatment was produced.
During the trial, the mother sought to indicate to the court that she considered that the occasions on which she did not take the children to changeover were occasions of extraordinary circumstances and that she took her responsibilities to comply with orders seriously. I am prepared to accept that the mother will in future comply with court orders. It is less likely to be a cause for continued dispute between the parties if she is able to demonstrate that commitment over a period prior to traveling overseas with the children.
The father’s relationship with the children
The children have had a limited opportunity to form a meaningful relationship with their father. Sadly for the eldest child, S, he is currently estranged from his father. Having perused the records from the X Contact Centre, the photos and video annexed to the father’s material and the father’s evidence about the time he spends with the children, I am satisfied that the three youngest children do have a meaningful relationship with their father despite the many interruptions to that relationship and the statements and actions of the twins from time to time.
During the trial, the father presented as caring, calm and persistent in his wish to develop his relationship with the children. He was thoughtful and respectful throughout the four-day hearing. He certainly did not demonstrate a demeanour of being quick to temper. That is not to say that he may not have been quick to temper in the past. The father has completed three parenting courses and is currently undergoing a course with Michelle Foyle at Parramatta UNIFAM Counselling. He attends each month for at least an hour and talks about his relationship with the children and issues that arise.
The father’s girlfriend of nearly two years, Ms E, describes the activities the father engages in with her two children, aged three and seven. Her description portrays someone who has some skills in relating to and interacting with children. I certainly formed that view in the video recordings of the father with the children. Ms E has not as yet met the subject children and, in the circumstances of the conflict between the father and the mother, I regard that as a sensible decision. I trust that the father will take things slowly in his introduction of her to the children. Overall, I consider that the father has a lot to offer his children, and they should have the opportunity to experience his love and care on more than just daytime visits.
The children’s wishes
I do not accept that it is the children’s wish to have such a limited relationship with their father (as suggested by the mother) but, rather, when they have expressed opposition to spending time with their father, they have been influenced at least to some extent by their mother. By contrast, at other times, as the X Contact Centre notes reveal, the children do not want to leave his care.
I was impressed with the ingenuity of the father in games he organised for the children, as depicted in the video recordings. One such game, in July 2015, involved the children pretending to be teachers and the father a student. The children were aware that they were being recorded and seemed to enjoy the whole experience immensely. The children on other occasions responded quickly to quiet direction from the father. On perusal of the records from the X Contact Centre, the following facts are apparent:
a) The children have been granted, in effect, a licence by the mother to decide to go or not go with the father. For example, on 19 September 2015, the X Contact Centre notes reveal one of the twins stating that her mother had told her that she would “fix it so she did not have to go” to see her father. When S was interviewed by the family report writer in April 2015, he told the report writer that his mother said to his siblings, “Go if you want to go, and if you don’t want to go, don’t go.”
b) When the children are given a clear instruction, they comply. For example, on one occasion the girls were screaming and jumping up and down, saying they did not want to go. But when firmly told by the service staff to cease their behaviour, they did so.
c) Even on occasions when there has been reluctance to go with the father, the children have returned happy and contented. H generally wants to spend time with his father. This is consistent with what he told the family report writer in April 2015, including wanting to stay overnight.
d) The children have been observed to show their father affection even when initially reticent to go with him.
e) The father has at all times responded calmly to indications that the children or some of them did not want to spend time with him, and on occasion has sensitively managed those situations with the children.
f) On occasions, the children return to the service happy but, when moving back into their mother’s care, they become subdued and indicate they did not have a good time.
g) The mother has been late on a number of occasions for the commencement of time.
h) The mother has shown her disdain for the father at the service. For example, refusing to accept a $7 gift that one of the children had bought for her while with the father and insisting it be returned to the father by Contact Service staff. And on another occasion refusing even to look at a note that the father had written about the time he had spent with the children and insisting the note be returned to the father unread.
The effect of any changes in the children’s circumstances
The changeovers can sometimes be problematic with the X Contact Centre staff having to persuade the children to go to their father. On occasions, one or other of the children has become upset but the father says that once they are in his care, they are fine and that on occasions when he returns them to the service, they do not want to leave him. I accept that evidence. Overall, I find that changeovers have been largely positive with a few notable exceptions.
