Knott and Vickers (No. 3)

[2007] FamCA 836

FAMILY COURT OF AUSTRALIA

KNOTT & VICKERS (NO. 3) [2007] FamCA 836

FAMILY LAW – CHILDREN - SHARED PARENTING – Irreconcilable differences between parties of an extreme nature including allegations of violence, criminal activity and abuse.  Proceeding resolved in the defended list with detailed and complex minutes.  Explanation of background and rationale for adjustment for future purposes in event of the proceeding returning to court.

APPLICANT: Mr Knott

RESPONDENT: Ms Vickers

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1315 of 2005

DATE DELIVERED: 8 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 8 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Salamanca

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT: Ms Hedberg

SOLICITOR FOR THE RESPONDENT: Waters Timms Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Vohra

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Gillian Coote Family Lawyers

Orders

1. That all previous parenting orders with respect to the child SA born … April 2001 be discharged.

1. That the parties share equal parental responsibility for the child subject to the following:

a.   The wife shall initially make decisions with respect to the child’s health, education and religion;

b.   The wife provide the husband with 21 days prior written notice by registered mail of any intention to change the child’s current school or religion, and of any significant medical treatment or procedure for the child (save in an emergency when she shall inform the husband as soon as practicable);

c.   The wife provide to the husband the names and contact details of any health professional or medical practitioner the child may attend within 48 hours after such attendance;

d.   The husband have liberty to apply with respect to the wife’s decision on these issues within 28 days of receiving notification; and

e.   The Independent Children’s Lawyer shall appoint an eye specialist to assess the said child for the condition known as Exotropia and the parties do all acts and things to ensure such assessment and any consequential treatment as may be recommended be undertaken including any authority to authorise the Independent Children’s Lawyer to discuss this issue or obtain information from the child’s General Practitioner.

1. That the child live with the father as follows:

a.   From the conclusion of school on Friday or Thursday if Friday is not a school day until the commencement of school the following Wednesday or Thursday if Wednesday is not a school day each alternate week during school terms commencing 17 August 2007 and to be suspended during all school holiday periods;

b.   For the second half of each school term holiday in even numbered years and for the first half of each school term holiday in odd numbered years;

c.   For the long summer vacation as follows:

i.In 2007/2008 as follows:

1.   from conclusion of school (being 14 December 2007) until 4pm 24 December 2007;

2.   From 12 noon on 31 December 2007 until 12 noon 1 January 2008;

3.   from 4pm on 10 January 2008 until 4pm on 24 January 2008.

ii.From 2008/2009 for the second half and each alternate year thereafter and from 2009/2010 for the first half and each alternate year thereafter.

d.   On the child’s birthday from the conclusion of school until 6pm if on a school day and for five (5) hours if on a non-school day at times to be agreed and in default of agreement from 3pm until 8pm if the child is not otherwise with the husband;

e.   From 10am on Fathers’ Day until the commencement of school the following day or 12 noon if there is no school on that Monday;

f.   From 4pm Christmas Day until 4pm Boxing Day in 2007 and each alternate year thereafter;

g.   From 4pm Christmas Eve until 4pm Christmas Day in 2008 and each alternate year thereafter;

h.   For Greek Orthodox Easter as follows:

i.For the first half to commence at the conclusion of school on the Thursday prior to Good Friday until 10am on Easter Sunday in 2009 and each alternate year thereafter;

ii.For the second half to commence at 10am Easter Sunday until the commencement of school the following Wednesday in 2008 and each alternate year thereafter;

i.    On the child’s name day for “S” being … September each year should the child otherwise be with the wife as follows:

i.from the conclusion of school on the day until the commencement of school the following day or 12 noon if it is not a school day; or 

ii.at 12 noon on the day if it is not a school day until the commencement of school or 12 noon the next day if that is not a school day.

j.    On the father’s birthday from the conclusion of school on the day or 3pm if not a school day until the commencement of school the next day or 12 noon if not a school day; and

k.   As may be further or otherwise agreed between the parties in writing.

