LOMOND & LOMOND
[2015] FCCA 1296
•22 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LOMOND & LOMOND | [2015] FCCA 1296 |
| Catchwords: FAMILY LAW – Parties engaged in continuous litigation since 2012 – father relocates during litigation proceedings with two children over held – whether two of three children should reside with father and spend time with mother – whether siblings should be separated – whether all three children should reside with mother and spend time with father. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 65AA, 60CC, 60B(1), 60B(2), 60B(3), 61DA(1), 61DA(2), 61DA(4), 65DAA(2), 65DAA(3), 60CC(1), 60CC(2), 60CC(3) |
| Collu & Rinaldo [2010] FamCAFC 53 Mazorski & Allbright [2007] FamCA 520 Godfrey & Sanders [2007] FamCA 102 Tait & Densmore [2007] FamCA 1383 Champness & Hanson [2009] FamCAFC 96 MRR & GR [2010] HCA 4 |
| Applicant: | MR LOMOND |
| Respondent: | MS LOMOND |
| File Number: | DGC 3562 of 2013 |
| Judgment of: | Judge Jones |
| Hearing dates: | 27 & 28 November 2014 and 9 & 13 February 2015 |
| Date of Last Submission: | 13 February 2015 |
| Delivered at: | Dandenong |
| Delivered on: | 22 May 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented |
| Solicitors for the Respondent: | Self Represented |
| Counsel for the Independent Children's Lawyer: | Mr O'Connell |
| Solicitors for the Independent Children's Lawyer: | McCormack & Co Solicitors |
ORDERS
All previous parenting orders are discharged.
The mother and the father have equal shared parental responsibility for the children X born (omitted) 2002 (“X”), Y born (omitted) 2004 (”Y”) and Z born (omitted) 2006 (“Z”) (collectively “the children”).
X, Y and Z live with the mother.
X, Y and Z shall spend time and communicate with the father as follows:
(a)Each alternate weekend from 4.15pm Friday until 5.00pm Sunday commencing 5 June 2015;
(b)For one half of all school term holidays at times agreed between the parties and failing agreement the first half in odd numbered years from 10.00am on the first Saturday until 10.00am on the second Saturday and the second half in even numbered years from 10.00am on the second Saturday until 4.00pm on the third Saturday of such holidays;
(c)For one half of the long summer school holidays at times agreed in writing and failing agreement from 5.00pm on the first Friday of such holidays (subject to Christmas) and each Friday thereafter with the father to have the odd numbered weeks when the holidays commence in the odd numbered years and the even numbered weeks when the holidays commence in even numbered years AND the holiday period shall be deemed to commence at 5.00pm on the first Friday of school holidays and cease at 5.00pm on the last Friday of school holidays;
(d)In the event that Father’s Day falls on a weekend when the children are not spending time with the father from 5.00pm on the previous Friday until 5.00pm on Father’s day;
(e)From 3.00pm Christmas Eve until 3.00pm Boxing Day in even numbered years;
(f)By telephone each Tuesday and Thursday, with the father to initiate the telephone calls to the mother’s mobile telephone no later than 6.30pm;
(g)Such other times as may be agreed between the parties in writing.
The time the father spends with the children or any of them shall be suspended as follows:
(a)For the whole of the Mother’s Day weekend;
(b)From 3.00pm Christmas Eve until 3.00pm Boxing Day in odd numbered years;
(c)Paragraph 4(a) shall be suspended during all school holiday periods and re-commence in the following school term on the first Friday in odd numbered years and the second Friday in even numbered years;
(d)Such other times as may be agreed between the parties in writing.
Changeover shall occur at the (omitted) Railway Station or such other place as agreed between the parties in writing.
The mother shall do all acts and things necessary to authorise the children’s schools to provide the Father, at his expense, copies of all school reports, notices, photographs, order forms and all other documentation provided to parents.
Each party shall ensure the children do not call anyone but the biological mother “mother” or any derivative thereof or call anyone but the biological father “father” or any derivative thereof.
The parties, their agents and/or servants are hereby restrained from:
(a)Denigrating, belittling, harassing and or assaulting the other parent, their family and/or member of their household to and/or within the sight or hearing of any of the children;
(b)Discussing these proceedings including submissions made and/or evidence given to and/or within the hearing of any of the children;
(c)Permitting any of the children to read any documents filed and/or produced in relation to these proceedings, or leaving any such documentation where the children or either of them have access to them.
Each parent shall advise the other as soon as practicable of any significant illness and/or injury suffered by the children or any of them whilst in their respective care and advise of the names and contact details of any treating medical practitioner so that each parent may liaise with such practitioner.
The mother and father shall forthwith do all things and sign all documents necessary to enrol in a course of child inclusive counselling at Family Life (omitted) and follow all lawful directions of the Manager of Family Life in relation to counselling between X and the father and Family Life shall be provided with a copy of all Family Reports herein.
The mother and the father notify each other immediately of their current residential address where the children reside with them whilst in their respective care and notify the other parent within 24 hours if there is a change to that address.
Both parents are restrained from engaging in denigrating, humiliating or abusive conduct in their communication with each other or from discussing these proceedings and/or expressing their views regarding the context of these orders.
The parents are restrained from filing an Initiating Application to vary these orders without leave of the Court.
These orders are to be explained to the children by Ms F, Family Consultant. The Independent Children’s Lawyer shall forthwith communicate with Ms F regarding this order and provide her with a copy of the orders and decision. The mother shall take all steps necessary for the children to attend Ms F for this purpose. Until this order has been given effect to, each parent is restrained from informing the children of the content of these orders.
The Independent Children’s Lawyer be discharged, after giving effect to order 15.
IT IS NOTED that publication of this judgment under the pseudonym Lomond & Lomond is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 3562 of 2013
| MR LOMOND |
Applicant
And
| MS LOMOND |
Respondent
REASONS FOR JUDGMENT
Introduction and Background
This decision is concerned with what parenting arrangements should apply to:
X born (omitted) 2002 (“X”);
Y born (omitted) 2004 (“Y”); and
Z born (omitted) 2006 (“Z”)
(collectively “the children”)
Their parents are MR LOMOND (“the father”) and MS LOMOND (“the mother”).
The father was born on (omitted) 1976 and the Mother was born on (omitted) 1976. The parties married in (omitted) 2000 and divorced in 2009.
At the commencement of these proceedings the father lived in (omitted) with his (then) fiancée, Ms M, with her 3 children from a former relationship; B (12 years old), C (11 years old) and D (9 years old) as well as the child of their relationship, E (born (omitted) 2010). The father commenced his relationship with Ms M in 2009. In early June 2014, in circumstances which I will shortly refer to, the father, Ms M and their children relocated from (omitted) to (omitted). The father and Ms M married sometime in (omitted) 2014.
At the commencement of these proceedings the mother lived in (omitted) with her (then) partner, Mr R. The mother commenced her relationship with Mr R around (omitted) 2011. Sometime in late 2014, they separated. The mother is now single and has not re-partnered.
Both parents are not working. The mother has not been working since 2012 as a consequence of a workplace injury. She says she has been progressing through the WorkCover process (which involves re-training prior to the recommencement of work) and has now recovered from this injury to the extent that she can manage her physical limitations and pain. She is planning to retrain and return to employment as soon as she is able. The father does not work as he had decided, sometime in 2012, to be a stay at home father. Ms M is currently studying and is planning to establish a (omitted) business in (omitted).
Pursuant to consent orders made on 13 February 2013, the children have been living with the mother and spending time with the father essentially on alternate weekends and half the school holidays.
The father’s proposals for new parenting orders seek to change the live with arrangements so that Y and Z live with him and spend time with their mother, whilst X live with the mother and spend time with him.
Proposals of the Parties
The father seeks the following orders:
1.All previous orders be discharged.
2.The parties have equal shared parental responsibility for the children, namely X born (omitted) 2002, Y born (omitted) 2004, and Z born (omitted) 2006.
3.The children, Y and Z, live with the father, commencing Friday 28 November 2014 at 3.30pm.
4.The Father have sole parental responsibility for the education of Y and Z.
5.The Father do all acts and things necessary to authorise the children’s school to provide to the Mother, at her expense, if any, copy (sic) of all reports, notices, photograph order forms and all other such documentation normally provided to parents.
6.That all changeovers occur at an agreed location, but failing agreement at the (omitted) Railway Station in Melbourne on the (omitted), outside the (omitted) Restaurant.
7.The children, Y and Z spend time with the Mother every second weekend from 5.30pm Friday until 5.30pm Sunday, commencing Friday 5 December 2014. At other times as agreed between the parties in writing. NOTE – The fortnightly pattern will reset at the conclusion of the final week (the 6th week) of the long summer school holidays as described in paragraph 9.
8.The children spend time with each of the parties for half of all school term holidays, at times to be agreed in writing. Failing agreement, that the children commence spending time with the parent who would not normally care for them on the first weekend of the school holidays. This time is to commence at 5.30pm on the first Sunday of the school holidays and concludes on the middle Sunday of the school holidays at 5.30pm. The conclusion of the second week of the school holidays is 5.30pm on the last Sunday of the school holidays.
