Koliris and Keneas

[2009] FamCA 761

FAMILY COURT OF AUSTRALIA

KOLIRIS & KENEAS [2009] FamCA 761

FAMILY LAW - CHILDREN - With whom a child spends time - Best interests of a child
FAMILY LAW – CHILD SUPPORT

Family Law Act 1975 (Cth)

APPLICANT: Mr Koliris

RESPONDENT: Ms Keneas

INDEPENDENT CHILDREN’S LAWYER: Michael Tiyce

FILE NUMBER: SYC 8845 of 2007

DATE DELIVERED: 24 August 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 8 - 10 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: James Papas Solicitors

COUNSEL FOR THE RESPONDENT: Ms Friedlander

SOLICITOR FOR THE RESPONDENT: KR Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Tiyce & Partners

Orders

1. All previous parenting orders be discharged. 

2.1The mother and the father have equal shared parental responsibility for the children L born … June 1999 and R born … December 2000 (“the children”).  

2.2If it becomes necessary for the parents to make a decision about a long-term issue relating to the children, the following should happen:

2.2.1the parent who first becomes aware of the need for a decision (“Parent A”) will immediately:

2.2.1.1advise the other parent (“Parent B”) that the decision is required;

2.2.1.2advise Parent B what decision Parent A considers should be made, and the reasons why Parent A believes that to be the decision in the child’s best interests.

2.2.2 Parent B will respond to Parent A within not less than seven days, and in that response will:

2.2.2.1advise Parent A whether he/she agrees with the decision favoured by Parent A; and

2.2.2.2 if he/she does not agree with the decision favoured by Parent A, give reasons against that decision.

2.2.3If the parents do not reach agreement as a result of the process of consultation set out in 2.2.1 and 2.2.2 above, then they will each immediately do everything necessary to engage an independent mediator to assist them to resolve that issue.

2.2.4If no agreement is reached or the issue is urgent, the parties have leave to relist the matter for determination of that issue. 

1. The children live with the mother.

2. The children spend time with the father as follows:-

   4.1.Subject to any other order, each alternate weekend from 5.00pm Friday until 5.00pm Sunday and if such weekend is a long weekend from 5.00pm Thursday if the long weekend includes the Friday or to 5.00pm Monday if the long weekend includes the Monday. 

   4.2.On each alternate Thursday (being the Thursday immediately after the weekend referred to in order 4.1) from after school to 7.30pm. 

   4.3.For the first half of all the children’s mid-term school holidays.  

   4.4.In December/January school holidays commencing in December 2009 for a total of 21 days, those days to be other than the period from 27 December 2009 to 16 January 2010 inclusive and to be nominated by the father and advised by him to the mother in writing not later than the first day of the fourth school term. 

   4.5.In December/January school holidays commencing in December 2010 and all subsequent years, for a total of 21 days, those days to be arranged between the parents as follows:-

   4.5.1.not later than 31 January each year, the mother shall advise the father in writing of the dates when she intends that the children should holiday with her in the central coast region in the December/January school holidays commencing that year;

   4.5.2.not later than 28 February in each year the father shall advise the mother in writing of the dates that he intends the children should spend with him during the December/January school holidays commencing that year. 

   4.6.From 5.00pm Friday until 5.00pm Sunday on the Father’s day weekend.

   4.7.On each children’s birthdays from after school until 6pm if the birthday falls on a school day and from 9am until noon if the birthday falls on a non school day.

   4.8.In odd numbered years from 6pm Christmas Eve until noon on Christmas Day.

   4.9.In even numbered years from noon on Christmas Day until 6pm on Boxing Day.

   4.10.In even numbered years from 6pm on Greek Easter Friday until 6pm on Greek Easter Saturday.

   4.11.In odd numbered years from 6pm on Greek Easter Saturday until 6pm on Greek Easter Sunday. 

   4.12.On both the 5 May and 20 May on each alternate year, which year ends in zero or an even number from either:

   4.12.1.after school until the commencement of school on the following day if that date fall upon a school day; or

   4.12.2.in the event that date fall on a weekend on which the children are not otherwise with their father then the children will be with their father on that weekend and the children will be with their mother on the following weekend when they would otherwise have been with their father pursuant to order 4.1.

   4.13.Changeovers which are not at school are to be effected by the father collecting the children from B McDonalds Restaurant and redelivering them to B McDonalds Restaurant.  In the event the mother moves from her current location, the changeover will be at the McDonalds Restaurant closest to the mother’s residence from time to time.

5.1The children spend time with the mother from 5.00pm Friday until 5.00pm Sunday on the Mother’s day weekend.

5.2In the event 5 May or 20 May fall on weekends in odd numbered years when the children would otherwise be with their father, then the children will be with their mother on those weekends and the children will be with their father on the following weekend when they would have otherwise been with their mother pursuant to the provisions of order 3.

1. In respect to telephone communication for the children with their parents: 

   6.1.Neither parent shall do anything to prevent the children from having telephone communication with the other parent at any reasonable time. 

   6.2.Each parent shall afford privacy for the children while they are having telephone communication with the other parent. 

   6.3.A parent having care of the children on any Tuesday shall make a telephone call to the mobile number of the other parent between 7pm and 7.30pm and shall: 

   6.3.1.If the call is answered by the other parent, immediately hand the telephone to the children or one of the children. 

   6.3.2.If the call is not answered by the other parent, send a mobile telephone text message (“SMS”) to the other parent advising the latest time when the other parent can make a call to the children in lieu of the call that had been scheduled between 7pm and 7.30pm. 

2. Neither parent shall:

   7.1.Speak about the other parent, or a partner of the other parent, in a manner that is critical, insulting or derogatory, either in the presence of the children or within hearing of the children.

   7.2.Permit any other person to speak about either parent in a manner that is critical, insulting or derogatory either in the presence of the children or within hearing of the children.

   7.3.Discuss these proceedings with the children, or permit any other person to do so except as may be necessary pursuant to an order of the court.

   7.4.Interrogate the children or either of them about events or conversations in the household of the other parent.

   7.5.Use physical means to discipline the children or permit any other person to do so.

3. During the times that the children are in the care of a parent pursuant to these orders, that parent shall:

   8.1.Ensure that a child who is injured or becomes ill receives prompt professional attention for that injury or illness.

   8.2.Inform the other parent about the child’s injury or illness as soon as is reasonably practicable.

   8.3.Give to the other parent the details, including the location and telephone number, of any medical practice or hospital where the child is being treated or has been admitted.

   8.4.Ensure that any professional treating a child has the contact telephone number or numbers for the other parent.

   8.5.Do nothing to prevent the other parent from visiting a child who is in hospital. 

4. Neither parent shall do anything to prevent the other parent from attending any function or event at the children’s school which parents ordinarily are invited to attend, or from receiving any communication from the school about the children or about activities in which the children are involved.

5. The mother shall forthwith purchase a blank exercise book (“the communication book”) in which the parents are to record communications about the children, including matters arising with respect to their schooling, their health, and their extra-curricular activities, and including all details required by the other parent to take the children or either of them to a pre-arranged event or appointment, and:

   10.1.Neither parent shall use the communication book to record criticisms of the other parent or ask questions about the personal life of the other parent.

   10.2.The parents will each ensure that the communication book remains with the children as they move to and from each of the parents.

6. Nothing in order 10 shall prevent the parents from communicating with each other by email or telephone text message, and for the purposes of these orders a requirement for the parents to communicate in writing shall be satisfied if communication is written in the communication book and made available to the other parent in accordance with order 10 or is made by way of telephone text message or email.

7. In respect to extra curricular activities of the children each parent shall:

   12.1.Give notice of not less than one month to the other parent of an intention that the children or either of them are to participate in a particular activity.

   12.2.Give to the other parent all relevant details for such extra-curricular activity, including but not limited to days and hours when the children are to attend, and the location of the activity, and the name of the service or person in charge of the children during the activity.

   12.3.Give not less than 24 hours notice to the other parent, if, for any reason, the parent having care of the children at the time for a particular activity about which notice has been given pursuant to orders 1 and 2 above is to occur, he or she is unable to take a child to that particular activity.

   12.4.Do everything reasonably necessary to permit and facilitate the other parent taking the child or children to that particular activity.

8. The parties shall do all things necessary to consult with Ms E, or in the event or her unavailability, such other Family Consultant as nominated by the Director of Child Dispute Services, who will assist them to locate a professional in a non-Government organisation qualified to assist them to communicate with each other about issues arising in relation to the children and for this purpose:

   13.1.Each party will attend all interviews and sessions scheduled by that professional.

   13.2.Each party will pay any fee which that professional requires to be paid and in the event the professional issues a joint invoice for fees, the parties will equally pay those fees.

   13.3.Ms E make available to that professional a copy of her report and a copy of these reasons for judgment.

9. Neither party is permitted to enter the other party’s property at any time.

10. Without admission, the father agrees to be restrained from consuming alcohol in the period six hours prior to a contact period until the conclusion of the contact period. 

11. Each party is restrained from removing or causing or allowing the children to be removed from the Commonwealth of Australia without the written permission of the other party. 

12. The Court requests that until further order the Australian Federal Police place the names of the children on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the children from Australia in breach of these orders.

13. Each party provide 28 days notice to the other of any proposed change of residential address and any proposed change of a changeover location so that the party who has been given notice may make any application to a court that they wish to make. 

