Malcher and Malcher (No 3)
[2015] FamCA 388
•18 May 2015
FAMILY COURT OF AUSTRALIA
| MALCHER & MALCHER (NO 3) | [2015] FamCA 388 |
| FAMILY LAW – CHILDREN – Interim parenting orders – extension of time spend with the father – where the time sought has been previously suspended. |
| Family Law Act 1975 (Cth) ss 60CC(3) |
| APPLICANT: | Mr Malcher |
| RESPONDENT: | Ms Malcher |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | SYC | 3808 | of | 2012 |
| DATE DELIVERED: | 18 May 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 30 April 2015 |
REPRESENTATION
| ADVOCATE FOR THE APPLICANT: | Self |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid NSW Sydney Central Family Law |
Orders
PENDING FURTHER ORDER:
Subject to the orders set out herein relating to the re-introduction of C to the time all three children are to spend with the father, order 2.2 of the orders made by this Court on 16 July 2012 be varied on follows:
On week 2 from after school Monday to before school Wednesday.
Subject to the orders set out herein relating to the re-introduction of C to the time all three children are to spend with the father, order 2.1 of the orders made by the court on 16 July 2012 and order 1.1 of 15 November 2012 be varied to provide as follows:
“Subject to the orders made herein relating to [C], on Week 1 from after school Friday until 8.00 p.m. Monday”.
The time the child B is to spend with the father on weekend time is to extend to school time on Tuesday as and from 15 June 2015.
The time C born … 2003 spends with the Father pursuant to the orders of 16 July 2012 and 15 November 2012 is suspended until the completion of the following provision for the reintroduction of C to the time to be spent by him with the father pursuant to those orders and the other provision of the orders made this day:
4.1From the conclusion of school or 3.00 pm on Monday until 8.00 pm commencing Monday 11 May 2015 and each fortnight thereafter;
4.2From the conclusion of school on Monday until the commencement of school on Tuesday commencing Monday 1 June 2015 and each alternate week thereafter;
4.3After C has spent 2 consecutive visits with the Father pursuant to these provisions the time shall be extended to include from the conclusion of school on Tuesday until the commencement of school on Wednesday (being consistent with the time the children, B and D spend with the Father);
4.4During the 1st half of the 2015 June/July school holidays, the last 2 consecutive nights the children, B and D spend with the Father, being from Monday 29 June 2015 at 9.00 am until 6.00 pm on Wednesday 1 July 2015 (being the changeover date pursuant to Orders made on 6 December 2013);
4.5Such other times as agreed between the mother and the father.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Malcher & Malcher (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3808 of 2012
| Mr Malcher |
Applicant
and
| Ms Malcher |
Respondent
and
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Before the court for consideration is an application in a case filed by Mr Malcher (“the father”) on 15 April 2015. He supports that application with an affidavit sworn by him on 15 April 2015 (consisting of fifteen pages) and an affidavit of 28 April 2015 (five pages). I refer to the number of pages in the affidavits because I restricted the parties to being able to rely, for the purpose of this hearing, on twenty pages of affidavit evidence only.
Ms Malcher (“the mother”) relies on her amended application in a case filed 28 April 2015, together with numbered paragraphs in identified affidavits. The mother relied on paragraphs 30 to 62 and 138 to 148 of her affidavit filed 24 April 2015, paragraphs 14 to 37 of her affidavit filed 15 July 2014, paragraphs 14 to 29 of her affidavit filed 13 November 2013, paragraph 21 and paragraphs 28 to 33 of her affidavit filed 2 November 2012 and paragraphs 37 to 43 of her affidavit filed 29 June 2012. It is the mother’s solicitor’s contention that those paragraphs in total do not amount to more than twenty pages of typescript.
The Independent Children’s Lawyer (“ICL”) relied on reports by the single expert Dr A dated 17 October 2014 and 14 March 2013. The later of those two reports is the most relevant to this particular application being an interim application.
The ICL tended a Minute of Order recommended by him which was marked as Exhibit “ICL1”. The mother tended a Minute of Order sought by her which was marked as exhibit “W2”. The mother provided, as an aide memoir, a chronology of events which, it was submitted, assists in understanding her case and the history of the proceedings in the court.