9.The children spend time with each of the parties for half of the long summer school holidays, at times to be agreed in writing. Failing agreement, on a week about basis for six (6) whole weeks. The first week commences at 5.30pm on the first Sunday of the school holidays and each subsequent handover to occur at 5.30pm on each successive Sunday until both parents have had three full weeks of care. The father shall have the first, third and fifth weeks in even numbered years and the second, fourth and sixth weeks in odd numbered years. The parent who has the care of the children in the final week of the long summer holidays may be responsible for taking the children to school. The fortnightly pattern as defined in paragraph 7 recommences at 5.30pm on the Friday of the second full week of school in odd numbered years.
10.Concerning the “Christmas period”
a. The “Christmas Period” (sic) is defined as starting at 3.00pm on 24 December and finishing at 3.00pm on 26 December.
b. The children shall spend the “Christmas period” (sic) with the father in alternate years commencing 2014.
c. The children shall spend the “Christmas Period” (sic) with the mother in alternative years commencing 2015
11.Phone call communication
a. That the children be allowed to communicate with the party they are not living with by telephone as they wish and that these telephone calls will not be unreasonably restricted.
b. That each parent be allowed to communicate with the children they are not living with by telephone call on a Wednesday, ideally between 5:00pm and 7:00pm. If any deviation exists to the ability to receive or make a call then this should be communicated by txt (sic) and a make-up call be allowed.
c. In the event that the child or parent’s birthday falls on a day that a parent is not in care of the child, that parent is allowed an additional phone call on that day.
d. In the event that Father’s Day or Mother’s Day falls on a weekend when the respective parent is not caring for the children, that parent shall be allowed an additional phone call on that day.
e. In the event that the children’s step siblings, step parent or half siblings have a birthday when the children are not present an additional phone call be allowed to the household where the children are present.
f. That all phone calls be (sic) allowed to be private, and that each child is not interfered with by either a parent, care-giver, or other child, including siblings.
12.That each parent notify the other of any injury, illness, medical appointment or medication requirements within 48 hrs of same. In the case of significant emergencies immediate notification as soon as is practicable shall be made.
13.Communication between parents is permitted by telephone, txt (sic) message or email. All effort should be made to limit each email to as few key points or questions as possible and be polite and clear. All emails will be replied to within 48hrs with every attempt made to answer each point or question raised. Asking for more time is a valid response.
14.That the parties keep each other notified in writing of any changes of their contact details including telephone contact number, email address, and postal/living address and to do so within 48 hours of such a change.
15.That all parties advise the other parent of their partner’s full name, birth date, and telephone number and any changes to the same and do so within 48hrs (sic) of such a change.
16.Than in the event either parent wishes to take the children on an extended holiday then they must no later than 30 days prior to their intended departure date, provide to the other parent all travel details including mode of travel and time of travel and planned make-up time. That consent for same to occur shall not be unreasonably withheld and make-up time shall be provided as soon as practicable.
17.That the children not be allowed to travel interstate or outside of Australia without written agreement from both parents.
18.That the parents, their agents and/or servants be and hereby restrained from:
a.Denigrating, belittling, harassing and/or assaulting the other parent their family and/or members of their household to and/or within the hearing of the children or either of them;
b.Discussing these proceedings including submissions made and/or evidence given to and/or within the hearing of the children or either of them; and
c.Permitting the children or either of them from reading documents filed and/or produced in relation to these proceedings, or leaving any such documentation where the children or either of them have access to them.
19.That either child shall spend time with and communicate with any parent at other times by written agreement between the parents.
20.That the Family Report, written by Ms F, not be given to any school that the children attend.
21.In reference to Section 65K of the Family Law Act 1975, these parenting orders remain in effect in the event that the father dies. Ms M would therefore act on behalf of the deceased father.
22.I ask this Honourable Court to make Orders in X’s best interest taking into consideration the points I raise in my Affidavit in support of orders sought, paragraph 22.
23.Any other Orders this Honourable Court deems necessary in the best interests of the children.
The Independent Children’s Lawyer’s (“ICL”) proposed parenting orders are:
a)All previous parenting orders shall be discharged.
b)The mother and the father have joint parental responsibility for the children X born (omitted) 2002, Y born (omitted) 2004 and Z born (omitted) 2006.
c)X, Y and Z live with the mother.
d)X, Y and Z shall spend time with the father as follows:
i)Each alternate weekend from 4.15pm Friday until 5.00pm Sunday commencing (insert date);
ii)For one half of all school term holidays at times agreed between the parties and failing agreement the first half in odd numbered years from 10.00am of the first Saturday until 10.00am on the second Saturday and the second half in even numbered years from 10.00am on the second Saturday until 4.00pm on the third Saturday of such holidays;
iii)During the long summer school holidays at times agreed in writing and failing agreement changeover shall occur at 5.00pm of the first Friday of such holidays (subject to Christmas) and each Friday thereafter with the father to have the odd numbered weeks when the holidays commence in the odd numbered years and the even numbered weeks when the holidays commence in even numbered years AND the holiday period shall be deemed to commence at 5.00pm on the first Friday of school holidays and cease a 5.00pm on the last Friday of school holidays;
iv)In the event that Father’s Day falls on a weekend when the children are not spending time with the father from 5.00pm on the previous Friday until 5.00pm on Father’s day;
v)From 3.00pm Christmas Eve until 3.00pm Boxing Day in even numbered years;
vi)By telephone each Tuesday and Thursday with the father to initiate the telephone calls to the mother’s mobile telephone no later than 6.30pm;
vii)Such other times as may be agreed between the parties in writing.
e)The time the father spends with the children or any of them shall be suspended as follows:
i)For the whole of the Mother’s Day weekend;
ii)From 3.00pm Christmas Eve until 3.00 Boxing Day in odd numbered years;
iii)Paragraph 4(a) shall be suspended during all school holiday periods and re-commence in the following school term on the first Friday in odd numbered years and the second Friday in even numbered years;
iv)Such other times as may be agreed between the parties in writing.
f)Changeover shall occur at the (omitted) railway Stations or such other place as agreed between the parties in writing.
g)The mother shall do all acts and things necessary to authorise the children’s schools to provide the Father at his expense copies of all school reports, notices, photographs, order forms and all other documentation provided to parents.
h)Each party shall ensure the children do not call anyone but the mother “mother” or any derivative thereof or call anyone but the father “father” or any derivative thereof.
i)The parties, their agents and/or servants are hereby restrained from:
i)Denigrating, belittling, harassing and or assaulting the other parent, their family and/or member of their household to and/or within the sight or hearing of any of the children;
ii)Discussing these proceedings including submissions made and/or evidence given to and/or within the hearing of any of the children;
iii)Permitting any of the children to read any documents filed and/or produced in relation to these proceedings, or leaving any such documentation where the children or either of them have access to them.
j)Each parent shall advise the other as soon as practicable of any significant illness and/or injury suffered by the children or any of them whilst in their respective care and advise of the names and contact details of any treating medical practitioner so that each parent may liaise with such practitioner.
k)The mother and father shall forthwith do all things and sign all documents necessary to enrol in a course of child inclusive counselling at Family Life (omitted) and follow all lawful directions of the Manager of Family Life in relation to counselling between X and the father and Family Life shall be provided with a copy of all Family Reports herein.
l)The mother and the father notify each other immediately of their current residential address where the children reside with them whilst in their respective care and notify the other parent within 24 hours if there is a change to that address.
m)Both parents are restrained from engaging in denigrating, humiliating or abusive conduct in their communication with each other.
n)The Independent Children’s Lawyer be discharged.
The mother, ultimately, at the final hearing adopted the proposed orders sought by the Independent Children’s Lawyer (“ICL”).
History of litigation
This is the third time the parties have been involved in litigation with respect to parenting orders. Final parenting orders were made on 5 July 2010 pursuant to which the children spent equal time with both parents, although there were a number of changeovers within this equal time as the equal time was arranged on a 2-2-5-5 basis.
Final Parenting orders were made by consent on 13 February 2013. The litigation resulting in these orders commenced by way of Initiating Application by the mother filed 30 July 2012. During this litigation numerous affidavits were filed by both parties and intervention orders were taken by the parties against each other and their partners. In the period leading up to the mother’s initiation of these proceedings, there was a pattern of over holding of the children by the parents, including, it seems, the over holding by the father of Y for a whole school term during which she did not attend school. A Family Report was prepared by Dr L dated 6 February 2013.
Only 10 months later this current litigation was commenced by the father by his Initiating Application dated 1 December 2013. The effect of this is that the children have been exposed to ongoing litigation and intense acrimony between the parents (including their partners) since 2012.
Both parties were represented and an ICL had been appointed for the purpose of the proceedings leading to the final consent parenting orders made on 13 February 2013. These orders provided that the parents have equal shared parental responsibility for the children, the children live with the mother, that Y and Z spend alternate weekends with their father during the school term and half school holidays with their father, including special days. X’s time was gradually increased with the father so that ultimately she would spend alternate weekends at the same time as Y and Z. The orders provided initially that Ms M and her children not be in attendance during the father’s time with X. The parents were ordered to follow the recommendations of medical practitioners at CAMHS and that Y and Z attend such psychologists as recommended by their General Practitioner.
It will be obvious from these orders that issues had emerged with respect to the time X spent with her father and the presence of Ms M in the father’s household. It is also clear that emerging issues had been identified in relation to the mental health of the children. The course of litigation in those proceedings appear to be similar to the course of proceedings in the current litigation.
