Kingston and La Firce

FAMILY COURT OF AUSTRALIA

KINGSTON & LA FIRCE

[2008] FamCA 155

FAMILY LAW – CHILDREN - Best interests and views

Family Law Act 1975 (Cth)

APPLICANT:

Ms Kingston

RESPONDENT:

Mr La Firce

INDEPENDENT CHILDREN’S LAWYER:

Jennifer Weate & Associates

FILE NUMBER:

SYF

4228

2005

DATE DELIVERED:

11 March 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

25-27 February 2008 and 6 March 2008

REPRESENTATION

APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Morrissey

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Anderson

Orders

All previous orders be discharged.
The parents shall have shared parental responsibility for decisions about the long term care, welfare and development of the children L born … February 1998 and R born … December 1999 after this referred to as “the children”.
Each parent shall have responsibility for decisions about the day to day care, welfare and development of the children while they are in his or her care.
The children live with their mother except when they live with their father, and they shall live with their father as follows:
(a)For the next eight Sundays from the date of these orders from 10.00 am to 4.00 pm
(b)For the following weekend, that is, the ninth weekend from the date of these orders, from 6.00 pm Saturday to 6.00 pm Sunday and each alternate weekend thereafter
(c)During the July 2008 school holidays from 6.00 pm Sunday, 13 July 2008 to 4.00 pm Thursday, 17 July 2008
(d)After the July 2008 school holidays for one half of the school term holidays commencing in the gazetted September/October holidays 2008 by agreement and failing agreement the father shall have the first half in odd numbered years and the mother shall have the second half in even numbered years
(e)For one half of the Christmas school holidays as agreed and failing agreement the second half of the Christmas school holiday period
(f)From 3.00 pm Christmas Day 2008 until 6.00 pm Boxing Day 2008 and each alternate year thereafter and from 7.00 pm on Christmas Eve 2009 until 3.00 pm on Christmas Day 2009 and each alternate year thereafter.
For the purpose of changeover for the time the children spend with their father pursuant to the provision of order 4(a) the mother shall deliver the children to the father at C Station at the commencement of the period and the father shall return the children to the mother at the same place at the conclusion of the period.
For the purpose of changeover for the time the children spend with their father pursuant to order 3(b) to (f) the father shall collect the children from the home of the mother at the commencement of time that they spend with the father and the mother shall collect the children from C Station at the conclusion of the time the children spend with the father and the commencement of the time that they spend with her, until such time as the mother’s husband procures a motor vehicle or its use and a driving licence from which time (of which notice is to be given in writing by the mother to the father) from the home of the father or otherwise as agreed.
The father and mother shall keep each other informed of his or her current address and telephone numbers within three (3) days of any change.
The parties shall:
(a)Within seven (7) days of the making of these orders, contact Unifam Sydney and take all steps necessary to complete the intake procedure for the “Keeping In Contact” program
(b)Comply with all necessary directions given by Unifam or such other course convenor to attend individual or joint therapeutic consultations, including attending upon appointed consultation dates.
Both parties are restrained from criticising or making derogatory statements about the other parent or a partner of the other parent in the presence or hearing of any of the children or permitting anyone else to denigrating the other party within the hearing of the children.
In the event the children are scheduled to be with their father during Mother’s Day the father shall deliver the children back to the mother at 9.00 am on Mother’s Day and similarly in the event that the children are with their mother during Father’s Day the mother shall deliver the children back to their father.
The mother be restrained from enrolling the children in another primary school other than L Public School, or endeavouring to home school the children without further order of the court or written consent of the father.
The parties shall, in addition to any other form of communication, communicate with each other by writing in a communication book to the other party any matter pertaining to the children including but not limited to:
(a)Any medication or management suggestion prescribed by a doctor for the health and well being of the children
(b)Any behavioural issue that needs to be addressed
(c)Any accident that the child experienced while in the care of that parent.
The mother shall sign all documents, provide all necessary consents to authorise the children’s school reports, other reports on school progress and any behavioural issues, school circulars, newsletters and notices in relation to all functions, parent-teacher interviews and other activities to which parents are invited to be made available to the father.
While the children are in their respective care the mother and father shall advise each other as soon as reasonably practicable of any major medical issues involving the children and each party shall keep the other properly informed of any required treatment or medication in relation to the children, and shall provide any requisite authorities for the relevant clinician to contact the other parent.
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.
Pursuant to section 65L of the Family Law Act 1975 these parenting orders be supervised until 1 March 2009 by such counsellor as nominated by the Manager of Mediation to give any party to these orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of the parenting order.
The Court requests that the Australia Federal Police remove the names of the children L born … February 1998 (male) and R born … December 1999 (male) from the Airport Watch List at all points of international arrivals and departures in Australia.
The father’s oral application for costs thrown away by the mother’s failure to attend on the last day of hearing of this matter set down for 28 February 2008 is dismissed.
The mother is to pay the father’s costs of the application made by the mother to dismiss Dr W and for orders that his report not be relied upon as agreed or taxed.
The mother is to pay part of the Independent Children’s Lawyer’s costs in the sum of $3,000.00 on account of their costs and the father is to pay part of the Independent Children’s Lawyer’s costs in the sum of $2,000.00 on account of their costs.
The mother and the father are to pay and bear equally the costs of Dr W assessed at $3,630.00.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4228 of 2005

