Martel and Martel
[2013] FCCA 525
•13 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARTEL & MARTEL | [2013] FCCA 525 |
| Catchwords: FAMILY LAW – Parenting proceedings – two boys aged 12 years and 10 years at time of hearing – interim orders made 14 February 2012 that both children live with the mother and spend time with the father not complied with – older boy living with father at time of hearing and not spending time with the mother – younger boy living with mother at time of hearing and not spending time with the father – boys spending time with each other only at school and at contact centre – intense conflict between parents – issue of possible alienation of elder child from mother – consideration of importance of the brothers living with each other or the detriment of living apart – consideration of whether children should be quarantined from living with one parent – best interests of the children. |
| Legislation: Family Law Act1975 (Cth) Part VII |
| Cases cited: Goode & Goode [2006] Fam CA 1346; (2006) 36 Fam LR 422; FLC 93-286 Calvert & Calvert [2008] FMCAfam 101 Pierce & Pierce [2010] FMCAfam 1137 |
| Applicant: | MS MARTEL |
| Respondent: | MR MARTEL |
| File Number: | NCC 128 of 2012 |
| Judgment of: | Judge Coakes |
| Hearing dates: | 20 & 21 September 2012 22, 23 & 30 November 2012 |
| Date of Last Submission: | 4 February 2013 |
| Delivered at: | Newcastle |
| Delivered on: | 13 June 2013 |
REPRESENTATION
| Solicitor for the Applicant: | Mr K Byrnes |
| Solicitors for the Applicant: | Byrnes & Cox Lawyers |
| Counsel for the Respondent: | Mr D Alexander |
| Solicitors for the Respondent: | Not Applicable |
| Counsel for the Independent Children’s Lawyer: | Mr B Kelly |
| Solicitors for the Independent Children’s Lawyer: | Jennifer Blundell & Associates |
ORDERS
All previous parenting orders in relation to the children [X] born [in] 2000 (“[X]”) and [Y] born [in] 2002 (“[Y]”) (“the children”) are discharged.
The mother have sole parental responsibility for the children.
The children live with the mother.
From the date of these orders until Friday 11 October 2013 the children not spend any time with the father or communicate with him by any means.
Until 11 October 2013 the father is restrained from communicating or attempting to communicate with either of the children by any means either directly or indirectly including but not limited to letter, greetings card, package, parcel, telephone, text message, facebook, twitter, facetime or any other electronic means and is further restrained from causing or permitting any other person on his behalf to communicate with or attempt to communicate with either of the children by any such or other means.
From 11 October 2013 the children spend time with the father as follows:
(a)During school terms each alternate weekend from the conclusion of school on Friday until the commencement of school the following Monday, or Tuesday if the Monday is a Public Holiday;
(b)For half of all school holidays being the first half in odd numbered years and the second half in even numbered years with the first half defined as commencing at the conclusion of school on the last day of the school term and concluding at 7.00pm on the Saturday closest to the mid point of the whole holiday period and with the second half commencing at 7.00pm on the Saturday closest to the mid point of each school holiday period and concluding at 7.00pm on the last Sunday of the school holiday period;
(c)If not already spending time with the father from 9.00am until 5.00pm on Father’s Day;
(d)If not already spending time with the father from 3.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years and from 3.00pm Christmas Day until 3.00pm Boxing Day in even numbered years.
The time the children are to spend with their father is suspended:
(a)From 9.00am until 5.00pm on Mother’s Day;
(b)From 3.00pm Christmas Eve until 3.00pm Christmas Day in even numbered years and from 3.00pm Christmas Day until 3.00pm Boxing Day in odd numbered years;
With the children to live with their mother during these times;
The implementation of the above orders for the children to live with and spend time with each parent is to be effected, if other than at the children’s schools by the mother or her nominee known to the children delivering them to the father or his nominee known to the children at McDonald’s Family Restaurant at [location omitted] at [P] and with the father or his nominee known to the children returning the children to the mother or her nominee known to the children at the same place at the conclusion of his time with them.
From 11 October 2013 the children shall communicate with the father by telephone each Wednesday evening between the hours of 7.00pm and 7.30pm implemented by the father telephoning the mother’s mobile telephone number and the mother ensuring that the children are available and able to speak with the father, that the mother is located in a place where the telephone has reception, that the telephone is not switched to an answering service or otherwise engaged and that the battery is charged.
The father is restrained from attending any school the children may be attending from the date of these orders until 11 October 2013 and is further restrained from being within 100 metres of any such school within 30 minutes of the times when the children are either commencing or concluding their ordinary school day at such schools.
Upon the mother relocating the children’s place of residence from her current place of residence at [W] to a place within a radius of 20 kilometres of [P] Post Office the father is restrained from changing his place of residence to a place within a radius of 20 kilometres of where the children are living.