I have formed the view that it is appropriate now to refer to relevant aspects of the Family Report prepared by Dr L dated 6 February 2013. I do so, because it discloses the emergence of the issues affecting the children and their experience in both their parent’s households, the relatively unchanging views of the father and Ms M regarding the mother and the place of the children in their household. The extracts are as follows:
a)the application was initiated Ms Lomond as a result of her daughter X disclosing that her relationship with Ms M, her father’s partner had deteriorated and she did not wish to return to see her father or Ms M. In return Mr Lomond was concerned about the relationship of the siblings and their involvement with Ms Lomond’s current partner. There were further disagreements and he declined to return Y and Z [3];
b)Ms Lomond was exhausted as to the ongoing criticism that Mr Lomond continues to level at her… Since Mr Lomond has re-partnered the parents corporation (sic) has significantly decreased and in 2011(sic) her parenting of the children in her view was continually criticised by her former partner and Ms M his fiancée [12];
c)Mr Lomond believes that X suffers from Asperger’s Syndrome and has been a difficult child to engage in to (sic) the paternal family which in his view consists of him Ms M and the four children as well as X, Y and Z…. He sees her as a destructive and a negative influence on Y and Z as well as the rest of the stepsiblings [32];
d)Mr Lomond accepts that Ms M and X have had difficulties in the relationship and rationalised it is (sic) mainly X’s issues [36];
e)Although Mr Lomond was critical that X at her age of 10 years had been given the option and “power of refusing” to attend the paternal family he was also giving Y the choice and power at eight years of age to choose not to attend school. Mr Lomond advised that his stepdaughter B (sic) has been home-schooled and here (sic) did not see any reason not to provide that the (sic) Y and Z [38];
f)Mr Lomond was keen to note that he and M (sic) Ms M are a partnership and with the new child between them means that the Lomond children need to adapt to his family [42];
g)Ms M has developed a very negative view of Ms Lomond and sees her behaviour as “evil”. She was annoyed that any attempt to negotiate any physical shared care arrangement for X, Y and Z were refused by Ms Lomond. She was adamant and intense in her view that she and Mr Lomond and her children and the three Lomond girls were “building a life together”. Ms M criticised Ms Lomond’s parenting alleging neglect of X, ….. [55];
h)she (Ms M) has negative views about X, stating her behaviour was aggressive and inappropriate towards (sic). She views X’s behaviour and her lack of interaction with the family as threatening to destabilise the family. She sees “Y and Z as my children”. Her comments of “the court’s jurisdiction ends at my front door”, indicated the need to control the home and environment [58]
i)Ms M was not convinced that the children are quite safe at their mother’s home and believes she can provide such an environment… [63];
j)This matter has increased in conflict since (sic) last family report in 2010. The original pattern of care between the two parents has been disrupted. The elder child X, has shown distresses as to her treatment from Ms M and resisted returning to the paternal home to visits (sic). X has found herself resenting Ms M as she felt her treatment was different to the other children and her access to the father was minimal. X did not see Ms M as her mother and as she matured from 7yrs (sic) when the separation occurred to now 10 years she was withdrawing into herself [99];
k)Mr Lomond and Ms M have labelled X as Asperger’s and support a proper assessment to be made. However they are unable to recognise that change every three years is significant for a child and her need to spend time with the mother was increasing. Ms M’s intensity and need to blend the family will have caused a negative response from a child, like X who desires to spend time with her own father and mother [100];
l)For Y the last three years from 5years (sic) to 8years (sic) allowed her to integrate into the paternal family and hence she has not resisted any visits. Y however is a child who is emotionally young and vulnerable and who eagerly engages with people who show interest in her. She is vulnerable to being influenced in return for infection (sic) and time. She was bullied in the first years of school and has low self-esteem. Her need is to have a positive response from the people around her. Y would be assisted by having a counsellor for herself. She is demonstrating confusion emotional loyalty conflicts (sic) and this will compromise the learning [101]
m)Z her experience the last three years from three years to six years has shown an adaptability with less focus on her. Her statement that she can be lonely even in a household of people in her father’s home confirms for the writer that she is not always prioritised. All three children desire individualised attention and spending time with their father. His rationale that he provide (sic) ad hoc time because of the number of people shows minimal attunement with his own daughters. [102];
n)Mr Lomond has identified breaches of orders whereby X has not attended to see him. His own decision to hold over Y and Z and to ask them to choose whether they go with their mother is pressure on children and inappropriate and shows an abdication of this parental responsibility by not making decisions for them. This further decision to not send Y and (sic) to school because she did not want to go and his fear that Ms Lomond (sic) would collect her will (sic), was not in the children’s best interests and only serve to increase the tension between the families. His criticism of allowing X at ten years and nine months “power” to choose is minimised by his own action allowing Y at eight and Z 6 to choose not to return to their mother and for Y to choose not to return to school [105];
o)Ms M’s need for a “voice” and decision-making role compromises any positive strength that she has or can bring to the family systems. The strong focus on the Lomond children takes away her nurturing from her own children who do not have an alternative parent to bounce ideas off. The denigration of Ms Lomond to the external world only serves to impact emotionally on the children who identify with the mother as well as with their father. The children want some time with their father not necessarily time with Ms M and her children, although they have enjoyed the stepsiblings’ interactions. Hence it is important to understand X, Y and Z’s messages about time with their dad [108].
I emphasise that I have not relied on Dr L’s report in determining matters in dispute by the parties in the present proceedings. The recommendations by Dr L were largely reflected in the 2013 consent orders.
The history of the current proceedings is in summary:
a)On 10 December 2013, the father filed an Initiating Application seeking parenting orders which provided for X to live with the mother and spend time with the father and Z and Y to live with the father and spend time with the mother;
b)On 10 February 2014, the father filed an Amended Application seeking, inter alia, a recovery order described as prohibiting the mother from taking possession of the children other than in accordance with the current parenting orders of the children, 22 nights extra time with the father, permission for the father to remove the children from school to attend dental, optical and psychological needs;
c)On 3 February 2014, the mother filed a Contravention Application in relation to various dates during 2013 which she alleged the father had failed to return Y to her care;
d)On 12 February 2014, orders were made directing the parties to attend a Child Inclusive Conference pursuant to s.11F of the Family Law Act 1975 (“the Act”). Paragraph 3 of the orders also provided that, “The father must ensure the children are returned to the mother at the end of his spend time with the children and time cannot be extended unless there is written consent by the mother”;
e)On 2 June 2014, the mother filed an Application in a Case seeking orders that time spent by X with her father in accordance with the orders made 13 February 2013 be suspended;
f)On 3 June 2014, the mother filed an Application in a Case seeking a recovery order for Y and a restraint by injunction on the father from removing the children from within 5 km of the mother’s home without an order of the Court;
g)On 16 June 2014, the mother filed an Application in a Case seeking a recovery order for Z;
h)On 23 June 2014, the father filed an Amended Application which amongst other things, sought that the Court consider his urgent need to relocate with Y and Z residing with him;
i)On 25 June 2014, orders were made, inter-alia, that:
i)Y and Z be returned to the mother forthwith;
ii)the mother use the best endeavours to encourage X to spend time with the father in accordance with the orders;
iii)the mother ensure that Mr R not discipline the children;
iv)the mother obtain from her treating medical practitioner a report regarding the diagnosis of her medical condition, any treatment, including medication and dosage, and the effect of the prescribed medication on the mother’s physical and mental functioning;
v)both parties ensure the children engage in an attend counselling with Dr B;
vi)the appointment of an Independent Children’s Lawyer; and
vii)the preparation of a Family Report.
j)On 11 July 2014, the father filed an Amended Application seeking, in addition to his earlier applications, the suspension of the 13 February 2013 orders that the children attend (omitted) Primary School, changeover in (omitted) and a restraint on Mr R being present at changeover;
k)On 14 July 2014, the mother filed an Application in a Case seeking the recovery of Y and Z;
l)On 16 July 2014, a Recovery Order was made by the Court;
m)On 12 September 2014, the mother filed an Application in a Case seeking the recovery of Y and that the Court fine the father in contempt of the Court.
n)On 29 September 2014, orders were made that the mother’s recovery application is withdrawn and the application regarding contempt be adjourned for final hearing.
Evidence and material considered
In the case of the father, I have read and considered each of the following documents:
a)his Amended Initiating Application filed on 13 November 2014;
b)his Affidavits filed on 10 December 2013, 19 December 2013, 10 February 2014, 17 March 2014, 23 June 2014, 11 July 2014, 16 July 2014, 26 September 2014 and 27 October 2014; and
The father was cross-examined.
In the case of the mother, I have read and considered each of the following documents:
a)her Amended Response filed 14 November 2014;
b)her Affidavits filed on 3 February 2014, 17 April 2014, 2 June 2014, 3 June 2014, 16 June 2014, 25 July 2014, 25 September 2014, and 14 November 2014.
The mother was cross-examined.
I have read and considered the following independent documents:
a)Family Report prepared by Ms F dated 6 February 2013;
b)Child Inclusive Conference Memorandum prepared by Ms A and dated 22 April 2014;
c)Family Report prepared by Ms F dated 6 October 2014; and
d)Department of Human Services report pursuant to s.69ZW dated 13 October 2014.
Ms F was cross examined.
The content of the parents’ affidavits reflect the nature of their relationship since late 2012:
a)Mistrust and a completely sundered relationship;
b)Ready to launch into allegations about the other’s parenting capacity on the basis of a complaint by a child without engaging in an appropriate reality check;
c)Ready to resort to intervention orders against each other and their partners.
