Letts & Shores
[2021] FCCA 1939
•27 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Letts & Shores [2021] FCCA 1939
File number(s): MLC 7719 of 2016 Judgment of: JUDGE BURCHARDT Date of judgment: 27 August 2021 Catchwords: FAMILY LAW – four contravention applications pressed by mother – difficulties arising from self-representation of the parties – mother very concerned about alleged belittling of her/denigration of her by the father – some contraventions not properly formulated – substantive matters not made out – contravention applications dismissed
Parenting – most matters in dispute falling away by consent – order made for joint parental responsibility – mother seeking no contact while children in father’s care – this not in adolescent childrens’ best interest – orders made for parents to attend counsellor on 6 monthly basis
Legislation: Family Law Act 1975 (Cth) Number of paragraphs: 145 Date of last submission/s: 2 August 2021 Date of hearing: 2 August 2021 Place: Dandenong Applicant: In person Respondent: In person Solicitor for the Independent Children’s Lawyer: CMB Legal Counsel for the Independent Children's Lawyer: Ms Goldthorp FINAL ORDERS
MLC 7719 of 2016 BETWEEN: MS LETTS
Applicant
AND: MR SHORES
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.The mother’s Contravention Applications be dismissed.
2.The parties have equal parental responsibility for the children X born 2004, Y born 2007, Z born 2010 (collectively known as “the children”).
3.The child X continue to live independently in the crisis accommodation in which
she has been placed by her worker.4.The children Y and Z live with the Mother and the Father as follows:
5.On a week about basis during the school term and school term holidays with changeover to occur each Friday at the conclusion of school or at 7.00 pm if a non-school or home-schooling day.
6.With the Mother for half of the long summer holidays with changeover to occur at 4.00 pm on the middle day of the holidays, for the first half in 2022 and even-numbered years thereafter, and for the second half in 2021 and odd-numbered years thereafter; and
7.With the Father for half of the long summer holidays with changeover to occur
at 4.00 pm on the middle day of the holidays, for the second half in 2022 and even-numbered years thereafter, and for the first half in 2021 and odd-numbered years thereafter;8.In the event the long summer holidays are an uneven number of days then the children will spend the additional day with the Mother if it occurs in odd years and will spend the additional day with the Father if it occur in even years.
9.
With the Mother in odd numbered years from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and in even numbered years from 3.00pm on Christmas Day
to 3.00 pm on Boxing Day unless otherwise agreed between the parties in writing; and
10.
With the Father in even numbered years from 3.00pm on Christmas Eve until 3.00 pm on Christmas Day, and in odd numbered years from 3.00 pm on Christmas Day
to 3.00 pm on Boxing Day unless otherwise agreed between the parties in writing
11.By telephone or text message at reasonable times;
12.From 9.00 am to 5.00 pm on Mother’s Day and on the Mother’s birthday if it falls on
a weekend or non-school day, and13.From 9.00 am to 5.00 pm on Father’s Day and on the Father’s birthday if it falls on
a weekend or non-school day;14.At such further and other times as are agreed between the parties in writing.
15.Changeovers occur at school on school days and otherwise in the carpark of Suburb Q IGA.
16.Z remain enrolled and in attendance at School M for the remainder of her primary school education and tuition fees and extracurricular costs to be shared equally by the parties.
17.Both parties are hereby entitled to:
(a)Attend all sport and extra-curricular activities that the child attends:
(b)Attend all school events that parents are usually invited to attend;
(c)Obtain from any school that the child attends all information, newsletters and other like correspondence usually provided to parents; and
(d)Contact and communicate with the child’s doctors and allied health professionals regarding the child’s health, treatment and development and comply with all treatment strategies as recommended by treating health professionals.
18.Each party:
(a)
keep the other party informed of any change of address or contact details
in writing within 48 hours; and
(b)
Ensure the children attend their sporting and extra-curricular activities when
in their care.
19.Each party their servants and agents be and are hereby restrained from denigrating, belittling, abusing, insulting or rebuking the other parent to or within the hearing of the children, or from allowing the children to remain in the presence of third parties engaging in such behaviour.
20.
The parties continue to attend upon Ms Y, or such other counsellor
or counselling organisation as recommended by Ms U, on one occasion every
6 months, the first of such appointments to occur within 4 weeks of receipt of the Judgement in these proceedings. The cost of such attendances be shared equally.
21.
The purpose of the appointments referred to in Order 10 herein is for the parties
to discuss any co-parenting issues affecting the care of Y and Z.
22.
The parties do all such things to engage the children Y and Z with their school counsellor/ school wellbeing team, and follow any recommendations made
by the school counsellor including the frequency of any attendance and the duration
of any engagement with either child.
23.The appointment of the Independent Children’s Lawyer be discharged.
24.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 the 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.NOTATION:
(a)In the event Y and Z have different long summer school holiday periods gazetted by their respective schools then the long summer school holiday period for the purposes of these Orders will be the shorter of the two school holiday periods. For the purpose of calculating the mid-point of the long summer holiday period it shall be measured from the last day of the school year until the day before the resumption of the new school year.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Letts & Shores is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
INTRODUCTORY
The substantive matters before this Court fall into two parts. In part, it is a parenting dispute which, following some discussion before the Court, has resolved into a dispute as to whether there should be an order for equal shared parental responsibility and as to whether the parties should be ordered to engage in some form of counselling.