Until such time as the mother relocates her place of residence from [W] to [P] the father is restrained from visiting the residence of the mother at [address omitted], [W] and is further restrained from being within 100 metres of such address at any time.
The father is restrained from allowing either [X] or [Y] or both to remain in his care, presence or residence at times other than those set out in these orders unless with the written consent of the mother.
If either of the children make contact with the father at times outside the times prescribed in these orders, unless with the written consent of both parties, the father is:
(a)To telephone the mother’s mobile telephone immediately and inform her of the following:
(i) That one or both of the children has made contact with him;
(ii) The method of contact;
(iii) How the child or the children made contact;
(iv) Names of any persons who facilitated the child or children making contact with the father;
(v) The father’s location;
(vi) The child or children’s location.
(b)Is to inform and instruct the child or children with him that neither is permitted to remain with him or in his care;
(c)To cause the child or children to be delivered to the mother’s residence immediately;
(d)Is not to permit the child or children to enter or remain at his place of residence or property then occupied by him.
If the father contacts either of the children outside the times prescribed by these orders without the written consent of the mother or allows either child to remain at his place of residence or other place occupied by him or in his company beyond a time prescribed by these orders (without the written consent of the mother) then the time the children or either child is to spend with the father and communicate with the father pursuant to orders 6 and 7 above is suspended.
The mother is permitted to relocate the children’s place of residence from [W] to a place within a radius of 20 kilometres of [P] Post Office.
In the event the mother is required to terminate her lease of premises at [address omitted], [W] or other residence now rented by her to relocate the children’s place of residence to [P] in accordance with the provisions of the previous order and such termination results in a financial penalty and the mother is required to pay a bond in respect of any new rental premises which exceeds the value of the bond she had paid in respect of premises at [address omitted], [W] the mother is to serve notice by pre-paid post upon the father to his residential address at [B] of the amount required to be repaid to her to reimburse her in full for any termination costs she is required to pay and any difference in the amount required to be paid for the bond and the father is to pay such amount to the mother by forwarding such amount to her Solicitors Byrnes & Cox Lawyers, PO Box 1348, PORT MACQUARIE NSW 2444 no later than eighteen (18) days from the date of posting of the mother’s request for such reimbursement.
The mother is permitted to change [Y]’s school to a school within a radius of 20 kilometres of [P] Post Office.
In the event of [Y]’s school being changed from [W] School then the mother is to notify the father in writing within seven (7) days of any change to [Y]’s school and to supply particulars of the new school at which he is enrolled.
Both parents are to do all acts and things necessary to enrol [X] at [S] School, [P] for the remainder of the academic year 2013 if such enrolment has not already been made.
Pending the parents being advised of the success of [X]’s application to attend [S] School for the remainder of the 2013 academic year the mother may select and enrol [X] in the State High School of her choice within a distance of 20 kilometres of the [P] Post Office with the child [X] to attend such State High School in the event his application to enrol at and attend [S] School, [P] is unsuccessful.
The mother is to notify the father in writing within seven (7) days of the name of the school in which [X] has been enrolled.
Both parents are to do all acts and things necessary to continue the children’s counselling at Interrelate at [P] and comply with all reasonable requests of the Manager at Interrelate to facilitate such counselling.
Both the mother and the father are to enrol in not later than 26 July 2013 and then attend and complete a course of therapeutic counselling with a clinician experienced in family dynamics and communication nominated by the Director of Child Dispute Services, Federal Circuit Court of Australia at Newcastle or her nominee with a view to improving their communication with each other so as to discuss matters concerning their children and each child’s relationship with each of his parents and the parent’s relationship with each other with a view to being able to talk constructively with each other about any matter concerning each child’s care, welfare and development.
Within seven days of completing the therapeutic counselling referred to in Order 24 above each parent is to provide the other parent with the written confirmation of the completion of such therapeutic counselling.
Each parent is to inform the other of any change of particulars of that parent’s current residential address, landline telephone number, mobile telephone number and email address and within 24 hours of such change occurring.
Each parent is to advise the other parent as soon as possible by the best available means in the event of any of the following occurring:
(a)Either child being seriously injured or falling seriously ill;
(b)Either child requiring urgent medical treatment from a Doctor or Ambulance crew;
(c)Either child being involved in an accident or admitted to hospital.
The mother is to authorise the Principal of the school attended by each of the children from time to time to supply to the father copies of progress reports, school reports, notices relating to pupils at such school, school letters and other notices for pupils attending such school and service of a sealed copy of these orders upon the Principal of such school is sufficient discharge of this order.
From 11 October 2013 each parent is at liberty to obtain all medical records and consult each child’s medical practitioner to obtain any information such parent may require and service of a sealed copy of these orders upon each such medical practitioner is sufficient discharge of this order.
