Larsen and Geary
[2018] FCCA 340
•21 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LARSEN & GEARY | [2018] FCCA 340 |
| Catchwords: FAMILY LAW – Parenting – 14 and 12 year old children estranged from parent – weight given to children’s wishes. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC Evidence Act 1995, s.140 |
| Cases cited: Goode v Goode (2007) 36 Fam LR 422 MRR v GR [2010] HCA 4 |
| Applicant: | MS LARSON |
| Respondent: | MR GEARY |
| File Number: | BRC 12379 of 2007 |
| Judgment of: | Judge Lapthorn |
| Hearing dates: | 27 & 28 February 2017 and 1 March 2017 |
| Date of Last Submission: | 1 March 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 21 February 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Solicitors for the Respondent: | Self represented |
| Counsel for the Independent Children’s Lawyer: | Mr Waterman |
| Solicitors for the Independent Children's Lawyer: | Legal Aid Queensland |
ORDERS
That all previous parenting orders be discharged.
That the mother have sole parental responsibility for the major long term issues of the children, [X] born (omitted) 2002 and [Y] born (omitted) 2004 ("the children").
That the mother keep the father informed by email of any significant decisions to be made in relation to the children's care, welfare and development.
That the mother shall provide the father with details of the decisions to be made and consider the father's view in relation to those issues prior to making a significant decision in relation to the children's care, welfare and development .
That unless in a case of emergency, the mother shall provide to the father details as described in Order 4 herein no less than 14 days prior to making a significant decision in relation to the children's care, welfare and development and the father shall provide any view regarding the decision to be made within 14 days of receiving the details from the mother.
That the parent in whose care the children are from time to time have parental responsibility for decisions concerning the daily care, welfare and development of the children.
That the children live with the mother.
That the children, subject to their wishes, spend time with the Father for three (3) days during each school holiday period as agreed in writing between the parents via email and/or SMS and failing agreement commencing Friday of the first week of the school holidays.
That unless otherwise agreed between the parents, changeover take place at 12.00 noon in (omitted).
That the children be at liberty to communicate with the father by telephone at times to be agreed between the children and the father, with the children to let the father know by SMS text message when is a suitable time for him to call them.
That the children be at liberty to communicate with the parent they are not with by telephone at all reasonable times and each parent shall support and facilitate such calls by the children to the other parent.
That the parents keep each other advised of their respective address and telephone numbers (landline and mobile, if connected), and notify the other within 48 hours of the details of any changes to such contacts, such communication to be by email or SMS text message;
That, should the children be involved in a medical or other emergency, or be hospitalised , then the parent with the care of the children at that time will notify the other as soon as practicable thereafter, by email or SMS text message;
That this Order is to serve as authority to the children' s doctors and medical specialists to release information to both parents as may be requested from time to time concerning any relevant matters concerning the children.
That the parents authorise, by this Order, the schools attended by the children to give each party information about the children's educational progress and other school related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children at that parent’s cost.
That during the time the children are spending time with or communicating with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Speak of the other party's family and friends respectfully; and
(d)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that the others do not denigrate or insult the other parent in the hearing or presence of the children.
That the Independent Children's Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Larsen & Geary is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 12379 of 2007
| MS LARSON |
Applicant
And
| MR GEARY |
Respondent
REASONS FOR JUDGMENT
Introduction
I have been asked to make parenting orders in relation to two teenage boys, [X] aged 15 and [Y], 13. The boys have been estranged from their father for a number of years and are reluctant to spend time with him. The father believes that the mother and her husband have alienated them from him. The mother denies this. She said she was supportive of the boys having a relationship with their father but that given their ages and the history of their experiences with the father any time spent and or communication between the boys and the father would have to be subject to the boys’ wishes.
Competing Applications
The boys were represented in these proceedings. At the hearing the Independent Children’s Lawyer (ICL) handed up a proposed minute of order, which is annexed to this judgment as annexure A. The mother supported the ICL’s proposed orders. The significant orders in that minute can be summarised as follows: That the mother have sole parental responsibility for the children; that the children live with the mother and spend time with the father, subject to their wishes, for three days each school holiday period. Ideally the father would like the children to live with him and in his outline of case document he sought orders to that effect. After some consideration however he abandoned his primary position and the hearing proceeded on the basis of his alternate position which was that the parents have equal shared parental responsibility; that the children spend unsupervised time with him one weekend each month from 5pm Friday to 5pm Sunday and for half school holidays. He proposed a staged up re-introduction process before the full weekend time commenced.