14. In the event the father is unable at any time to have the children with him during the times set out in these orders, he shall provide the mother written notice by telephone text message (SMS) as soon as he knows that that is going to be the position.

15. The Independent Children's Lawyer’s application for costs be dismissed. 

16. The parties’ respective applications pursuant to s 124 of the Child Support (Assessment) Act 1989 be dismissed.

17. The husband pay as and when they fall due, the tuition and school uniform costs of R from the date that she has commenced school until she attains the age of 18 years or finishes secondary school and pursuant to s 125(1) Child Support (Assessment) Act 1989 there is to be no reduction in the periodic administrative assessment.

18. The parties attend upon any person to whom they are recommended by Ms E or her nominee for the purposes of further post separation parenting counselling and continue going to those sessions and equally paying for those sessions until such time as the person providing these professional services concludes that those services are no longer appropriate for the parties to attend and Ms E organise for that person to receive a copy of her report dated 28 November 2008 and a copy of these reasons for judgment. 

19. Except for any appeal against these orders, a judge be appointed to manage any further application filed in relation to the children and that until further order that judge be Justice Watts, if he is reasonably available.

20. Pursuant to s 65DA(2) and s 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.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8845 of 2007

MR KOLIRIS

Applicant

And

MS KENEAS

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This case is about what parenting orders should be made in relation to L born in June 1999 (10 years of age) and R born in December 2000 (8 years of age) (“the children”).

2. The children primarily live with their mother in G.  They attend S College at N. 

3. The father lives at R. 

4. Consent orders were made as a result of previous proceedings in the Federal Magistrates Court on 10 May 2004.  I will consider as a preliminary issue, whether or not there has been a significant change in the circumstances in this case to warrant revisiting those orders. 

5. On the first day of the final stage of the hearing, I prepared a document (Exhibit C) which set out the orders to which the parties were consenting and matters in respect of which the parties did not agree. 

6. The text of Exhibit C is as follows:-

   Orders to which the parties agree:

   1.That the mother and the father have equal shared parental responsibility for the children [L] born […] June 1999 and [R] born […] December 2000 (“the children”) except that the mother wants sole parental responsibility in relation to future decisions about the children’s education.  The mother withdrew her agreement to this on the final day (see below).

   2.That the children live with the mother.

   3.That the children spend time with the father as follows:-

   3.1.Each alternate weekend from 5.00pm Friday until 5.00pm Sunday and if such weekend is a long weekend from 5.00pm Thursday if the long weekend includes the Friday or to 5.00pm Monday if the long weekend includes the Monday. 

   3.2.For the first half of all the children’s mid-term school holidays.  

   3.3.From 5.00pm Friday until 5.00pm Sunday on the Father’s day weekend.

   3.4.On the children’s birthdays (at times to be further defined).

   4.The children spend time with the mother from 5.00pm Friday until 5.00pm Sunday on the Mother’s day weekend.

   5.Both parties agree to an order that neither parent will do anything to prevent or discourage either child from telephoning the other parent at any time they wish to do so.

   6.That the parties are not to denigrate (or permit any other party to denigrate) each other (or any member of their family) whilst in the presence of the children or in the vicinity of the children where they might overhear such conversation.

   7.That neither parent permits any person to physically discipline the children.

   8.That each party is to otherwise keep the other informed of any specialist medical or other treatment administered to the children from time to time.

   9.Neither parent shall do anything to prevent the other parent from attending any function or event at the children’s school which parents ordinarily are invited to attend, or from receiving any communication from the school about the children or about activities in which the children are involved.

   10.The parties communicate by using a communication book and in addition the parties may if they choose communicate through correspondence, email or text message except for [in] a medical emergency. 

   11.Neither party is permitted to enter the other party’s property at any time.

   12.Without admission, the father agrees to be restrained from consuming alcohol in the period six hours prior to a contact period until the conclusion of the contact period. 

   13.Each party is restrained from removing or causing or allowing the children to be removed from the Commonwealth of Australia without the written permission of the other party. 

   14.The Court requests that until further order the Australian Federal Police place the names of the child/ren on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child/ren from Australia in breach of these orders.

   15.The Independent Children's Lawyer has suggested and the parties agree that they would advise one another of any proposed change of residential address and any proposed change of a changeover location to enable the non moving party to make any application to a court that they wish to make. 

   Matters in respect to which the parties do not agree

   1.The parties agree the children will continue their current schooling at [S College] but the mother wishes to have sole parental responsibility to decide to change the children’s schooling to that which is most beneficial for them to succeed in their educational endeavours in her view. 

   2.The father wishes the children to be with him on each other alternate week during school term each Thursday from after school to 7.30pm. 

   3.The mother’s proposal for school holidays is that the children be with their father from 15 December to 23 December and from 16 January to 25 January. The father’s proposal is for one half of Christmas holidays alternating between first and second half in alternate years.  The Independent Children's Lawyer’s proposal is for the father to have the first, third and fifth weeks in odd numbered years and second, fourth and sixth weeks in even numbered years. 

   4.The father proposes that each alternate Greek Easter the children spend time with him from 5.00pm on Good Friday until 5.00pm on Easter Saturday and the children spend time with their mother from 5.00pm Easter Saturday until 5.00pm Easter Sunday and alternating each year.  The mother’s proposal is that the time be between 10am on Sunday and 5pm on Monday each Greek Easter. 

   5.The father proposes each alternate year the children shall spend time with the him from 5.00pm Christmas Eve until 2.00pm Christmas Day and spend time with the mother from 2.00pm Christmas Day until 5.00pm on Boxing Day and alternating each year.  The mother proposes that in alternate years it be from 3.00pm Christmas Eve until 12 noon Christmas Day and from 12 noon Christmas Day to 3.00pm Boxing Day. 

   6.The father proposes and the mother opposes the children spending time with him on the children’s name days.  The father proposes if the children’s name day falls on a school day, from after school until the commencement of school the next school day.  If the children’s name day falls on the weekend, from 5.00pm Friday to 5.00pm Sunday. During final submissions the husband made it clear that this order is sought by him on an alternate annual basis.

   7.The father wants an additional order for telephone contact in the following terms:

   7.1.The mother shall ensure that the children are available to speak with the father by telephone on the Tuesday when the children are not with the father between the hours of 7pm and 7.30pm. 

   8.The father wishes changeovers which are not at school to be him collecting from [B] McDonalds restaurant and redelivering to [U] McDonalds restaurant.  The mother wants both changeovers to be at [B] McDonalds or the McDonalds closest to her residence from time to time.  The Independent Children's Lawyer wants both changeovers to be at the [B] McDonalds restaurant.

   9.The father wants payments in relation to school fees, uniforms and school activities to be treated as a non agency payment for the purposes of assessment of child support.  The mother opposes that and seeks an order for the father to make payment for in and out of school activities such as sporting, piano, swimming, private tutoring, school tuition and school fees and the payment of one half of the cost of private medical, hospital and dental cover in additional to any periodic child support the father would be required to pay.

   10.The mother seeks an order that the father redeliver the children to her at 3pm the day before any day upon which the father is unable to ensure that the children attend a scheduled school or other extra curricular activity or commitment. 

   11.The mother wishes to have sole parental responsibility to be able to move the children’s schooling and the father does not agree with that.  The Independent Children's Lawyer suggests a condition that the parties attend mediation in the event a disagreement of this nature occurs but the matter otherwise ultimately be resolved by further court order.

1. On the last day of the hearing, the mother announced that she is no longer prepared to consent to the father having equal shared parental responsibility in relation to matters except for decisions about the children’s education. She wanted sole parent responsibility over all matters. 

2. On the first day of the hearing the mother said that a 5pm changeover was comfortable for her because it meant that she and the children could come home from school and get changed, get their school work organised and the problems in relation to things going missing and things being washed were more easy to manage, given the limited number of uniforms she had been able to acquire for the children.

3. The mother on the first day of the hearing and in the final stages of the hearing, indicated that it was her preferred view to restrict the length of the block periods of time that the father spent with the children.  On the first day of the hearing she indicated that her motivation for doing that was they were being interrogated and manipulated by the father and that they came back different and confused.  She thought that the father was discussing things with the children and telling them that they had to remember things -  those being things that the mother believed never happened, particularly things relating to M. 

POSITION IN FINAL SUBMISSIONS OF THE INDEPENDENT CHILDREN'S LAWYER

1. During the final submissions, the Independent Children's Lawyer handed up three documents which I collectively marked Exhibit I.

2. The Independent Children's Lawyer’s primary position is that there should be an order made for equal shared parental responsibility (which is not limited in any way).

3. The Independent Children's Lawyer, however, suggests a mechanism to break any deadlock in respect of a decision about a long term issue regarding either of the children in the following terms:-

   3.If it becomes necessary for the parents to make a decision about a long-term issue relating to the children, the following should happen:

   a.      the parent who first becomes aware of the need for a decision (“Parent A”) will immediately:

   i.advise the other parent (“Parent B”) that the decision is required;

   ii.advise Parent B what decision Parent A considers should be made, and the reasons why Parent A believes that to be the decision in the child’s best interests.

   b.     Parent B will respond to Parent A within not less than seven days, and in that response will:

   i.advise Parent A whether he/she agrees with the decision favoured by Parent A; and

   ii.if he/she does not agree with the decision favoured by Parent A, give reasons against that decision.

   c.     If the parents do not reach agreement as a result of the process of consultation set out in a. and b. above, then they will each immediately do everything necessary to engage an independent mediator to assist them to resolve that issue.