Ms Kingston

Applicant

And

Mr La Firce

Respondent

REASONS FOR JUDGMENT

Background Facts

The father was born in July 1961 in France.
The mother was born in May 1963.
The parties were married in April 1997.
Of the marriage there were two children namely:
a)L born in February 1998 and
b)R born in December 1999.
A report was procured in April 2002 diagnosing L with a neural disorder.
The parties separated on the mother’s assertion in 1998 when the father moved to a separate room in the house.
The parties subsequently divorced. The mother remarried Mr Kingston in 2007. The father has not remarried.
By consent order of this court made in December 2005 the children were to live with the mother and the father spend time with them on alternate Sundays for six hours and Tuesdays for three hours after school with the later introduction of overnight weekends. From 2006 block contact was to be introduced during school vacations. Tuesday after school was maintained and alternate weekend contact was provided from 6.00 pm Saturday to 6.00 pm Sunday.
In April 2006 a report was procured from a Dr G in relation to R who has a general cognitive ability within the average range but his ability to sustain attention and concentrate and exert mental control are less well developed. It is concluded that R may not be able to work without being easily distracted.
In August 2006 following a recommendation of Ms M the school counsellor, L was taken to an Anxiety Clinic at Macquarie University. L was inter alia observed to have difficulty in differentiating reality from fantasy.
In September 2006 the mother made application for the children to be placed on the Airport watch list.
On 23 October 2006 Ms M reported that in a session she had with the children the week before they told her that the father physically abused them during the first week of the school holidays.
On the same day the mother filed an application that the father’s time with the children be supervised and reduced to include no mid week holiday or overnight contact. The mother asserted that the children revealed to her that their father had abused them both physically and verbally.
On 24 October 2006 the mother suspended unsupervised time between the father and the children saying that the father was mentally and physically abusive towards the children. She made an assertion that they had been exposed to pornographic material but in evidence before me she says that she did not then, nor does she now say that it was the father, who did so. At that time the mother said that she thought that the father was mentally and emotionally unstable.
Dr V issued a report dated 25 October 2006. He concluded that R was suffering from separation anxiety and adjustment disorder with features of anxious and depressed mood. He suggested a trial decrease of contact with the father (and in particular overnight contact) could be undertaken to observe the effects of such a decrease. He also on the same day made a report in relation to L. He made observations in both reports of statements made by the children about their father hitting them. He noted that the matter had been referred to the Department of Community Services and they had declined to intervene. He noted that in all the circumstances set out in his report there should be some cessation or decrease in contact with the father for L to not include overnight stays on a trial basis to see if it assisted with the child’s anxiety. Dr V did not have the advantage as did Dr W of seeing or hearing from the father or seeing the children with the father.
The father did not then see the children until his interview with Dr W in 2007.
In November 2006 the father filed an application seeking dismissal of the mother’s application and permission to take the children on holiday to France. The application to take the children to France for a holiday is not presently pressed before me and is struck out. It is noted that the father has foreshadowed that if he cannot procure the consent of the mother to such a holiday in the next year he will renew his application.
On 15 November 2006 the mother filed a notice of abuse alleging that the father struck the children over the head and neck.
In November 2006 the child R was seen by Dr V and is said to express three wishes namely that his father would go away; that his family would live in peace; and that his family would be safe from his father.
On 15 December 2006 the Court ordered the suspension of contact between the children and their father and ordered the preparation of an independent expert’s report.
On 27 February 2007 Dr W, a consultant child psychiatrist (the independent expert), saw the children and both parents. The children were not seen with the father. He concluded that L has significant developmental problems and that both boys have substantial emotional overlay to their behaviour. He further concluded that their behaviour is a result of the alleged abusive behaviour of the father or the overprotective behaviour of the mother or a combination of both. He recommended that there be some restoration of contact between the children and their father so that he might assess their behaviour and relationship with him. He suggested that the mother not be involved in that contact.
On 12 March 2007 the children are removed to L in the Wollongong region without their father’s knowledge or consent.
On 14 March 2007 the mother sought orders from the Court that Dr W be removed from the case. The application was dismissed.
The father filed an application seeking an order that the mother return to Sydney. This application was adjourned. It was not pressed before me and is struck out.
Dr W was asked to provide a programme for the reintroduction of contact.
On 29 April 2007 Dr W saw L and R with the father in supervised contact.
On 4 May 2007 Dr W saw L and R separately.
Dr W made report of his observations and opinion dated 25 May 2007.
The allegations made by the mother concerning inappropriate behaviour were investigated by the Department of Community Services which department declined to take any further action. The department reported that there is a secondary risk of abuse arising out of the continuing conflict between the parents and the effect that that conflict would have on the children.
The application of the father that the mother relocate is abandoned before me by him and is struck out.

The Issues

Whether the parties should have shared parental responsibility.
Whether or not the children have been the subject of physical or verbal abuse at the hands of the father.
Whether there is an unacceptable risk attached to continuation of contact with the father.
Whether the children are expressing genuine views in their negative statements about the father and the origin of those views having regard to the nature and significance of their observed behaviour with their father.
Whether the children should spend equal time with their father and if not whether they should spend significant and substantial time with him.
If there is not to be substantial and significant time with the father the extent of the contact that the children should have with their father and the location and circumstances under which it should take place including whether it should be supervised.
Whether and if so what conditions should be imposed on the exercise of contact.
Whether there should be a staged introduction of unsupervised contact and if so what and how it should be managed.