There is also before the Court, however, a tranche of no fewer than four contravention applications, which the applicant mother has insisted be heard and determined by the Court.
It is, of course, slightly unusual to have contravention applications pressed when the substantive dispute is itself before the Court, but is, of course, in no way impermissible.
For the reasons that follow, I am going to dismiss all of the contravention applications. I will make an order for equal shared parental responsibility and I will make counselling orders
in a form discussed with the parties during the trial.
A VERY BRIEF HISTORICAL EXCURSUS
It should be noted that in 2019 I heard a protracted property dispute between the parties culminating in judgment on 28 June 2019. I had, in fact, forgotten that judgment but was reminded of it at the start of the proceeding. Both parties expressly indicated that they were content for me to hear and determine this dispute notwithstanding the fact that I made a number of criticisms of each of them in my judgment.
The parties were in a very lengthy relationship and have five children. They separated as long ago as 2011. The fact that they are still involved in significant tranches of litigation
is self-evidently a tragedy. It is sufficient to note that in my earlier judgment I paid some attention to the mother’s ongoing bitterness arising out of the circumstances of separation, which, at least from her perspective, can be summarised as saying that the father left her for another woman. I am sorry to say, that it is clear from an examination of the parties’ materials filed in this tranche of litigation that ongoing bitterness has not dissipated to any observable degree. While very understandable at one level of analysis, it clearly constitutes a springboard for much of the intensity of the emotion that the mother brings to bear upon the matters
of which she complains.
THE CONTRAVENTION APPLICATIONS
As earlier indicated, when the matter was first called on counsel for the Independent Children’s Lawyer gave the Court an outline of what the areas of dispute really were. At that stage counsel informed the Court that both parties agreed that the extant week about time regime for the two children with whom we are concerned would continue. Counsel noted that the mother sought family therapy and parental responsibility was in issue. She informed the Court that the mother very much wished her contravention applications to be dealt with and that there were two further issues in relation to changeover and choice of school/fees, which however resolved following a discussion at the Court.
In the circumstances I determined to hear the contravention applications first but to reserve my judgment until this final judgment was given, dealing with all matters in a compendious way.
The hearing and determination of the contravention applications was made more forensically difficult by the self-representation of the parties and the fact that neither elected to challenge the affidavit material of the other in any way at all by cross-examination. I read the terms
of rule 25B of the Federal Circuit Court Rules 2001 (“the Rules”) to the parties and conducted the matter as best I was able in accordance with the rule, save, of course, from reserving
the decision rather than giving judgment straight away. I put all the contraventions to the respondent father and his response in each instance was a denial. With that in mind I will deal with the contravention applications seriatim.
The contravention application filed on 12 October 2020
The contravention alleged is of order 10 of the 2019 orders which is the usual non-denigration clause. It is alleged that on 2 October 2020 the father contravened that order by:
Communication from respondent attributing blame, threats and allegations about care arrangements that affect the children.
The mother’s supporting affidavit likewise filed on 12 October 2020 is by no means easy
to construe. Much of the material contained in the affidavit is irrelevant to the contravention that is actually alleged. It ranges over a number of different areas of complaint that the mother has about the father’s conduct. The pertinent parts of the affidavit appear to me to be paragraph 3 on page 2 of 4 in which the mother deposed:
Communication from respondent to mother attributed blame, threats, intimidation and allegations of deliberate breach of court orders by the mother. Annexure 6, Annexure 8 Annexure 10.
Annexure 6 is a text message from the father to the mother undated but referenced as to being sent on 2 October 2020. In it the father seeks that Z (the younger of the two children with whom we are concerned) be available for pick up by him at the agreed location of Suburb Q carpark at 3.30 on the day. There is reference to the extant court orders governing this matter and an assertion that a failure to make Z available:
…will be a clear breach of new orders granted on (18/09/2020).
The mother responded with Annexure 7 at 11.02 am with a reference to an email sent
to Ms R (the Independent Children’s Lawyer) and in which the mother asserts that she
is awaiting Ms R’s response. Annexure 8 is a reply to that at 11.24 am from the father saying that he expected Z to be available at 3.30 pm. The mother responded with Annexure 9 at 11.31 am disagreeing with the father’s interpretation of the extant orders and he then sent Annexure 10 in putting his position that Z should, indeed, be made available to him on that day.
From further Annexures to this affidavit it is apparent that both parties had been
in communication with Ms S who very properly endeavoured to decline giving the parties legal advice and pointed out that they should simply comply with the Court orders.
When the Court came to ask the wife for the evidence called in support of her contravention applications she was content to rely solely upon her affidavits and as earlier indicated the father said he did not wish to cross-examine.
The mother did, however, tender exhibits A1 and A2. Exhibit A1 is a Minute of Orders relating to property disposition which is relevant to one of the later contravention orders. Exhibit A2 is a text message from the father about school fees which is not relevant to the contraventions.
When I came to the point at which I sought the father’s response he denied the contravention. The mother elected not to cross-examine him.