4. The Independent Children's Lawyer supported the father’s proposal in relation to the children spending time with him from after school until 7pm on a Thursday in the alternate week.

5. The mother proposed, because she had to work in the first week of the terms 1, 2 and 3 school holidays, that the children be with their father during the first week of those holidays. The father did not seem to oppose that application.

6. In relation to contested issue 3, the Independent Children's Lawyer supported the mother’s proposal in relation to Christmas school holidays but as I have noted above, the father had made a concession in relation to Christmas school holidays.  The father, during the proceedings, conceded that the children should have the advantage of holidays with the mother’s extended family in their traditional manner at the central coast camping site. 

7. The Independent Children's Lawyer supported the father’s proposal in relation to Greek Easter.

8. The Independent Children's Lawyer supported the mother’s proposal in relation to the changeover time on Christmas Day.

9. The Independent Children's Lawyer did not support the father’s proposal for there to be an order about the children spending time with their respective parents on the children’s name days in alternate years.

10. The Independent Children's Lawyer supported the father’s application to be able to telephone and speak to the children at their mother’s home each Tuesday between 7pm and 7.30pm. 

11. The Independent Children's Lawyer supported the mother’s proposal that when pickups were not from school they should be at B McDonalds.

12. The Independent Children's Lawyer also suggested an order for consultation with a family therapist (part of Exhibit I) in the following terms:-

    “The parties shall each do all things necessary to consult with a family therapist suitably qualified to assist them to communicate with each other about issues arising in relation to the children, and for this purpose:

    a.the father shall provide to the mother the names and contact details of two such therapists practicing in locations that are reasonably convenient to both parents;

    b.the mother shall nominate one of those therapists;

    c.the parents shall attend such appointments as are recommended by the chosen therapist, including joint appointments if and when the therapist determines such joint appointments to be appropriate.

    A family consultant appointed by the manager of the court’s Family Dispute Resolution Service shall give to the parents such assistance as they may reasonably request in relation to compliance with order XX.”

MS E’s PROPOSAL

1. The family report writer, Ms E, suggested in her family report that the children be with their father four nights a fortnight from after school Thursday to start of school Monday. This was an alternate proposal supported by the father. 

BRIEF CHRONOLOGY

1. M, the mother’s boyfriend, was born in 1963 (aged 46).

2. The father was born in 1971 (aged 37).

3. The mother was born in 1973 (aged 35).

4. The parties were married in 1997. 

5. L was born in June 1999.

6. R was born in December 2000.

7. The parties separated in November 2003. 

8. Previous parenting orders were made in relation to the children on 10 May 2004.

9. The parties divorced on 2 April 2007. 

10. On 9 December 2007 the father went to the police and made allegations of the children being at risk in their mother’s household and on 10 December in the early hours of the morning the police attended the mother’s home.

11. The mother filed an application for Apprehended Violence Orders (“AVO”) on 20 December 2007. 

12. The father filed a Notice of Abuse on 21 December 2007 and on the same day filed an application for a variation of the final parenting orders seeking that the children live with him.

13. The mother says she reacted to the allegations by having concerns about the father’s stability and she did not allow the children to have face to face time with him between 17 December 2007 and 2 February 2008.  This meant he did not see the children at Christmas time in 2007. 

14. On 30 January 2008 the matter came before Judicial Registrar Johnston on an interim basis.  The Judicial Registrar appointed an Independent Children's Lawyer and ordered that the father spend time with the children each Sunday from 9am to 5pm and that he have telephone contact with the children on Monday and Thursday evenings.  Undertakings were given by the paternal grandparents that they would supervise the children’s time with their father. 

15. On 14 February 2008 AVO proceedings commenced by the mother were resolved by the parties reaching an agreement.  Mutual undertakings were given by the parties not to assault, molest, threaten or otherwise interfere with each other nor intimidate or stalk. 

16. On 17 March 2008 interim consent orders were made as follows:- 

    38.1.father to spend time with children:

    38.1.1.each alternate weekend from 5pm Friday until 5pm Sunday or 5pm Monday long weekends;

    38.1.2.each weekend of school holidays, 1pm Friday until 5pm Sunday.

    38.2.Mother to ensure children are available [for telephone contact] each Thursday 6:30pm to 7pm, father to call mother’s mobile.

    38.3.Parties restrained from physically chastising children or permitting anyone else to do so.

    38.4.Parties not to denigrate each other or permit other persons to do so in presence of children.

    38.5.Father not to approach or contact mother’s partner M.

    38.6.Parties not to initiate conversation [with children] about what happens in household of other party.

    38.7.Changeovers to be at McDonald’s B.

17. On 18 August 2008 the hearing of this matter commenced before me.  Both parties gave oral evidence.  I ordered the preparation of a family report and granted leave to issue subpoenas to the Department of Community Services (“DoCS”) and to the police. The father’s application for contravention was adjourned for hearing by a Judicial Registrar.  I made an order that both parties follow the recommendations of the family consultant to attend a post separation parenting program.  The family consultant sets out in her report what both parties believe they obtained from that program and I refer to that in more detail below. 

18. On 29 October 2008 a Contravention application filed by the father on 16 June 2008 concluded when Judicial Registrar Loughnan found that the mother had breached parenting orders and the Judicial Registrar ordered makeup time (including over Greek Easter 2009). 

19. On 3 December 2008 an order was made publishing Ms E’s report to the parties.

20. This chronology does not set out all the occasions on which the parties have been at court about the children.  It is clear that both parties, and particularly the mother, are weary of the litigation. 

DOCUMENTS RELIED UPON

Mother

1. The mother’s affidavit sworn 31 March 2009 and filed 1 April 2009.

2. An affidavit of M sworn 31 March 2009 and filed 1 April 2009.

3. An affidavit of L Keneas sworn 31 March 2009 and filed 1 April 2009.

4. Affidavit of H Keneas sworn 31 March 2009 and filed 1 April 2009.

5. The mother and M gave evidence in person.  H Keneas gave evidence by telephone with the aid of a Greek interpreter and M was not required for cross examination. 

Father

1. The father relied upon his affidavit sworn 7 April 2009. 

The Family Consultant

1. The family consultant provided a report dated 28 November 2008 and gave oral evidence on three separate occasions during the final hearing days. 

2. Her observations and opinions were not the subject of any criticism.  I accept, and quote below from, what she says.  Neither party wanted me to make orders exactly in the form of Ms E’s recommendations.

Other persons not called

1. The father was given leave to file an affidavit by Mr O, who accompanied him to the police station on 9 December 2007.  He did not file that affidavit.  As to why not, that was not a matter explored in cross examination.  The mother was given leave to file an affidavit by Mr A about the allegations made by the father.  She did not file that affidavit.  Neither party made a submission in regard to the High Court of Australia decision of Jones v Dunkel (1959) 101 CLR 298 .

CREDIT

1. The parties were not in direct conflict in relation to the evidence concerning any significant matter that would affect the determination that I need to make in this case.  The mother asserts the father has maliciously invented statements made to him by the children, but the mother was not a witness to the conversations between the children and their father. 

2. I thought each of the parties were generally telling it how it was from their particular point of view.

3. The father could be criticised in respect of some of his evidence and behaviour.  The father disingenuously wrote to R’s school on 17 February 2009 saying that he was not obliged to pay school fees because of interim orders made on 17 March 2008 in the Family Court.  The implication was that those orders had in some way relieved the father of his obligations under order 15 made in 2004.  The father said that he was under a mistaken impression.  I did not accept what he said when he was giving that evidence.  The orders of 17 March 2008 are Annexure B to the father’s affidavit. They say nothing at all about child support, they were purely parenting orders.  The father’s affidavit itself recognises that.  It is obvious therefore that the father knew when he wrote the letter in February that he was writing something that was totally wrong or alternatively between February 2009 and April 2009 the father realised that what he was asserting was unsustainable.  I find it difficult to accept that the father could have drawn anything from the orders made on 17 February 2008 which would have led him believe his child support obligations had been changed.

4. The father to his credit readily conceded that he sent the text messages that are contained in Exhibit D (notwithstanding their damaging nature).  The father gave evidence that he had received text messages from the mother that provoked him into responding in the way that he did.  If that was true then those messages were not put into evidence and the father’s solicitor did not cross examine the mother about them. 

5. The father’s behaviour and attitude in relation to child support, which I discuss later in these reasons, also does him no credit. 

6. Given the level and depth of the mother’s feeling in relation to the father, I believe I also need to discount to some degree some of the things that she has said.  The mother did deliberately withhold the children from the father over the 2007/08 Christmas period and she has been convicted on two occasions of breaching court orders without reasonable excuse. 

7. On an overall basis, rather than relying upon the credit of one of the parties in these proceedings, I make findings in respect of contested evidence based on the inherent likelihood of something happening or not happening or alternatively independent objective evidence. 

RICE v ASPLUND

1. The father’s application for a variation of the final orders made in 2004 was filed on 21 December 2007.

2. When the matter was first before me on 18 August 2008 I raised the issue of the principle in Rice v Asplund (1979) FLC 90-725. The legal representative representing the father at the time indicated that the main change relied upon by the father was the introduction of M into the children’s lives.