Short background facts
The parties commenced cohabitation in about 1999 and were married in 2000. The three children of the marriage are B (known as B) born in 2002 (12 years of age), C (known as C) born in 2003 (11) and D (known as D) born in 2006 (9)
The parties separated on approximately 1 March 2011 when the father vacated the former matrimonial home at O Street, Suburb N. The mother still resides in that property.
The proceedings commenced on 29 June 2012 on the application of the mother. On 15 July 2012 a substantial set of interim orders were entered into on a consensual basis by the parties. So far as the interim parenting orders are concerned those have been varied by orders made 15 November 2012 and 6 December 2013.
On 20 October 2014 Johnston J made findings that the father had breached Order 2.2 of the orders of 16 July 2012 without reasonable excuse such breaches having occurred on 18 August 2014, 1 September 2014 and 8 September 2014. The breaches related to the order in respect of the children spending time with the father each alternate Monday from after school until 7 pm pursuant to the said Order 2.2 of 16 July 2012. Order 2.2 is in the following form:
2.That the children live with the Father on a two-week cycle during the following times:
2.1…
2.2On week 2 from after school Monday to 7 pm Monday and from after school Tuesday to before school Wednesday.
Johnston J found, as disclosed in his reasons delivered on 20 October 2014, that the father had failed to return the children to the mother on the Monday evenings as required by the order. He noted the father’s excuse for breaching the order as being that the children were older and their circumstances had changed since the making of the order. The father alleged that he was reacting to the children’s wishes in retaining them overnight on the particular nominated dates of the breached orders. The father submitted that the children’s circumstances had changed in a significant way in that the child C, following a particular incident prior to October 2014, had not been attending to spend time with him pursuant to the orders for a number of months. He said that the other two children then took the view that if C could decide how and when he spent time with a parent then so should the other children, likewise, be able to do so. Clearly such an approach to parenting, if implemented in the circumstances of a difficult relationship between the parents, has the potential to create chaos and disruption for the children’s lives. Further it potentially draws the parents into a higher level of conflict which will inevitably affect the children.
Part of the order made by Johnston J on 20 October 2014 was the suspension of Order 2.2 made 16 July 2012 so far as it related to the children spending time with their father from after school Monday until 7.00 p.m. The reasons published by his Honour make it clear that he made that order only in circumstances where he had invited the father to undertake to the court that he would comply strictly with the terms of the order and in which case if such undertaking was given his Honour had made it clear that he would not suspend the operation of that order. The father declined to give such undertaking and his Honour clearly felt he had no other course available than to make the order specified and referred to above. However, it should be noted, that on 20 October 2014 when his Honour made those orders he had anticipated hearing the father’s application to vary the orders of 16 July 2012 and subsequent orders so as to provide a different regime of time for the children living between their parents. It is clear from the framework of his Honour’s judgment that he intended to hear that application on 2 December 2014 and would then determine what orders, if any, should be made in relation to the time the children spent with their father pursuant to paragraph 2.2 of 16 July 2012.
Upon application being made by the father Johnston J recused himself from further hearings in the proceedings. He reserved to himself the conclusion of the sentencing process for the father in relation to the contraventions which he had found proved. On 27 February 2015 Johnston J concluded his sentence hearing and made an order which required the father to pay a fine of $5,100 together with the mother’s costs of the contravention proceedings. The father has filed a Notice of Appeal in relation that sentence. As Johnston J recused himself following the sentencing of the father. The father’s application was heard on 2 December 2014.
Orders sought by the father
Relevantly the father seeks the following regime be implemented in relation to the time the children live with him pending further order. He proposes that all three children live with him during school term from after school on Monday until before school on Wednesday each alternate week and each alternate weekend from after school Friday until before school the following Tuesday. He also proposes a mechanism for determining when the children commence living with him on weekends pursuant to his proposal following a school holiday period. The father also sought urgent make-up time for the children to spend with him. Those orders were contained in his application filed 15 April 2015.