1. That the child live with the wife at all other times.

1. That the husband’s time with the child be suspended and the child be returned to the wife as follows:

a.   On the child’s birthday from the conclusion of school until 6pm if on a school day and for five (5) hours if on a non school day at times to be agreed and failing agreement from 3pm until 8pm;

b.   From 10am on Mother’s Day until the commencement of school the following day or 12 noon if there is no school on that Monday;

c.   From 4pm Christmas Eve until 4pm Christmas Day in 2007 and each alternate year thereafter;

d.   From 4pm Christmas Day until 4pm Boxing Day in 2008 and each alternate year thereafter;

e.   For Greek Orthodox Easter as follows:

i.For the first half to commence at the conclusion of school on the Thursday prior to Good Friday until 10am on Easter Sunday in 2008 and each alternate year thereafter;

ii.For the second half to commence at 10am on Easter Sunday until the commencement of school the following Wednesday in 2009 and each alternate year thereafter;

f.   On 30 August in each year:

i.From the conclusion of school on the day until the commencement of school the following day or 12 noon if it is not a school day; or

ii.At 12 noon on the day if it is not a school day until the commencement of school or 12 noon the next day if that is not a school day.

g.   On the mother’s birthday from the conclusion of school or 3pm if not a school day until the commencement of school the following day or 12 noon if not a school day; and

h.   As may be further or otherwise agreed between the parties in writing.

1. That for the purpose of school holiday periods they are to commence at the conclusion of school on the last day of term and conclude at the commencement of school on the first day of the next school term and changeover within all holiday periods shall occur at 12 noon unless otherwise specified in these Orders.

1. That changeover occur at the child’s school unless it is closed in which event it occur inside the McDonalds Family Restaurant at C and changeover be effected with neither party speaking to the other.

1. That both parties be authorised independent of the other party’s consent to:

a.   Obtain copies of all school reports and notices for the child at their respective expense if any;

b.   Attend school concerts, sport events, parent teacher interviews and like events parents usually attend save for school assemblies which are the subject of paragraph 9 hereof;

c.   Obtain any information they may request from the child’s treating medical practitioners and health professionals;

d.   Provide a copy of these Orders to the child’s school, treating medical practitioners and health professionals; and

e.   The school diary for the child remain in the child’s bag and any relevant school documentation, notices or invitations remain in such diary at all relevant times.

1. That the parents attend alternate school assemblies on alternate Fridays with the wife to attend the first assembly in each term and each alternate assembly thereafter for the remainder of the term and the husband to attend the second assembly in each term and each alternate assembly thereafter for the remainder of the term and for the remainder of this current school term the husband’s alternate assemblies commence on 17 August 2007.

10. The husband and wife shall encourage the child to telephone the other party when she is in their respective care.

11. That the husband on 1 December in each year provide the wife with a 12 month calendar that sets out all periods he maintains the child lives with him in the forthcoming 12 months in accordance with these Orders and if the wife objects to the dates as set out by the husband she has 21 days to advise the husband in writing of such objections and her reasons for such objections and if the wife does not respond or provide the husband with any objections within 21 days of the calendar being provided to her the child live with the husband in accordance with the calendar for that year unless otherwise agreed to by the parties in writing.

12. That each party be restrained from changing the child’s residence from a radius of greater than 40 kilometres from the child’s current school without advising the other party in writing 30 days prior to this occurring and in the event either party move within such radius the changeover point if not at the school be at a McDonalds Family Restaurant in approximate equidistant location between the two residences.

13. That both parties use their best endeavours to ensure the child does not refer to persons other than the parties as “mum” or “dad”.

14. That the wife be granted leave to withdraw the Affidavits sworn by Mr L and Mr R and she unequivocally withdraws any allegations made against the husband and his family members relating to any:

a.   Criminal activity save for those in her current Intervention Order Complaint Case No. …;

b.   Child abuse; or

c.   Any activity that allegedly places the child at physical or moral risk.

15.  

a.   That SA remain the name of the child on her Birth Certificate and also remain her legal name to be used in registration at school,  kindergarten, at Medical Practitioners and on all official documentation;

b.   That notwithstanding the above the husband be at liberty to call the said child “[S]” within his household and the wife be at liberty to call the said child “[A]” within her household; and

c.   That notwithstanding the above both parties inform the school and any other relevant organisation that the said child is known as “[A KNOTT]”.