3. On 11 February 2009, I ruled that the Rice v Asplund question would not be dealt with as a preliminary issue, given the nature of the matters which the parties wished to ventilate, but rather, it would be more appropriately considered in the context of a full inquiry. 

4. I find the father’s motivation for bringing this application arose from concerns which he had, that had developed in the second half of 2007.  The father says the children said the things to him which are set out in paragraphs 13 through to 23 of his affidavit sworn 7 April 2009.  These statements culminated in what the father says the children reported on 9 December 2007.  On that day the father asserted that the children reported to him that M had held L upside down over a balcony, not from the legs but from her pants.  The other allegations made to the police were:-

   62.1.That the children were locked in a room for hours while the mother and M were in the house;

   62.2.When the children reached for salt at dinner, M tried to stab them with a fork;

   62.3.That M put L in a box and taped it up and picked the box up and put L in the boot of a car.  She could not move and her heart was racing;

   62.4.M yelled at R at the meal table;

   62.5.M came into the bathroom when the children were in the bathroom; and

   62.6.M tried to put L in the oven.

5. On the first day the matter was before me, the father said that initially the reports made to him by the children, for example being put in a box and placed in the boot of a car, was interpreted by him as perhaps the children describing things to him about playing a game that maybe did not go all that well.  It was clear from what the father said on the first day that the “disclosure” that “broke the camel’s back” was the statement by the children that M had dangled L over the balcony upside down.

6. Given the totally dysfunctional relationship between the parties, the father did not attempt to speak to the mother or even reality test whether it was possible to put a child or part of a child in an oven at the mother’s home. 

7. These allegations were repeated to the police when the father attended the police station on 9 December 2007 (see Exhibit A).  The date and time of the report is 9 December 2007 at 17:30.

8. The father in paragraph 24 of his affidavit said that after he got the children off he was visited by two friends, N and D.  The father said he attended the K Police Station with N. 

9. It was put to the husband in cross examination that he would not have been able to drop the children off to the mother and get back to his house in time and to get to K Police Station by 5.30pm.  The father denied that that was so and I have no evidence sufficient on balance to find what the husband says in paragraph 24 of his affidavit is incorrect, although he conceded that in an earlier affidavit he may have misstated the time he arrived at the police station. 

10. The father’s position, even today, is that he was certain as to what the children had said to him.  He did not know whether or not the children were accurately reporting what had happened but his view was that he had taken the responsible course by reporting the most alarming of the incidents to the relevant authorities and by exposing what he asserts the children said to him to the Court.

11. The father on the first day of the hearing, before the completion of the family report, believed that the assertions by the children of abuse had to be looked at.  That was not something however that he pressed in the final stages of the hearing. 

12. It is the mother’s case that the father’s allegations as to what the children said are malicious and concocted by him.  Consequently, she argues that the whole foundation for his original application was flawed and there should be no change in the orders made in 2004 by way of application of the rule in Rice v Asplund. 

13. The mother wants the Court to vindicate her view that the father’s allegations are malicious.  The father was asked in cross examination by counsel for the mother why, if the children really had said that M had tried to stab them with a fork at the dinner table, he had not done something about it immediately.  I accept the father’s answer that it was an accumulation of a number of things the children had said to him which culminated in the most disturbing assertion being made on 9 December 2007.

14. On 27 December 2007 DoCS advised the father they were not able to respond to the report of abuse and that the Department’s file had been closed.  On 16 January 2008 the father alleges he received a reply from Officer F in response to a complaint that he made.

15. It is part of the mother’s assertion that the father deliberately invented these allegations in the context of a dispute between the parties in respect of child support. 

16. The interviews for the family report were conducted on 4 November 2008.  As at the date of the interviews, the father informed the family consultant that at that time he had no current child protection concerns, although he had been worried about the children’s safety in the past.  The father expressed to the family consultant, as he said to me, that the children had been very honest with him about what they had said and that “something had happened to his children in that house”.  He also indicated that he did not think the children were scared of M at the time of the interviews.

17. The mother told the family report writer that she was very angry when she first became aware of the father’s allegation and that some of her unhappiness related to how the father “handled the situation”.  She rightly complains that the father did not even approach her or give her the opportunity to explain. 

1. The mother feels aggrieved at the fact that the police attended her home at 2am on Monday 10 December 2007 to check on the welfare of the children.  Although the police note (Exhibit A) records that both children were sound asleep in their bedrooms, the mother indicates that one of the police officers asked to check on one of the children and that child was shaken by her but was not awoken.  I accept this was a traumatic event for the mother.  They said to the police at the time that there was a family law conference (which appears likely to be a reference to a Legal Aid conference) scheduled to discuss parental “custody” and the mother indicated at the time to the police that she believed the complaints were vexatious.  The mother and M indicated to the police at the time that they wanted to seek retribution for the father’s false allegations and that is a position that they have continued in a steadfast manner until this time.  The police confirmed that the kitchen oven was no bigger than a microwave size.

2. At paragraph 35 of the family report, the mother indicated that she thought that it might be the case that “the father misinterprets things they (the children) say”. 

3. L expressed some dismay to the family report writer that, from her perspective, her father “always” takes things they (ie, her and her sister) say and “makes it into a bad story”.  She thought this was especially true if they said anything about their mother or M. 

4. This statement by L to the family report writer is, in my view, of some significance. Firstly, it indicates that she was aware that things she and her sister had said to their father had become a “bad story”.  In my view this statement by L to the report writer eliminates the possibility that the father had maliciously invented the statements made by the children.  I conclude, on balance, that either:-

   79.1.The children said things to the father that they thought the father would like to hear but which had no basis in fact; or

   79.2.The children said things to their father which were innocent in their nature but which the father misinterpreted but not in a malicious way.

5. It is clear that when the children saw the family report writer nearly 11 months after the report made by the father, there had been no further statements made by the children to the father that caused him any concern and L at least was aware that previous statements they had made to their father had created problems. 

6. The events of 9-10 December 2007 remain a block to the parents moving forward, particularly because the mother and M’s feeling that they need to be vindicated. 

7. Whilst the statements made by the children which led to the original report on 9 December 2007 were the basis of the father making an application, it is not the only serious changed circumstance that has happened since 2004.  When the matter came before me on 11 February 2009 the father made it clear that he no longer had any concerns for the future of any unacceptable risk of the children being in their mother’s household arising out of the complaints that he made in December 2007.  Not only did he have over a year of the children not making any negative comments to him, but he also had the advantage of reading the family report.

8. The family report however indicated that there were other serious concerns that related to the future wellbeing of the children that required consideration. As Ms E pointed out, the quality of the relationship between the children’s parents was a matter of particular concern.  In a particularly telling comment, L expressed the wish that her parents could simply say hello to each other at changeover.

9. When the orders were made on 5 May 2004, the children were aged 5 years and 3 years.  The children are now 10 and 8 years of age.  There has been a significant change in their development since the original orders were made, including the involvement of M in the lives of the mother and the children.  M is not insignificant in the overall dynamics of this family’s situation. 

10. There have been in my view sufficient significant changes to warrant a new look at what arrangements might be in the children’s best interests. Accordingly, any suggestion that this hearing should be truncated having regard to the principles in Rice v Asplund, is not one that I agree with. 

11. The mother hoped (and from what M said in oral evidence thought) that the hearing would lead to a vindication that the father’s initial reporting to DoCS and the police was malicious.  As I have said, it is my assessment that those reports did not fall into that category, although it is understandable as to the mother’s reaction to those allegations given that they were in fact without any factual basis and arose out of statements either made by the children or made by the children and misinterpreted by the father.

STATUTORY CONSIDERATIONS

1. Any particular order I make in this matter in relation to the children must be made having regard to the best interests of the children as the paramount consideration. 

2. When determining what is in the children’s best interests, I must consider the matters set out in s 60CC(2) and (3) Family Law Act 1975 (“the Act”).

PRIMARY CONSIDERATIONS

The benefit to the children of having a meaningful relationship with both of their parents

1. The children have a meaningful relationship with their mother. She has been their primary care giver and has taken the lead in organising and maintaining their extra-curricular activities, school commitments and health needs.  Ms E in her report concludes that despite the ongoing exposure to tension and conflict between their parents, L and R have managed to build “a good enough relationship” with their father.  It is clear that the main impediment to the children having a meaningful relationship with both their parents arises out of the current behaviour the parents display to one another. 

The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. As indicated elsewhere in these reasons, the father did not press any assertion that the children needed protection from adult behaviours taking place in the mother’s household.  The psychological harm to which the children are potentially exposed does not in this case arise from abuse, neglect or family violence. 

2. In their interviews with Ms E, the children disclosed nothing that would indicate that they have ever felt unsafe or scared in the company of M and R clearly said to Ms E that M had “never done anything to hurt us”. 

3. Ms E, on more than one occasion during this hearing, described the potential long term damage that the children might suffer should the parents continue their current conflicted relationship as parents.

4. For example, the family consultant on the first day of the hearing spoke to the parties about the effect on the children of their involvement in the conflict, particularly the long term consequences upon the children.  She gave evidence that where there is a high level of ongoing inter-parental conflict and elevated levels of acrimony or psychological hostility between the parties, these are factors that can predict poor mental health outcomes for the children.  She said this type of behaviour on the part of the adults can have consequences for the children’s social confidence, poor problem solving skills, frustration, fewer interests, fewer engagements in social activities, low self esteem, low confidence, feelings of self worth and effect on cognitive competence.  Further, she said the children might find it difficult to concentrate on reading and writing and basic literacy skills where they are possibly preoccupied by parental conflict. 