The father proposed to have overnight time at his current rented unit at Q Street, O Town. He signed a 12 month lease in December 2015. He describes it as a large two bedroom, one bathroom unit with a separate lounge dinning kitchen with built-in robes in each bedroom. He has sufficient bedding for the children and they have expressed an interest in staying overnight when they have been to his place. The complex has a swimming pool and tennis court and is close to a park. It seems entirely appropriate for the children to have the opportunity to spend overnight time with their father.
The extent to which the parents have fulfilled their obligations to maintain the children
The father pays child support of $330 per fortnight in accordance with the child support assessment. The mother has borne, and continues to bear, the greater burden of providing for the children’s financial requirements.
Attitude to the children and responsibilities of parenthood
In the period up to about 2012 I am satisfied that the mother did make attempts to include the father in the children’s lives but it appears to have taken him longer to accept the end of the relationship with the mother than it did her. As a consequence, the mother has sought to distance herself and the children from the father. There were occasions when he behaved badly and the children were witness to that. There were occasions when the mother behaved badly and the children were witness to that.
The mother has not been supportive in the latter years of the children’s relationship with the father. She has not encouraged the children to attend time and has hidden behind what she says are their stated wishes. She has often been late to changeovers and generally refused any makeup time. She has made arrangements for activities at times that conflicted with the father’s time. She has demonstrated a sense of entitlement over the children to the exclusion of their father.
The father has involved the children in making arrangements directly with him which has had the consequence of involving them in the dispute. At a time when he did not accept the end of the relationship, he exposed the children to intemperate comments and acted rashly.
Equal shared parental responsibility
The presumption that it would be in the best interests of the children for parents to have an equal shared parental responsibility does not apply because a parent has engaged in family violence. Such an order would not, in my view, be in the best of the children in any event for the following reasons:
a)The family report writer describes the parent relationship as “toxic”;
b)The father concedes that the parental relationship is poor. Indeed, he said during his evidence, “communication is terrible”;
c)The parents have had no contact in person since 2013;
d)The father’s recent attempts to communicate with the mother have been rebuffed;
e)The mother was very clear in her evidence that she had no regard for the father other than for the fact that he was the only father the children would have.
Regrettably, I find that the parents have no ability to make joint decisions about the long term issues concerning their children. To require them to do so is likely to expose the children to conflict. I do, however, propose to include an order that the mother inform the father of any long term decisions she proposes to make and to take into account any opinion offered by him but, ultimately, the decision will be hers to make.
The mother’s arguments against alternate weekend time and holidays
The mother opposes other than daytime visits each fortnight for the following reasons:
a)The father is short-tempered and will be unable to cope with the children on a day to day basis. The father does not understand what violence is. She was not concerned about any physical abuse, just emotional.
b)He has never looked after the children for longer than two nights and three days on his own.
c)The children do not want to spend longer with the father.
d)She wants him to be “a Disney dad” (providing good times and gifts) as this is the only way the children will maintain a relationship with him.
e)The father says he will listen to the children and return them to the mother if they expressed that view. This will lead to the mother having to collect the children or the father returning the children which heightens the risk of the children being exposed to conflict.
f)The family report writer gave evidence that no overnights were the “right dose”.
g)The children do not want to go for longer than a day visit. The mother said that if the children changed their view, she would say “please go”.
h)The father has an interactional style of parenting which she described as being unable to deal with the children if he gets angry and she worries if he were to walk away and leave the children.
i)In her view, the father is less likely to get angry and act out in a public place where most of the current time is spent.
j)The father has no insight into what constitutes violence believing it has to involve actual physical assault or causing fear. For example, the father did not regard the incident when her arm was caught in the car window as violent.
k)He has a propensity to lie. For example, he said she left the children with him for six nights when she went to Country R but then conceded that it was only two nights when she produced her passport. He failed to produce any SMS or emails supporting his stated belief that there had been a prior arrangement with the mother for time to occur on 9 June 2013. The father disputed he consented to her leaving Australia in 2010 but then conceded his signature appeared on the consent form annexed to the mother’s affidavit but claimed he could not remember signing it.
l)If the children complained to her about something that occurs at the father’s residence, he will not believe the complaint and further court proceedings will be necessary.
m)Their parenting styles are too different.
n)The children will have to appease him.
o)She remains concerned that the father will expose the children to their paternal grandparents who historically have used physical discipline and to his brother whom he told her sexually abused him as a child.
p)The father says that the last time he saw her was at X Contact Centre and that worries her as they are not to come into contact. (I note, however, on her own evidence, she had not left the contact centre immediately and remained at the service after the father had arrived.)
q)She is concerned about how many “nos” he will accept as even if the children are tricked into going, they will not go again.
r)She cannot physically force the children to go.
s)The father does not see things as inappropriate or violent. For example, the content of her notice of child abuse and, in particular, his exposing himself to the twins in or about 2012 after he had had a shower.
t)The mother is very distrustful of the father.
u)The mother insisted that the children would be unable to complete their school projects and would not have the correct uniform. The father has never attended to these things and if the children want to come home early, the father will engineer a changeover other than by the contact service.