It should be noted that the terms of the contravention alleged are, of course, put in very generalised and non-specific ways. All I have is Annexures 6, 8 and 10 to support it. In my opinion, while it is clear that the parties had a difference of view as to the way in which the orders operated, there is nothing in the father’s text messages that properly construed would give rise to a finding that he had contravened the non-denigration orders. Clearly, both these parents are extremely stubborn in their dealings with one another and each very much stuck to their guns, but bearing in mind that these are, of course, serious matters, sometimes described evocatively as quasi-criminal, in my view the contravention is simply not made out on the materials.
The contravention application filed 8 December 2020
The contravention alleged is once again in respect of order 10 being the non-denigration order. It is asserted that the husband contravened on 30 November 2020 under the headings Time and Place the words “ongoing issue” are entered. The statement of the alleged contravention is:
Mr Shores continues to denigrate, belittle, insult the children’s mother engaging the children in this behaviour.
It is immediately apparent that a contravention allegation in such general terms is arguably insufficiently precise for it to be proper to put it to the father at all.
As with the previous contravention, no additional evidence other than the mother’s affidavit also filed 8 December 2020 was proffered to the Court and the father’s response was a simple denial. Once again, there was no oral evidence given by either party.
Once again, the mother’s affidavit is not easy to construe. It should be noted that order 10
is a standard non-denigration order but that it does not contain any express prohibition against discussing Court proceedings with the children. This is a surprising omission in the
24 November 2020 parenting orders upon which the mother relies.
The mother’s affidavit complains about Y (the elder child we are concerned with) complaining as to why she was not going to Town T. To the extent that this might give rise to a complaint that the father was involving the children in adult issues, there is simply no order that prohibits this. While a number of the annexures to this affidavit show discord on an ongoing basis between the parents none of them, in my view, can be properly characterised
as denigrating the mother within the meaning of order 10. This contravention application must be dismissed.
The contravention application filed 8 February 2021
This contravention again purports to rely on order 10 of the orders made on 24 November 2020 which prohibits denigration. It is alleged that on 25 December 2020 at 3.00 pm the father contravened changeover of care arrangements by:
Discussing court care arrangements directly with children ongoing denigration, belittling and insulting the other parent.
It is, of course, immediately apparent once again that this is very general in terms. Moreover, the discussing of court care arrangements with the children is not in contravention of order 10. The text messages passing between the parties annexed to the contravention application itself show the parties bickering again as to the interpretation of holiday time. I note that the father in correspondence to Ms S, the Independent Children’s Lawyer, makes reference
to the children frequently asking when they were to return to his care, a matter to which
he would be required to give some sort of answer, in my view. In a message sent
to Ms S on 3 February 2021 the father said, and this seems to me to be the highest
the matter rises:
Perhaps Ms Letts should take your advice more seriously in future and consider the health and wellbeing of the children and not hold on to “palpable bitterness”
as previously described by Judge Burchardt.The wife’s supporting affidavit is largely irrelevant to the allegations of denigration but consists more of complaints about the arguments between the parents about when the children pass from the care of one parent to another. In my view, there is nothing in these materials that would properly support a finding of contravention of the order as alleged.
The contravention allegation filed 4 June 2021
This contravention application has two sub parts. At paragraph 7 it is asserted that the husband contravened order 6. The orders are not appended to the application and that and the resultant ambiguity is enough in itself to give rise to the dismissal of the application. From consulting the Court file, however, it is apparent that the order to which the wife refers is order 6 of the consent orders made on 24 July 2019. Although, as I say, the failure to specify the orders
is sufficient to dispose of the matter, I propose to deal with it on its merits as this is obviously a matter important to both of the parties.
At paragraph 7 of the contravention application it is alleged that on 20 March 2020:
I have not been provided with any documents relating to any capital gains tax implications upon the sale of the Street B property.
At paragraph 9 it is alleged that in contravention of order 7 that on 20 March 2020 at 12.00 pm:
That upon settlement of the sale of the Street B properties, the sum equivalent to the parties’ estimated capital gains tax liabilities be placed into an interest bearing term deposit with the Commonwealth Bank in the joint names of the parties.
The husband’s response was that he had provided the information about the capital gains tax liabilities and that the money was, indeed, paid into an account with the bank, as was required.
The wife’s supporting affidavit notes, inter alia, that she had no capital gains implications from the sale of the former property at Street B but complained that the husband had not
so informed her. She also noted an additional outlay of $1,750 for legal representation arising out of the husband’s alleged obfuscatory and dilatory behaviour.
In oral submissions the husband referred to an affidavit of 14 April 2020 and the correspondence at the time of settlement. He said the $228,000 that the wife complained had not been placed into an account had been so placed and was there to this day. He referred
to receiving an ultimate indication from the Australian Tax Office that there was no capital gains tax payable and, essentially, asserted that he had provided the wife with the relevant information.
In circumstances of an evidentiary waste land such as this, even if the wife’s contravention application was a valid one, I would not uphold it. It is plain that the money has been placed into a bank account as the orders foresaw. It is equally clear to me that the husband has kept the wife informed from time to time as to the progress of his taxation affairs. If there was any technical infraction of the orders it would not, in my opinion, give rise to any adverse outcome to the husband.