ADDITIONAL CONSIDERATIONS

Views expressed by the children and factors relevant to the weight to be given to those views

1. The children have each expressed a preference to live primarily in one household with their mother.  Ms E comments that given that the children are primarily attached to their mother, their wishes appear to be consistent with their emotional needs.

2. On the first day of the hearing the mother told me that the children did not want to stay the time that they had been under the current orders.

3. At paragraph 51 of her report, Ms E states:  

   “On the day of the interviews [L] indicated that she does not feel positively about the possibility of spending more time with her father each fortnight.  She was somewhat critical of her father and of the time they spend together.  She expressed some dismay that, from her perspective, her father “always” takes things they (i.e. her or her sister) say and “makes it into a bad story”.

4. She thought this was especially true if they said anything about their mother or M.  She also expressed unhappiness about having missed out on attending the school fete and possibly being ineligible to be a school prefect.  She seemed to hold her father responsible for both these things.  Other complaints that L expressed about her father included: he “always says he has no money to do thing[s]” or that they can’t do things because “it’s too much money”; and “he swears” when he is angry”.

5. In oral evidence, Ms E expressed the view that the statement by L of her views on the day of the interviews was coloured to some degree by the fact that she had missed out on going to the school fete.  There was some level of anger at her father in relation to that. 

6. At paragraph 54 Ms E states:

   “With regard to future parenting arrangements, [L] very clearly said that she wants to spend time with her father “every second weekend”.  She also wanted to be able to spend “more time” with her mother during the school holidays”.

7. Ms E notes at paragraph 53: 

   “There were some indications that [R] worries about her “family” becoming upset.  However, other than thinking that ongoing involvement in Court contributed to everyone being upset, she did not elaborate any further on this or appear overly concerned or preoccupied by this thought.  Her most important wish was for “these things [i.e. Court] to stop”.

8. At paragraph 57 Ms E states:

   “Like her sister, [R] expressed some unhappiness at not being able to spend more (weekend) time during the school holidays with their mother.  She also expressed some unhappiness about “missing out” on birthday parties and other activities, such as the school fete, at times when she is with her father.  She seemed to believe that her father would like herself and [L] to live with him, a conclusion that she said that she had drawn because he “always ask [sic] us if we want to live with him”.  When asked how she would feel about “living with her father”, she said “I don’t want to”.

9. Ms E states at paragraph 58:

   “Notwithstanding her views about the existing holiday arrangement, [R] spoke positively of the current parenting plan.  With respect to future parenting arrangements she indicated that she wants things to just “stay the same”.  In the event that she and her sister were to spend more time with their father, she expressed some concern about his ability to take them to their activities”.

10. I place some weight on the views expressed by the children.  That weight has to be tempered when I also take into account Ms E’s evidence relating to the circumstances in which they were given (particularly L’s annoyance at not being taken by the father to the fete) and when I take into account the conflict which the children must have felt arising from the current attitudes held by both their parents. 

The nature of the relationship of the children with each of the parents and other persons

1. At paragraph 46 of her report Ms E states that:

   “The children clearly identified all of the adults who were present at the report interviews as part of their immediate family circle.  They also spoke spontaneously about other members of their paternal and maternal families who they consider important e.g. maternal grandparents, maternal uncle and paternal cousins.  There were clear indications that they are comfortable and familiar with all those whom they talked about during their interviews.” 

2. I note that for the purposes of preparing her report Ms E spoke with the mother and father, the mother’s new partner, M, the paternal uncle, and the paternal grandparents.

3. In respect of M, Ms E states at paragraph 47:

   “There were many indications that the children feel very positively towards [M], who they readily included in all their activities and conversation.”

4. Ms E states at paragraph 60:

   “In order for [L] and [R] to maintain positive relationships with all those that are important to them and to help them learn appropriate ways to behave, it is imperative that they are protected from any further exposure to parental arguments, conflict, inappropriate behaviour and language – particularly derogatory remarks about either of their parents and/or extended family members.  In this instance, to minimise the possibility of these children continuing to be exposed to the tension between their parents, the number of changeovers should be limited and, if possible, take place to and from school, with the mother remaining in the school office on the days when the father is collecting the girls”.”

5. Ms E states at paragraph 61:

   “The crucial consideration in this matter is for [L] and [R] to be protected from physical and emotional harm associated with ongoing exposure to unresolved, deeply entrenched parental conflict.  The impact on the children of continual exposure to inter-parental tension has long term implications for their emotional and psychological wellbeing and development.  Such exposure could also result in them eventually being placed in a situation where they feel they have to choose one parent over the other, in an attempt to resolve the inner tension they experience because of the hostility present between them”.

6. The mother in Exhibit D notes that on 2 April 2009 the father had called to talk to the children.  L had spoken to him for about five minutes and then the father asked whether or not he could talk to R. R was playing chess with M and said she did not want to talk to him because she was playing chess.  The mother said “the more we all insisted for her to just go and say hello, she refused”.  The mother says about 20 minutes later she got the following test messages from the father:-

   Message 1

   “this is the last time your defacto [M] will interfere in my phone contact with my two children which occurs every Thursday, be warned, i will take action in the family court of Australia.  ENOUGH SAID”.

   Message 2

   “You were made to look like a ‘fool’ yesterday. Since december 2007 you have been a headless chicken with no ideas or morals. Gee [Ms Keneas] what a good mother you are, having men after men in the household while the children are there.  I have a loving and caring relationship with them, you will never break the bond between us.  Enough said”.

   Message 3

   “You sad miserable lost soul.  I hope you are strong enough and your small brain is active when Family court proceedings commence.  Be strong [Ms Keneas] for the kids sake.  Who knows what the outcome will be.  P.S. Say hello to your de facto [M].  I will see him in court.  Bye Bye, sweet dreams, take care. Regards [the father]”.

7. The venom as particularly contained in messages 2 and 3, is demonstrative of the difficulties that exist between the two parents.  It is understandable that the father felt aggrieved at the fact that it appeared one of the children was not being made available to talk to him because of an activity that she was involved in with M.  It is understandable that the father might draw certain conclusions about the level of encouragement that R was being given to speak to her father.

8. The father’s reaction to whatever provocation he felt was unacceptable.  The depth of the father’s feeling was palpable on occasions during the hearing and creates a significant barrier to the possibility of any further therapeutic intervention being successful. 

9. The mother in turn is also involved and contributes to the cycle which seems to be spiralling downwards. Each to some degree feeds off the other.

M

1. On the first day of the hearing the mother told me that, although she refers to M as her “partner”, she does so because she does not like using the word “boyfriend” (although later on that first day she actually used the word “boyfriend”).  M spends about three nights a week on average at the mother’s home.  So, whilst the mother and M do not currently live together full time in a de facto relationship, it is obviously a significant and important relationship.  The mother hopes that the relationship will blossom into something more permanent (particularly after the conclusion of these proceedings).  M was less forthcoming in terms of discussing his commitment to that happening.

2. On the first day of the hearing, the father told me that he had never had a direct conversation with M and so far as I know that is still the case today. 

3. The mother on the first day indicated that she thought the father made the children feel dirty for liking M.  She thought the father was jealous of M. 

4. Ms E is of the opinion that the children have managed to build and maintain good enough relationships with members of their extended families, including M. 

5. M presented to the family consultant as an amenable, articulate man who spoke of his affection for the children, that he was not trying to compete with their father and that he would step out of the way, concluding that it was none of his business and that he would just do what he could for the children.  This is to be contrasted with his oral evidence where he made it clear of what he thought of the father’s attitude to the children when he said words to the effect “with greatest respect, I don’t think he really cares about these children”. 

The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent

1. When I first saw the parties for the beginning of the hearing on 18 August 2008, they had not spoken to one another face to face about the children for at least three years. 

2. The father lacked considerable insight on the first day of the hearing as to the affect that the inability of the parties to communicate had upon the children. He said words to the effect, “the children are fine as long as they are left alone”.

3. As counsel for the Independent Children's Lawyer emphasised during submissions, it is the inability of each parent in this case to set aside the personal problems they have with one another which are getting in the way of the children moving comfortably between them.  That is the big issue in this case.

The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other person with whom they have been living

1. The father no longer seeks that the children live with him most of the time.  The mother seeks that there be no change in the current arrangements.  The father wishes slightly more time.  In my view the changes proposed by the father are not so significant as to require me to put any weight on the likely effect of these changes upon the children.  I do not accept the mother’s concerns that the children will be affected by further time with their father in a negative way and will conclude that it is in the children’s best interests to provide them with some further opportunities to be with their father. 

The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s rights to maintain personal relationships and direct contact with both parents on a regular basis

1. The father seeks that the transportation of the children between the parents be shared.  The father however has not, in my view, demonstrated that there is any significant practical difficulty in the current arrangement.  The current arrangement has the attraction of relieving some of the financial burden from the mother of having to pay for and attend to the transportation costs in circumstances where it is likely she will continue to bear a greater financial burden in caring for the children.  The current arrangements are not so difficult or expensive to be given weight. 