Material relied on
In support of her case the mother relied on:
a)Her Further Amended Initiating Application filed 24 August 2015;
b)Her affidavit filed 20 January 2017;
c)The affidavit of Mr K filed 20 January 2017;
d)The affidavit of Ms A filed 20 January 2017; and
e)Her outline of case document filed 20 February 2017.
The father relied on:
a)His Amended Response filed 19 August 2015;
b)His Notice of Risk filed 11 March 2015;
c)His affidavit filed 17 January 2017;
d)The affidavit of Ms Lundated (annexed to father’s affidavit filed 17 January 2017);
e)The affidavit of Mr M sworn 10 January 2017 (annexed to father’s affidavit filed 17 January 2017);
f)The affidavit of Mr R sworn 11 January 2017 (annexed to father’s affidavit filed 17 January 2017); and
g)His outline of case document filed 22 February 2017.
The Independent Children’s Lawyer relied on:
a)The Case Outline filed 20 February 2017;
b)The affidavit of Ms V filed 23 January 2017; and
c)The affidavit of Mr S filed 24 September 2014.
Two family reports were read in these proceedings. The first from Mr S prepared in 2014 and the second from Ms V prepared in 2016. Whilst I have had regard to both reports I have given greater attention and weight to the more recent report of Ms V. For this reason any reference to the family report or the report writer should be read as pertaining to the report of Ms V. I will refer to the report from Mr S as the S report to differentiate them.
A number of documents were tendered into evidence[1].
[1] ICL 1: Subpoena Tender Bundle;
In determining this matter I have had regard to all of the written evidence and submissions referred to above along with the oral evidence given. In order to avoid repetition and limit the length of this judgment I will not repeat the evidence of the parties but refer to the evidence that is necessary for me to determine disputed issues and carry out my assessments in accordance with the legislative framework. Therefore throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the court is required to assess the evidence on the balance of probabilities.[2]
[2] Section 140 Evidence Act 1995
Credit
A disappointing feature of this case was the father’s presentation. I make no criticism of the father’s passion for his boys and his desire to have a relationship with them. Regrettably though this passion appears to have clouded his level of insight and objectivity. He took no responsibility for the circumstances surrounding the estrangement in his relationship with the children. He blamed the mother and her partner entirely. On the other hand the mother and Mr K made concessions as to their handling of some incidences. They presented as being more capable of objectivity. Given that finding, in assessing disputed questions of fact I preferred the mother’s evidence to that of the father.
Evidence
The parties met through church in 1989 when the mother was 21 and the father was 26. They married on (omitted) 1990 and separated on 15 April 2004, prior to [Y]’s birth. A divorce order was made on 8 January 2008. [X] was born on (omitted) 2002 and [Y] was born on (omitted) 2004.
The Applicant mother is 49 years of age having been born on (omitted) 1968. She lives in Town A with her husband Mr K and the children. The mother described herself as a full time parent, homemaker and author. She is an active member of her church community as is her husband.
The Respondent father is 54 years of age. He was born on (omitted) 1963. He lives in Town B with his mother who has age related health issues. He is currently unemployed, a circumstance he attributes to health related issues caused by the ongoing parenting and child support disputes with the mother and the demise of his relationship with the children. He has been in a relationship with Ms L for more than seven years and they are engaged to be married. Ms L lives in her own home in Town B with one of her two adult children not far from the father’s home. She is employed as a (occupation omitted) with the (employer omitted).
The mother gave evidence of a history of family violence in the marriage perpetrated on her by the father over a period of time. She said that there was an incident in April 2004 when she was three months pregnant with [Y] where the father pushed and hit her. This was the catalyst for the separation. The father strenuously denied any allegation of family violence perpetrated by him. After separation the mother applied for a domestic violence protection order in the (omitted) which was ultimately resolved by way of a Deed of Settlement signed by both parties. Part of this agreement restrained the father from coming within 100 metres of where the mother and children were living.