Concluding remarks about the contravention applications
It is plain the mother seeks to have the father punished for what she perceives as his improper conduct, if one can use such a global phrase. Her lack of legal representation, together with what I would infer is a lack of full understanding of the nature of the contravention process,
is a major difficulty. Her materials are prolix and for the most part irrelevant. Although
the discussion of court matters with children is extremely inappropriate and damaging the fact
is that there is not an order that prohibits this. It is most unfortunate that the mother has concentrated her energies in so an unproductive way.
I should say finally a few words about Exhibit A2. It is not wholly clear which particular contravention it is designed to support. In any event, exhibit A2 is a text message from the father to the principal of School M dated 30 October 2020. In my view, it makes no disparaging assertions to the principal about the mother at all. It refers to the difficult and lengthy history of the case. It refers to the mother’s:
… extreme insistence during our trial that she does not want to pay school fees.
That this is no way, in my view, properly construed in the scheme of the correspondence overall as breaching the non-denigration order.
THE SUBSTANTIVE DISPUTE
As earlier indicated, by the time we had traversed matters in court, the dispute came down
to parental responsibility and counselling. In order to put this dispute in its context, however, it is appropriate to have regard to the parties’ affidavit material, to the extent that it has not already been traversed.
MATERIALS FILED
Copious material has been filed, most particularly by the mother.
The mother’s first significant affidavit filed on 3 March 2020 complains on a number
of occasions about the nature of the responses she gets to any communication. On page
1 (being page 2 of 11 of the affidavit) she deposed:
2. I cannot communicate to the respondent about children matters without receiving personal belittling rebuke and disrespect, evidenced by attached annexure text messages.
3. This is a long standing issue that has and continues to have emotional
and psychological negative impact on the 5 children of the marriage and my mental health.4. This long standing issue of personal degradation [sic] has severely impacted on my ability to parent and my relationship with my children.
5. Cooperative parenting between parents does not exist.
There are a number of text messages annexed to the affidavit. A message apparently sent
by the father to X on 14 January 2020 relevantly reads:
You are a clone of Ms Letts. Chucks a tantrum to get attention;
Says what they want to whoever they want with no consideration for anyone else or the consequences;
Cannot say sorry when they are wrong,
Feeling entitled and the world “owes” them.
The message is otherwise clearly an angry one directed to X at that time.
Another exchange between the father and Z on 18 November 2019 shows Z seeking
to attend the father’s premises to get a bag but the father refusing to allow the mother to come anywhere near the premises, clearly causing Z difficulty. The father was then sent
a message the same evening, as I would infer, by the mother which the mother indicated that Z needed her sports uniform for the following day to which the father responded:
Y has 4 sets of sports uniform in her bottom drawer. Not my problem. Deal with it!!
The mother’s next affidavit to which I will refer filed on 30 July 2020 asserts on page
4 of 9 complaints of unnecessary text messages from the father and notes:
6 The respondent is aware that my daughters X and Y are estranged from me. The respondent knew this would upset me. It did.
On page 9 of 9 (bearing in mind that this was an affidavit to support a contravention application against the father) it is noteworthy that at paragraphs 6 and 7 the mother deposed:
6 The respondent continues to use Ms F and his relationship with her as a tool to inflict blame and hurt.
7 This behaviour has been a constant in my life since 2006 when Ms F was placed into our family and marriage.
The mother’s next affidavit (likewise supporting a contravention) filed on 12 October 2020,
to which I have already referred in the contravention matters asserts at paragraph 3:
Communication from respondent to mother attributed blame, threats, intimidation and allegations of deliberate breach of court orders by the mother.
I have already dealt, I think, with the text of those messages. Also what is noteworthy from this material, and, indeed, what emerges with complete clarity from the mother’s material taken as a whole, is the very clear indication of the mother’s state of mind and the blame that she seeks to apportion to the husband.
The father’s affidavit filed 18 November 2020 notes that the mother had enrolled the youngest child into School M but that he had paid $73,000
of outstanding fees pursuant to earlier orders.
The mother’s next affidavit filed 8 December 2020 annexes annexure 1 and 2 text messages passing between the father and Z which it is said involves the father involving the children directly in the Court orders. Anyone who wishes to may read those messages but they are simply affectionate and, in my view, unexceptional matters passing between the father and his child with the father responding perfectly appropriately to questions by Z, Z,
as to what her arrangements were going to be.
The affidavit also annexes a section 11F report following interviews on 26 October 2020.
It is worth noting that on the second page the mother alleged the father continued to perpetrate family violence against her in the form of verbal and emotional abuse and that he manipulated the children to cause ongoing conflict in her household. The father denied all of this. X was not able to be interviewed but Y was and expressed a clear preference for living with her father. Z was aware of the poor interrelationship between her parents. At pages
18 and 19 of 46 of the affidavit the following extracts emerged from the report:
•X, Y and Z are at a development stage whereby they can express their wants and needs and are forming their own individual identities. As adolescents, they are testing boundaries and relationships in their discovery of self. Both Y and Z have expressed feeling a lack of warmth and affection from Ms Letts that is genuine. That their time with Ms Letts is superficial and riddled with fighting and competing for Ms Letts attention.