The ICL presented a handwritten minute of a suggested order which was marked as Exhibit “ICL 1”. The mother also presented a handwritten proposal for the time the children should spend with the father pending the commencement of the trial listed to commence before me in July of this year. The ICL, in his submissions, supported the proposal of the mother and the further time as provided for the children with the father in “ICL 1”. The mother’s minute principally addressed the reintroduction of C to spending time with his father after a lengthy period of time where he has not been participating. The mother also supported the proposal of the ICL subject to C’s involvement being as submitted by her in Exhibit “W 2”.
The evidence of the father in support of his application
The father relied on an affidavit filed by him on 15 April 2015. This affidavit recited background facts including details of the current orders made 16 July 2012 as varied on 15 November 2012. The current arrangement sees the children with the father in a two week cycle during school term. In week one the children spend time with the father from after school on Monday until 7 pm. In week two they spend time with the father from after school Monday until 7 pm and from after school on Tuesday until before school on Wednesday and then from after school on Friday until before school on Monday. It is the father’s case that circumstances of the children have changed so substantially since July 2012 that it is impracticable to exercise the Monday afternoon time with the children. He is therefore seeking, amongst other things, that the time spent with the children on Monday is extended to an overnight occasion.
The father annexed a Further Amended Order made 20 October 2014. On that occasion the Court suspended Order 2.2 of the orders of 16 July 2012 pending further order. The proceeding was adjourned to 10 am on 2 December 2014 and it is clear that on that day Johnston J had intended to hear an application by the father to amend the parenting orders on an interim basis pending the conclusion of the proceedings in the Court. The import of that order has been referred to earlier in these reasons.
The three children, B, C and D, all attend school. B and C attend S School in North Sydney. B is in year 8 and C is in year 6. D attends W School and is in year 4.
The father is currently without income and has been in that position since early 2015. He does some work on a part-time basis. He is personally available to care for the children at all relevant times. The mother is a health professional and works at R Hospital. The father seeks the children spend equal time with each parent as final orders.
Since the orders were made in July 2012 the father has moved his residence to Suburb K. Prior to that time his accommodation was situated within walking distance from the former matrimonial home occupied by the mother.
The father says that when he entered into the consent interim parenting orders in July 2012 he anticipated that the final determination would be within a short period of time from the making of those orders. He consented to those orders being made. However, he no longer consents and he sets out his reasons. The reasons include the following:
·B is almost 13 years old;
·B and D have become more vocal about the arrangements they wish to be made for them; and
·B has told the father that he wants to spend half his time with the father and they have discussed how that time would be constituted.
The father says that the current arrangements do not have regard to the expressed wishes of the children and the recommendations of the single expert Dr A whose last report was dated 17 October 2014.
The property being rented by the father at Suburb K appears to provide ample accommodation for all the children, he and his partner. As a result of the move of his residence to Suburb K and the movement of B to senior school the time that the father spends with the children on Monday has become problematic. He collects D from W School at 3.15 pm. He then drives her to the Suburb K property. That takes twenty to thirty minutes. B now is committed to school and sport training on Mondays and requires to be collected at 6.45 pm. It is a twenty to thirty minute drive from the father’s residence to the school. This then leaves him virtually no time to spend with B.
The father’s partner, Ms G, is expecting a baby shortly and will soon cease employment. However, at the moment, she is not always in a position to care for D while the father collects B from school.
The father in his affidavit addresses the report of Dr A pointing out relevant portions detailing the children’s statements.
The father says that since mid-2014 the children have frequently requested to be able to stay longer at his place, particularly on a Monday evening. This is clearly a difficult issue for the father who has had to convey to the children the impossibility of that occurring. The father says the children have frequently asked their mother by telephone can they stay the night with the father on Monday and have been told no.
In his affidavit the father says C has not spent any time with him since July 2014. In submission I was told that is no longer the case and recently in the April school holidays C spent some overnight time with the father and his siblings in a holiday environment. It is the father’s assertion that the mother has influenced C against a relationship with him.
Part of the father’s affidavit is dedicated to a complaint that make-up time is not facilitated by the mother should the father, at any particular time, not be able to spend time with the children.