Each parent is restrained from denigrating the other parent in the presence or hearing of either of the children or any other child known to [X] or [Y] including making rude comments, making insulting comments, swearing at, shouting at and making obscene gestures and each parent is further restrained from causing or permitting any other person from engaging in such behaviour in the presence of [X] or [Y] and any of their friends.
Each parent is restrained from discussing any aspect of these proceedings with either child and is further restrained from showing either child any document filed in the proceedings including but not limited to affidavits, Family Reports, child dispute memoranda and copies of any exhibit and is further restrained from causing or permitting any other person from engaging in such conduct other than the Independent Children's Lawyer and the Family Consultant.
Both parents are to consult with a Family Dispute Resolution Practitioner at a Family Relationships Centre or elsewhere or such other Family Consultant that may be agreed between the parents to assist with;
(a)Resolving any dispute between them as to the terms or operation of these Orders;
(b)Reaching an agreement about any changes to be made to these Orders arising from any change in the needs or circumstances of either [X] or [Y], in the event that any such dispute or disagreement arises concerning such changes.
Other than for proceedings relating to enforcement each parent is restrained from making an application to the Court for variation of these orders arising from any of the matters referred to in Order 32(b) above without first having complied with order 32(a) above in relation to such matters.
That the order made 14 February 2012 for the separate representation of [X] and [Y] is continued until 31 October 2013.
Each of MR MARTEL and MS MARTEL and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of [X] born [in] 2000 (“[X]”) (male) and [Y] born [in] 2002 (“[Y]”) (male) from the Commonwealth of Australia.
[X] born [in] 2000 (“[X]”) (male) and [Y] born [in] 2002 (“[Y]”) (male) be and are hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List for a period of two years.
Upon expiration of the period referred to in Order 37 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.
IT IS NOTED that publication of this judgment under the pseudonym Martel & Martel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 128 of 2012
| MS MARTEL |
Applicant
And
| MR MARTEL |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to two brothers namely [X] born [in] 2000 aged 12 years and 2 months of age at the time of the hearing and [Y] born [in] 2002 aged 10 years and 5 months at the time of the hearing and the only children of the parents who are the parties to these proceedings. In these reasons for judgment I will refer to each child by his first given name, namely [X] and [Y].
The parents are unable to agree upon appropriate parenting orders for their children.
The mother would like both boys to live with her and spend what may be considered conventional periods of time with their father that is each alternate weekend from Friday until Sunday, half school holidays and other times as agreed and with regular telephone communication but only after a period of quarantine from him.
The father would like [X] to live with him and [Y] to live with the mother with the boys to spend time with each other and the other parent under circumstances to which I will refer shortly.
It is very unfortunate for both children that they have remained separated from each other. They were spending time with each other only at school. [X] was in Year 6 at [W] School and [Y] was in Year 4 at the same school. [X] was due to leave such school at the end of the fourth school term 2012 to commence his secondary education in a different school.
On 14 February 2012 at the conclusion of a contested hearing and some three months after the parents final separation, I made orders pending further order that the parents have equal shared parental responsibility for [X] and [Y], that both boys live with their mother and spend time with their father each alternate weekend from after school on the Friday until return to school the following Monday morning from 17 February and on the intervening weekend from after school on the Friday until 3.00pm the following day and for one half of the school holidays with telephone communication two evenings a week. I made a number of other practical parenting orders and made a further order that the children be separately represented.
It is common ground that there has not been compliance with the orders made on 14 February. Specifically, [X] has remained living with his father and [Y] with his mother. The only time the boys spent any time with each other was at school. It is a tragic state of affairs that neither parent was successful in ensuring such interim orders were put into place pending a final hearing. It seems to me that both must accept some responsibility for the failure to ensure that those orders were put into effect.
The mother asserts, in effect, the father has brought a lot of influence to bear upon [X] such that [X] feels he is not able to leave the care of his father. The father denies that he has behaved inappropriately and says that he has tried to encourage him to live with his mother but without success.
It is against this background that the matter proceeded to a final hearing.
The respective applications at the hearing
The respective applications had crystallised by the time of the hearing.
The mother sought orders set out in paragraph 81 of her affidavit sworn and filed 13 September 2012 as follows:
(1)The children [X] born [in] 2000 and [Y] born [in] 2002 reside with the mother.
(2)The mother have sole parental responsibility for the children.
(3)From the date seven days after the making of these Orders until the date which is twelve calendar months after the making of these Orders the father be restrained from:
(i)Residing in a residence located within a 20 kilometre radius of the [W] Post Office;
(ii)Staying overnight in any residence or accommodation (including caravan parks, motels, hotels, hostels) within a 20 kilometre radius of [W] Post Office;
(iii)Attending within 500 metres of [W] School within the hours of 7.30am until 5.00pm on weekdays;
(iv)Attending any sporting or social events at which either of the children may attend;
(v)Attending the residence of the mother;
(vi)Being within a 20 kilometre radius of [W] between the hours of 7.00am and 9.00am and 3.00pm and 11.00pm on weekdays.