The capacity of each of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs

1. Ms E states at paragraph 59:

   “In this family situation the quality of the relationship between [the father] and [the mother] is of particular concern.  The difficult and at times hostile parental relationship that exists has no doubt been exacerbated by, among other things, various cultural influences, allegations made in regard to possible child protection issues, continuing issues with child support and ongoing litigation.”

2. At paragraph 62 Ms E states:

   “There were some indications that [the father] is preoccupied by the belief that he has suffered as a direct result of the actions of [the mother].  This, coupled with an apparent inability to consider the role he may have played in the ongoing dispute, means that his ability to focus on the needs of the children could, at times, be restricted.  Should the father intentionally or unintentionally expose the children to his negative feelings towards the mother, given that they are primarily attached to her, there is the potential risk of damage to the relationships he experiences with each of the children.”

3. The mother appeared from time to time to have some insight as to the damage that was being done by the father and herself and how it could be that that might be turned around.  The father had little insight in respect of that topic.  A complicating factor in terms of the mother’s insights was that she saw the litigation as a process of vindication, particularly of M and the allegations made against him in December 2007.  M was funding the litigation on behalf of the mother and in my view the litigation was getting in the way of the mother putting into action some of the insights it appeared she had. 

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks are relevant

1. At paragraph 63 Ms E states:

   “The Family Consultant was uncertain whether or not the father’s request that the children attend all Name Day celebrations (children and adults) and other relevant cultural celebrations was genuinely consistent with his cultural perspective or whether he was preoccupied with ensuring that the time and financial arrangements were fair and equitable.”

2. I find that the father’s request in relation to name days is properly motivated. The issue of the children’s name days is discussed further in this judgment under a separate heading.

The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents

1. At paragraph 67 Ms E states:

   “The conflict that has existed between these parents has directly impacted on their ability to be child-focused and to effectively and appropriately communicate with one another about parenting issues for either child.  Nevertheless, while there are significant concerns about the capacity of [the father] and [the mother] to effectively communicate and co-operatively parent it would appear that their ability to consult one another at a minimum level about the bigger issues is sufficient to the task involved in equal shared parental responsibility.”

2. The mother is, in my view, justifiably upset by the fact that the father has not properly fulfilled his responsibilities for the payment of support for the children since the separation, notwithstanding the lump sum payment that represented an upfront payment for the first three years.

3. Clearly the children at the current time have been message carriers between the two parties and Ms E indicated that they were entering an age where that could become very problematic, particularly in circumstances where the parents do not communicate.  It is very likely in those circumstances that something a child says could be totally misinterpreted because of the distrust that exists between the two parents.

Any family violence involving the children or any member of the children’s family

1. Assertions made by the mother as to violence in the marriage date back to 2003.

2. The mother said that the family violence during the marriage was not known to her family, she was too scared and she did not tell her family during the marriage as to what the father was doing.

3. The mother asserts that the children remember and saw things during the marriage that scared them.  The children however did not report to the family consultant that they remembered their father being violent during the marriage.  The children did make statements to the report writer about their father getting angry.

4. The mother reported on the first day of the hearing that the children had come back and told her that their father had thrown everything off the table onto the floor and that had scared them.

5. The mother conceded on the first day of the hearing that there had been no physical incident for the four and a half years that had elapsed to that point since the date of the separation.

6. The parties have had angry words on the telephone but have not had a real argument on the telephone according to the mother since about August 2007. 

7. No AVO was sought by the mother until 2007.  No order was obtained on a final basis at that time and those proceedings were settled on mutual undertakings when the mother applied for an AVO at the Local Court.

8. There is no current order in existence. 

9. Whilst the mother told me on the first day that she was scared of the father, the mother made it clear on the first day of the hearing before me that she did not have a problem with the father attending the children’s school which is also her place of work.

10. When speaking to the family consultant about family violence in her marriage, the mother indicated to the family report writer (at paragraph 31) that there were occasions prior to separation where arguments became physical in nature and “this included [the father] punching walls in anger, physically throwing her up against a wall, and an occasion when he ‘choked’ her.  She said that ‘while she recognises her experiences of family violence are ‘on the lower end of the scale’, she said that it contributed to her loosing confidence and self belief.  She said that she left the marriage because she did not want the children to grow up ‘thinking it is ok for dad to treat mum like that’.”

11. There is no detail in respect to the most serious of allegations, namely that the father “choked” the mother, but I infer the incident must not have been a serious one given the mother’s further categorisation of the level of family violence.  Whilst not detailed to the family consultant, the mother says in her affidavit that she was also slapped and spat upon by the father. 

12. On 11 February 2009 I allowed the mother to set out her evidence in relation to family violence.  The manner in which the mother set out the information in relation to family violence (which must have concluded in 2003) led me to form the view that it would not have assisted in determining the outcome of the issues I have to decide in allowing an exploration of that history.  It would have involved the mother giving far more specific detail of the incidents that were alleged and giving the father an opportunity to formulate a response to those matters.  Whilst the general descriptions made by the mother provide some background in understanding the level of intensity of dislike between the parties, they are not of themselves of the nature of continuing or controlling violence that would have an impact upon the way in which I decide what is best in the interests of the children today.  As I have said, there has been no reported incident of harassment or aggression since the parties separated, although the mother did take out an AVO application against the father after he had made the allegations on 9 December 2007. 

13. Whilst whatever low level violence that existed during the marriage should not be ignored (and I have no doubt it plays some part in the mother’s emotional resistance to moving forward towards the possibility of developing a functioning relationship with the children’s father as parents), it is not, in this case, of any great weight or significance in the decisions that I have to make as to parenting orders which are in the best interests of the children, in the future.

14. The mother alleges the father has angry outbursts in front of the children.  That assertion is supported to some degree by statements made by the children to the family consultant. The issue however was not sufficient concerning to the family consultant to prevent her from recommending extensive time on a fortnightly basis between the children and their father and on an unsupervised basis.

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 children

1. The mother made the point during the hearing that these proceedings had in fact become the focus of much of her attention for the last two years and had compromised in some way her ability to focus on the parenting of the children.  I have found that the principles in Rice v Asplund do not prohibit a rehearing of this case at this time but it is important that the parties minimise the amount of litigation that they have in the future in respect of the children.  For that purpose I intend to make an order that, if I am reasonably available, any further judicial determination that needs to be made in relation to the children will be listed before myself.  Hopefully the parties will be able to develop a relationship which will enable them to make decisions themselves. That certainly would be the best outcome for the children.  In the event they are unable to make those decisions, I will be making an order that they attempt to mediate them.  The matter would come back before me if that mediation failed or if one of the parties believed that the issue was sufficiently urgent to sustain an argument that mediation should not delay a decision being made. 

Section 60CC(4) Family Law Act

1. When considering the extent to which each parent has fulfilled or failed to fulfil the responsibilities as a parent, I find that there is no evidence that the father failed to take up an opportunity to participate.  Having said that however, the father has not had as many opportunities to participate in the children’s lives as the mother has taken on the substantial role of making decisions in respect of the children. 

2. As I discuss below, I have some disquiet about the father’s income earning activities since separation.  Whilst the father would argue that he has fulfilled his obligation to maintain the children since separation, the reality is that the bulk of the financial burden has fallen on the mother and that the father has challenged the assessments made from time to time by the Child Support Agency.  He is currently in significant arrears with the Child Support Agency but has reached an agreement with them in respect of those arrears. 

Equal time and substantial and significant time

1. Section 65DAA(1) of the Act provides that if a parenting order provides for the parties to have equal shared parental responsibility (as will be the case in this matter), the court must consider whether the children spending equal time with each of the parents would be in their best interests and consider whether the children spending equal time with the parents is reasonably practicable and if it is, consider making such an order.

2. Neither party sought an order for equal time.  I did not propose such a possibility during the hearing.  The reason is obvious.  It is not reasonably practicable given the parent’s current capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind (see s 65DAA(5)(c)). 

3. Given that I have not made an order for equal time and given that there is to be an order for equal shared parental responsibility, I then must consider whether or not for the children spend substantial and significant time with each of their parents would be in their best interests.  The definition of substantial and significant time is contained in s 65DAA(3) and the order I propose to make satisfies the requirements of that definition.  Although it would be highly beneficial for the parents to be able to improve their ability to communicate with one another (and I will make an order to give the parties a further opportunity in that regard), the parents’ current capacity to communicate with each other is not absolutely essential for the implementation of an arrangement of the kind of orders that are proposed.  The parties live sufficiently close to one another for the arrangements to work and have already demonstrated a capacity to implement the arrangements.  Both parties currently have a very negative attitude towards one another and there is a risk that unless regular times for the children to see their father are “locked in”, then there may be an impact upon the children which could see them drift away from their father, particularly given the hostility in the mother’s household towards the father. That would not be in the children’s long term best interests.

The practicality of pick up proposals

1. The father gave evidence that he has made application to a company for employment and that he is hopeful of obtaining a position with that organisation.  There are three available shifts that he could have.  One shift is from 6am to 2pm, the next is at 10am to 6pm and the next is 2pm to 10pm.  The father said that his understanding was that the employer was a family friendly employer and that he was confident that he would be able to organise times off to ensure that the children would be with him during the periods that the father has sought.

2. Counsel for the mother pointed out the difficulties with some of the shift start and end times.  The father gave evidence that he would have to use child day care and that there might have been a bus that ran to the school. 