The Mother

The mother has on two prior occasions sought to discharge Dr W as an independent expert. She failed on both occasions and at trial sought to challenge aspects of the report of Dr W although adopting many of his observations. It is noted that on a couple occasions the Doctor said that his conclusion might have been differently expressed if he had had before him evidence given in the trial. Her attack on the report has been misdirected however and did not strike at the nub of his relevant and important conclusions and recommendations which I accept to the extent that they are referred to in this judgment.
The mother gave evidence orally and by affidavit. She was articulate and intelligent. She however found it difficult to concede much good about the relationship between the father and his children or indeed much good about the father.
The mother’s oral evidence was non responsive on many occasions and she simply expressed her “views” and “beliefs” about matters. She did not seem to accept that a belief was not necessarily evidence of a fact. She accepted much of what was said to her uncritically only if she thought it accorded with her own view.
She concentrated much of her effort in seeking to demonstrate what was not in dispute before me, that is, that she had done her best in procuring proper care for the children and that her decisions in relation to them reflected a genuine care for the children and a desire to accommodate their special needs and were appropriate responses to those needs. She, for example, spent a significant amount of time on the issue of an affidavit which had been filed in the proceedings and which was not relied upon by the father and therefore not in evidence in his case by a Dr B which she thought unfairly attacked her and criticised her behaviour as a caring mother.
Her submissions at the conclusion of the evidence and her proposal that an order be made in relation to Dr B where no notice had been given to her of that proposed order again demonstrated her failure to seize the primary issue. Her comment at the hearing was that she was “totally devastated by the affidavit” (Dr B’s affidavit). The affidavit is only mentioned by me as simply indicative of her approach to this matter which was more focussed on her need for exoneration or recognition on some occasions than the way in which the needs of the children might be met.
It was not in issue that she had done well in most ways as a mother.
It was not put in issue by the father that she had borne as it were the heat and burden of the day in the care of the children and that with his attention during the marriage focussed on his business he had left their care and the organisation of their treatment up to her.
The mother sought to emphasise that the father paid a small amount of child support. The fact is he did. He paid the amount that the Child Support Agency assessed as appropriate having regards to his earnings. He was ill and unable to earn significant income.
He informed the Court that that corner had been turned and his income was now increasing and that he expected that the child support would increase with it. Notwithstanding the mother’s implied criticism of him there is no fault found with him in that regard by me. His meagre child support is not seen as a deliberate disavowal of his obligations as a father. What the evidence does show however is that it is once again the mother who has borne the significant cost apparently with some assistance of her family in the care of these children. She is with the care she has given the children to be commended for that.
The mother’s failure to grasp the importance of these children developing a relationship which was meaningful with their father and working robustly toward it were notwithstanding her protestations otherwise not to her credit.
Her willingness to accept anything the children might say critical of their father in an uncritical way was equally not to her credit. Her repeated refrain that children with L’s neural condition do not lie was gainsaid by her own witness Ms M who said that all children can lie.
Her view that the children had been accurate reporters was also rendered less likely when one considers the plethora of evidence including her own in part which relates to the children, developing high anxiety, living inwardly, living in a fantasy world and out of touch with reality.
A complete lack of critical reappraisal by her of those statements even following the Department of Community Services investigation of the allegations of abuse and their failure to take the matter further was concerning.
The Department reported to her on 30 November 2006 “we are unable to substantiate a source of harm at this time”. The assertion that a child was held by the shirt and struck fifty times on one account and a multiple times on the other without discernible injury was not sustainable and yet she has persisted in failing to put this assertion to rest. Her submission that Dr W said that “it was possible” the children had been hit denied the probability on the whole of the evidence that they had not been hit. She somewhat retreats from this position in her submissions in writing in which she says that she was only operating on professional advice and on that basis had a sincere belief that the children had been so treated. I could accept that at that time it might have been so but her maintenance of that view notwithstanding the whole of the evidence gives rise to concern.