Following separation the children resided with the mother and spent little time with the father. At a Legal Aid Conference in April 2006 the parties, with the assistance of their lawyers signed “Terms of Agreement” in relation to the children. This agreement provided for the parties to have equal shared parental responsibility for the children who would continue to live with the mother and spend regular weekly time with the father. The parties were living in the same locality at this point in time. The agreement was never made into court orders.
In 2008 the mother, now in a relationship with Mr K, relocated with the children from Town B to (town omitted). On 2 June 2008 the father filed an Initiating Application with the court and sought the return of the mother and children to the Town B area. On 4 July 2008 orders were made by consent requiring the return of the mother and children. When the matter came on for final hearing in October 2008 the parties, with the assistance of counsel, reached final consent orders. In summary, these Orders provided for:
a)The children to live with the mother;
b)The parents to have equal shared parental responsibility;
c)The children to spend time with the father each alternate weekend from 5:00pm Friday to 5:00pm Sunday;
d)The children to spend time with each parent during school holidays on a week about basis;
e)That the Mother be restrained by injunction from relocating the children’s residence further than 350km from the Town B CBD.
Not long after these orders were made the mother relocated with children to Town A where Mr K had obtained work. Town A is 358km from Town B. The father remained in Town B and spent alternate weekends with the children in accordance with the October 2008 orders. Shortly after the mother’s relocation he filed an application for a family violence protection order in the (omitted) alleging issues at changeovers and receiving abusive written communication from the mother, but this application was ultimately dismissed on 16 February 2010.
The parenting orders were followed until early 2014. In her affidavit the mother gave evidence of a number of issues arising after the 2011 Christmas school holidays. I do not propose to repeat her evidence in detail other than to note that she observed changes in [X]’s behaviour whereby he questioned the parenting arrangements and started expressing anger. These issues continued throughout 2012 and 2013. The mother said that from 2013 [Y] also began exhibiting anger. In September 2013 [X] told his mother that the father wanted the boys to choose between the parents. In the fourth school term of 2013 the school advised the mother that both boys were experiencing behavioural problems at school. [X] who has asthma and [Y] who suffers from migraine headaches started experiencing these health problems more frequently. By the end of 2013 the boys were expressing a strong reluctance to visit their father. Despite [X]’s expressed refusal to go to his father during the Christmas holidays the mother managed to persuade him to do so. After their return in January 2014 [X] disclosed that his father had kicked him. [Y] confirmed this and both boys told their mother that during the holidays the father was very angry. The mother arranged counselling for the boys. The boys would not speak to their father on the phone and they told their mother that they did not want to visit their father for the first weekend time after the school holidays. The mother decided she would not comply with the 2008 orders. Both boys continued to have incidents at school including incidences of uncontrollable crying. The mother arranged for the boys to see a paediatrician.
The father denied kicking [X] or doing anything to cause a rift between the boys and him. He also denied trying to get the boys to choose between the parents. He accused the mother of deliberately orchestrating the breakdown in the relationship. His evidence was that the boys would often say they wanted to spend more time with him and in particular that during the 2013/2014 holidays the boys told him it was their best holiday ever. Ms L gave evidence that she saw nothing to cause her concern as to the father’s treatment of the boys. She described the boys having a good relationship with their father during the 2013/2014 holiday.
The mother filed her Initiating Application on 2 May 2014 that commenced these proceedings. In that application she sought orders suspending the father’s time with the children pursuant to the orders of 2 October 2008 but in lieu thereof for the children to spend supervised time with him at a contact centre in Town B. Although the father in his response filed 16 July 2014 sought a continuance of the orders of 2 October 2008 he entered into consent orders with the mother on 17 July 2014 which provided for the suspension sought by her. These orders also provided for the children to spend time with the father each alternate weekend supervised by contact centres in Town B and Town A on a rotating basis. The parties also agreed to obtain a family report from Mr Mr S. The parties negotiated the terms of these consent orders with the assistance of counsel.
Following the orders of 17 July 2014 the children spent a total of five supervised periods with the father. Of these five visits the mother was called to collect [X] early and [X] subsequently refused to attend the next two visits. The children’s last supervised time with the father was on 13 October 2014. In November 2014 the father indicated he no longer intended to spend supervised time with the children. Consequently, apart from the family report interviews the children had not spent any time with the father.