I reject these arguments for the following reasons:
a)The youngest child is now almost six and has had regular time with his father since 2014.
b)The twins are now nearly nine and have had regular time with their father since mid-2015.
c)Once the children are in the father’s care, they have a wonderful time with him.
d)The mother provided little evidence of the father losing his temper with the children. On one occasion, he became frustrated with S and dropped him off before arriving at the school car park (the father conceded he had dropped him off earlier than the other children but stated it was at the school crossing). This incident occurred when S was about 11 years of age. Another occasion related to the incident where the father threw the dinner plates in the bin when the parties were still sharing a house prior to November 2012.
e)The mother has had no contact with the father since 2013.
f)The father has a two-bedroom unit suitable for having the children spend overnight. They have spent time there and are familiar with it. The twins have expressed a wish to sleep on bunk beds set up in the second bedroom.
g)The children have a right to be cared for by their father on a day to day basis that enables them to experience the father other than as a ‘Disney dad.’
h)The father is an intelligent man who has been in consistent employment as a public servant for many years. He has been consistent in his wish to be a father to his children and has undertaken self-improvement courses including parenting and counselling to gain a greater insight into his parenting.
i)He presented throughout the proceedings in a calm, respectful manner and impressed with his modest request for time with his children given the mother’s opposition.
j)In 2012, the mother proposed that the father could have full custody or that she had full custody but it had to be one or the other.
k)I am satisfied that the father has the ability and commitment to care for the children each alternate weekend and during holidays.
l)The mother conceded that Friday changeover would be possible although she sought to limit that visit to a few hours once a month as an alternative to weekly visits as opposed by the independent children’s lawyer.
Wednesday time
The Wednesday time sought by the father would involve the children travel at peak hour for the purpose of a brief visit midweek. I am satisfied that such a visit would be disruptive the children’s weekly routine and likely to be a source of conflict between the parents.
Changeover venue
I find that the changeovers on Friday should continue at X Contact Centre until S completes his schooling for the following reasons:
a)There have been occasions when the staff at the Contact Service have had to intervene to assist the children’s transition to the father.
b)S attends the same school as the other children and the mother collects him in the afternoon. There is therefore the potential for a scene at the school if the mother and father come into contact.
c)The mother may be working at the school in the not too distant future.
d)The children are all performing reasonably well at school and any dispute between their parents should not be brought into their school.
Overseas travel
The father conceded that if the children go on an overseas holiday during the school holidays to a Hague Convention country, he would not oppose that course as long as he also had the same opportunity. The independent children’s lawyer does not support an order enabling the mother to take the children overseas. This would appear to be based on the view of the family report writer that if the mother were permitted to leave Australia with the children, she would not return. It is not clear what evidence was relied upon to form this view.
The mother is an Australian citizen and holds only an Australian passport as do the children. While she has worked in the Middle East on a contract, she returned to Australia and discontinued her contract in 2012 when the father requested she come home with the children. She has a home in Australia. Her mother and one of her sisters live in Australia. She has lived and worked in Australia most of her life and is currently completing her doctorate. It is likely that she will be working in Australia in the near future.
I note that the mother says she was never in a relationship with Mr K and she made him available for cross-examination but the father did not wish to cross-examine him. There is no persuasive evidence that the mother was ever in a relationship with Mr K and even if she were once in a relationship with him, there is no evidence that she continues to be. The mother gave evidence that she would not consider going overseas other than perhaps to Country T for a skiing holiday for at least two years because S is in grade 11 and she would not want to travel as it would interfere with his study.
She is currently of fairly limited means financially but plans to return to the workforce at the conclusion of these proceedings. The mother has no ability to pay a security bond of any significance having said the most she could raise would be $5,000 by drawing on her credit card.