(4)The father spend supervised time with the children at Interrelate [P] and at times nominated by Interrelate.
(5)Within 48 hours the father do all acts and sign all documents necessary to terminate any contracts he has with respect to any mobile phones.
(6)The father be restrained from communicating with either [X] or [Y] by way of email or telephone.
(7)The father be restrained from communicating to [X] or [Y] (either himself or through another) any mobile telephone numbers through which he can be contacted.
(8)In the event that [X] presents himself at the father’s place of employment, residence or any other location where the father is, the father shall immediately:
(i) Telephone the mother and advise her;
(ii) Deliver [X] to the mother at an address nominated by her.
(9)Within 21 days the father pay to the mother or as she directs the sum of $10,468 being her costs of these proceedings.
(10)Within 28 days the husband pay into the Trust Account of Byrnes and Cox Lawyers the sum of $10,000 to be held by the firm in trust for a period of twelve months with such monies to be returned to the father on the first anniversary of such payment less any monies which the Court orders be paid to the mother in respect of any costs made in her favour in respect of any proceedings relating to the enforcement of these Orders.
(11)The father be restrained from contacting or communicating with the mother by any means whatsoever.
At the commencement of the hearing the father sought orders set out in the outline of case document prepared by his Counsel and as follows:
(1)That the parents have equal shared parental responsibility for their sons, [X] born [in] 2000 (“[X]”) and [Y] born [in] 2002 (‘[Y]”).
(2)That [X] and [Y] live with their father.
(3)That [X] spend time with his mother as follows:
(3.1)From 9.00am until 5.00pm each Saturday;
(3.2)From after school each Tuesday and Thursday until 7.30pm.
(4)That [Y] spend time with his mother as follows:
(4.1)From after school each Friday until 5.00pm Saturday; and
(4.2)From after school each Tuesday and Thursday until before school the following day.
(5)That [X] and [Y] spend time with their mother as follows:
(5.1)From 9.00am until 5.00mph (sic) on Mothers Day;
(5.2)From 2.00pm until 7.00pm on Christmas Day;
(5.3)Such other times as the Parties agree or [X] and [Y] request.
(6)That [X] and [Y] telephone the other Parent at anytime at which they want to do so and each Parent facilitate such communication.
(7)That either be at liberty to telephone [X] or [Y] at any reasonable time.
(8)That each Parent keep the other informed about:
(8.1)Any serious medical condition or hospitalisation of either [X] or [Y];
(8.2) Any school reports or notices or Educational issues about which the other Parent is not likely to informed by the School.
(8.3) Any changes of contact details in relation to either [X] or [Y].
(9)That neither parent criticise the other parent in the presence or hearing of [X] or [Y] or in a manner likely to come to their attention.
(10)That neither parent discuss these proceedings with either [X] or [Y] except as required to inform them of future care arrangements.
The father modified his position by the last day of hearing, 30 November and prepared a minute of proposed orders[1] and sought the following orders:
[1] See exhibit F5.
(1)That the parents have equal shared parental responsibility for the children, [X] born [in] 2000 and [Y] born [in] 2002.
(2)That [X] live with his father and [Y] live with his mother.
(3)That the parties and the children engage in family therapy with a therapist recommended by the Independent Children’s Lawyer and continue to obtain such therapy for as long as recommended by the therapist.
(4)That [X] spend time with his mother as follows:
4.1From 9.00 am until 5.00 pm on the Saturday and Sunday of each alternate weekend;
4.2From after school on each Tuesday and Thursday and the Friday before the Saturday referred to above until 7.30 pm;
4.3During the day for each day of half the holidays;
with the intent that:
4.4Such time should coincide with times during which [Y] is in his mother’s care; and
4.5Such time should be extended to overnight care as soon as [X] expresses a wish for that to occur.
(5)That [Y] spend time with his father as follows:
5.1From 9.00 am until 5.00 pm on the Saturday and Sunday of each alternate weekend;
5.2From after school on each Monday and Wednesday and the Friday before the Saturday referred to above until 7.30 pm;
5.3During the day for each day of half the holidays;
with the intent that:
5.4Such time should coincide with times during which [X] is in his father’s care; and
5.5Such time should be extended to overnight care as soon as [Y] expresses a wish for that to occur.
(6)That neither party criticise or speak ill of the other in the presence or within the hearing of either child or in a manner likely to come to the attention of either child.
By the end of the hearing the Independent Children's Lawyer proposed certain orders contain in a minute[2] to which I will refer later in these reasons.