The parties were not only in dispute in relation to the parenting arrangements for the children. On 15 January 2015 the mother filed an Application in a Case for enforcement of child support debt owing to her by the father. At the date of filing the alleged debt owed was said to be $32,271.65. In his response the father sought a departure order dating back to 1 January 2012 pursuant to section 112 of the Child Support (Assessment) Act 1989. On 10 March 2016 I granted leave for the Child Support Registrar to make a determination under section 98S of the Act for the period commencing 1 January 2012. As a consequence of the granting of that leave the mother’s application for enforcement was adjourned pending the determination pursuant to s.98S. This determination is currently before the Administrative Appeals Tribunal.
Legal Principles
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[3] and must consider the best interests of the child as the paramount consideration.[4]
[3] S.60B
[4] S.60CA
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[5] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[5] S.60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[6] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[7] This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[8]
[6] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[7] S.61DA
[8] S.61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[9] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[10] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[11] A major long-term issue in relation to a child means an issue:
[9] S.61B
[10] S.61C
[11] S.65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[12]
[12] S.4
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[13] If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[14]
[13] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[14] S.65DAA(2)(c) & (d)
Determining the best interests of the children – the s.60CC considerations
The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors.
The children’s relationships[15]
[15] S.60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.
It was not disputed the children have a close relationship with their mother. There is also no doubt the children’s relationships with the father have been compromised. The father lays the blame entirely with both the mother and her husband. He was categorical denying any responsibility for the breakdown of the relationships. Although the mother conceded that she could have done things better at times, I was not satisfied she has deliberately set out to undermine the father/son relationships. Whilst I have no doubt the father loves both his children and has had periods of time with them that have been positive for all concerned I am also satisfied that the father has at times conducted himself in a way that the children have found confronting. Over time this had lead to the breakdown of their relationships.
[X] told the family report writer that his father pressures him about what his mother has done. He complained about his father being angry which is worse if his father has been drinking. He is reported to have said: “He is constantly stressing us to hate mum and for us to live with him and its uncomfortable”. He also confirmed that his father had kicked him on one occasion.
[Y] also said that his father put pressure on them to live with him and would be angry and shout at them. He also complained that the father would favour one of the brothers over the other. This “favouring” was witnessed by the family report writer in her observation of the boys with him. Despite his complaints [Y] said he missed his father “a little bit”.
The father has made a number of notifications to the Department of Child Safety. Whilst it is unlikely the boys have been aware of him making those notifications it is evident that the father’s attitude towards the mother in making the notifications, all of which were unsubstantiated, is consistent with what the boys have said about their father wanting them to live with him. Rather than the mother deliberately trying to undermine the father’s relationship with each of the boys, it is the father who has tried to undermine their relationship with the mother and in so doing has caused his own relationship with them to falter.
Both boys spoke positively about their relationship with their stepfather, but they do not appear to have formed a positive relationship with Ms L.
The father proposed a staged up process of re-introduction of time with the boys but ultimately an arrangement whereby they spend time with him every month and for half of the school holidays. I am satisfied that the boys would find such an arrangement challenging and refuse to see their father. This would only make matters worse. The more modest proposal put forward by the ICL and supported by the mother whereby the boys would spend time, subject to their wishes, for three days during the school holidays may not be ideal but would in my view have better prospects of success in the long term as the shorter time frame would limit the children feeling pressured.
I am often reluctant to make orders for children to spend time with a parent subject to their wishes as this in itself can place pressure on children to make a decision that should ordinarily be made by parents. However given the level of stress experienced by the boys and the extent of their opposition to spending time with the father I am satisfied that that style of order is the only way in which they may be encouraged to see their father. To impose it on them may lead to no time at all.
Risk of harm[16]
[16] S.60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There has been a history of family violence in this family. Although the father denied perpetrating violence on the mother during their relationship I accept her evidence that she was subject to both physical and emotional abuse by the father. This is now largely historic. I am also satisfied that he kicked [X] on one occasion during the 2013/2014 school holidays. Despite that finding I am not satisfied that the father poses an unacceptable risk of physical harm to the boys as there were many holidays spent where the boys did not complain of physical harm.