The father addressed the circumstances of the 2014/2015 Christmas school holidays. The father says there was no particular order in place for the Christmas school holidays. However, there had been orders which affected the December 2013 school holidays. The father in a letter dated 16 September 2014 from his lawyers to the mother proposed that the children join him on a trip to Europe. By 2 October 2014 there had been no response from the mother’s solicitors. The mother opposed the trip. Proceedings were brought before the court including an application for the father to be able to travel overseas with the children. The father anticipated that matter would be heard in December 2014 on the date allocated by Johnston J. For a reason unknown to the father that hearing date was vacated. Ultimately the father spent no time with the children during the Christmas school holidays.
The father relied on his affidavit filed 28 April 2015. This affidavit concentrated on the father’s traditional role in the care of the children prior to separation. This affidavit appears to support the submission by the father made at the hearing before me that he was traditionally the primary care giver for the children throughout the parties’ relationship.
The mother’s evidence in response
The mother’s evidence upon which she relies, spans five affidavits. Her counsel has nominated specific paragraphs in those affidavits which she contends amounts in total to no more than twenty pages of typescript. I will consider those affidavits from the most recent to the earliest which was filed on 29 June 2012.
In her affidavit filed on 24 April 2015 in the paragraphs nominated the mother sets out the arrangements for the children since 20 October 2014 on which date Johnston J suspended the operation of order 2.2 of 16 July 2012 which had provided for the children to spend time with their father after school on Mondays until 7.00 p.m. The mother asserts that the children were due to spend the weekend with the father commencing Friday 31 October 2014. She says the father sent a text message saying that he would not be seeing the children that weekend. No explanation was given as to why he could not see them. The mother asserts that the children were distressed by this circumstance. The mother asserts the children did not spend any time with the father for four weeks from 28 October 2014. The father had one telephone conversation with B in that time. The father informed of his intention to take up time with the children again by letter from his solicitors. Although the father was proposing to take up time with C, the mother did not agree to that. She proposed a gradual reintroduction as recommended by Dr A.
On 1 December 2014 D informed her mother “Dad told me that he was not picking me up from school this afternoon and that he would not see me until next year.” The mother had not been given any notice of this and she had to arrange an emergency collection from school. The mother said it appeared that the father was not proposing to spend any time with the children over the Christmas period. I note from the father’s evidence that there had been correspondence between the solicitors about the Christmas school holidays with the father wanting to take the children overseas and the mother opposing that. The children saw their father once in that period namely on 21 December 2014. On that occasion B and D saw the father, the mother attempted to arrange for C to attend for breakfast on that occasion as well, however, that was rejected by the father. The father provided Christmas presents for B and D. No presents were provided for C. During the school holidays the mother said that the father telephoned the children a handful of times. The mother believes that the father was overseas during this period. Although the mother requested information about when the father would resume his time with the children in the first term of school 2015 she received no information and the first she knew of his intent to resume time with the children was when he collected the children from school on Monday 2 February 2015. Notwithstanding the current orders the mother says that the father breached the court orders again by failing to return the children to her on Monday evening 2 February, 8 February, 16 February, 17 February and 23 February 2015.
The father was sentenced for his contraventions on 27 February 2015. The mother did consent to the children staying overnight on Monday 2 March 2015 which was the father’s birthday. The mother reports the father has complied with the orders since 27 February 2015.
Between paragraphs 138 and 148 of her affidavit filed 24 April 2015 the mother addresses evidence in relation to C. She notes that the father gave an undertaking to the court on 18 July 2014 he would not enforce C spending time with him pursuant to the July 2012 orders. Since that time and in particular since the report of Dr A on 20 October 2014 the father has made a number of phone calls to speak to C. This has not been as frequent as the mother had hoped. The mother has encouraged C to try and maintain a relationship with his father. In the April school holidays the father telephoned the mother on the day he and B and D were travelling to a beach house for a holiday. He asked if C would be able to join them. C told his mother that he would like to try going for two nights. The mother drove C to P Town on Easter Monday and then collected him on Wednesday. The mother said she opposed an order being made which would return C to the father’s care on a regular basis overnight.