The father’s affidavits, however, differ from the mother’s in that he persistently criticises the mother’s capacity to parent the children and to protect them from her (then) partner, Mr R. He has justified his conduct in over holding Y and Z, including during these proceedings, on the basis of these alleged concerns. He has not resiled from his criticisms of the mother in evidence before the Court and, even in his cross-examination of the mother at the end of proceedings, continued to raise matters which were designed to demonstrate to the Court the mother’s failure as a parent.
Father’s Evidence
The contempt with which the father and his (now) wife, Ms M, holds the mother’s parenting capacity underlies the father’s proposed orders and conduct (including the over holding of Z and Y) during these proceedings. This conduct resulted in the making of an order requiring the father to return the children into the mother’s care and one Recovery Order.
The flip side to this contemptuous attitude to the mother, is a firm and unwavering belief by both the father and Ms M, that only their household can provide the nurturing and stable environment for Z and Y. As for X, the father and Ms M’s view appears to be that she has been so damaged in her mother’s household that she struggles to adapt in the father’s household.
I should say that, in stark comparison, notwithstanding the acrimonious relationship between herself and the father, the mother has consistently, in her oral evidence, stated that the father is a good father to his daughters.
It is appropriate to consider the basis for the father’s unrelenting criticism of the mother’s capacity to parent. The father’s affidavits are replete with criticisms of the mother. These concerns are:
a)the mother’s failure to engage in the treatment of X’s alleged mental health issues;[1]
b)the mother’s inability to care for the children (following her workplace injury), her addiction to prescription drugs and the assumption by Mr R of care for the children;[2]
c)Mr R’s discipline of Y and Z; [3]
d)X’s behaviour towards Y and Z whilst in their mother’s care;[4]
e)the mother’s neglect of the dental and optical needs of Y and Z;[5]
f)the mother medicating the children with Melatonin;[6]
g)the mother’s failure to listen to Y and Z, including Y’s refusal to return to the mother’s care at the end of time spent with her father.[7]
[1] Fathers Affidavits filed 10 December 2013 and 10 February 2014.
[2] Father's Affidavits filed 10 December 2013 and 18 December 2013.
[3] Father's Affidavits filed 10 December 2013, 18 December 2013 , 23 June 2014 and 11 July 2014.
[4] Father's Affidavit filed 11 July 2014.
[5] Fathers Affidavits filed 10 December 2013 and 10 February 2014.
[6] Father's Affidavit filed 10 February 2014.
[7] Father's Affidavit filed 11 July 2014.
The concerns listed under sub paragraphs (b) to (g) reflect matters the father’s said he has been told by Y and Z which he feels he is obliged to act upon.
In cross-examination, the father was asked by Counsel for the ICL to identify what concerns he presently holds in relation to the care of the children in their mother’s household. The father prefaced his response by saying that he thought the mother cares for the kids greatly, that she does the things that she can do to look after them and care for them. He identified the following concerns:
a)X was not getting the full diagnosis and treatment in accordance with Court orders;
b)there were issues around dental health. He said the children have told him they have had cavities and sore teeth and on one occasion Y had such substantial cavities he was required to take her to the dentist and have the tooth removed;
c)because of the mother’s workplace injury she is unable to be attentive towards children;
d)lack of communication between the parties;
e)discipline of the children;
f)the mother’s approach to ensuring Y returns to her care when Y is resistant to this. His concern is the mother is engaging in physical restraint of the child;
g)Y and Z do not feel listened to in their mother’s household. He said that they do not feel listened to in respect of their desire to spend more time with their father and in relation to issues in arguments that arise between them and their sister, X. They say that X always gets what she wants.
The father’s criticism that the mother has failed to obtain a full diagnosis and treatment for X, has its genesis in a provisional diagnosis by Dr D that X had amongst other things obsessive compulsive tendencies. The father took X to see Dr D in October 2011 because of her failure to adapt in his household. He did this without the mother’s knowledge. He informed the mother about Dr D’s provisional diagnosis by way of email dated 20 February 2012. The father said he did not inform the mother immediately because he tried to consider the implications himself. The father initially interpreted this as a diagnosis of Asperger’s but accepted over time that it was provisional.
The final orders made on 13 February 2013 required the parents to follow all lawful directions and recommendations from the medical practitioners at (omitted) CAMHS and required the mother to obtain a mental health plan and referral to enable Y and Z to attend upon such psychologists as recommended by the children’s treating General Practitioner. The parties were restrained from seeking to influence such psychologists/counsellor and ordered to follow all lawful directions and recommendations from the psychologist/counsellor.
The father stated that X was referred to Dr H, a psychologist located at ELMHS, (omitted) Health for treatment. His complaint was that the mother had failed to comply with the Court orders and ensure X’s attendance for treatment. His evidence is that Ms N was provided as support for the mother and father to assist them through the process and advise on parenting techniques. The father said that Ms N had conveyed to him that, given her inability to contact the mother, there would be no benefit to continuing with therapeutic counselling. She suggested that X have counselling organised through the school.
The father approached (omitted) Health regarding information in relation to X. By correspondence dated 7 February 2014, a Mr J, Corporate Counsel stated the following information in relation to details of X’s involvement with their Early in Life Mental Health Service during 2013:[8]
“X was reported to have obsessive compulsive tendencies and a range of other issues. Our staff had considerable difficulty establishing contact with the mother and arranging for her to attend for initial appointment with X. That appointment ultimately took place on 7 October 2013 and was followed by a further appointment with father on 23 October 2013. A third appointment then took place on 4 November 2013, with X and mother.
Subsequently, the mother failed to follow up for further contact appointments, resulting in the clinicians contacting the writer for advice. I was informed that the ongoing, significant conflict between the child’s parents, being played out in court, is a significant factor which makes individual clinical work with X contra indicated currently. Put another way, our clinicians felt that little useful purpose would be served by any endeavour to force the mother to bring X to our service.
Nevertheless, our clinicians consider X is a bright girl, who is help seeking. It is the view of our clinicians that, with support from both parents, her mental health issues and associated problems should be able to be addressed in a positive, constructive matter (sic), for her benefit.
I wish to make it clear that (omitted) Health has no interest “in taking sides” in any conflict between mother and father. Our concern is to do the best we can to assist X. We can only do that with a willing cooperation of both parents, in circumstances where her attendance is for therapeutic benefit, not for the purpose of offering some form of perceived tactical advantage in court proceedings to one parent or the other.”
[8] Father's Affidavit filed 13 November 2014, annexure BL1.
The father said that since the letter from (omitted) Health, X had been seeing a psychologist, Dr B, whom he claims he arranged through the school. He said that he has been in contact with Dr B. He says that he still presses for a full diagnosis of X so that the parents can decide what additional options there are and treatment. However, he did not seek such an assessment in his proposed orders.
It is the father’s view that the relationship between the mother and X is unhealthy as X has sacrificed her relationships with her father and half siblings because of her need to feel responsible for the care of the mother. X is, the father says, enmeshed with the mother. He believes that this is a significant reason why X wishes to stay living with her mother.
The father says that he is particularly concerned by the recent incident at X’s school when she wrote a suicide note. He agreed that a risk assessment had been undertaken by the Department of Education and Early Childhood Development who had assessed the risk of X acting out as low and that the threat of self harm by X was as a consequence of an altercation at school. He says that his research has revealed that children who have Aspergers have a high rate of suicide. He also conceded that part of X’s issues may well be the high level of conflict between her parents. He says he believes that since the mother and Mr R have separated, X is reaching out to him more. The father stated that he would be prepared to enter into therapeutic arrangement with X to address their issues.
The father’s criticism of the mother not listening to the views of Y and Z appears to be twofold. First, she does not listen to them when they are in her care. He says Y and Z constantly complain about this. Second, the mother is refusing to listen to their views, particularly Y, about where they want to live. He says that Y has for a long time said she wanted to spend more time with her father and now wants to live with him.
He gave evidence that Y and Z often tell him that X is hurting them and constantly bothers them. He was asked about an incident (around two years ago) he referred to in his affidavit when Y and Z told him that X was threatening them with a knife. It appears the mother intervened and disciplined X. He referred to an email he sent to the mother regarding this incident. He did not identify any other particular incident, and generally referred to pushing and shoving between the children.
The father said, by way of contrast with the mother, that Y has a good relationship with Ms M, that she feels comfortable and happy being around her and likes the time they spend together as a family. He stated the key difference between the mother’s relationship with Y and Ms M’s relationship with Y is that, Ms M listens to her and the mother does not.
I questioned the father about whether his over holding the children, in response to the concerns they tell him, might have given them a false sense that they are able to decide which parent they can spend time with and that they now might well believe that they are in a more powerful position than the parents. The father did not respond directly but stated that Y has had the view about who she wants to live for a long time and was quite confused when the mother over held her for two months. I note here that this alleged over holding by the mother was not in evidence before the Court. It appears the father is referring to a period preceding the earlier Court proceedings.
The father referred to a recent incident on changeover where the parents were unable to convince Y to return to the mother and said that he recalled a phrase that she repeatedly stated was “X gets to choose never to come back and I don’t want to go either.” I enquired of the father whether there was an issue for the Court to consider; namely, whether he, as a parent, can properly exercise his parental authority to ensure that Y understands her place in the hierarchy. The father responded by stating that he believes very strongly that if Y had more time in his care she would be much happier about going back to her mother because she would have a balance that she says she wants between the two households. I reminded the father about the point made by the Counsel for the ICL in cross-examination, that his decision to relocate to (omitted) in June 2014 means that a more balanced spend time order would be impractical.