There is a risk however of psychological harm to the boys if the father were to continually pressure the boys to live with him or to dislike their mother. I am satisfied that the extent of this risk would be greater the longer the children spend with him. For that reason I am of the view that any time spent between the children and their father should be limited to only a few days at a time.
The children’s views[17]
[17] S.60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
When the children attended the family report interviews with Ms V, [X] wanted to see his father provided the session was supervised. [Y] did not but changed his mind when he heard that [X] was willing to see his father.
[X] said to the report writer that he would like to have a weekend with his father each school holiday and maybe two weekends in the longer holidays but that that time be optional. He said that he was a lot less stressed and pressured since he hasn’t been spending time with his father. He did not want to do any counselling with his father.
[Y] said he would like to see his father for two or three days each school holiday and that he would be comfortable with phone calls once a month. He would like to do some counselling with his father.
The report writer assessed [X] as being a thoughtful boy, considerate of others. She said he appeared to have a sensible head on his shoulders, emotionally stable and thriving in his home environment. She assessed his views on spending time with his father to be clear. Ms V assessed [Y] to also be a thoughtful boy and not afraid to speak up.
The father maintained that the boys had been adversely influenced by their mother to the detriment of his relationship with them. I do not accept that. On the contrary I am satisfied that the boys have formed their opinions based on their lived experience in both homes. [X], and to a lesser extent [Y], are old enough to assess their experiences and form independent minds. Overall I am satisfied that given their ages and level of maturity it is important to give significant weight to their views expressed to the family report writer.
Practical difficulties[18]
[18] S.60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The geographical distance between the two homes adds a further burden to the already difficult relationship issues. The children also have their own friends with whom they would no doubt like to spend time with on weekends. Further to that they have many sporting and work commitments. All of these matters make spending time with their father more difficult.
I was left with the impression that although the father could acknowledge these issues he lacked the insight necessary to appreciate the importance of them for the boys. The report writer opined that the father appeared unable to consider and reflect upon the needs of the children. I also found this to be the case. He presented more self-focused than child-focused.
Parental capacity and responsibility[19]
[19] S.60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.
I have no doubt both parents would be able to house, feed, clothe and generally care for the children. Where they differ in my view is in their capacity to meet the boys’ emotional needs. The report writer opined that the mother appeared more connected emotionally to them and endeavoured to ensure their needs take priority whereas the father presented as having a very narrow focus on himself and his own needs being met. I accept that opinion.
The father has also failed to pay child support for the children. Mr K has taken on the financial responsibility for the boys. During the litigation the father had opportunities to spend time with the children on a supervised basis but after only a few sessions he discontinued doing so. He also failed to take up an opportunity to engage in counselling with the boys. I accept that the arrangement for the counselling was not local to him and would have been both inconvenient and expensive but his failure to do so was another example of his self focus rather than child focus. Overall I am satisfied that the father has preferred to take opportunities to blame others rather than take up his part in trying to repair and maintain his relationship with the boys.
Limiting further proceedings[20]
[20] S.60CC(3)(l): Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
I am satisfied that if I was to make the orders sought by the father for monthly time and half school holidays the parties may find themselves back before the courts because of a non-compliance with orders. The more limited orders sought by the ICL would at the least minimise that risk.
Presumption of Equal Shared Parental Responsibility
The presumption of equal shared parental responsibility does not apply in this case given the history of family violence. However it is still important to consider whether such an order would be in the best interests of the children. I am not persuaded that it would be although I fully understand why the father would like such an order. The parties are not able to communicate effectively to make decisions for these children. They have been in conflict since before [Y] was born. The father has no respect for the mother. They are not able to make decisions together. For this reason I am satisfied that it is in the best interests of the children for one parent to have sole parental responsibility. Given the children will be living with the mother pursuant to the order I will make, that responsibility will fall to her.
Consideration of Equal Time or Substantial and Significant Time
Given my finding as to parental responsibility I do not need to consider whether it would be in the children’s best interests for an equal time arrangement to be implemented. However, the geographical distance between the two homes alone would preclude such an order. For similar reasons a substantial and significant time order would not be appropriate.