Of even greater concern is her apparent inability to consider as even possible the prospect of these children developing their anxiety about a relationship with the father from their interaction with her and each other. There seems a lack of willingness to stand back from and carefully assess any criticism which attaches to her. Her reaction is to immediately become defensive. She submitted that her son L was incapable of recognising what would please her and she refers to Dr W’s evidence in that regard and says that the child was inwardly oriented in his considerations. This ignores that R might well have come to that conclusion and would have responded to it in a way in which L might not and the evidence of Dr W is that the children feed off each other.
Her failure to understand that a description of her as a calming influence on the children could co-exist with a suggestion that her anxiety about the children might be unwittingly communicated to them was in my view lacking in insight and openness to self analysis.
I accept that these children have not only reflected the anxiety of their mother but also expressed themselves in exaggerated terms to their mother and fed off each other in their attitudes and responses. The mother asserted that she did not say things adverse about the father to the children but that ignores the fact that the children might have been influenced by her attitude to him and her consequent anxiety about them spending time with him.
The mother’s pursuit on occasions of minutiae of error on the part of the father who admittedly was not the most reliable of persons when it came to remembering dates with accuracy again indicated in the mother a propensity for losing focus on the major issue in this matter namely what was best for the children in arrangements for their future management and care.
The mother’s view of the management of children in the past seems to have been undertaken on the basis that she is the sole decision maker on these matters. This may have been partly the fault of the father who left most of those decisions to her. She seeks to perpetuate that in her proposed minute of order where she seeks any consultation to be on the basis that, yes she will consult but in the event that the parties disagree what she says will be the case. This is barely an improvement on what has occurred in the past namely that the mother makes a decision and implements it and then informs the father.
This was her practice in relocating to L and taking the children from their first school and later removing them from their second school and placing them in L primary school. There was no consultation about the decision and the father was seen only post the decision as a barely necessary appendage to the decision making.
I propose making orders the effect of which will be that sanctions will be available if this practice continues. It is certainly my hope that the mother has learnt by these proceedings and that such sanctions will not be necessary.
The mother has said in evidence that absent any physical violence to the children their time with the father need not be supervised at one part of her evidence and later that she wanted it to be supervised because that is what she reported that the children had asked for.
The views that the children are said to recount to their mother are in marked contradistinction to the conduct of the children with their father. Dr W described a loving and happy relationship between them and one which is fearless.
In any event in the mother’s final submission she proposes that the father spend time with the children unsupervised but for very limited periods of time. She proposes that there be a reassessment of the position after a period of slightly in excess of four months.
I will provide for the means of the parties to discuss this matter as the contact progresses but I will not make such an order as is sought by the mother. There needs to be some attempt at ending litigation and such an order would in my view given the whole of the evidence in this case be likely to give rise to further dispute.
The mother seeks in her proposed minute of order an order that the children be placed on a watch list. I do not think that this is necessary. I am satisfied that the father will if he wishes to take the children overseas and cannot procure the mother’s consent make application to the Court. The fact is that as a matter of law the removal of a child from the Commonwealth of Australia in the circumstances of these children will be an offence against the law if the consent of the other party or an order of the Court is not first had and obtained and there is nothing before me which indicates that either of these parties will commit such an offence.

The Father

The father gave evidence by affidavit and orally. He was a quiet man. His answers were largely responsive. He was able to accept the fact that at times his evidence fell into error. He was open to criticism. He made concessions against his interest which were supportive of the mother. He acknowledged by undertaking a course on L’s neural condition his need to be better educated in the needs of L.
His evidence of what happened on the occasion on which it was suggested that he had beaten a child for not eating fish in my view was totally believable and I accept it as an accurate account of what did happen. On that account he did nothing which was not within the bounds of appropriate parenting and did not offer or impose on his children any violence.
I accept that he wants to and will play a greater role in the children’s lives and will to the extent necessary seek help if required in acquiring any additional skills and knowledge that he needs to enable him to play that role.
The criticism of the mother removing the children from one school in L and placing them in another was not his criticism. His position was that, given that the first school refused to accept the children without fee and that the mother had been placed in a position where she had not the means to continue the education, it was a reality, not deserving of criticism, no matter how unfortunate for the children it might have been.
There was in the evidence some criticism of the mother having not first “counted the cost” so to speak before enrolling them in the first school. That also was not sourced in the father. He did not criticise the mother either for relying on the promises of her mother in relation to their continued attendance at that first school.
He swore an affidavit which annexed photographs which he identified were of him and the children following the arrangements for contact being resumed which portrayed the children climbing on him in apparent delight and acting in a way entirely consistent with the description of their conduct with him as observed by Dr W namely that the children had a warm relationship with him which was simply totally at odds with their alleged fear and statements. In the circumstance of that relationship I do not believe that further supervision is required of the time that they spend with their father.

Other Evidence

The mother’s present husband, Mr Kingston, swore an affidavit in the proceedings and in oral evidence conceded that these children exaggerate things.
Ms M, called by the mother in her case and on whose views she places reliance, says, contrary to the evidence that the mother gives, that all children can fantasise and lie including these children. It was she who received a report from the children of an incident in which they asserted that they had been assaulted.
In this case she took the statements of the children at face value and reported them to the Department of Community Services notwithstanding that in her view the statement that was made was that a child had been hit “a thousand times” was an exaggeration by them. The Department of Community Services reported that the children’s expression was not consistent with what they said had actually occurred.
With reservations Ms M says there appears to be some repair in the relationship between the children and their father.
I have come to the conclusion on the totality of the evidence that the event which gave rise to the report to the Department of Community Services was no more than an exaggerated and fantasised report of minor domestic discipline not involving violence.