[2] Exhibit ICL 5
Previous and existing orders
Following an urgent interim hearing on 30 January 2012 I made a tiding-over order until the interim hearing on 13 February to the effect that [X] and [Y] spend time with their mother from the conclusion of school on Friday 3 February 2012 until back to school Monday 6 February and then again for the following weekend from after school Friday 10 February until back to school Monday 13 February with the children otherwise to live with their father. I also made an order that the children be re-enrolled and be enabled to continue to attend [W] School and for them both to resume school the following day, 31 January and with a further order that the father be required to ensure their attendance at school.
Following an interim hearing on 13 February 2012 operative parenting orders were made the following day 14 February 2012 as follows:
1.By consent the Child Dispute Conference memorandum of Ms B dated 30 January 2012 is admitted into evidence pursuant to Section 69ZU Family Law Act (Cth) 1975.
2.That the parents have equally shared parental responsibility for the children [X] born [in] 2000 (“[X]”) and [Y] born [in] 2002 (“[Y]”).
3.That the children [X] and [Y] live with the mother.
4.That the children [X] and [Y] spend time with the father as follows:
(a)each alternate weekend from after school on the Friday until return to school the following Monday morning commencing Friday 17 February 2012 and each alternate weekend thereafter;
(b)On the intervening weekend from after school on the Friday until 3pm the following day Saturday commencing on Friday 24 February 2012 and each alternate weekend thereafter, this period and the period referred to in paragraph (a) above to apply during school terms applicable in the State of New South Wales;
(c)For one half of each school holiday period defined for the school holidays at the end of the first term in New South Wales commencing at the conclusion of school on Thursday 5 April 2012 until 3pm on Saturday 14 April 2012.
5.The father is to communicate by telephone with [X] and [Y] between 6pm and 6.30pm on each Tuesday and Thursday to be implemented by the father telephoning the mother’s mobile telephone number as provided to him today and by the mother ensuring both children are present and able to receive such telephone call, that the telephone is positioned in an area able to receive telephone calls, that the battery is charged, that the telephone service is not switched to an answering bank or messaging service and is not otherwise being used between those times.
6.The changeover for the children to commence living with the mother is to occur at 6.15pm this evening 14 February 2012 at McDonalds Family Restaurant at the [omitted] and is to be implemented by the father causing both children to travel in the company of Mrs S to McDonalds and by the mother being present at that time and place to receive the children.
7.The father is to cause [X]’s pet cockatiel “[name omitted]” to accompany him and is to ensure both children have immediately necessary clothing and any school uniform necessary to enable them to attend school at [W] School tomorrow 15 February 2012.
8.Implementation on occasions other than conclusion or commencement of school is to occur outside the [omitted] Supermarket [address omitted], [W] in the vicinity of the main car park at the front of the store.
9.The mother is to supply to the father today her mobile telephone number and must notify the father of any change to that mobile telephone service number within twelve (12) hours of any such change occurring.
10.The father is to maintain his present mobile telephone service the number of which is to be supplied via his Solicitor today to the mother if different from that which she currently understands it to be and is further to inform the mother within twelve (12) hours of any change of such mobile telephone number.
11.Each parent is restrained from showing [X] or [Y] any documents filed in these proceedings by either party and any other relevant documents including but not limited to any Child Dispute Memorandum and the Family Report and is further restrained from causing or permitting any other person to show any other such document to either child.
12.Each parent is restrained from discussing these proceedings with either child save as to brief particulars of orders relating to the time to be spent with each parent.
13.Each parent is restrained from punishing either [X] or [Y] by any physical means including but not limited to smacking, slapping, pushing, grabbing, holding or using a slipper or any other instrument and each parent is further restrained from causing or permitting any other person to administer such form of punishment to either child.
14.The mother is restrained from causing or permitting either [X] or [Y] from coming into contact with Mr S and is further restrained from permitting either [X] or [Y] from being in the presence of
Mr S.15.The mother is restrained from enrolling either child in any sport activity to occur on Friday afternoon or evening and any school or extra curricular activity to occur on a weekend or holiday period when either [X] or [Y] are due to spend time with their father pursuant to these orders without first discussing the proposed activity and possible enrolment with the father with a view to reaching an agreement and not to occur unless they agreed.
16.The father is restrained from enrolling [X] or [Y] in any school or extra curricular activity to occur at a time when [X] or [Y] are living with their mother without first discussing the proposed activity and possible enrolment with the mother with a view to reaching an agreement and not to occur unless so agreed.
17.Each parent is restrained from denigrating the other parent in the presence or hearing of either [X] or [Y] or each of them including making rude comments, making insulting comments, swearing, shouting, or making obscene gestures and each parent is further restrained from causing or permitting any other such person from engaging in such behaviour in the presence of [X] or [Y] or both of them.
18.The children [X] born [in] 2000 and [Y] born [in] 2002 are to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.
On 5 April 2012 orders were made by consent and pending further order as follows, following a number of trial directions:
24. Order 4 of the Orders made in the Federal Magistrates Court of Australia sitting at [W] on 14 February 2012 is suspended.