The mother read paragraphs 14 to 37 of her affidavit filed 15 July 2014. In this affidavit she describes the father as having “explosive behaviour”. When angry he yells and screams tirelessly. It is distressing and emotionally draining she says for the children. She details the events of July 2014 involving C. C reported that he had come into conflict with the father’s partner Ms G who had been caring for them on that occasion. The mother helped C return to the father’s household. Later that evening the mother’s next door neighbour rang to tell her that C was with him. The mother left her workplace and went home. She found C very distressed. Text messages took place between the mother and father where the father informed her that he had called the Suburb Q police. C told the mother his version of what had occurred. He had run away in response to his father’s anger. C did not return to his father and has not spent regular time with his father since then.
In her affidavit filed 13 November 2013 between paragraphs 14 and 29 the mother outlines what she describes as ongoing difficulties in her relationship with the father and the care of the subject children. These include an assertion that the father refuses to communicate in a respectful manner or at all in relation to the children. The father is said to communicate with her through the children. The mother addresses what she says is “threatening and aggressive behaviour” on behalf of the father and this is said to occur in the presence or hearing of the children. She recites specific examples of interaction between she and the father including that he said to her in front of D “you fucking bitch, don’t speak to me.” The mother complains that the father is unreliable in terms of his collection and return of the children at appointed times. She asserts that the father has little regard for court orders or authority. She asserts that he is not prepared to be flexible in relation to the arrangements for the children. In her affidavit filed 2 November 2012 the mother recited in paragraph 21 instances of difficulties experienced by her with the father following the orders of 16 July 2012. She recites specific incidences on specific dates. She complains that the father has continued to verbally abuse her in the presence or hearing of the children.
In paragraphs 28 through to 33 the mother sets out details in relation to the children. This included what the children had told her the father had said about her. They have also reported what she sees as concerning behaviour by the father in their presence during the time they spend with him. The mother also sets out further examples of the father’s failure to comply with the orders made by the Court. Specific instances are referred to. The mother complains about, and gives detail of, her inability to communicate with the children when they are in the father’s care. She reports on the father’s inflexible approach and provides specific examples of that. She reports on the father’s behaviour towards her and provides specific examples of what that behaviour was.
The mother relied on paragraphs 37 to 43 of her affidavit filed 29 June 2012. This evidence was filed now three years before the current date. In this affidavit the mother detailed allegations of domestic violence during the marriage and of the father’s aggressive and violent behaviour generally. She describes the father as “controlling”. She describes what is sometimes called “mood swings” in the father. During some periods he is calm and happy and at other times he is aggressive and violent. She describes a history of anti-social behaviour leading to police contact with the father. She describes violence by the father to her and particularises the form it took.
Submissions
The proposal of the ICL is contained in the minute provided to the court. The order proposes that Order 2.2 of 16 July 2012 be varied to provide that “on week 2 from after school Monday to before school Wednesday.” The ICL also supports orders being made pursuant to Exhibit “W 2” being the mother’s proposal. That minute provides for the gradual reintroduction of C to the same regime of time his siblings spend with the father.
The ICL also proposes the court make an order which provides that if the father breaches any of the orders governing the time the children spend with him then on the next occasion that he is due to have the children that occasion shall be reduced by a minimum of one night. The ICL submits that the proposal in “ICL 1” would mean B would spend fewer nights with his father than he regards as optimal and D would spend one more night with her father than her expressed wishes suggest. It is submitted that as the matter is listed for final hearing in July of this year the subject orders ought to be seen as appropriate and in the children’s best interests pending the finalisation of the parenting proceedings. It is submitted that the increase of time the children spend with the father is in line with the recommendation of Dr A in his last report. It is submitted that the proposals for C are appropriate, in his best interests and would advance him to a point where there would be no difference between he and his siblings in the arrangements for their care between their parents.
The ICL also submitted that he would not oppose an order being made extending the time for return of the children to the mother pursuant to Order 2.1 of 16 July 2012 to 8 pm in order to accommodate the changed routine for B and his school commitments. The ICL submitted the question of make-up time as sought by the father should be determined at the final hearing.