16. That it is hereby declared that the said child has been baptised in the Greek Orthodox Church with the name “[S]”.

17. That until further order neither party, their servants or agents remove or attempt to remove the child SA born … April 2001 from the Commonwealth of Australia and it is requested that the Australian Federal Police place the said child on the Airport Watch List maintained at all airports and points of departure from Australia.

18. That the Independent Children’s Lawyer serve a copy of this Order upon the Australian Federal police as soon as practicable.

19. That the husband and wife forthwith do all things and sign all documents as may be required to have an Australian Passport issued for the child with the husband to be liable for any costs associated with that Application.

20. That the parties direct the appropriate Officer from the Passports Office to forward the said child’s Passport once completed to the offices of the Independent Children’s Lawyer who shall thereupon forward the Passport to the Registry Manager of this Registry of the Court to be held in the Registry until further Order.

21. That the wife forthwith do all acts and things and sign all documents as may be required to remove the child as an aggrieved family member in her Complaint for an Intervention Order against the husband No. … listed on 3 September 2007 at the Dandenong Magistrates Court.

22. That the appointment for the Independent Children’s Lawyer be discharged on receipt of the child’s Passport pursuant to these Orders or 1 November 2007 whichever is the earlier date (noting that even if she is formally discharged before receiving the child’s Passport the Independent Children’s Lawyer will still receive it and forward it to the Registry pursuant to these Orders).

23. That all Applications be otherwise dismissed and removed from the list of cases awaiting determination.

24. That pursuant to Sections 62B and 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A hereto and those particulars are included in these Orders.

25. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

THE COURT NOTES

AThe husband has agreed to contribute to one half of the child’s tuition fees at … Greek Orthodox College and the parties agree any such amount being credited against any assessment of periodic child support payable by him for the child.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Knott & Vickers

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1315  of 2005

Mr Knott

Applicant

And

Ms Vickers

Respondent

REASONS FOR JUDGMENT

1. The proceedings before me concern the welfare of SA who was born on … April 2001.  Her parents are and have been at all times following separation in bitter dispute involving all aspects of her life which was characterised by the single expert, Mr P, in his report of 29 March 2007 as follows:

   “… this family shows nothing that approximates any of the underlying principles and assumptions to do with shared parental responsibility, they do not share equally in any single aspect of their daughter’s welfare, they are as separate and antagonistic a parental unit as I have seen, and at the very highest, they parent in absolute parallel.”  (Page 2.)

2. I refer to that comment because the Minutes of Consent Orders that have now been presented by the parties after three days of arm's length negotiation detail in a most complex way the future arrangements concerning SA, as I will call her in order to achieve a neutral platform.  I would rank them as the most complex and detailed orders I have come across for many years. 

3. It is for this reason that, given their regimented and directorial component, I feel it necessary to make some short commentary in the event that the matter returns to court.  In so doing, this is not to be viewed as a criticism of the parties.  I make it clear that they have moved forward greatly in their lives by this compromise, albeit that the compromise itself reflects the parallel attitudes they each have to the parenting of SA, as it was described by Mr P.

4. Earlier in his report Mr P referred to the litany of criticism and complaint each made against the other, including what he described as "extreme and extraordinary allegations" made by the wife about an alleged involvement of the husband in a number of anti-social activities, including crime, drugs, selling firearms and the distribution of extreme pornography.  This the husband denied and asserted his profound concern about the depths to which the wife would plunge to achieve her goal, namely to exclude him from his daughter's life. 

5. Those two descriptive exercises undertaken in narrative form by Mr P painted the polarisation of the parties at the advent of the proceedings and facing a seven‑day trial.  I would have thought, given the plethora of allegations and counter assertions made by each of them against the other, the trial would have taken longer than the estimated seven days. 