Relevant Law

Legal principles

The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, 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 for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.
There appears an issue between the parents that the parents should have shared parental responsibility. It is expressed by the mother in terms that the father should have such responsibility when the children are with him but I see no reason to depart from the presumption that the parents should share parental responsibility for the long term care, welfare and development of the children.
Indeed in this case having regard to the history of involvement of the parties in the children’s lives such an order may well work to an improvement of their communications and the children’s welfare as a result. I believe however that each parent should have sole responsibility for the day to day care, welfare and development of the children whilst they are in their care.
There appears to be no issue between the parents that in the circumstances of their present living and having regard to the nature of these children it is not reasonably practicable for the parents to spend equal time with the children at this time. The father proposes that the children ordinarily live with the mother and I agree that that is presently best for them. I also consider that having regard to their respective places of residence and the inability of the mother to drive or presently provide private transport and the father’s days and hours of work it is not reasonably practicable for the children to spend substantial and significant time with the father.
The mother seeks orders:
1)That the children [L] born […] February 1998 and [R] born […] of December 1999 (“the children”) shall live with the mother.
2)That the mother shall involve the father in the decision making process and consult with the father for making decisions in relation to long term care, welfare and development of the children but shall in the event of parties failing to reach agreement have sole responsibility.
3)That the father have unsupervised contact every second Sunday for 4 hours of which the first 3 be in [the Wollongong region] and then thereafter alternating between Sydney and [the Wollongong region] for a period of 4 months after which the children’s needs and views are assessed by a court approved/appointed mediator with view to future contact arrangements wether (sic) to continue or progress to overnight and that provision is made for this review to be continued as appropriate.
4)For the purpose of the change over for the time the children spend with their father in [the Wollongong area] that the father collect and deliver the children to their home.
5)For the purpose of the children having contact with their father in Sydney that the children be delivered from [L] to [C] Station (an hour and a half journey not including travel to the train station) where the father shall collect them and then deliver them to [C] Station after the 4 hour period of contact where the children shall then travel from [C] Station to [L]).
6)That the father and mother keep each other informed of his or her current address and telephone numbers within 3 days of any change.
7)The children will not change from their current Primary school being [L] primary without the agreement of both the father and the mother.
8) That the parties:
a)Within 7 days of making these orders contact Unifam Sydney and take all the steps necessary to complete the intake procedure for the “keeping Contact” program
b)Comply with all the necessary directions to attend individual or joint therapeutic sessions and
c)that if it is deemed appropriate by the mediator that the children are involved in decisions regarding their wishes and welfare acknowledging that all children have the right to be respected this way and that despite any disability the children have average IQ and attend mainstream schools
Or
In the alternative that within 7 days of making these orders contact Unifam in […] and undertake steps a) and b) and c).
9)a) That the parties shall use genuine effort to settle any dispute between the parties about any aspect of care, welfare and development of the child or in relation to these orders in private discussion or by exchange of email correspondence
b)That in the event that a dispute between the parties can not be settled in private discussion or by email correspondence that the parties shall before commencing any legal proceedings jointly engage the services of an accredited family dispute resolution practitioner and use genuine effort to engage in a dispute resolution process to settle the dispute
c)That in the event that settlement of the dispute involves an agreed suspension, variation or departure from these orders that the parties shall record such an agreement in writing.
10)That the parties keep each other informed via email of all communications regarding any matter pertaining to the children and the children’s welfare including but not limited to matters of education, health, behavioural issues, care, management suggestion by a doctor or other professional
b)That the parties respond via email to acknowledge they have received any communication pertaining to the children’s welfare.
11)That the father may contact the children via the mothers home phone once during the school week and if the children are not at home the father should leave a message and the mother shall endeavour to make every effort possible that the children return the phone call as soon as possible.
12)That the father attends the Parenting After Separation Course as ordered by the family court on the 1/12/2005.
13)That the mother shall consent to the father being provided with school reports, circulars and newsletters etc but in the event the school fails to provide these documents to the father that the father has the responsibility to ensure these are provided by contacting the school.
14)That the fathers friends, in particular [Dr B] be restrained from communication via any medium any information regarding the children to any professional body, person or organisation involved in the care, education, welfare of the children or the mother.
15)That until further order [the father] born on […] July 1961 their servants and/or their agents be or are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child/children [L] born […] February 1998 and [R] born […] December 1999 from the Commonwealth of Australia AND IT IS REQUESTED that the federal Police give effect to this order by placing the names of the said child/children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Childs/children’s names on the Watch List until the court orders its removal.