With respect to communication, the father’s complaint was that the mother failed to respond to the emails he has sent her regarding his concerns. He did concede that the emails frequently raised his concerns regarding the shortcomings of her parenting.
With respect to the discipline of the children the father conceded that the issue of physical discipline was never one he had with the mother (neither he nor the mother used physical discipline during their relationship).
The issue the father said was the physical disciplining of the children by the mother’s partners. He gave evidence regarding a partner, Mr M. It appears the mother sought refuge at the father’s house when Mr M was violent, in the sense of yelling and smashing furniture, at the mother’s household. Notwithstanding this incident, the equal time arrangement the parents had in place continued. The mother ceased her relationship with Mr M in or around May 2011. The father said that he agreed with the assessment by the Department of Human Services (“DHS”) that the mother had acted protectively by moving out of the property, obtaining an IVO and engaging appropriate supports.
The father has also alleged that Mr R has been aggressive and abusive towards Y and Z. He said he formed this view on the basis of what the children told him. He obtained an interim intervention order on 13 December 2013 naming himself and the children as affected family members. In his application for the intervention order the father described Mr R as a dangerous man (see [57]).
The DHS report discloses numerous reports and involvements over the period April 2011 to around September 2015. In cross-examination, the father was taken to an intake and assessment during the period 10 December 2013 to 23 December 2013, where it was noted that a report was received raising concerns for the safety and well-being of the children in the care of the mother. The allegations made include an incident at changeover where the mother is said to have “physically and brutally grabbed Y and “stuff” her in the car kicking and screaming”, that Mr R is a dangerous and aggressive man, that the mother fails to attend to the children’s medical needs such as optometrists and dental care, that the children had seen Mr R chase an adult male with golf clubs, that the mother is medicating her children with melatonin. The following extract from the report was read to the father:
“Follow up occurred with the children’s school. Both the principal and assistant principal advised that they did not have any concerns for the children in Ms Lomond’s care, that the children seemed more settled and happy since Ms Lomond was granted majority care through the Federal Circuit Court. The school had no concerns regarding Mr R, or the children’s relationship with him, based on their observations.
The children had never presented as being drug affected or suffering from the side effects. The children always presented as well cared for when with Ms Lomond, as opposed to Mr Lomond. The girls are always at school when in the care of their mother, but miss days when in the care of their father. The school advised that Y is caught in the middle of her parents, Y has made many accusations against her mother and staff members in the past. This related to doing the reading recovery program. Y told her father that a teacher had hit her. When the allegations were looked into; the teacher had swept tanbark off her uniform. Y then admitted that she made up being hit by the teacher so that she did not have to go to the program, but could stay in class with her friends.
The school advised that allegations about Ms Lomond only come up after Y has been to see her father, and the other girls never say the same thing. The school feel that Y is being manipulated by Mr Lomond and Ms M. When Y is with her mother, she is switched on, ready to learn, clean, after being with her father, she is confused.
Counselling was recommended when Y first began at the school three years ago. Ms Lomond signed the paperwork and Mr Lomond refused to allow the counselling to happen. During a further discussion with the school, it was advised that Mr Lomond eventually agreed.
The school has not seen any signs that Z is “depressed” or “shut down”, the only one who is “shut down” at times is Y, after returning from contact with Mr Lomond.
The school advised that the girls have not made any complaints about Mr R and seem to really like him, they are happy to see him. The school have regular contact with Mr R, and he appears to be caring and appropriate. The children’s stepmother, Ms M, is now excluded from the school due to her aggressive behaviour towards the principal and other staff.
During a further conversation with the school, it was advised that Z and X have coped best with the acrimonious relationship between the parents and the most impact of the parents relationship has been on Y. It was advised that Y has been manipulated, and is torn between her parents.”
The father stated he was surprised when he read this extract and that it was in stark contrast to how the children talk to him about Mr R. He said he was not particularly surprised about the views of the Principal of the children’s school. He suggested that his relationship with the children’s school Principal was poor.
The father described the physical restraint that the mother applied to Y, when Y was resistant to returning to her care as grabbing Y around the wrist and pulling Y, who remained upright, towards the car. He said he left the car park but then did a U turn (as he was required to do) to return home and observed Y trying to get out the car and the mother pushing her back in. This concern raised by the father appears to be related to his claims that Y would prefer to live with him and that it upsets and distresses him to see what he described as Y being “physically manhandled”. The father conceded that it would not have been appropriate to accede to Y’s resistant behaviour. He said this incident was some time ago.
Relocation
In June 2014, the father and Ms M relocated from (omitted) to (omitted). There is no dispute that he did this without informing the mother. Prior to the relocation the father had failed to return Y to her mother and over held her for a period of some two weeks. The father took Y with him when they relocated and continued to keep her (without the mother’s knowledge of Y’s whereabouts). In addition, during this period the father collected Z from her school in (omitted), during school hours and without the mother’s knowledge. Both children were overheld and did not attend their usual school in (omitted) until a recovery order was executed.
In his evidence, the father identified the reasons for the move to (omitted) as being for the protection of Ms M and her children from Ms Lomond and Mr R, financial reasons so Ms M could establish a (omitted) business and to have a peaceful life. In his affidavit filed 13 November 2014, the father deposed at [25]:
[25]… Ms M and I had for some time discussed a move to (omitted). Mr R and Ms Lomond, despite Intervention Orders, were driving past the back of our home and the children were scared about this, Ms Lomond has said herself, in her Affidavit sworn on 27th January 2014, Paragraph 29(I) that “The Husband’s home backs on the main (omitted) so I am sure both Mr R and I drive along that road along with thousands of other commuters”. Thousands of other commuters do not have an active and valid Intervention Order against them requiring them not to do so. After we moved to (omitted), the Intervention Order renewal was not pursued. Ms M’s children feel much safer in (omitted) where they know they cannot be stalked or harassed by Ms Lomond or Mr R.”
It is clear that the children referred to were Ms M’s children. The father’s evidence was that the (omitted) – (omitted) is a major artery which was around 6 metres from the back fence of the house they lived in, that there was a lot of traffic on the road and the mother would use that road whilst taking her children to school, he believed unnecessarily. This was regarded by the father and Ms M as a breach of Court orders and as constituting stalking behaviour .
The father also referred to an altercation with Mr R on changeover alleging that Mr R yelled and abused him whilst Y and Z were at the car. The father states that Y and Z did not want to return to the mother so they stayed in his care and he took them back to school the next day. The consequence of this was that the children missed one day of school. The father sent an email to the mother dated 22 April 2014.[9] After describing the incident the father stated:
“What Mr R did yesterday has traumatised Y and Z severely. They are very upset and did not go to school today. I will take them up to the school today at 3:30pm and I expect you to be there to collect them.
Unless you start to communicate with me as an effective parent, then you leave us with very little their (sic) options for the future.”
[9] Father's Affidavit filed 13 November 2014, annexure L3.
When asked by the Counsel for the ICL whether he may have been overdramatising the scenario, the father responded that that was how he felt at the time. He conceded that he used this incident as one of the bases for an application for an intervention order against Mr R on 13 December 2013.[10] The other bases for seeking the orders were matters reported apparently by Y and Z alleging Mr R had chased a person in a white car down the street holding golf clubs and the fact that he had discovered in the last three months that there were nails in the tires of his car. He stated in his application that Mr R had threatened them, although in his evidence he said he did not feel personally threatened. In the application he described Mr R as a dangerous man and that he feared that while in Mr R’s care the children were being verbally and emotionally abused and that they were under constant duress. An interim intervention order was made on 13 December 2013 with the father and the children named as the affected family members.
[10] Father's Affidavit filed 19 December 2013, annexure A,
The father also referred, in evidence, to the fact that Z had a cut on the back of hand from when she had been dragged out from underneath the table as being a reason for over holding the children when his household relocated to (omitted).
The father’s evidence is that:
· he and Ms M were leasing a house in (omitted), they were on a month to month lease and they could afford to have stayed there;
· they had spoken about going to (omitted) a few times in the past because they wanted a much less stressful lifestyle;
· they now reside in a 4 bedroom house, centrally located in (omitted);
· Ms M intends to establish a business that combines (business omitted) and (business omitted), whilst he intends to undertake home duties taking primary responsibility for the children. Presently, Ms M is finishing off the requisite certificates and diplomas. It appears Ms M will be away studying during each week and is initially working to save money to establish the business.
In cross-examination, the father did not accept that Y’s absence from school may have contributed to difficulties she experiences in socialisation at school. He agreed that Z and Y may have been confused by the circumstances. He was critical of the mother for not allowing him to temporarily enrol Y and Z in the (omitted) School which their step siblings were attending.
He said the intention when they moved to (omitted) was to continue with the fortnightly pattern and hope for a change (in parenting orders) through the Court system. In his sworn evidence in his affidavit filed 13 November 2014 (at [26](d)(iv)) that:
“[26](d)(iv). We realised that 50/50 care would not work, however we were optimistic that we may end up with more care of X, Y and Z.”
During his evidence, the father expressed on many occasions his strong view that both Y and Z simply wanted to spend more time with him. His evidence is that this has been the case since the making of the consent orders on 13 February 2013, when the equal time arrangement was changed to him spending alternate weekends and holidays with the children. On each occasion, it was pointed out to the father that the making of parenting orders to reflect the wishes of his daughters was made more complex by his relocation to (omitted). He agreed that because of the distance now involved between the parents homes (at least two hours travel), the limit to the spend time with the non-residential parent would be alternate weekends and holiday time.