Discussion
The father identified as a victim who has been denied justice and the chance to be a parent. He lacked any insight into his part in the circumstances surrounding the breakdown in the boys’ relationships with him. I do not have confidence he will gain that insight although I was pleased to receive his evidence that he has been obtaining his own personal counselling.
Ultimately I have concluded that significant weight must be given to the boys expressed wishes and the need to limit the risk of the children being exposed to pressure from their father if they were to stay with him for an extended period of time. It is for this reason that I propose to maintain the orders I made when reserving this judgment.
The mother had sought orders for the father and children to engage in counselling. Whilst I am satisfied counselling could be of assistance to all concerned I am not satisfied making orders requiring the father and children to attend will be helpful. Unless participants to counselling are willing to engage in the sessions of their own accord the prospects of a successful outcome would be limited. Forced participation may also be counter-productive. For this reason I will not make an order for counselling.
For these reasons I make the orders set out at the beginning of this judgment.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Date: 21 February 2018
Annexure A
ICL’s proposed orders
Parental Responsibility
That the mother have sole parental responsibility for the major long term issues of the children, [X] born (omitted) 2002 and [Y] born (omitted) 2004 ("the children")
That the mother keep the father informed by email of any significant decisions to be made in relation to the children's care, welfare and development.
That the mother shall provide the father with details of the decisions to be made and consider the father's view in relation to those issues prior to making a significant decision in relation to the children's care, welfare and development .
That unless in a case of emergency, the mother shall provide to the father details as described in Order 3 herein no less than 14 days prior to making a significant decision in relation to the children's care, welfare and development and the father shall provide any view regarding the decision to be made within 14 days of receiving the details from the mother.
That the parent in whose care the children are from time to time have parental responsibility for decisions concerning the daily care, welfare and development of the children.
Live With the Mother
That the children live with the mother.
Spend Time With
That the children, subject to their wishes, spend time with the father as follows:
a)For 3 days during each school holiday period at times to be agreed in writing (by email or SMS text message) between the father and the children.
Telephone Communication
That the children be at liberty to communicate with the father by telephone at times to be agreed between the children and the father, with the children to let the father know by SMS text message when is a suitable time for him to call them.
That the children be at liberty to communicate with the parent they are not with by · telephone at all reasonable times and each parent shall support and facilitate such calls by the children to the other parent.
Exchange of Information.
That the parents keep each other advised of their respective address and telephone numbers (landline and mobile, if connected), and notify the other within 48 hours of the details of any changes to such contacts, such communication to be by email or SMS text message;
That, should the children be involved in a medical or other emergency, or be hospitalised , then the parent with the care of the children at that time will notify the other as soon as practicable thereafter, by email or SMS text message;
That this Order is to serve as authority to the children' s doctors and medical specialists to release information to both parents as may be requested from time to time concerning any relevant matters concerning the children.
That the parents authorise, by this Order, the schools attended by the children to give each party information about the children's educational progress and other school related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children at that parents' cost.
That during the time the children are spending time with or communicating with either parent, that parent shall:
a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
b)Speak of the other parent respectfully;
c)Speak of the other party's family and friends respectfully; and
d)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that the others do not denigrate or insult the other parent in the hearing or presence of the children.
Alcohol
That the father shall not consume alcohol or be under the influence of alcohol, or permit any other person to do so whilst the children are in his care.
Discharge of Independent Children's Lawyer
That the Independent Children's Lawyer be discharged.
AND IT IS NOTED:
A.Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Annexure A hereto and these particulars are included in these orders.
B.The parents acknowledge that as the children get older they will increasingly make their own arrangements for weekend and holiday activities and at times the children may wish to change or cancel their visits with the father, as such, the parents agree that such negotiations will take place between the children and the father and the parents will respect the wishes expressed by the children.
ICL 2: ICL proposed Minute of Order sought;
F1: Father’s Minute of Order sought; and
F2: Blog entry from 24 November 2016. S.60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child).
S.60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.
S.60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
S.60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; iii) Any evidence admitted in proceedings for the order; iv) Any findings made by the court in, or in proceedings for, the order; v) Any other relevant matter.S.60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.S.60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
S.60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Remedies
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