•
It is evident from the information provided and through interview, that the relationship between Ms Letts and the children is fractured. Ms Letts acknowledged this, however evades responsibility in her part of this having occurred. It seems, Ms Letts holds the strong belief that this is a result
of what she alleges is manipulation, interference and undermining on Mr Shores part. It is evident that the parents’ separation and consequent breakdown
in relationships amongst the elder siblings and Ms Letts, has impacted upon X, Y and Z. That the children have been exposed and involved in the adult conflict, which has further strained their relationship with
Ms Letts. However the onus remains on Ms Letts to provide an atmosphere that is child focused and demonstrates she prioritises her relationship with the children.
The report went on to recommend that Y remain living with the father and Z return to living with him and that they spend time with the mother every second weekend
for a couple of nights. I note the report suggests that consideration be given to the children’s requests of wanting quality time with the mother exclusive of her new partner.
In her contravention application filed on 8 February 2021 the mother appended a number
of materials including a letter from Ms S, the Independent Children’s Lawyer, dated
2 February 2021 in which she reminded both parents that involvement of the children in court matters was not to occur. In his responding answer Mr Shores stated, amongst other things
(as earlier noted):
Perhaps Ms Letts should take your advice more seriously in future and consider the health and wellbeing of the children and not hold onto “palpable bitterness”
as previously described by Judge Burchardt.I note that the mother filed a financial statement on 10 February 2021 indicating that she had in excess of $345,000 in the bank.
In her affidavit filed 25 March 2021 the mother sought at paragraph 15 the following intervention action as guided by the Court:
1. Any further correspondence to any party in this matter that is disrespectful
is addressed, challenged and rebuked by the parties receiving the correspondence;2. Mr Shores has court ordered therapy aimed at educating him on disrespect and how his behaviour is disrespectful and the implications it has in his children’s wellbeing, and my wellbeing. That is reportable to court.
3. My family therapy to restore my relationship with the children the structure
of restoring my relationship with the children will be modelled around;THE FAMILY REPORT
The family report of Ms U dated 20 July 2021 was received as exhibit C1. I obviously have regard to all of it, but it is readily apparent that what the parents have to say to Ms U was, in substance, very much what they had to say to the section 11F report writer earlier.
I note that W, aged 20, tries to stay out of the dispute. The father’s partner suggested at paragraph 77 that the children’s relationship with Ms Letts might
be a developmental issue considering their ages.
At paragraph 81 it was agreed that communication between the parties was not effective. Y noted that her father was more easy going (paragraph 85) and she denied that either parent denigrated the other (paragraph 87). Z also denied any denigration by either parent (paragraph 94). At paragraphs 101 to 102 the report noted:
101. The parents unfortunately continue to have an acrimonious relationship which the children continue to be exposed to.
102. It appears that initially the hurt that Ms Letts felt from the alleged infidelity of Mr Shores was the basis of many decisions.
Having noted the various problems and the fact that the father despite his denials had denigrated the mother and encouraged the children to be disrespectful and rude to her (paragraph 105),
the report recommended that sole parental responsibility to the mother and that a 50/50 shared care arrangement continue and that both parents attend a Parenting after Separation course.
THE SUBMISSIONS MADE AND EVIDENCE GIVEN AT COURT
As earlier indicated neither party sought to cross-examine in relation to the contraventions
so when those matters were complete the matter proceeded to the substantive issues in dispute. What follows is taken from my notes.
The mother opened her case and indicated she relied upon her material filed in the contraventions. She had behavioural concerns about the children. The family therapy she was seeking was to put the wellbeing of the children foremost. This would be better than
a Post-Separation Parenting course. The children had been involved in the Court orders and she was blamed. There was ongoing denigration and there was use of the children to create conflict. There was alienation that impacts the children. She sought repercussions against
the father if the children did not change their behaviour.
The mother affirmed and adopted her affidavits as true and correct. The father did not elect
to cross-examine.
Under cross-examine by counsel for the Independent Children’s Lawyer the mother confirmed that Y and Z had been in a week about arrangement since the orders made last year. Summer holidays were divided in two blocks and this arrangement appeared to be working. Counselling might help the children. Things are okay at the moment but she had reservations. She did not want to continue with Ms U because it cost $190 per session and it took her one and a half hours to drive to Suburb W to see her. She wanted to keep costs down. She wanted to use Safe Harbour Foundation or some similar organisation.
She had not made any inquiries with that organisation and there were no other counsellors
at present.
The root cause was the father’s behaviour. There were text messages and control. He was bending court orders and getting Y to ring her. Hygiene in her house had been raised in
a family report. The children now bring their own food. When asked by counsel if she had played any role in the problems that had emerged the mother said she was not reacting to it as much. She lets things go and does not take it personally. The children walk past and do not acknowledge her. She is trying to be more of a role model. The children are texting the father saying they want to go home to him after a day.