The mother submitted that the evidence shows an unfortunate history of failure to comply with court orders on the part of the father and this has had a direct impact upon the children and the mother. There have been periods of time when the father has, by his own actions, failed to spend time with the children and that has resulted in disappointment for them. Between July and October 2014 the father of his own motion simply retained the children on Monday nights in contravention of the court orders. Once the contravention was determined the father elected not to see the children for approximately four weeks. No explanation has been provided in relation to that stand by the father. During the December 2014 school holidays the father did not see the children for almost eight weeks at his own election. There was one occasion when he saw the children during that period for a few hours only to provide B with Christmas presents and pointedly nothing for C.
Having resumed spending time with the children on about 2 February 2015 the father continued to breach the court orders by keeping the children on Monday night until he was sentenced on 27 February 2015. Since that time it appears that he has complied with the court order.
The court’s attention was drawn to the mother’s allegations of family violence and the conduct of the father generally. It was submitted that B’s wishes should not stand alone as the determiner of the time the children spend with their father.
The father relied on the children’s stated wishes. He referred to the evidence that he had recited of the children’s frequent requests to stay longer with him. He referred to B’s changed circumstances at school and the consequence being that he has virtually no time with his father on Monday evenings. The father conceded that if the Monday evening time was extended to 8 pm it would be better for him but still difficult for the children. The father submitted that there appeared to be no good reason why his time with the children for both Monday nights in the two week school time sequence should not be extended. He submitted it was in the children’s best interests to do so.
In relation to the criticism of the father in not spending time with the children during the last school holidays he said that he had made an application to the court to spend time with the children. A hearing had been set down in December and vacated without his knowledge.
I raised for consideration with the parties the prospect of having additional overnight times on Monday of the second week for B shortly prior to the hearing in order that there may be some evidence available as to the impact of such a proposal thus enabling the court to consider the same. There was no objection raised by any of the parties to such a proposal.
The evidence of the single expert
Dr A provided a report dated 16 October 2014 which was an update of his earlier report dated 14 March 2013. Of particular note in the later report, is a matter referred to by the ICL and the father, the recorded wishes of the children, in particular B, to spend additional time with his father was highlighted.
Having canvassed the updating material available to him in light of his earlier report Dr A highlighted that the dispute between the parents has continued unabated. He said the children remained affected by the unresolved parental conflict. The father’s assertion that he did not have anger management difficulties was said by Dr A to be “inconsistent with my findings”. He described the father as having been reported by the mother and the children as displaying “angry and unforgiving behaviour”. Dr A said the father had demonstrated his lack of respect for the mother and also for the court orders by unilaterally extending the time the children spent with him on Mondays.
Dr A described the three children as presenting in a clear and articulate manner. B particularly enjoyed his relationship with his father. C, however, was wary. D was enthusiastic about contact with her father. The children were clear in their expressed wishes. B wanted to reside with his father each Monday and Tuesday night and alternate weekends. C wanted to spend time with his father but he was not ready to engage in regular overnight contact. D was motivated to continue to stay with her father on alternate extended weekends but acknowledged missing her mother. The mother was concerned that the children stay together. Part of the recommendation of Dr A was that there be increased time for B to spend with his father Monday and Tuesday nights and alternate weekends. Dr A recommenced that contact visits should not include Monday afternoon if the father is unable to ensure that D is returned to her mother’s care that evening. Dr A did not support the father’s proposal to take the children for an extended period of overseas holiday during the Christmas school holiday period. He said perhaps this could happen in the following years.
I was informed by the ICL in submission that the father had now agreed to participate in family therapy with the children with Dr U. The father confirmed that was the case.
Determination
The court is required to make orders which are in the best interests of the children. The orders now being sought are designed to operate until the final orders are made there being a final hearing listed to commence before me on
20 July 2015. The matter is listed for nine days, however, I have ordered that it continue at the conclusion of those nine days if it is still un-concluded until the hearing finishes. In determining what is in the children’s best interests the court is required to follow the pathway set out in s 60CC. In making orders the court is required to have regard to the primary considerations that the children derive benefit by having a meaningful relationship with both parents and that children are to be protected from physical or psychological harm or being exposed to abuse, neglect or family violence.