It became apparent, through his evidence, that he believes that as his time with the children was reduced (by reason of consent orders made on 13 February 2013) because X at 10 years old was given the ability to choose what she wanted to do, then Y should be allowed the ability to do what she wanted to do; namely, spend more time with the father. Given the relocation, Y’s wishes could only be met by Y living with him and his family. The father agreed with the proposition put by Counsel for the ICL that he moved to (omitted) in the middle of the Court hearing, knowing that distance was thereafter going to be an issue in this case, and knowing that there would be fewer options open to the Court in relation to how the time between the parents and the children would be divided.
The father was cross-examined by Counsel for the ICL regarding the impact of his proposed orders on Y and Z’s relationship with their mother and on Y and Z’s relationship with X. The father’s responses revealed that he had given little thought to these significant impacts. He kept referring to the fact that he does not have a crystal ball to speculate. He referred to the fact that Y and Z are presently separated from their half-brother, E. He was non-responsive to the proposition made that there was a difference in that X, Y and Z had been brought up together. The father did concede ultimately that the separation of Y and Z from X would be a “significant issue and thing to consider.” He qualified this by saying that it should be part of the consideration in a big picture about how they can live in the future and what is in their best interest.
The father was asked by Counsel for the ICL, what was the big picture in circumstances where Z is 8 and half years old and the effect of the fathers proposal would be to take her away from her mother, her home, her school, sent all the way to (omitted) and seeing her mother every second weekend. He responded that it was about her having a new experience of going to school and spending more time in a family structure that she says she enjoys and wants more of.
Family Report
The record of interviews with and observations of Ms F, the Family Consultant, are instructive with respect to the father and Ms M’s attitude to the mother’s parenting capacity, towards X and her relationship with her siblings.
In her Family Report dated 6 October 2014, Ms F made the following records of interviews with the parties:
a)According to Mr Lomond, X does not get on well with her two sisters, she has “no attachment really.” Y however is very emotionally connected to her sisters, the younger brother E and to Ms M’s children. They engage in many activities on the weekends [21];
b)Mr Lomond reported complaints by Y and Z with respect to the mother’s (then) partner including pushing Z in the driveway to the door. On one occasion Z returned to his care with a cut on her hand caused by Mr R. He says the children complain that their mother “spends a lot of time in bed, Mr R looks after them.” The father complained that Mr R was abusive towards him. “Mr Lomond explains that he had no choice and has felt the need to breach court orders due to Mr R’s behaviour” [23] to [25];
c)The father acknowledges the situation with X is difficult as she does not want to see him. When Mr Lomond attempts to collect X after school she does not want to come with him, “have to convince her, it breaks my heart.” He wants to “reconnect” with X [29];
d)Ms M said that she made the decision to move to (omitted) as her children were “distressed to the extreme” by the mother’s former partners threats to kill and the stalking by the mother and Mr R [65] to [67];
e)In respect to X, Ms M makes comment that X has had a “tortuous time in her mother’s care….. She has needed to reconcile her allegiance to her mother to become the person she is now.” She views X as a “psychiatric pretzel,” meaning she goes round and round in an endless loop whereas five years ago X was “pleasant and engaging.” [68];
f)Y is described (by Ms M) as being the best integrated of the three girls. She is “a magnificent human being with a warm heart….. She has allowed love into her heart, she is a beautiful human being.” [69];
g)Z is described (by Ms M) as extremely intelligent, “a gorgeous little thing” She does however find it difficult to “navigate everything.” Z is “open warm and engaging” [70];
h)In discussion, Ms M does not accept that these positive qualities may be reflective of Ms Lomond’s parenting over the years. She responds that their home is a poor environment, “the mother does not have a magic stick.” Ms M is firmly of the view that “absolutely” their qualities are due to them being in “our care” where they are bonded to her children who are “happy and well balanced.”[71]
i)In the event that Y and Z live with them and therefore separated from X, Ms M believes this will be “peaceful and balanced” for them. There is now a big gap between X and her sisters, permanent damage has been done, Ms M is unsure how this could be “re-aligned” as in her view Y and Z are not bonded with X, they are bonded to Ms M’s children.[73]
j)Ms M predicts that if the children live with Ms Lomond, “X will end up dead or pregnant by fifteen.” Y and Z will resent their mother, they complain she does not listen to them [75];
Ms F’s “Evaluation” with respect to the father and Ms M’s attitude to the mother’s parenting capacity, towards X and X’s relationship with her siblings, is as follows:
a)Y and Z refer spontaneously to Ms M as “mum.” Their intimate manner of doing so indicates they have called her “mum” for some time despite Ms Lomond not agreeing to this and provision in Court Orders for this not to occur [128];
b)Mr Lomond presented his account of events from his perspective in a cooperative manner. He was not observed to be personally hostile in respect to Ms Lomond however he is significantly undermining of her parenting capacity and fails to acknowledge the quality of her relationship with all three children. Mr Lomond may lack insight in respect to the more hostile views held by his partner Ms M about Ms Lomond and the impact of this on all three children [129];
c)Observations in discussions with Mr Lomond indicate he has a significant and meaningful relationship with Y and Z. He is attentive to their reported complaints to him about Mr R and is of the view he has acted protectively by withholding them. Mr Lomond presents with a negative view of Ms Lomond’s capacity to be protective. Without further substantiation of his concerns, undermining Ms Lomond is likely to create confusion and anxiety for Y and Z who have a more positive relationship with their mother than Mr Lomond is prepared to acknowledge[131];
d)With respect to X, Mr Lomond presents with some understanding of her issues with Ms M and integrating with her family……[132];
e)Ms M refers to significant concerns that Ms Lomond is not involved with the children. This view is not supported by this assessment…[136]
f)Ms M conveys her account of past events in a significantly negative manner as relates to Ms Lomond, Mr R and the alleged negligent parenting of all three girls. She attributes the better qualities of Y and Z to her care “absolutely” and is in no doubt that the caring environment of the household has made them the children they are today [141];
g)Ms M moved to (omitted) apart from the business and due to her children being scared of Mr R and of being stalked by Ms Lomond also. It is of concern that Y and Z would be aware of these fears. It places them in an emotionally compromising dilemma given their positive relationship with their mother [142].
The father filed an affidavit[11] which was a response to Ms F's Family Report deposing to various errors or misunderstandings in the Report. When given the opportunity to cross-examine Ms F, the father did not question her about the matters he had raised. Consequently, I have given little weight to those matters deposed to by the father in that affidavit.
[11] Father's Affidavit filed 13 November 2014.
The father was cross-examined by Counsel for the ICL with respect to the views expressed by Ms M regarding X and the mother’s parenting capacity as recorded in Ms F’s family report. When asked whether he endorsed her view that “that if the children live with Ms Lomond, “X will end up dead or pregnant by fifteen,” the father prevaricated. His evidence was that Ms M made those statements out of frustration and out of concern about X, which he shared. He said that he believed the statement had some substance. The father seemed at a loss to explain why X had changed in the last few years. He conceded that it could have something to do with the conflict between the parents and the children aligning with a particular parent at different times. The father said that he agreed with the observation of Ms M that “X has had a tortuous time in her mother’s care”. With respect to Ms M’s view that she sees X as “a psychiatric pretzel”, meaning she goes round and round in an endless loop”, the father said it was not a phrase he would use but he understood where Ms M was coming from but would not go so far as to say X has got severe psychiatric problems. When asked whether he agreed that a step-parent (his partner) should be making strong statements like that about his daughter, the father was non-responsive referring to the context and the reasons for Ms M’s statements. He ultimately agreed that the terms used by Ms M were very strong, judgemental, critical and damaging but, he said, he did not believe that was the intention behind them.
The father’s evidence was that he agreed with the record of Ms M’s view that she had significant concerns that the mother is not adequately engaged in the children’s life. He believes that this was the case at times. The father stated that he did not agree that the positive qualities of Z and Y had nothing to do with the mother’s parenting capacity over the years. He stated that he had talked to Ms M regarding the family consultant’s record that Ms M does not accept that Y and Z’s positive qualities may be reflective of the mother’s parenting over the years. His evidence was that Ms M stated that was not the view she expressed. Ms M was not called to give evidence and be cross examined and Ms F was not cross-examined by the father on this point.
The father conceded, in cross-examination, that the children (Y and Z) had likely picked up on the denigration by them and their negative views of their mother’s household. When asked how the Court could be satisfied, given the negative views in his household of the mother’s parenting capacity, that a change in the residence of Y and Z would not ultimately result in an undermining of the relationship between the mother and those children, the father responded that he did not have those conversations with the children all the time. He said the conversation was coming from the children. He stated that the children tell him things that they are concerned about and that he has then raised that with the Court and in the Family Report. I asked the father whether it is possible that he overreacted to what the children say to him. His response was that his reaction to what the children have said is based on them telling him things many times over.
Mother’s Evidence
The mother acknowledges that X has some symptoms consistent with Aspergers. The mother said she only became aware the father had taken X to see Dr D, when X showed her a card and told her she was seeing this person.