25. The father spend time with the children supervised at [P] Interrelate commencing upon both the father and the mother completing the intake session and such times and days to be as recommended by the Centre but subject to availability for not less than 2 hours per week.
26. For the purpose of implementing Order 25 above, the parties are to contact Interrelate [P] within forty eight hours to make appointments to commence the intake assessment.
27. The parties are to comply with all directions made by staff at the centre and attend all additional support counselling services as recommended by the case manager for themselves and the children.
28. If at any time [X] and/or [Y] present themselves to the father (at any address) other than pursuant to Order 25, the father shall immediately:
a)Telephone the mother and advise her of the boys whereabouts;
b)Deliver either child to the mother or her nominee known to either child upon collection by her from the place where either child is located at that time.
29. The father is not to attend the children’s school or after school care centre or allow any other person to attend either of these venues on his behalf.
30. The mother shall arrange for her [names omitted] to collect the children from school today being 5 April 2012.
31. The father shall deliver to the mother at the [supermarket omitted], [W] at 12.00noon on 6 April 2012 all personal items of [X] and [Y] but not limited to the following:
a)In respect of [Y] his Nintendo Console (3DS) and games, his yellow mountain bike, his horse riding helmet and his soft toys;
b)In respect of [X] his pushbike, computer games consoles (including his Nintendo 3DS and Play Station) and games, his Cockatiel, his toys and Lego.
Following a short hearing the same day, 5 April 2012 I made the following additional orders:
1. Order 5 of the Orders made in the Federal Magistrates Court of Australia sitting at Wauchope on 14 February 2012 is suspended.
2. The Independent Children’s Lawyer and Ms B to explain to the children [Y] born [in] 2002 (“[Y]”) and [X] born [in] 2000 (“[X]”) (“the children”) today and before 3.00pm the reasons for today’s orders.
3. The Independent Children’s Lawyer is to contact Interrelate [P] today to request that arrangements be made for both children to see a Family Consultant as soon as possible.
4. The Independent Children’s Lawyer to provide to Interrelate [P] as soon as possible a copy of the Family Report of Ms B published 05 April 2012, a copy of the Orders made today and a copy of the reasons for judgment of 14 February 2012.
5. Liberty to all parties to apply on seven days notice.
6. A copy of the Family Report published 5 April 2012 may be given to each party.
7. Each parent is permitted to give a copy of the Family Report published 5 April 2012 and the reasons for judgment of 14 February 2012 to his and her Counsellor, Therapist or Psychologist consulted in relation to the matters suggested in paragraphs 73 and 74 of the Family Report, but each is restrained from giving a copy to any other person.
The matter was listed for hearing on 20 and 21 September 2012 at [W].
Consequent upon [X] not being enabled by the father to live with the mother the following orders were made on 3 May 2012:
1.The child [X] will spend time with the mother as follows:
1.1Every Tuesday from after school until 8.30pm, with the mother to collect the children from school.
1.2Every alternate Sunday from 9am until 8.30pm commencing 29 April 2012.
1.3The changeover place if not after school will be [supermarket omitted], [W].
2.The father will make arrangements for the children [X] and [Y] to see psychologist Mr D as soon as possible and,
2.1The father will pay for the counselling sessions.
2.2The father will advise the mother of the times for the counselling sessions by text message as soon as reasonably practicable.
2.3 The father will deliver [X] to the counselling session and collect him at the end, the mother will deliver [Y] at the beginning and collect him at the end.
2.4The father is restrained from discussing the matter with
Mr D in the presence of the children.
2.5The ICL may provide to Mr D copies of the Family Report by Ms B published 4 April 2012, and the Interim Judgment of FM Coakes dated 14 February 2012.
2.6Mr D may speak with the Family Consultant Ms B.
The following orders were made on 20 July 2012:
(1)Both parents are restrained from removing the children [X] born [in] 2000 (“[X]”) and [Y] born [in] 2002 (“[Y]”) from the Commonwealth of Australia for any reason unless pursuant to a Court Order.
(2)The children [X] born [in] 2000 (male) and [Y] born [in] 2002 (male) are to be placed on the Airport Watch List at all points of international arrivals and departures in Australia for the purposes of preventing removal of the children from Australia in breach of these orders.
(3)The Independent Children’s Lawyer is to contact Interrelate [P] and prepare draft minutes of proposed orders for the children [X] and [Y] to commence spending time with each other as soon as possible.
(4)The matter remains listed for hearing on 20 September 2012 for final hearing at Wauchope, two days allowed.
At the end of the second day of hearing on 21 September 2012 the following notation was made following submissions from Counsel for the Independent Children's Lawyer:
3. That the mother is to spend time with both the children, [X] born [in] 2000 (“[X]”) and [Y] born [in] 2002 (“[Y]”) at Interrelate at [P] between 3.30pm and 5.30pm this Saturday 22 September 2012 with the father to bring [X] to Interrelate prior to the mother arriving with [Y] and to take place in the presence of an Interrelate supervisor.