16)In the event that the court approved mediator feels the children are able to and have indicated that they wish to have overnight contact with the father then for the purpose of change over the children will be delivered to [C] station on Saturday at 4 pm for the commencement of time with the father and that the father deliver the children by 6pm on Sunday to the children’s [L] home.
The father seeks orders:
1.The parents shall have shared parental responsibility for decisions about the long term care, welfare and development of the children [L] born […] February 1998 (“[L]”) and [R] born […] December 1999 (“[R]”) after this referred to as “the children”.
2.Each parent shall have responsibility for decisions about the day to day, welfare and development of the children while they are in his or her care.
3.That the children live with their mother except when they live with their father, and they shall live with their father as follows:-
(a)For the next two (2) Sundays from the date of these orders from 10.00 am to 4.00 pm;
(b)For the following weekend, that is, the third weekend from the date of these orders, from 5.00 pm Saturday to 6.30 pm Sunday and each alternate weekend thereafter;
(c)During the July 2008 school holidays from 6.00 pm Sunday 13 July to 4.00 pm Thursday 17 July 2008;
(d)After the July 2008 school holidays for one half of the school term holidays commencing in the gazetted September/October holidays 2008 by agreement and failing agreement the father shall have the first half in odd numbered years and the mother shall have the second half in even numbered years;
(e)For one half of the Christmas school holidays as agreed and failing agreement the second half of the Christmas school holiday period.
(f)From 3.00 pm Christmas Day 2008 and each alternate year thereafter and from 7.00 pm on Christmas Eve 2009 until 3.00 pm Christmas Day 2009 and each alternate year thereafter;
(g)From 3.00 pm on New Year’s Eve 2008 until 6.00 pm on New Year’s Day and each alternate year thereafter;
(h)For a minimum of three (3) weeks per year as agreed by the parties for the purposes of overseas travel and for that purpose the father shall provide the mother with full flight details and full particulars of his itinerary and contact addresses and phone numbers for the children while they are in France or otherwise overseas.
4.For the purpose of change over for the time the children spend with their father pursuant to order 3(a) to (h) the mother shall deliver the children to Kogarah train station at the commencement of time that they spend with the father and the father shall deliver the children to Kogarah train station at the commencement of the time that they spend with the mother. Alternatively, that the mother deliver the children to the father’s shop at 519 Military Road, Spit Junction at the commencement of time that they spend with the father and the father shall deliver the children to the home of the mother at the commencement of the time that they spend with the mother, or otherwise as agreed.
5.That the father and mother shall keep each other informed of his or her current address and telephone numbers within three (3) days of any change.
6.The parties:-
(a)Within seven (7) days of the making of these orders, contact Unifam Sydney and take all steps necessary to complete the intake procedure for the “Keeping Contact” program.
(b)Comply with all necessary directions given by Unifam or such other course convenor to attend individual or joint therapeutic consultations, including attending upon appointed consultation dates.
7.That both parties are restrained from criticising or making derogatory statements about the other parent or a partner of the other parent in the presence or hearing of any of the children or permitting anyone else to denigrating the other party within the hearing of the children.
8.That in the event the children are scheduled to be with their father during Mothers’ Day the father shall deliver the children back to the mother at 9.00 am on Mothers’ Day and similarly in the event that the children are with their mother during Fathers’ Day the mother shall deliver the children back to their father.
9.That the mother be restrained from enrolling the children in another primary school other than [L] Public School, or endeavouring to home school the children without further order of the court.
10.That the mother be restrained from moving from the Wollongong area without prior consultation with and the consent of the father. Should the father consent to such move the mother shall advise the father in writing of any change of residential address and telephone contact numbers not less than fourteen (14) days prior to such change.
11.That the parties shall, in addition to any other form of communication, communicate with each other by writing in a communication book to the other party any matter pertaining to the children including but not limited to:-
(a)Any medication or management suggestion prescribed by a doctor for the health and well being of the children;
(b)Contact details of any medical or health practitioner the children have attended whilst in the care of that parent;
(c)Any behavioural issue that needs to be addressed;
(d)Any accident that the child experienced while in the care of that parent.
12.The mother shall sign all documents, provide all necessary consents to authorise the children’s school reports, other reports on school progress and any behavioural issues, school circulars, newsletters and notices in relation to all functions, parent-teacher interviews and other activities to which parents are invited to be made available to the father.
13.That while the children are in their respective care the mother and father shall advise each other as soon as reasonably practicable of any major medical issues involving the children and each party shall keep the other properly informed of any required treatment of medication in relation to the children, and shall provide any requisite authorities for the relevant clinician to contact the other parent.
14.The father may have contact with the children by email at any time, and by telephone at all reasonable times before 7.00 pm and including as a minimum on Wednesdays and Thursdays between 6.30 pm and 7.00 pm, on the mother’s home phone number.
15.That pursuant to section 65L of the Family Law Act 1975 these parenting orders be supervised until 1 March 2009 by such counsellor as nominated by the Manager of Mediation to give any party to these orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of the parenting order.