The mother was obliged by the 2013 orders to seek counselling support through ELHMS for Y and X. The mother says that X was assessed as suitable but not Y. She says that she took X to around 6 to 8 appointments with Dr H, some X attended alone and others they both participated in. She says that Dr H suggested that the mother see Ms N for assistance with parenting strategies for X. Ms N was supposed to arrange a psychiatrist for X, however, after this had been arranged the psychiatrist in question closed his or her list. The mother said Ms N then suggested that she arrange through the school for X to attend a psychologist, which she did.
The mother says that she took steps to arrange for counselling for X through the school not the father. She says that she has arranged for X to attend counselling with Dr B during 2013 and 2014. She says that she took Y for counselling but, on advice from Dr B that counselling with Y would not be productive, as Y was non-cooperative, she has not pursued counselling for Y. She intends to take steps to enable X to continue counselling in 2015.
In October 2014, the (omitted) Primary School submitted a request for a risk assessment following a disclosure by X at school regarding suicidal ideation. She had written a note stating, “I suck” and “I will commit suicide tonight via neck and throat”.[12] The mother tendered correspondence from Mr J, psychologist, Department of Education and Early Childhood Development dated 5 November 2014 who conducted the assessment. In the correspondence, the note was described as “an expression of anger which may in part have been precipitated by an argument with a peer as the children were working on a project together.” The risk for X was assessed as low. The author notes that the “conflict was immediately resolved by the teacher, that thoughts of suicide are infrequent and easily dismissed and that protective factors such as doing homework engaging in a distracting task and talking to friends or teachers were adopted.” The author notes that the Medicare sessions available for X to attend Dr B had expired but that in the interim student support services are available to assist with short-term support.
[12] Correspondence from Mr J, psychologist, Department of Education and Early Childhood Development dated 5 November 2014, exhibit M1
The mother says that she lives in a four bedroom home and has rented there for approximately one year. She has recently renewed the lease for another year and intends to remain there at the expiry of the year. She says that the paternal grandparents live nearby and recently she drove the children there for a family celebration. She says she lives in a supportive community and has close friends around her. She confirmed that she ended her relationship with Mr R at the end of 2014 and that she remains single.
In cross-examination, the mother gave detailed evidence regarding each of the children’s differing personalities, needs and activities they engaged in, in her care. She openly described X’s anxiety following her workplace accident in 2012 and stated that X was indeed connected to her. She said that X was now commencing to enjoy sleepovers and branching into her own independence.
The mother described Y’s personality, her loves and dislikes her beautiful singing voice and hope to provide her with singing lessons once she starts working and is able to afford this extra-curricular activity. The mother identified and talked about Y’s close friends at her school, (omitted) Primary School.
The mother described Z’s personality, her gentle nature and her thirst for knowledge and she described Z’s wide group of friends at school.
The mother described times the children played together in a very connected way and the times they fought. Her view was that it was regular sibling household “stuff”. She said that as X had entered puberty and Y is close to entering puberty, they clash more. She said that X nurtures Z. She said that each time Y and Z have been over held by their father, X has been very distraught.
Her evidence was that when X started to refuse to go into her father’s care, she attempted to explain to the father X’s sense of not belonging in his household and her poor relationship with Ms M. She said the father would not listen. This she said began in 2012. There then followed allegations by both households against each other. She acknowledged that the parties engaged in a “tit for tat” and was candid in conceding that the allegations contained in the numerous applications for interim intervention orders against each other were somewhat exaggerated.
She said following X’s refusal to go to the father’s house, Y started “arcing up” about returning into her care. She said that in 2012, the father over held Y for one term during which Y did not attend school.
When asked about Y’s strong views expressed at the interviews with Ms F that she wants to live with her father, the mother explained that Y is emotionally vulnerable and confused and has said on many occasions she wants equal time in both households. The mother said that she believed Y had been manipulated by the father and Ms M into believing she needed to live with them.
The mother said she suffered an injury to her back on 28 November 2012 whilst at work. In accordance with Court orders, she provided a statement prepared by her treating General Practitioner, Dr A, dated 22 July 2014 which set out details of the mother’s injury, treatment and any impact of the medication prescribed.[13] Dr A stated:
[13] Mothers Affidavit filed 25 July 2014, annexure L1.
“She was treated with rest, pain relief, physiotherapy initially.
She was referred to a pain management program, which helped her manage her pain better, but was unable to continue due to intercurrent illness and family commitments. Pain has been very persistent and she is been diagnosed by the specialist with Chronic Pain Syndrome with Fibromyalgia which causes generalised pain of fluctuating severity in her back, and also in her muscles.
Dr A stated that she reviewed the mother every month regarding her pain management and observed that she is very compliant with the medical treatment. Dr A set out the prescribed treatment (in consultation with pain specialists) of this pain syndrome. Regarding the effects of this medication (which includes Endone, Lexapro, Panadeine Forte and Valium) Dr A stated:
“Endone is taken only at night if pain is excessively severe, during the day she takes Panadeine Forte as ordered by the Pain Management Clinic. This has no effect on her ability to function, as I have seen her on many occasions over the course of her illness and she is always alert and cooperative.
Neurotin (also ordered by the Pain Management Clinic) is used in chronic pain syndrome where it is sometimes effective in pain control, and in Ms Lomond’s case it has been very helpful.
Lexapro is an antidepressant, the doses to be gradually reduced when her stress levels are less. It has no effect on her physical or mental ability.
Valium is taken occasionally for severe muscle spasm.”
The mother said she has lost 15 kilos in weight since that time and reduced her pain medication. She has reduced the dosage of Panadeine Forte to 2 tablets in the morning on most days. She is able to manage this by the adoption of pain management strategies. She says she has also reduced her antidepressant medication. She described a relapse after the two-day trial in November 2014 because she was unable to avoid excessive sitting which, she says, aggravates the back injury. However, she said she was able to rely on close friends who live locally to assist in the care of the children and has recovered.
With respect to the issue of giving X Melatonin, the mother said her general practitioner suggested it to assist X to sleep. She obtained an over-the-counter homoeopathic Melatonin. She tried using Melatonin for a few months but the results were indifferent and ceased giving it to X. She denied ever giving it to the other two girls.
The mother said that sometime in May or June 2014, after her weekend spent with the father, X disclosed that, whilst he was braiding her hair, the father had inappropriately touched her and also referred to other incidents. The mother said that she first attempted some reality testing with X about her allegations. When X persisted with them, she rang SOCIT (Sexual Offences and Child Abuse Investigation Teams). She said that SOCIT then interviewed X without her being present.
Ms F ultimately recommended that the three children live with the mother and spend alternate weekends and half school holidays with their father.
I cannot accept that Y and Z understand the ramifications of changing their residence to their father’s household. Given, I am satisfied that Y and Z have a close and connected relationship with their mother and X, the change would be significant as the two girls would only see their mother each alternate weekend and half the school holidays. This is a profound change in their young lives. The mother’s evidence, which I accept, is that Y and Z have close friends who live nearby and go to the school they attend in (omitted)/(omitted) area. The father has said that Y is not happy at her present primary school in (omitted) in that she does not socialise well there. It does not seem to have occurred to him that this may well be a consequence of the fact that his over holding of Y has resulted in many absences from her school.
Another effect of the father’s proposal is that Y and Z would live with their half-brother, E and, consequently, form a greater attachment than if the present arrangements remained. Whilst this is a benefit, it must be weighed against the separation of three siblings who have lived together all their lives.
The profound effects of the father’s proposed orders in the relationship between, on the one hand, Y and Z and their mother and, on the other hand, X and her two siblings, Y and Z, in the absence of sound reasons, it is a matter I have accorded significant weight to in this decision.
Section 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 father’s decision to relocate his household from (omitted) to (omitted) has meant that the practical difficulty of the children spending time with the non-residing parent is a significant matter in this case.
As it appears the father will be utilising train travel from (omitted) to Melbourne. The travel distance taking into account travel to a railway station in Melbourne from the mother’s residence or school, will be closer to three hours.
Substantial and significant time or equal time parenting arrangement is simply not practicable. This is, no doubt, very disappointing for Y and Z, given the father has repeatedly stated they wish to spend more time in his household.
Section 60CC(3)(f) – the capacity of each of the child‘s parents and 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
The father’s case for his proposed parenting orders is that he (and Ms M) has a greater capacity to attend to the emotional and intellectual needs of the children. Indeed, the whole of the father’s evidence is that his household is the far superior household within which the children can be nurtured and flourished.
I have rejected this proposition. I am satisfied that in fact the mother is better able to nurture the emotional and intellectual needs of the children as I am satisfied that:
a)The mother is more attuned to the girls differing personalities and able to foster their relationship;
b)The father has, by contrast, demonstrated a tendency to see his girls as an adjustment to his household and expects them to adapt to it. He certainly does not display an understanding of or commitment to fostering a sibling relationship between the children;
c)The father has, by his over holding of Y and Z and the circumstances surrounding the relocation, demonstrated little understanding of the chaos and confusion this would induce; and
d)Considering the father’s evidence, I have little confidence regarding his commitment to regular school attendance by the children.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
I have earlier dealt with these matters.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This matter is not relevant.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I have earlier dealt with these factors.
Section 60CC(3)(j) – any family violence involving the child or
a member of the child’s family; and Section 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 nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
There have, during the course of this and earlier proceedings, been numerous Intervention Orders taken out by the parents and partners against each other. These are no extant intervention orders. I have not given any weight to these in the determination of these proceedings.
Section 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.