Section 60CC (3) sets out the additional considerations the court is to have regard to. Without identifying each particular consideration I have had particular regard to the following matters as of significant relevance to this case.
·
Each of the children have recorded their views and wishes in respect of the time they spend with each parent as detailed in the report of
Dr A and updated in the submissions of the ICL before me.
·The nature of the relationship which each child has with each of the parents is again detailed in the reports of Dr A.
·Each of the parents has also addressed various aspects of those relationships which have been referred to in these reasons and/or identified in those affidavits and parts thereof relied upon by the parties.
I am satisfied that B and D have a good and close relationship with each of their parents. I am unable to really determine the nature of the relationship between C and his father but I am satisfied that C has a good and close relationship with his mother. I am also satisfied that C appears to be striving to recover and/or create a good relationship with his father. The evidence before me suggests that the father has failed to take up time with the children at various times. A full explanation for such action has not been provided to the court at this time. Since the making of the orders in July 2012 circumstances have changed significantly for the children. Those circumstances include each having gained three years of age, the father moving his residence further away from the mother’s residence and the imminent expected birth of the father and his partner’s child.
The orders made in July 2012 for the father to spend time with the children on Monday evening until 7 pm now have difficulty in being implemented because of B’s school sport commitments. The orders which currently stand gives rise to the consequence that the father has very little time with B on those occasions. He collects him from school at about 6.45 pm on Mondays and he is required to have the children at their mother’s residence by 7 pm.
Although each parent is critical of the other’s parenting style it appears that they each have the capacity to attend to the children’s basic needs. There is significant criticism of the father’s personality and in particular his inability to reflect on the impact on the children of his personality. These are matters which will no doubt be explored in the hearing to be conducted in July this year.
B is now 13 years of age. He is clearly desiring a closer relationship with his father wishing to spend more time with him. C is developing and could be expected, in the normal circumstance, to seek out more time with his father as he also develops into his teenage years.
There is a question raised as to the father’s appropriate exercise of responsibility of parenthood in that he has been found guilty of breaching the court orders. This was also a matter referred to by Dr A as an area of concern.
The mother has set out in her affidavit evidence of family violence being exhibited by the father. This family violence was largely exhibited towards her, as set out in her affidavit evidence but frequently occurred in the presence and hearing of the children. Further it is alleged by the mother that the father has addressed her in rude and derogatory terms in the presence of the children post-separation.
Making orders at this time shortly before a final hearing does give the court an opportunity to trial arrangements which may be important to inform the court about final orders which should be made. Providing for B to be able to spend some additional time with his father, albeit without his other siblings being present, may provide evidence of arrangements which could be put in place following the final hearing.
I propose to make orders as sought by the mother in her Exhibit “W 2”. This proposal appears to me to provide a good and sensible regime for the increase in time that C is to spend with his father and which gives him relief from any of the excesses of his father’s personality which he may have experienced difficulty with in the past. He will be spending time in the presence of his siblings and the father will need to exercise sensitivity in dealing with C. The father’s capacity to exercise such sensitivity is drawn into question by both the mother and Dr A. However, this will give him an opportunity to show that he is capable of dealing with C in a sensitive manner prior to the final hearing commencing.
I also propose to extend the time for the children to spend with their father on Monday evenings pursuant to Order 2.1 of the orders of 16 July 2012 to 8 pm.
I otherwise propose to adopt the recommendations of the ICL in “ICL 1” and those proposals are also supported by the mother.
All the alterations to the current orders, as canvassed herein, I find to be in the best interests of the children. The changes will allow for a more relaxed regime in the father’s time with the children on Monday nights. The proposal facilitates to some extent the recorded views of B and D’s to the time they each seek to spend with each parent. The orders will enable a pathway for the father and C to advance their relationship.
For those reasons I make the orders as set out at the commencement of these reasons.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 18 May 2015.
Associate:
Date: 18 May 2015
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