W lives with her. V (“V”) lives in Queensland. She has a good relationship with her. She lives in City X. All five children do a trivia night once a fortnight. She is going up to see V in August. X is 17 and is in supported accommodation. She has
no contact with her. She had lived with her for six months. There were drugs in her house which were removed by the police in June 2020. She conceded when pressed that X
is estranged from her at the moment. When pressed about paragraph 9 of her affidavit 2 March 2020 the mother gave a long and, in my view, non-responsive answer. The girls said they were missing their dad. They were taking it out on her. When asked how long the children had been with the father the mother said Z had some nights at her place within a few months. It was full-time by the end of the year. It should be noted that the mother on some occasions
was simply failing to answer questions.
The mother confirmed that when the father calls the children she often put them on the loudspeaker so she could understand what was being said. This was to assist the children because they should not have secrets. She never calls the children when they are in the father’s care. Counsel put it to her that surely the father should be allowed private calls with all the children. The mother did not answer directly but appeared to say that this would be all right
if there were no underlying issues and in a perfect world (which she plainly did not accept was the case). She suggested that there should be no communications with the children when they were in the other parents’ care. This should be undertaken together with counselling. She said it was wrong that the father should be discussing time when her time was one night
per fortnight.
When asked how her relationship with Y is now the mother said she is now very polite and avoids conflict. There are problems of control because the child makes demands. Y is almost 14. Counsel put it this might be normal development and the mother said it could be but the children need boundaries. Z is at School M. All the other children went there and the father agrees. Costs should be shared equally. These are about $7,000 per year in total. There are no extras but there may be two camps next year. Z has enough school uniforms and the majority are at her house. She might need some extra next year from both parents. She has paid for her half fees for this year.
She has not been in paid employment since 2011. Her registration as a health care worker has well and truly lapsed. She receives family allowance of $200 per week and is living off her savings and share income of $6,000 to $7,000 per year. She receives Child Support of $200 per month. Her income is $12,000 per year. Her savings are now less than $100,000. She owns her own house on 20 acres and is moving the family home there. There was discussion about changeover but since that has now been agreed it is not necessary to traverse it. It was also accepted that the current orders for week about should continue through term holidays.
The mother agreed that they could use the date of whichever child finished last, bearing in mind there are presently some different finishing dates. It was agreed that there would be two blocks of time over summer.
Counsel noted that the family report suggested sole parental responsibility of the mother and asked her what she understood that phrase to mean. The mother said it was not her place
to define it. She confirmed that neither of the parents are religious and the high school is now agreed in that Z will join Y at Suburb P Secondary. There are no medical issues
at the moment. She would not exclude the father about medical issues. She agreed each parent should inform the other of medical issues and would hope for joint decisions. Both parents have MyFamilyWizard app but there are some problems with functionality. She is not opposed to the use of an app in the future. When asked if there were any positive qualities the father had as a father the mother said he is their father. They love him. He is a male role model
for them. When asked if there was anything else she said she was not in a position to promote or demote. It should be noted the mother did not really answer the question. The mother went on to say that because of her past experiences she wants to keep herself remote from the father.
THE OPENING AND EVIDENCE OF THE FATHER
The father said he was not here by choice. He did not want the Court case and had chosen not to file contravention applications of his own. He just wanted orders to be fair and equitable
to both parties and the children. He had no animosity towards Ms Letts. Family therapy was
no issue. He had been to Ms U five times and done what was asked. He had a positive experience with Ms U. There was no benefit for him or the children whilst in his care. He agreed in the end to pay half school fees. He agreed to pay half school fees. There was
a discussion about changeover which I say has been resolved.
The father adopted his affidavit as true and correct. The mother did not wish to put any questions to him.
Under cross-examination by counsel for the Independent Children’s Lawyer once again there was discussion about changeover which has now fallen away. The father confirmed he had five sessions with Ms U and that the children were with him for the first double session. He was interviewed for one hour and then the children for about a half hour each. He had three appointments in quick session and then two more. Ms U wished him well at the last one and I took him to imply that Ms U’s position was that nothing more was necessary.
He would be open to some more therapy but not long term. He would prefer professional counselling. He had no issue with limited further time with Ms U but opposed
the counsellor nominated by the mother.
He denied undermining and denigrating the mother but was forced to agree when pressed that some of his texts had been inappropriate. He said his communications with the children were very respectful towards the mother. He was cross-examined about texts passing between him and X and confirmed that she was not welcome in his house at that time. He had to concede that some of those texts had denigrated the mother and said he was sorry about that. It was
a difficult exchange with his daughter. This is the only time he had a falling out with X and he has a good relationship with her now. He is seeing her every day. He admitted a remark
to the effect that he had bet that the mother would not do something, had been undermining
of her but said this was an isolated incident. When asked if there were no other messages
like this he said he would be surprised.
He was asked what happens if the children said they were bored at the mother’s. They tell him a lot of the time that they are in their rooms and he tells them to do their homework. He does not say your mum loves you. He normally says you are part of that family. Make the most
of it while you are there. He speaks to V very regularly. He does not speak to W (“W”) a lot in the last few months. W had asked him for money and this had gone bad. W also has an issue with his partner. There was further cross-examination about family therapy but since I have produced a suggested outcome that the Independent Children’s Lawyer adopted that issue, once again, has fallen away.