3. I accept the mother’s evidence that there is no bus.  R, where the father lives, is 35 kilometres from the school.  Child care that does exist lasts until 5pm and is an amount of $40 per day (which I assume the father could afford if he did obtain full time employment).  The father would have to be on the earliest shift in order to be able to be available for the children on the Thursday night on the off week.  That is also the only shift that would allow him to pick the children up at 5pm on a Friday night.  It seems that the father would have to negotiate with his employer to be on the one shift (6am to 2pm) for the orders to work during school term.  Child care does not seem to offer any solution in respect of the other two shifts.  The father did not make any proposal that any member of his extended family would assist in picking the children up. 

Extra-curricular activities

1. The mother asked that an order be made that the father not have his time with the children in circumstances where he would not be able to take them to their ordinary activities.  The father indicated that he would arrange his timetable in order to fit in with the children’s routine. There may however be inevitable occasions where the father is unable to get the children to their ordinary extra-curricular activities.  If it became a pattern that he was unable to achieve taking the children to their ordinary activities, then I would expect that the father would communicate via the communication book or SMS to the mother and make some arrangements so the children would not miss out.  If the matter becomes a systemic problem, then the matter can be referred back to me. 

Greek Easter

1. The mother’s evidence is that her family devoutly follow the tenants of the Greek Orthodox Church.  Since the children have been born the mother has been attending religious ceremonies with them during holy week and particularly on Good Friday and Holy Saturday night.  The rite carried out on Friday and Holy Saturday night was described in detail in evidence.  After the midnight ceremony on Saturday night, the children return home for a celebration.  It is a late night for them.  They would go to bed in the early hours of the morning.  There is a further lunch time celebration on Sunday followed by church on Sunday evening.  The mother seeks an order that would effectively mean that the children’s involvement in the Good Friday and Holy Saturday celebrations would be exclusively with her.  She says that since the separation the father has never taken the children to church over Easter, except for Easter 2009 when as a result of being found in breach of orders, compensatory time was ordered and that order was during the Easter period.  The mother was of the view that the father had only taken the children to religious festivities over Easter because this case was pending.

2. The father indicated that he and his family did hold religious beliefs that saw them going to religious celebrations, particularly at Easter and Christmas. 

3. The mother indicated that the children came back from Easter 2009 with negative stories about their ability to participate with the paternal grandmother in the preparation of the Easter feast.

4. In my view the parents should both receive an opportunity to participate with the children in serious religious observance over the Easter period and it seems, from this family’s point of view, that the two most important days during the Easter period are Good Friday and Holy Saturday ceremonies. 

5. I prefer the father’s proposal over the mother’s proposal because it means that each parent over the Easter period will share one major religious ceremony with the children and that ceremony will alternate in alternate years for each parent.

Name Days

1. The father wished, on alternate years, to attend name days with each of the children.  The mother opposed this.  The Independent Children's Lawyer was of the opinion that it was too much trouble to worry about.  The family consultant opined that it might be a request by the father which indicated a wish to control the mother.  I am not of that view.  The evidence of the maternal grandmother made it clear that name days are of some significance in the Greek Orthodox tradition, although maybe in this case more significant to the children’s grandparents on both sides rather than the parents.  I accepted the father’s wish to have an involvement in the children’s name days on each alternate year as a genuine position and I see no reason why arrangements cannot be made for two days out of every two years for this to happen and I will make orders accordingly.  I find that it is in the children’s best interests for them to have some involvement with both sides of their family on their name days. 

Conclusion about parenting orders

1. I conclude, taking into all relevant statutory considerations, that the orders which I make are in the best interests of the children.

CHILD SUPPORT

1. Both parties sought different final orders which related to the support of the children.  The father wanted payments in relation to school fees, uniforms and school activities to be treated as a non agency payment for the purposes of assessment of child support.  The mother opposed that order being made and sought an order for the father to make payment for in and out of school activities such as sporting, piano, swimming and private tutoring, school tuition and school fees and the payment of one half of the costs of private medical, hospital and dental cover additional to any periodic child support the father would be required to pay.

2. Order 15 made on 10 May 2004 is in the following terms:-

   “15.  That the husband pay as and when they fall due the tuition and school uniform costs of [R] from the date she commences school until she attains the age of 18 years or finishes secondary school.”

3. There was a further order made on 10 May 2004, that the husband and wife execute a child support agreement which would incorporate the terms of order 15 and the requirement for the payment of the sum of $20,000 by way of lump sum child support and to register that agreement with the Child Support Agency.  The father’s evidence indicates that the parties had complied with that order (Order 16).  I was not provided with a copy of that child support agreement.

1. The parties have implemented the terms of Order 15 in that the father has accepted the responsibility (although not totally fulfilled it) of paying R’s school fees.  The mother has paid L’s school fees.  The children, by mutual agreement of the parties, go to S College at N. 

2. The mother works at that school.  It is a matter of some embarrassment to her that the principal of the school and the bursar have had conversations with her about the amount of school fees that is currently outstanding in respect of R.  Fees have not been paid since the father paid $2,200 in September 2008. There is approximately $5,000 outstanding in respect of school fees for R.  The father during the hearing expressed an intention that he would do everything necessary to come to an arrangement that was acceptable to the school in relation to the payment of arrears of school fees. 

3. He however wants those payments counted against child support for which he is otherwise assessed. 

4. Both parties approached this matter on the basis that I had a discretion to make an order for non periodic payment of child support.  As I have said, I do not have a copy of any agreement the parties signed in 2004 but both parties must be taken to have consented to a variation of any such agreement to allow me to approach the matter in the way in which I have been invited by the parties. 

5. Section 124 Child Support (Assessment) Act 1989 requires the court to be satisfied that it would be just and equitable and otherwise proper, to make the order sought. The application can only be made if there is an administrative assessment in force, as there is in this case. The court must have regard to matters set out in s 124(2) - (5) Child Support (Assessment) Act 1989. Pursuant to ss 124(2), the court must have regard to any administrative assessment, departure determinations, departure orders and whether the carer is entitled to an income tested pension.

6. When considering whether a particular order is just and equitable, those matters set out in s 117(4), (6), (7), (7A), (7B) and (8) Child Support (Assessment) Act 1989 must be taken into account. Section 124(3A) of the Act provides that when looking at s 117(4)(da) the court may determine that the parent’s earning capacity is greater than what is reflected in his or her income only if the court is satisfied of the matters set out in s 117(7B) of the Act.

7. The provisions of s 117(7B) are as follows:-

   “In having regard to the earning capacity of a parent of a child, the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:

   (a)one or more of the following applies:

   (i) the parent does not work despite ample opportunity to do so;

   (ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;

   (iii) the parent has changed his or her occupation, industry or working pattern; and

   (b) the parent’s decision not to work, to reduce the number of ours, or to change his or her occupation, industry or work pattern, is not justified on the basis of:

   (i) the parent’s caring responsibilities; or

   (ii) the parent’s state of health; and

   (c) the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.”

8. Section 125(1) Child Support (Assessment) Act 1989 requires me, if an order is made, to state in the order whether there is to be any reduction in the amount of any periodic administrative assessment and there has to be special circumstances found for there not to be a reduction (s 125(2) Child Support (Assessment) Act) 1989. 

9. The central question in this case impacting upon the determination of a just and equitable result, is the income, earning capacity, property and financial resources of each of the parents. Neither parent filed a financial statement (as required by the Family Law Rules 2004). The father provided some financial information relating to his working history, his earning capacity and his current fortnightly expenses (paragraphs 37 to 61 of his affidavit filed 7 April 2009).

10. The father’s evidence is that between 2004 and 2007 he paid school fees, school clothing, child support and medical fees which the mother requested.  The father says that receipts and tax invoices which are letter “J” and do not amount to a large amount of money over the three year period, are not all the invoices that he paid.  As mentioned, it was part of the 2004 arrangement that a lump sum amount of $20,000 be received by the mother to cover periodic payments for three years.

11. On or about 11 January 2008 the father became aware that the mother had made an application for a change of assessment of child support.  There is some details in that document setting out her income and expenses as at December 2007.  There are also some information about her assets and liabilities as at that date.  The Child Support Agency reassessed the father’s child support as at 13 March 2008.  The father had not participated in the assessment process. The Agency was satisfied that the father’s taxable income did not reflect his earning capacity and an assessment was made that the father had an earning capacity of approximately $57,000 per annum.  That assessment was based upon the father’s history of gainful employment during the six years of the marriage; the fact that the father had the qualification of an electrician licence and that the father had employment in a business owned by his relatives (a shop).  The father told me on the first day that he works in his brother’s shop five to six days a week from about 10am until 2pm. 

12. The father has not fulfilled his obligations under that assessment.  An immediate effect of the assessment in March 2008 was that arrears of about $3,500 were deemed to have accumulated against the father.  The father objected to the decision and in September 2008 the father’s earning capacity was reassessed by the Child Support Agency at $47,000 per year.  The father appealed to the Social Securities Appeal Tribunal who made some minor changes to the assessment but found that the father’s adjusted taxable income should be set at $48,137 per year. 

13. The father has reached an arrangement with the Child Support Agency. The current payment he makes is $70 per week plus $30 towards the arrears.  It is the father’s position that due to tough economic times he has been unsuccessful in obtaining full time employment.