The Independent Children’s Lawyer seeks orders which in summary provide for shared parental responsibility and increasing periods during which the children spend time with their father reaching each alternate weekend from Saturday to Sunday and that in addition the father have the children for increasing periods during school holidays and from July 2008 one half of school holiday periods. Orders relating to the passage of information between the parties concerning the children are also sought.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

The benefit of such a relationship was conceded by both parties but in the case of the mother it was in her evidence subject always to the father meeting her perceptions of what was appropriate in terms of time and supervision. It is my view that what was proposed by the mother was not such as would properly and appropriately in the circumstances of these children promote such a meaningful relationship and accordingly her orders sought are not acceded to.
The existing relationship between the children and their father is one of warmth from which they derive pleasure and it should continue and be given every opportunity to expand and flourish. He has a French tradition and culture to offer these children as well. I accept his evident desire to play a role greater in the lives of his children than he has hitherto played. I think that they will benefit from that. I believe he can offer them much. I think that in all the areas outlined in which the mother is to be commended she has and can continue to provide a benefit to the children. Her capacity in that regard will in my view be enhanced by there being an involved and active and expanding relationship between the children and their father.
Dr W supports this view in his comment, “In general, children who can maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural, educational and relationship difficulties in the future.”
He takes also the view that “if it is the case that the mother is an over anxiously protective parent and the father is calmer and more focused, then if his parenting is undisturbed by the reverberations of ongoing disputes between the parents he could be a very constructive role model for the boys of effective anxiety management.”
It is my hope that the mother will learn to control what appears to be a measure of over protectiveness and anxiety concerning these children so that any risk to them of it continuing will be avoided.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is not on the evidence which includes the report of Dr W and the Report of the Department of Community Services any evidence that these children have been subject to physical harm from either parent.
Nor does there exist in my view any evidence from which I would be entitled to draw the inference that there is an unacceptable risk to the children from anything that the father has done. Their observed interaction and the evidence of the father which I accept as to his and their behaviour and conduct in his presence demonstrates that their interactions and conduct are in complete and utter contradiction to the assertions of their fear of their father and the assertions that they have been subject to abuse.
They show warmth and love for him and he for them. What appears to be the probable source of the current proceedings is the refusal of the father to accept that a child could have desert when he had not eaten his fish. Not so much a storm in a teacup but a zephyr in a thimble. That was coupled with other stressors in the children’s lives if one accepts Dr W, as I do, namely that there was an unsatisfactory school placement and both parents demonstrated intransigence and lack of capacity to show some flexibility about contact arrangements.
There is identified however a risk to these children in the continuation of the conflict giving rise to these proceedings and their unresolved nature.
There was a suggestion that the mother’s new relationship with her present husband was just a little coincidental to the applications brought to this court making allegations which ultimately the evidence does not support. I do not find any such intent in the mother bringing the applications.
I have no criticism of the mother in the initiation of these proceedings given the reports she had received from professionals concerning the children and what they had said. If I have a criticism it is that the continuation of these proceedings appears as a product of a willingness of the mother to believe what is critical of the father and an inability to carefully assess what the children say and contrast it to what they do.
Perhaps they also reflect a lack of insight into the role that the mother’s cares and desires might have on the children even if not overtly expressed. She is however an intelligent person and I believe is capable of learning the lessons made obvious by the current proceedings.
It is time for conflict to come to an end and it is on the evidence my reasonable hope that the mother will approach the future with a little more care and little more concentration of the desirability of these children living in harmony with both herself and their father. The conflict which is resolved by the orders will I hope be an end to conflict in this court between the parties.
I intend to make orders which will give them access to the provisions of 65L and I hope that they will in the event of disagreement which might arise take the benefit of that provision and seek alternative means to resolve those matters through mediation and counselling.
I intend also to require of them that they undertake counselling in a course with UNIFAM in the hope that they will be able to improve their communication so that the problems in this case occasioned by a failure in that communication do not again arise.
I note that the father has undertaken a course to better acquaint him with the problems of children and in particular his son’s neurological problem. He has undertaken to seek further assistance should that be required from competent advisors to assist him in the management of these children with their special needs. I commend him for that. I believe that in this case there is no danger to these children from family violence nor from neglect. I believe that the orders I will make will alleviate the prospect of continuing secondary abuse by reason of continuing conflict.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The evidence is clear that the children have expressed views that their father is not liked and that they do not wish to have a relationship with him. Those views as indicated earlier are totally contradicted by their behaviour. Coupled with the evidence of their capacity to live in a fantasy world and to become detached from reality and to exaggerate I conclude that I should give them no weight. In further support of that view Dr W said that each of the children acts in a way which feeds off the other’s anxiety which leads to mutual escalation of it. He also believes that the mother with her anxiety also provides nourishment to the growth of the children’s expressed concerns.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
It seems that these children have a close relationship with each of their parents albeit that the relationship with the father has been interrupted by these proceedings. The mother is the primary attachment of the children. In assessing its qualitative nature of that attachment however Dr W describes it as an anxious attachment. The children it is said by Dr W have an intense relationship with each other. Nothing in the orders I propose will adversely affect the relationship between the children and their extended family.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
I have earlier referred to the failure of the mother to engage the father in consultation on proposed decisions affecting the children. Dr W expressed concern that the mother has been unable to protect the children from her own anxieties and since she is unwilling or unable to comprehend that they may affect the children he is concerned that her enduring misgivings about the father could substantially undermine any attempt to encourage a relationship with the father. I do not think that the proceedings and perhaps this judgment will have left the mother totally unchanged and that she recognises the need to with deeds as well as words encourage that relationship for the sake of the children. It seems to me that the father particularly in his concessions made on trial is supportive of a proper relationship between the children and their mother.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The father has undertaken a course which better enables him to understand the nature of the children’s problems. Dr W said that changes in this case should be made on a graduated basis and the orders I propose do that. He is of the view that whilst change poses problems for L, R can probably handle a change reasonably well. He observes that having regard to the movements of the mother, the father is likely to offer greater stability than the mother.
Whilst a simple consideration of the facts might lead to that conclusion I think that the scene has now been set in which each of the parents can offer these children stability in changing circumstances. I conclude that both children given their interaction with their father and his acquired knowledge and his willingness to seek help if required will not be at risk in a regime designed to enable him to fully participate in their lives and to contribute to their ability to achieve their highest potential.
I am not persuaded that the unsupervised contact will be too radical a change for the children notwithstanding the mother’s earlier assertions to the contrary. I accept at face value her protestations of a desire to encourage and support a relationship between the children and their father and if she is genuine in that desire I am sure she will assist in smoothing the path for the children. She said in her final oral submission that the hearing had provided her with wisdom not previously had in relation to the children. I am pleased if that is so. I am not in any event persuaded by the argument that the children were only seen in the presence of others and their father and for this reason should not withdraw supervision. Whilst the observations were made where others were present the opinion and observations of Dr W as to the children’s relationship with the father were not qualified because of the circumstances in which the children unreservedly expressed it.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Dr W assisted with a practical way in which there can be a reintroduction of the children spending time with their father. It is reflected in the orders made by me. Whilst the nature of the father’s work and the geographical location of the parents is a minor irritant given that the mother and her husband have to presently rely on public transport it would not in my view substantially affect the children’s right to maintain personal relationships and direct contact with both parents on a regular basis. I note in that regard the evidence of the mother’s husband that he is seeking to procure a licence to drive and a motor vehicle.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
I think that each of these parents have failed to recognise the needs of these children to some extent. The father has minimised in the past the problems they had and has not as robustly as he perhaps should supported the endeavours of the mother to have those needs met. The mother has not recognised an effective expression of the need of these children to have a proper relationship with their father nor the need to involve him in major decision making for the children. I am comforted by the father’s search for knowledge and tools to assist him in their care since these proceedings were commenced and by the mother’s espousal in the witness box of the importance of the relationship between the children and their father. Both parents in my view have a capacity to provide for the physical needs of the children. There has been difficulty for both of them in dealing with their emotional needs but it is hoped and I think likely that those difficulties will not recur and that they have the ability to hereafter work co-operatively to achieve a sound result for the children. I hope that that ability is fuelled by a desire generated by a common view that the children’s interests must be first considered.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Both of the children present with extremely infantile, immature and exaggerated behaviour which Dr W considered the mother was unwittingly reinforcing only leading the children’s behaviour to become more extreme and unrealistic.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I refer to my comments earlier made.
(j)any family violence involving the child or a member of the child’s family
Apart from the reference to the report to the Department of Community Services this is not a relevant issue. As to the report referred to I again refer to my comments above.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no such order.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Whilst the mother urged the making of an order which would leave the mid term future up in the air to be reassessed at a later time I decline to do so. It is important for these children particularly that there be certainty, regularity and predictability in the orders and in their implementation. It is hoped that by the time that the orders have been operating for a time the parties may be able to adjust them in a way which serves the needs of the children and their own needs without resort to the processes of the Court with its attendant expense in time, money and emotion.