I propose to make an order enabling each parent to travel overseas with the children from 31 January 2018 but as S is almost 16 and is not the subject of any time order, I propose to lift the airport watch limitation on him so that he could accompany the mother if she chose to travel overseas for a short holiday, for example, skiing in Country T. As the mother was born in Country L and has a sister in the Middle East, I do not propose to limit her travel with the children to Hague Convention countries.
By 2018, the three younger children will have had the opportunity by the order I propose to make to develop a stronger relationship with the father. The mother and father will be required to provide a detailed itinerary to the other and the mother will hold the passports for the three younger children when they are not travelling. I am delaying the ability for either parent to travel until both can do so because it is less likely, in my view, to cause dispute between them if the father has the opportunity to develop a strong bond with the children and spend extended time with them over a number of holidays. Once he has done so, each parent is less likely to be concerned about the other travelling overseas with the children. I also propose to place some restrictions on the countries that the parties can travel to if there is an existing Department of Foreign Affairs and Trade advice in relation to a particular country.
Father’s access to D School online information program
The online information program is called ‘…’, and provides information about each student’s academic record, absences and behaviour. On 13 February 2015 the mother wrote to the deputy principal of the children’s school, D School, seeking to have the father’s access to the site barred. The school declined that request. The mother’s main objection seems to be that the father misinterprets the information and then makes derogatory remarks to the children.
If that has been the case, I am satisfied that as the father has been provided with the mother’s perspective, he will manage any knowledge he attains in an appropriate manner. Given that I propose to order that the mother have sole parental responsibility for long term decisions, I consider it important that the father have some means to find out how his children are going at school.
Reimbursement of travel cost
The mother seeks the reimbursement of travel costs expended by her in May 2012 when she was prevented from travelling overseas with the children. At the time, although the mother was not in breach of any order, she knew that the father opposed the children residing overseas again. I do not propose to make an order that the travel costs be reimbursed.
Miscellaneous
There may well be factual disputes that the parties raised during the trial that I have not made specific findings about, but these proceedings do not require findings on every single matter raised by the parties.[8] The main purpose of these proceedings is to make such findings as may be required to put in place an order that is in the best interests of these children. This I have done.
[8] Baghti & Baghti [2015] FamCAFC 71
costs
At the conclusion of the proceedings and after judgment had been delivered the Independent Children’s Lawyer sought an order for costs against the parties. The costs have been incurred by Legal Aid New South Wales in providing representation for the four children of the parties.
At the commencement of Legal Aid’s involvement they provided a notice to the parties on 16 November 2012 that the parties may be asked to make a contribution towards those costs. On 9 March 2016 the parties were each provided with a statement as to the costs which the Legal Aid Office would seek the parties pay equally. Those costs total $17,186.60, and they seek an order that each party pay $8,593.30.
Both parties represented themselves in these proceedings, although each of them has on previous occasions been represented by lawyers. The mother is currently a fulltime student completing a doctorate, which she hopes to complete at the end of this year, but during the trial she was confident, she said, of obtaining employment as soon as these proceedings completed.
She also gave evidence that she had capacity to immediately draw on $5,000 on her credit card. She does, however, have the major financial responsibility for providing for the children, the father paying a modest sum of $330 per fortnight.
The father has a fulltime job and has been in fulltime employment for many years in the public service. He has, he submits, incurred considerable fees in relation to his private legal expenses. He submits that the sum sought by the ICL is a lot of money which he simply cannot afford because of the child support that he is paying, rent, and that his costs in relation to the children will now increase, given the orders that I have made.
In the event I make an order each party seeks time to pay. The mother seeks an order that she not be required to pay until next year, and the father seeks time to pay the money over a period of two to three years.
The service provided by the Legal Aid office in cases such as these where neither party is represented is, of course, of great benefit to the court and, of course, to litigants, because so much of the evidence that is obtained and put before the court to enable the court to make a decision is a cost that is borne by the Legal Aid office, effectively, on behalf of the parents in this case.
Legal Aid funds are, of course, finite. There are often cuts to their funding which in turn, impacts on their ability to provide representation for children.
In my view, having considered all relevant matters in s117 of the Family Law Act, an order for costs should be made, but, given that the mother has borne the brunt of the financial burden relating to the children, including paying their private school fees, the father should pay a bit more than the mother.
I propose to delay the commencement of the mother’s payment until January 2017 and provide her with a further six months to pay after that time.
I propose to provide the father with time to pay until 30 June 2017.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 4 April 2016.
Associate:
Date: 12 April 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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