14. I have little information about the father’s assets and liabilities. 

15. The father was tested on whether or not he was the owner of a piece of real estate in V.  He indicated that the property at V had been sold.  The settlement took place in April 2009 (see Exhibit H) and ING Bank was paid back $189,000. The settlement statement indicates that the father received no net amount after the payment of council rates, water rates and solicitor’s fees on settlement.  There was a deposit paid however of $21,300.  The father’s evidence was that he did receive some funds from the proceeds of the sale but I am satisfied that the father no longer has an interest in the V property.

16. The father says that he sold his van for $3,000 in September 2008 and from those sale proceeds he paid $2,200 in school fees.  The September payment was the last payment he has made towards school fees. 

17. Exhibit G is a document that had been sent by the Child Support Agency to the father dated 8 April 2009.  It indicated that the current outstanding arrears of child support are in the sum of $7,735.30 and that that was being paid off at a rate of $30 per week in addition to the $69.07 weekly payment under the current assessment.

18. At paragraph 61 of the father’s affidavit he sets out what he says his fortnightly expenses are for himself and the children.  The money spent on the children whilst they are with him amounts to $310 a fortnight and he says that he spends $240 on himself per fortnight.

19. The Child Support Agency and the Social Securities Appeal Tribunal have concluded that the father is not fully exercising his earning capacity.  The child support issues in this matter were not the focus of any detailed examination during oral evidence.

20. Section 117(7A) of the Child Support Assessment Act 1989 requires me to have regard to the capacity of the father to derive income. There was no details given, nor was there any testing, of the father’s ability to work in the business owned by his relatives. The father has given evidence that he hopes to soon have a full time job. The mother also hopes that he gets a full time job.

21. I am less than convinced that the father has done everything he could to exercise his earning capacity.

22. On the information I have and on the balance of probabilities, I conclude that the father has been strongly motivated in minimising his financial position in respect of payment of child support because of the total breakdown in the relationship between he and the mother.  I conclude that the father does not want to exercise his full earning capacity and has, since the separation, had ample opportunity to do so.  I infer from the evidence generally, although it was not explicitly put to the father, that he would not see making voluntary payments of money to the mother as something that he had a responsibility to attend to.  Notwithstanding the evidence the father has given about his employment history, the father has not on balance convinced me that he is exercising his full earning capacity.  The father’s decision not to make payments to the mother is not based upon the father’s caring responsibilities or his state of health.  The father has not demonstrated that his failure to exercise his full earning capacity was not for a reason other than to affect child support payments that he would otherwise be asked to make. 

23. The father has been assessed to periodically pay child support on the basis of that earning capacity (rather than what he states he is actually earning). 

24. The mother failed to provide any financial details in the material that she filed for the final stage of the hearing.  In oral evidence she told me that her gross income was $50,200 per annum and that she received in her hand about $1,600 per fortnight.  She owns a home that might be worth around $470,000 but there is a mortgage of about $140,000.  She pays $300 per week in respect of the mortgage, which leaves about $500 per week for her to live on and to substantially provide for the children’s needs.  She of course also receives $100 per week by way of child support and arrears of child support (that has been the situation for the last three months).  The weekly budget includes payments for L’s piano lessons and the maintenance of the family dog. 

25. The mother indicated that M and she did not intermingle their finances.  M has been funding the litigation for the mother.  M seemed to be a man of independent means.  He is a property developer.  He owns his own home unencumbered and was coy about the property holdings that he owned with his father.  It would be naive to think that M was not some type of financial resource for the mother in the future, but M should not take on the responsibility for the payment of expenses in respect of the children that the parents can otherwise afford themselves.

26. Section 117(7) Child Support (Assessment) Act 1989 says that I should disregard the income or property of any person who does not have a duty to maintain a child unless there were special circumstances to do so. Special circumstances do not exist in this case.

27. It is clear that both parties agreed for the children to attend S College at N and they agreed in 2004 that they would equally pay tuition fees associated with that attendance. Currently therefore that expectation has some relevance under s 117(6) of the Child Support (Assessment) Act 1989.

28. Obviously neither of the children are of an age where they have the capacity to earn any income.

29. Taking all those matters into account, I find it is just and equitable and otherwise proper to not make either order sought by the mother or the father in relation to child support.  There is no basis in justice and equity for granting the father’s application that his payment of R’s school fees should in some way offset the obligation he has to pay for the children’s periodic support.

30. If I am wrong about that then in the alternative I find that there is no basis upon which the 2004 agreement by the parties that each of them equally share the payment of school fees to enable the children to go to an agreed school, should be disturbed.   

31. However, it is more convenient to make a fresh order in the same terms as the old order so that the parties have a complete set of orders in the one document.  Given that I will discharge all other orders, I will remake order 15 of 10 May 2004 so that the father is responsible for paying tuition fees and school uniform costs of R. 

32. In the event that the father fails to honour that responsibility and the mother is put in the difficult position of not being able to continue R at S College, on a reapplication before me that failure by the father is likely to be highly relevant as to whether or not the mother’s wish to move R’s (or in fact both children’s) school should be granted at some point in the future.

33. I also find in the circumstances of the case that given the mother has currently put the children into extra-curricular activities, then if they are to continue, she should continue to pay the fees for those activities.  If however in the future the parties make a joint decision that the children involve themselves in an activity, then the payments or the fees for those activities should be met equally by the parties. 

FURTHER THERAPEUTIC INTERVENTION

1. On 18 August 2008 I made an order in the following terms:

   “4.  The Family Consultant recommend to the parties an appropriate post separation parenting program and provide me with information about their attendance at such a program and whether it has had any effect on the ability of the parties to communicate as parents.”

2. Ms E in the family report records at paragraph 17 that, as at the date of interviews, the father was halfway through the six week “Parents not Partners” post separation course run by Interrelate at Kirrawee. He said that he had found the course a “little frustrating” primarily because “everything they are saying, [he is] already doing”.  He speculated that the difficulties present in the parenting relationship must make things “tough” and added “I am doing everything possible, it’s the mother”.

3. At paragraph 30 of the report, Ms E says that as at the date of the interview the mother had completed four of the five sessions involved in Centacare’s post separation parenting program “Keeping Kids in Mind”.  She said that she is enjoying participating in the course and had found the course content “good”.  She also spoke of “feeling good” at being able to successfully apply some of the suggested strategies.  M had accompanied the mother to a couple of sessions.  M made the point in oral evidence that he had done that voluntarily and he had not been required to go. 

4. As was clear from what I said on 18 August 2008, my original intention in asking for assistance to place the parties into some post separation parenting program was so that they could each be initially seen in that program and if the professional running the program thought it was appropriate, for them to be brought together at some point.  Unfortunately that did not happen.  I was uncertain, given the difficulties between the parties, whether or not there is any point in trying to have that happen.

5. I asked Ms E during her oral evidence, as to whether or not we should give up on using professional services to attempt to improve, in some manner the way in which the parents function as parents.  Her response was that, for the sake of the children, we should not give up.

6. L told Ms E that one of the things that would make her life easier is if changeovers were “different”.  L thought that “different” would be “they’d say hello to each other”.  At the moment the two parents cannot say hello to one another.  The children are aware of that, and are and will be affected by that. 

7. I have concluded that we should not give up just at this point and one last attempt should be made to provide the parents with an opportunity to reach a point where they could say hello to one another.  It will of course be up to an individual professional to make the assessment as to whether or not the parties should be brought together in any counselling situation.  I hope that that can happen.  I intend to make an order that the parties involve themselves in a further post separation parenting process involving the same counsellor.  I will request that Ms E make an appropriate referral.  The mother protested that she would not be able to pay the cost of an individual therapist.  I am confident however, knowing something of her financial circumstances, that she would be able to find the resources to pay for somebody working in a non-Government organisation.

APPLICATION BY THE INDEPENDENT CHILDREN'S LAWYER FOR COSTS

1. The Independent Children's Lawyer made an application for costs in the sum of $8,368 together with counsel’s fees in the sum of $2,974.40. 

2. In considering any costs application, the provisions of s 117 of the Act apply. Subsection 117(3) provides that an order can be made in favour of an Independent Children's Lawyer (if that was otherwise in doubt). Pursuant to the provisions of s 117(2), an order can be made under that subsection if the court considers it just to do so and in determining what order to make, provisions of s 117(2A) must be considered.

3. The financial circumstances of the parties has been described above.  Both parties are struggling currently to meet the costs associated with the children.  The husband has significant arrears of child support and arrears in relation to R’s school fees.

4. The Independent Children's Lawyer points to the conduct of the parties to the proceedings and in particular the failure to heed the recommendations contained in the family report and reach a resolution of the matter once it was clear that the father agreed there were no continuing child protection concerns in the mother’s household. 

5. That submission disregards the underlying fundamental problem in this case and that is the depth of dysfunction of the relationship between the two parents.

6. It was common ground that the Independent Children's Lawyer had failed to comply with an order that I had made (being order 3 on 27 April 2009). Counsel for the Independent Children's Lawyer initially suggested that because the Independent Children's Lawyer was not a party to the proceedings, the Independent Children's Lawyer’s conduct could not be taken into account in respect to the costs application. Counsel for the Independent Children's Lawyer however conceded that that matter could be taken into account under s 117(2)(g) of the Act.

7. Taking the matters to which I have referred into account, I do not consider that it is just for the parties to be required to pay the Independent Children's Lawyer’s costs as sought by the Independent Children's Lawyer. 

I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  24 August 2009