6. It is proper to emphasise that by paragraph 14 of the proposed orders the wife has sought leave to withdraw the affidavit sworn by Mr L and that of Mr R.  Further, the orders prescribe that she unequivocally withdraws any allegations made against the husband and his family members relating to any criminal activity, child abuse or any activity that allegedly placed SA in physical or moral risk.  That is a very satisfying minute of the proposed orders.

7. As far back as 25 July 2005, Mr P recorded in no uncertain terms, the chronicity and rancorous nature of the complaints each party made against the other.  The years then passed without change, and, in order to give any successor in title to myself an understanding in narrative form, it would be helpful to include as a foundation parts of what Mr P had then to say in his report.

   “[The father] and [the mother] have escalated every single aspect of this dispute, have pursued litigation in various courts, have continued to blame each other for their problems, whilst professing their commitment to their daughter oblivious to the inevitable damage being caused to her …

   [Later]

   … This matter has escalated in an extremely predictable fashion.  Both parents have resorted to audio taping the other, they prefer to have no contact, to have enlisted the support and assistance of family and friends to bolster their claims, they have used others as witnesses, both have made allegations of violence, Intervention Orders have been sought, and even suggestions of sexual and emotional abuse have been raised.  Possibly the single clearest indicator of the extent to which this matter has deteriorated, are the concerns expressed to me by both parents about what [the child] says to them about the other parent, and what the other parent allegedly says to [the child].  For example, both parents told me that [the child] has told them that the other parent wants to kill them, and says bad things about them.  Neither [the father] nor [the mother] has the capacity to withdraw from the emotional turmoil that they have co-created for their child, in a sufficient manner to reflect that they themselves may be contributing profoundly to [the child], her behaviour and her presentation (p 3).

   [Later]

   It is ironic that [the child’s] difficulties, her reluctance to be separated from her mother and her tears at the time of return from her father, are viewed with such concern by her parents, who are profoundly oblivious to their direct, measurable contribution to her problems.  I think that there is no likelihood that [the father] and [the mother] will resolve their difficulties, and I believe that there is no likelihood that they will be co-operative, share responsibly in the care of their daughter, let alone be able to reflect upon the impact that their individual behaviour contributes directly to her problems.  Their history suggest that all future interactions pertaining to [the child] will be equally problematic, and I believe that there is no hope that they will work co-operatively, be able to make joint decisions, and I think it extremely likely that their future interaction will only further compromise the welfare of their child.

   It is in my view extremely likely that both [the father] and [the mother] will be aggrieved by this assessment, however, I found that together, their lack of insight was profound.  Neither accepts any responsibility for their behaviour, both justify their actions on the basis of the perceived treatment of them by the other, and neither shows any awareness of how their history of difficulties may have contributed directly to [the child’s] difficulties and her welfare.  The fact that they still cannot agree on how they should refer to their child by name is quite extraordinary”. (p 4)

8. By way of short background, the husband was born in October 1960 and is 46 years age.  The wife was born in January 1967 and is 40 years of age.  They married in October 2000.  Their daughter, SA was born in April 2001.  They endured substantial unhappiness and, as a result, separated on 24 July 2001.  In August 2001 they agreed to mutual Intervention Orders.  In September 2001 the wife caused to be filed a Form 3 Application for parenting orders in the Federal Magistrates Court at Melbourne. 

1. Since then, and on my analysis, having read the helpful Case Outline Document filed by the wife, the parties have been before the court, including the Family Court of Australia, the Magistrates' Court and the Federal Magistrates Court, about 22 times.  Such is the measure of their dispute.

2. One of the central issues that arose concerned the use of the name “[SA]”.  The parties, towards the end of their negotiations and having adjusted most of the issues, still could not agree on that particular issue.  Sensibly, in my view, the Independent Children's Lawyer sought the views of Mr P, who had otherwise been helpfully engaged in assisting the parties in coming to this resolution which is set out in Exhibit “A”.  Mr P provided what could be styled as a statement in evidence, which is in the following terms:

   “Thank you for your request that I comment on the name issue in relation to this matter.