The father said the children should not be restricted from calling the other parent when in the care of the other one. It should be kept to a minimum. It has been almost non-existent since the last court orders. He wants the current court orders to continue. When asked about sole parental responsibility he suggested it could be shared. He had undertaken a Parenting course and an Anger Management course. He had learned that you need to be mindful not to expose the kids to conflicts and keep them out of detrimental conversations. When asked about
the mother as a parent he said she was the mother to my children. She tries to teach them
as best she can. She cooks for them and nurtures them the best she can. She sets boundaries and there is a lot of discipline in her house. From what the children say Ms Letts is a little bit stricter than he is.
THE EVIDENCE OF MS U
Ms U was called and was cross-examined first by counsel for the Independent Children’s Lawyer. She confirmed she saw the parties and the children in January and February of this year. She saw the children with each parent. She had seen the mother with the children
in March and April and had emails and telephone contact with both parents. She had telephone contact with each parent in July and had contacted both by telephone and email. She had seen Y and Z mainly face to face. When asked what the issues were in the therapy she had conducted she confirmed that her focus had been to repair the relationship between
the children and the mother. The mother felt invalidated. The children were very stand-offish. The focus was to reengage the children and also for the mother to talk about her needs.
When asked how successful she thought the therapy had been Ms U confirmed there had been significant change. The focus from the mother initially was demanding respect.
They had worked towards the mother standing back from her teenage children. It was not
to have the mother’s needs in the forefront. Conflict had minimised. It was bringing it back to the common needs of the parents and the children. She had seen a shift in Ms Letts.
The children had changed. They talked about the issue. Z and Y were able to talk more openly in the second session with their mother.
When asked about the expectations of the father Ms U said he encouraged the children
to see the mother. He had not presented as negative but more neutral. The treatment was more about the relationship between the mother and the children and was not about co-parenting issues. When asked about the state of the relationship between the mother and the father
Ms U said it was parallel. They do not have cooperating parenting relationships.
The mother had a very negative view of her former partner and the father less so. The mother was clear she did not want to deal with the father. She wanted parallel lives. The father
was always available for feedback. The focus was the mother and the relationship with the children. The mother was not undermining the children. He would ask for help about encouraging the children to see the mother.
When asked if she needed to remain involved Ms U queried as to whether there should be ongoing therapy. Ms U said the children need space to download. These are very different homes. The children need their own counselling space, not necessarily counselling with their parents. When asked about the mother’s proposal of ongoing family therapy then the father’s countervailing position Ms U said the children need space but it should be
as long as it does not pathologise the children. A 14 year old will push back. Z will be at Secondary School next year and might need some support when she goes into High School.
It should be provided as issues come up. They should not be sentenced to monthly therapy.
It did not matter if it was not Ms U. They should be bimonthly meetings unless there was a crisis. For the parents it might be useful to have a check every six months. This could go on until Y pushes back. The children do not need to come together.
Under cross-examination by Ms Letts Ms U confirmed that the aim was to restore
the relationship between the mother and children. The mother’s emails had been helpful.
Ms U had talked briefly with the father about holiday changeover but there had been
no resolution. Ms U confirmed that all members could be involved in counselling
if people were not comfortable but added a caveat if people were not comfortable being in the same room. Case plans need tailoring to the situation.
The father did not elect to put any questions to Ms U.
THE EVIDENCE OF MS U
Ms U was called and adopted her family report as exhibit C1. Under cross-examination by counsel for the Independent Children’s Lawyer counsel explained Ms U’s synopsis
to her. She asked if this made any change to her recommendations. Ms U said this was
a tricky one. Ms U has had observations. For herself she would probably lean towards the mother having sole parental responsibility as she was the primary carer since the children were born. The communications between the parents were pretty fraught.
Under cross-examination by the mother Ms U confirmed that parental responsibility is for major items, education, medical and religion. When asked about the recommendation
at paragraph 117 of her report as to the Post-Separation Parenting course, and as to whether there was anything else she would recommend, Ms U pointed out that she is in New South Wales. She said Relationships Australia offer assistance for parents who are separated and counselling might be possible also.
There was no cross-examination by the father.
FINAL SUBMISSIONS OF THE INDEPENDENT CHILDREN’S LAWYER
Counsel noted there had been no minute of proposed orders prepared. The extant orders
of 21 November 2020 for week about time, Christmas, special days and school and the like would continue. The start of summer holidays had been clarified. So had the issue of School M and fees. Counsel submitted that changeover should remain at school where possible. It was a matter of looking at practicalities. The father’s work was a problem and for non-school or home-schooling it should be 7.00 pm at the Suburb Q IGA. Counsel suggested that there should be telephone time at all reasonable times.
The Independent Children’s Lawyer supported this. She submitted that Y
as an emerging teen would need this.
Counsel indicated that the mother’s proposal for family therapy was not supported. Z
is only 11. The Independent Children’s Lawyer supported the mother and father having six month counselling with Ms U at equal expense. The children were more difficult
to predict. Counsel supported counselling for the children if and when required but they should not be pathologised. Z was going to transition into High School. There should be equal expenses if there was counselling. The Independent Children’s Lawyer did not support sole parental responsibility. There was a regime of equal time. Both parents take this seriously. Ms U says the father is neutral and not questioning the children. Counsel was amenable to the suggestion from the Court that school counselling would be appropriate and should continue for such time as the counsellor would regard it as appropriate.