4. That the father is to spend time with both [X] and [Y] on Saturday 29 September 2012 at Interrelate also between 3.30pm and 5.30pm and with the mother to bring [Y] to Interrelate prior to the father and [X] arriving.
5. That the arrangements referred to in notes 3 and 4 above are to continue in the same fashion until the adjourned hearing date.
6. That in all the circumstances the Court considered it was not in the children’s best interests for an updated Family Report to be obtained involving an interview with the mother and the two children.
An order was made by consent on 22 November 2012 that both parents forthwith do all things necessary and sign documents and attend upon the Principal or other officer of the school to enrol [X] in the [S] School, [P] to ensure he commences at such school at the beginning of the first term in 2013.
On 4 February 2013 leave was granted to the father to reopen his case if he so wished and to file and serve a short updating affidavit by 18 February.
The evidence
The mother relied upon the following documents:
a.Her affidavit sworn 18 January and filed 20 January 2012;
b.Her affidavit sworn 9 February and e-filed the same day;
c.Her affidavit sworn and filed 28 February 2012;
d.Her affidavit sworn 13 September and e-filed the same day;
e.Her proof of evidence of 14 February 2012 – Exhibit M1.
The father relied upon the following documents:
a.His affidavit sworn 6 February and filed 7 February 2012;
b.His proof of evidence of 21 September 2012 – Exhibit F1;
c.His affidavit sworn 14 February and filed 18 February 2013.
The Family Report of Ms B of 8 March 2012 following interviews on 5 March 2012 and the Family Report of Ms B of 6 July 2012 following interviews on 2 July 2012 were both admitted into evidence together with a Child Dispute Conference memorandum prepared by Ms B on 30 January 2012.
There were a number of exhibits at the final hearing as follows:
a.Exhibit F1 – Father’s proof of evidence made 20 September 2012;
b.Exhibit F2 – School awards and certificates for [X]
c.Exhibit F3 – three tagged pages from the notes of Mr D, psychologist relating to [X];
d.Exhibit F4 – Letter of 4 September 2012 from Interrelate confirming attendance of both the mother and the father about a parenting orders programme, “Building stronger families”;
e.Exhibit F5 – Final orders proposed by the father;
f.Exhibit ICL 2 - Counselling notes of [X] from [W] School and two letters, one by [Y] and one by [X];
g.Exhibit ICL3 - Interrelate records of children’s time;
h.Exhibit ICL4 - School reports for both children from [W] School;
i.Exhibit M2 - Tagged and highlighted entries from the COPS records;
j.Exhibit M3 - Paragraphs 4 -14 of the father’s affidavit sworn 2 April and e-filed 2 April 2012;
Evidence was given by both parents and each was cross-examined.
Ms B, the Family Consultant gave evidence and was cross-examined.
I was able to observe both parents in the witness box.
The issues
It seems to me the issues are these:
a.What are the appropriate parenting arrangements for both children both in the short term and the long term;
b.What is the nature of the relationship between the parents both past and present and are they able to communicate with each other effectively about matters affecting the children;
c.Is the presumption of equal shared parental responsibility applicable after consideration of whether there has been abuse of one or both children or family violence or if the presumption is to be rebutted for any other reason;
d.Should the boys remain separated from living with each other and if so, the consequence for each child;
e.In the alternative should both boys live together either with the mother or the father;
f.If living with the mother, should there be a period during which [X] is restrained from living or spending time with his father and if so, what is the risk, if any, of harm to [X]’s relationship with both his father and his mother;
g.Whether the father has the capacity to support and facilitate a relationship between [X] and the mother;
h.Whether the mother has the capacity to support and facilitate a relationship between [Y] and the father.
The relevant law
General principles
I have regard to Part VII of the Family Law Act. The significant sections are, and to which I must have regard, s.60CA which provides that:
“In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration.”
I must consider, in determining a child's best interests, the matters set out in s.60CC. There are two primary considerations:
“(2) The primary considerations are:
a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
There are a number of additional considerations in s.60CC(3) to which I must have regard insofar as they are relevant.
I must also have regard to s.60B which sets out the objects of Part VII and the principles underlying those objects. I must have regard to s.61DA which provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe that there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The relevance of the presumption of equal shared parental responsibility where it does apply or is found to apply is that the Court is then obliged to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable, the Court must go on to consider making an order, if it is consistent with the best interests of the child and reasonably practicable, for the child to spend substantial and significant time with each of the parents[3].
[3] Subsection 65 DAA Family Law Act1975
It seems to me there has been a shift toward the Court being required to consider in a much more practical manner how a child's development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent. It seems to me that this requires an involvement in the whole of the ordinary household routine where it is appropriate. See the Full Court decision of Goode & Goode[4].