Section 60CC(4) & (4A)

As to these issues I refer to my remarks made above.

Balancing of all considerations under Section 60CC and the defined issues

Section 61DA

As I have indicated I do not think that the evidence in this case provides a basis for rebutting the presumption of equal shared parental responsibility.

Section 65DAA / Section 65DAA(5)

I find that given the special needs of these children for routine certainty and predicability and the geographical location of the parties and the hours of work of the father it is not at this time reasonably practical for the children to spend equal time with each parent nor is it in their interests. Nor for the same reasons do I at this time find it is appropriate to make orders for them spending substantial and significant time as defined by the Act with the father. I accordingly decline to make such orders.

Costs

I am asked by the father’s counsel to make an order for the costs thrown away by the mother’s failure to attend on the last day of hearing of this matter when she did not attend due to ill health. The mother has produced a medical certificate in relation to her non attendance and that is accepted by the father but he also asserts that he should not bear that loss. I do not think those facts give rise to a circumstance in which the order he seeks should be made. The mother’s ill health was simply a vicissitude which affected all the participants and should be accepted as such. I accordingly decline to make that order.
I am asked by the father to make an order for the costs of the application made by the mother to dismiss Dr W and for orders that his report not be relied upon. The mother failed totally in the application which was before me on

31 January 2008
and which was ill advised. It was the second such application to dismiss Dr W which had been dismissed. It could not on the evidence have succeeded and I reserved the costs. The mother says that she has accumulated capital in the sum of $20,000.00. The father has limited but improving means. The mother says she has some liabilities for costs. In my view the father should not have been put to the expense of having to deal with this application and it is in my view proper that the mother pay the father’s costs of that application as agreed or taxed.
I am asked by the Independent Children’s Lawyer’s counsel to make orders for the provision of an amount for the Independent Children’s Lawyer’s costs and disbursements. I have before me an assessment of those costs at $10,238.00. I consider the quantum claimed reasonable but having regard to the relative means of the parties and their expenses incurred aliunde in the conduct of this matter I intend only to make an order for a contribution to those costs. It is a matter in which the public is served and if I might say so with respect extremely well by the Independent Children’s Lawyer and Counsel and I think it appropriate since it procures a benefit from their appointment in the resolution of this dispute that the public can bear some part of the costs.
I am asked by Counsel for the Independent Children’s Lawyer to divide the amount equally between the parties. I am asked by the father’s Counsel to consider a differential apportionment of the sum between the parties. He observes that the father early in the hearing significantly limited the issues and notwithstanding that the mother pursued matters not in issue and in her cross examination of the witnesses did little to respond to that limitation. The mother in her submission to the Court says that as a litigant in person she did her best. I am sure that that is so but it is still a question of whether the matter was prolonged by her conduct of her case. In the event I have come to the conclusion that there was some prolonging of the matter beyond the time otherwise it might have taken by the pursuit by the mother in cross examination of evidence going to matters not in issue and that that should to some extent be reflected in the order that I make since the father ought not have had to bear the costs of such unnecessary prolongation. The means of both parties are limited although the father is recovering in his financial position. In the event I have decided that the parties should make a contribution to the Independent Children’s Lawyer’s costs in the sum of $5000.00 and that instead of that cost being borne equally it should be borne as to $2000.00 by the father and $3,000 by the mother.

I am asked by the Independent Children’s Lawyer to make an order for the costs of Dr W perusing further documents and attending Court to give evidence. I have had tendered a letter from the former solicitor for the mother to the solicitor for the father in which she undertakes on her client’s behalf to pay for the costs and time of Dr W travelling to Court and return and waiting time when attending Court since she did not agree to the Doctor giving evidence by telephone.
That agreement completely ignores that the Court would have a view as to who of its witnesses it might want to appear in person and my position is that Dr W was a vital witness in this case, the mother was unrepresented, and the Court would have required him to be present in any event. I accordingly release the mother from her undertaking. I propose making an order that the parties pay and bear Dr W’s costs in the sum of $3,630.00 equally.
I accordingly make the orders set forth above.

I certify that the preceding one-hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 11 March 2008

[2008] FamCA 155

11 March 2008

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Remedies

Procedural Fairness

Jurisdiction