FINAL SUBMISSIONS BY THE MOTHER
The mother sought the changeover be at school at 3.30 pm and appeared to accept 7.00 pm when not at school. She submitted there should be uniforms in each home. Shared parental responsibility was okay. There were no medical problems at the moment and they could mediate if there were problems. Telephone time should be limited. Her position depended upon the outcome of the contraventions. She sought to leave the children out of the conflict. She appeared to agree with the suggestion about counselling by school counsellors.
FINAL SUBMISSIONS BY THE FATHER
The father said he had conceded some points. They need to get out of court. He sought that the parties not frequent each other’s premises save by order of the Court, but I pointed out
to Mr Shores that this was more the province of the state authorities relating to intervention orders. It then emerged for the first time that there appeared to be multiple continuing parallel proceedings before the state courts relating to intervention orders.
CONSIDERATION
The matter is best addressed by working through the minute of final orders proposed by the Independent Children’s Lawyer. In a sense, many of the matters that were the subject
of substantive disagreement have now been resolved.
The order proposed by the Independent Children’s Lawyer for equal shared parental responsibility does not appear to me to be in dispute. If it is, and to the extent that that may
be so, I am of the clear view that there should be an order for joint parental responsibility. Notwithstanding the difficulties of communication between the parents the children live and have lived for some time in a week about arrangement. There are not now any schooling issues. There are no religion issues. And at least for the moment and for the foreseeable future, mercifully, there are no health issues. There is simply no proper basis upon which not to make an order for an equal shared parental responsibility. There are no meaningful allegations
of family violence or other risks to the children that have been emphasised by the parties, in any event, such as to displace the presumption.
Everybody appears to agree that X should continue to live independently.
The week about arrangement contained in order 3 is essentially agreed. The proposed order 3(d) as to the commencement of time was effectively conceded by both of the parents in the currency of the proceeding.
There is a dispute as to the proposed order 3(g) which provides for telephone or text messages at reasonable times. Both the parents at times appeared to suggest that they preferred
an outcome which excised the other parent completely while the children are not in their care. The mother’s position is that there should be no communications at all with the children and the parent with whom they are not immediately residing. The father sought an order that the mother may be in some fashion excluded from ever attending his home. Both of these proposals, in my view, are inappropriate. With children of this age, there is every good reason to ensure that they are able to contact the other parent should they wish to do so. The mother’s concerns arise from a perception the father undermines her relationship with the children.
I agree with the submissions of the Independent Children’s Lawyer that that is not the case. Ms U described him as neutral at worst. Having seen and heard their evidence and noting the findings I have made in relation to the contraventions, I think the father despite occasional asperity and stupid denigration of the mother on isolated occasions, does his best to promote the relationship between the children and the mother. She needs to, as Ms U pointed out, have a good look at her own conduct rather than to make demands of the children and to blame everyone else. I repeat that the children ought to be able to contact the non-resident parent should they wish to do so.
To the extent that the father sought some form of injunctive prohibition on the mother attending his house, that is, in my view, a matter entirely best left to the competent state authorities.
The paragraph relating to changeovers is now agreed. (In fact, it is paragraph 4).
The paragraph relating to Z finishing her schooling at School M is also now agreed (paragraph 5). The orders relating to attendance at extracurricular activities and the like, change of address and ancillary orders are all agreed (orders 6 to 9).
I agree with the Independent Children’s Lawyer’s proposal that the parties continue (only the parents) to attend upon Ms U on one occasion every six months with the cost to be shared equally. The father’s position was perhaps more nuanced but the recommendation
of Ms U was clear and it seems to be entirely in the parents’ best interests that they continue to have the assistance of some form debriefing and/or further treatment with
Ms U as she recommended (paragraphs 10 and 11).
The proposal the children engage with school counsellors which was one that was emanated from the court seemed to me to be adopted by all the parties. To the extent that it may not have been it is an eminently appropriate way forward. It takes on board the possibility that the children may need counselling but avoids the pathologising of the children with Ms U strongly recommended against.
The mother sought, as I understood it, that the Independent Children’s Lawyer remain involved on an ongoing basis but it is obviously appropriate that there be final orders.
The notation proposed by the Independent Children’s Lawyer is an entirely sensible one.
CONCLUSION
This judgment has not followed what might be thought of as a normal template. That is because the ground between the parties shifted during the course of the hearing. In truth, by the time we had disposed of the contraventions there was but little between the parties’ positions and some of the difficulties were massaged out, in effect, by a combination of exchanges between the bench, the Independent Children’s Lawyer and the parties.
It is to be hoped that this judgment, dismissing as I comprehensively have the mother’s contravention applications, will provide a firm platform from which the parties can advance. One submission made that was entirely accurate was that of the father to the effect that the parties really do not need to be in court. The age of these children and their stage
of development make it entirely probable that further disputation between the parents is likely to have the most adverse effects, as appears to be the case with some of the older children
if not all of them. Both these parents need to stop thinking and worrying about the other and to concentrate their energies entirely upon the welfare of these two young children. I hope that the somewhat forceful observations I have made to this effect may not fall on totally arid ground.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 27 August 2021
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