This matter the Court must have regard to, reflects Parliament’s view that continuing litigation is not in the children’s best interest. The children have been subject, for far too long to continuous litigation as a result of their parent’s fractious relationship, exaggerated safety concerns and unrestrained actions to take matters into their own hands, by, for example, over holding the children.
Both parents must reflect on the effect of their behaviour on the children and begin to demonstrate a better grasp of the maturity and authority responsible parenting entails.
It is hoped that therapeutic counselling will assist. However, I retain some doubt that the pattern of litigation may not cease. I have therefore decided that it would be in the best interest of the children that I include an order that the mother and father not be permitted to file an Initiation Application to vary the parenting orders I make without leave of the Court.
Section 60CC(3)(m) -any other fact or circumstance that the court thinks is relevant.
There are no other facts or circumstances I consider relevant.
S.61DA andS.65DAA
The presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child (or person that lives with the parent or child) has engaged in abuse of the child or another child who was a member of the parent’s family or family violence: s.61DA(2). Moreover, the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: S.61DA(4).
The parties agree that the orders should provide for equal shared parenting responsibility save that the father proposes that he have sole responsibility for the education of Y and Z. I see no sound reason, for making the order sought by the father. I am satisfied that this presumption should apply. It is appropriate to set out the obligations that flow from this. S. 65DAC provides:
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
I am now required to consider firstly, whether it is in the best interest of the child and is reasonably practicable for the child to spend equal time with both parents and, if so, whether an order for equal time should be made: s.65DAA(1).
The matters to be taken into account in determining what is “reasonably practicable” and the interplay of best interests and reasonably practicable was considered by the High Court in MRR & GR[15] where the Court said:
“Each of subsections 1(b) and 2(d) of section 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court must have regard to certain matters such as how far apart the parents live from each other, the capacity to implement the arrangement in question and such other matters as the court considers relevant in determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parent.”
[15] [2010] HCA 4.
The High Court went on to say that s.65DAA(1) is expressed in imperative terms and obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each parent or significant substantial time and whether it is reasonably practicable for either order to be made and it is only where both questions are answered in the affirmative that consideration may be given, under paragraph (a), to the making of an order for equal time or significant and substantial time.
S.65DAA(1) – Equal Time
I am not satisfied, on the evidence, that an order for equal time spent with each parent would be in the best interest of the children. This is because the children’s emotional and intellectual needs are, in my view, better nurtured in the mother’s house. Even if it were in their best interest, because of the distance between the two households it would not be reasonably practicable.
s.65DAA(2) – Substantial and Significant Time
Having found that an equal time arrangement should not be made I am now required to consider whether it is in the best interest of the child and is reasonably practicable for the child to spend substantial and significant time with each parent and, if so, whether an order for substantial and significant time should be made: s.65DAA(2). Substantial and significant time is defined in s.65DAA(3) as:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent
Having regard to the evidence, I am satisfied that it would be in the best interests for each parent to spend significant and substantial time with the children. However, the distance between the mother and the father’s household means that this would not be reasonably practicable.
Framing of the Orders
Who should the children live with
I hasten to say that, although the father is entitled to choose where he lives, his relocation to (omitted) (which almost 3 hours travel away from the mother’s home) has had the consequence that the Court is unable to accommodate the views expressed by Y and Z that they would like to see more of their father and spend more time in his household more often, without changing where they live.
The father’s reasons for his proposed orders that Y and Z live with him are[16] essentially based on the following: the views expressed by Y and Z that they wish to spend more time with him and like his household, that Z has been subjected to abuse by both the mother’s previous partners, that he is more capable of listening and attending to the children’s needs whereas the mother is not, the mother is not engaged nor does she provide activities for the children in her household and generally the superior environment that exists within his household. I have earlier dismissed the father’s specified concerns about the children in their mother’s care and have found that she is indeed engaged in her children and provides appropriate activities for them, within the constraints of her budget. I should say I have no doubt that the father would be in a similar position as he is not working and consequently any extra-curricular activities would be limited by budgetary concerns.
[16] Father's Affidavit (In Support of Orders Sought) filed 13 November 2014
I am satisfied that it is in the best interests of the children that they reside with their mother. I have taken into account all the relevant considerations, including the expressed views of Y and Z. However, I am satisfied that were Y and Z to reside with their father there would be three very serious consequences which would not be in the best interests of all the children.
The first flows from my satisfaction that were Y and Z to reside in their father’s household, their relationship with their mother would be undermined to the extent that a likely outcome would be that they would become alienated from her. In circumstances where I am satisfied that the mother is attentive to all the children’s emotional and intellectual needs, that she is engaged in their lives and that she has a close and positive connection with them, such an outcome clearly is not in the best interest of these children.
The second serious consequence which would flow from Y and Z living with their father, is the separation of siblings. I am satisfied that, given the regretfully harsh and unforgiving views expressed by Ms M regarding X, which the father attempted to justify or place in context, the relationship between the siblings would be completely fractured. The father’s evidence was that the relationship between the siblings was not close. In circumstances where I am satisfied that the relationship between the three children, who have lived together all their lives, is a close and connected one (albeit marked by clashes between the siblings), such an outcome clearly is not in the best interest of these children.
The third serious consequence, flows from the effect of a change in the residence on Y and Z (as well as X from whom they would be separated for the great proportion of their young lives). All three children have lived together all their lives. Discounting the equal time arrangement which persisted for around two years from 2010 to 2012, the children have lived predominantly with their mother all their lives. I cannot accept that Y and Z understand the ramifications from changing their residence to their father’s household. Given, I am satisfied that Y and Z have a close and connected relationship with their mother, the change would be significant as the two girls would only see their mother each alternate weekend and half the school holidays. This is a profound change in their young lives. The mother’s evidence, which I accept, is that Y and Z have close friends who live near and go to the school they attend in (omitted)/(omitted) area. The father has said that Y is not happy at her present primary school in (omitted) in that she does not socialise well there. It does not seem to have occurred to him that this may well be a consequence of the fact that his over holding of Y has resulted in many absences from her school. Y needs to consistently attend school. My impression from the evidence is that the father has not placed a high priority on this.
Spend Time Arrangements
The parties all agree that for Y and Z the spend time arrangement should be each alternate weekend with the parent with whom they do not reside together with half of school holidays.
With respect to X, the ICL proposes that she also spend alternate weekends, however, the mother and father expressed some uncertainty about this.
During the course of giving her evidence, the mother stated that she thought it best for X that she spend alternate weekends with her father, although she hoped that there could be some flexibility to accommodate X’s wishes. She accepted that accommodating X’s wishes could well result in X not spending time with her father, which she agreed would not be in her best interests.
The father presented two options, no doubt reflecting the difficulties he has experienced in having X spend time with him. The first option involved X spending alternate weekends with him. The second option involved X spending time with him during the school holidays only.
I am satisfied that the orders should provide that X spend time on alternate weekends as her sisters will. X is still only 12 years old. She has most recently spent time with her father during the 2014/2015 school holidays without incident. X needs to feel that she is wanted and loved by her father in his household. The father must, together with his wife, reflect on how they may structure the time X spends with them to accommodate her needs. Ms M most certainly needs to alter her negative views of X and the mother. Therapeutic Counselling will assist. However, the father needs to show a degree of flexibility in managing X’s spend time with him. He most certainly must refrain from treating any refusal by X to spend time with him as a reason for withholding Y.
Therapeutic Counselling with X
There seems to be no dispute that the quality of the relationship between X and her father would be greatly assisted by them engaging in Therapeutic Counselling.
The practical issues are:
a)when would this occur; and
b)the affordability.
I accept that the ICL’s proposed order that therapeutic counselling occur at Family Life (omitted) is an appropriate order in the circumstances.
Changeover
The mother proposes that changeover occur at (omitted) Railway station, whilst the father proposes (omitted) Railway Station.
The mother says that changeover at (omitted) Station would involve her travelling by car to collect the children from school, driving to the city and back home again. She says the travel one-way would involve excessive costs in fuel and E– Tag. She says this travel would likely aggravate the back injury. Her evidence is that, were she to use public transport, after she had collected the children from school, the train journey from (omitted) Station to (omitted) Station is one hour.
The father proposes (omitted) Station as he prefers to travel to Melbourne by this mode of travel. He says it enables him to engage in quality interaction with the children during the journey.
I am satisfied, that changeover should be affected at (omitted) Railway Station. It seems to me it is in the children’s best interest to avoid excessive car travel and enjoy their time with their father in the train.
The father has proposed orders in relation to:
·The disclosure of the Family Report;
·Communication by email;
·Advising the other party of new partners; and
·Restraining travel interstate or overseas without written consent.
I have not included these orders because they are in my view unnecessary, inappropriate or sought in circumstances where there is no evidence which support their making. Section 121 of the Family Law Act 1975 prohibits parties distributing Family Reports to third parties without the consent of the Court. I decline to make an order regarding communication by email. I accept the father’s evidence that he has learnt to communicate in a neutral way and I accept the mother will respond promptly. As Ms M is not a party in these proceedings, there is no basis to make an order relating to time with the children in the event the father is deceased. No evidence was placed before the Court regarding interstate or international travel.
I have decided that it would be appropriate for the orders I make to be explained to the children by the Family Consultant Ms F. I will make an order that the ICL arrange for this to occur. Until this occurs, both parents will be restrained from informing the children of the content of the orders.
I certify that the preceding two hundred and forty-two (242) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 22 May 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Costs
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