   My view is that the child herself understands clearly that she is known by the name [A] in the care of her mother, at school and with her friends, and as [S] when in the care of her father and his family.  My understanding is that [the father] would like for [the child] to be officially known by the name [SA] on official records and by the name [S] when with him and when in his company, even by her friends.  In my opinion, the child should be known by the name [A] at school, with her friends and by her teachers, that her mother should be allowed to call her [A] when in her care.  Furthermore, my suggestion is that she should be known for official records as [SA] (hyphenated or not) and that if [the father] and his family choose to call her [S], then that is their prerogative.

   The child herself very clearly understands that she is referred to by different names, that she is not confused about this, and I believe she will be much more confused by being referred to as either [SA], or [S-A].  The joint name solution is not relevant to her, and makes no sense because she does not know herself by this name, but instead by the names [A] and [S].  Commonsense would dictate that her friends and her teachers continue to call her [A], and that they not be burdened by the absurd situation that exists between her parents”.

3. The parties then resumed in court this morning and during the course of the hearing, following a reasonably robust discussion with all counsel, I expressed a preliminary view which I had formed separately from that penned by Mr P.  The negotiations continued and, much to the credit of the parties, that issue too was resolved between them.

4. The proceedings were to commence before me on Monday, 6 August 2007 but was stood down as all counsel, Ms Hedberg for the wife, Mr Salamanca for the husband and Ms Vohra for the Independent Children's Lawyer, sought the opportunity to negotiate with the assistance of Mr P.  This they have done over the succeeding three days. 

5. There were a number of justiciable issues between the parties that, doubtless, had the potential to engage them in litigation before me for the seven days listed for trial, if not longer.  This would have embroiled them in vitriolic debate, deepened the abyss of dispute and rendered near impossible the future management of their daughter.  By their private resolution they have themselves defined the parameters of the future, and for this they should be congratulated.  Their professional advisers have rendered them excellent service.

6. I have carefully read the Minute of Consent Orders and I propose to act upon them.  From this moment and forward there can be no regret.  The parties themselves, seized with all of the factual material they had each stored for litigation purposes, have now ordained the future.  They must act honourably, in good faith and with respect so as to give meaningful effect to the orders. 

7. Orders of this court are fragile and easily sabotaged.  However, if obeyed, that is, honoured, then the future will be without the rancour and bitterness that has been so graphically etched over the past years.  I expect both parties to act ethically and in a principled manner.

8. In a recent judgment delivered by me, I discussed the need for parents to foster the image of an absent parent.  Given the terms of the proposed orders it appears that may be a difficult task.   However, I am an optimist and I have a belief that, despite the wreckage of the past, there will be an opportunity now for the parties to progressively unite over the forthcoming years in earning the right to jointly share their daughter’s life without her being witness to the resentment between them.

9. There is an obligation on the part of each of the parents to foster the image of the absent parent when their daughter is spending time with them.  I appreciate that within itself requires discipline together with an ability to sublimate one's own feelings of hurt, anger or bitterness to best benefit the interests of their daughter.  I have made it clear in past judgments that in making these comments I am not looking towards the actions of the perfect parent in a Utopian world, but one who recognises the importance of that quality and will strive to achieve that desired end.

10. I take the view that to wallow continuously in a mire of disillusionment, anger and bitterness can only by example alone influence SA in a negative way against the absent parent.  The effect, of course, is dramatically compounded by the spoken word of negativity, passive alienation and subversive manipulation.  I make it clear that I greatly respect the fact that these parties have come to this arrangement.  Twenty‑two times they have come to court.  This should be the last time. 

11. The objects and principles of the Family Law Act ("the Act") make it clear that SA has a right to know and be cared for by both of the parents.  She has a right to spend time on a regular basis with them and has a right to communicate on a regular basis with them and each of their broad families.  The child has a right to communicate in a meaningful way with people significant to her care, and that includes all of the separate, yet broad families.

12. I also remind the parties that the principles of the act and its objects include that each of them jointly share duties and responsibilities concerning the care, welfare and development of SA.  Insofar as it is possible to do so, albeit the past has suggested that they cannot, both the husband and the wife should earnestly agree on her parenting in the future.  I wish the parties the best.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  17 August 2007.