[4] Goode & Goode [2006] FamCA 1346; (2006 FLC 93-286; (2007) 36 Fam LR 422
Background
The mother was 30 years of age at the time of the hearing and is a [omitted] by occupation. The mother works in regular employment where she has worked for sometime on Mondays, Wednesdays, Thursdays and Fridays and Saturday starting each day at 9.00am and finishing on Thursdays at 7.00pm and on Saturday at about 2.00pm.
The mother is employed in [P] and is sponsored by her employer under the Sponsor Migration Scheme which permits her permanent residency in Australia. The mother gave evidence that it is a condition of her visa to remain so employed until November 2013.
The father is a [occupation omitted] where he obtained employment in early 2009, originally as a [omitted]. He has reduced his working hours from between 50 and 60 hours to less than 40 hours per week now leaving for work at about 5.00am, finishing at 2.45pm and generally home by 3.30pm. He also works some Saturdays.
The parents commenced their relationship in about 1998 in Wales, part of the United Kingdom when the mother was 17 and the father 27 years of age. Their marriage took place [in] 2001 in [omitted], Wales. Both children were born in the United Kingdom and the family migrated to Australia in about 2007. [X] and [Y] are the only children of their relationship.
The father has a child by a previous relationship namely [name omitted] aged 19 years at the time of the hearing, the mother of whom is Ms C. The father’s relationship with Ms C took place in the United Kingdom and they separated in 1994.
The parents separated finally on 27/28 December 2011 when the mother left the home the family then occupied at [omitted] about 45 minutes drive west of [W]. The mother stayed for a short while with her grandparents in [P] and subsequently rented a home in [W] from 23 January 2012.
The father also left the former family home and subsequently occupied premises at [B] a little to the West of [W] owned by a Mrs S who swore an affidavit for the interim proceedings.
The evidence establishes that the father occupies such property with [X] as a matter of convenience and there is no evidence to suggest there is a romantic relationship between the father and Mrs S but rather one of convenience so that she can assist with the care of [X].
The mother gave evidence at the hearing that she is in a girlfriend/ boyfriend relationship with a Mr S as from about February 2012 but they do not live together.
I accept the mother’s evidence that Mr S lives at his own address in [P] and the relationship is in its embryonic stage and that the mother intends to live with Mr S in the future.
The mother told Mr Kelly, Counsel for the Independent Children's Lawyer that Mr S spends five or six nights a fortnight with the mother and [Y] and sometimes overnight and that there are family activities they enjoy together including cinema, walking the dogs and some board games. The mother described [Y] as enjoying the company of
Mr S.
The father is friendly with Ms K whom he met at [omitted] on 20 November 2012 and subsequently going out together on a number of occasions the first of which was on 21 November 2012[5].
[5] See father’s affidavit sworn 14 February and filed 18 February 2013
The father describes his relationship with Ms K as being in its early stages but that both he and Ms K are hopeful that the relationship may mature into a more permanent arrangement although that is mere speculation.
Leave had been granted to Mr Martel to reopen his case consequent upon Ms K giving evidence before me in another matter during which it emerged that she and her children had spent some time with the father and [X] during the Christmas school holidays at the end of 2012.
The matter was listed by me lest it be felt that my position was compromised in the matter of Martel and that I should disqualify myself but Counsel for each party and Counsel for the Independent Children's Lawyer did not perceive that to be necessary.
The mother’s case
It is the mother’s case that during the relationship and before moving to Australia the father was often violent and abusive towards her, that she had contemplated leaving him on a number of occasions and was fearful for her safety but allowed the father to talk her out of leaving and persuaded her not to report incidents of domestic violence to the Police. The mother also learned that the father had been unfaithful to her which ultimately prompted her decision to move to the Mid North Coast of New South Wales from Wales as her grandparents lived in [P] and her mother lived in [E], a little inland.
The mother deposes to the father persuading her to give him one last chance and their relationship continued in Australia but deteriorated during 2010 and 2011.
It is the mother’s case that the father has manipulated the children’s views and actively obstructed their relationship with her and in particular has influenced [X] to such an extent that he feels an allegiance to his father at the expense of any relationship with his mother and brother.
At one point during her cross examination by Mr Kelly and when asked what she considered to be the father’s main objective the mother gave a thoughtful answer when she said:
“In my opinion it’s about winning, it’s not about the children, no-one leaves Mr Martel. His attitude is he will get me back and he will have the power to make me come back, because he will have my children.”
The father’s case
It is the father’s case that the mother has a bad temper, flies into a violent rage very quickly, makes false accusations against him and that the children are at risk of excessive physical punishment by the mother as a form of discipline.
It is the father’s case that the boys are very angry with their mother for having an affair and leaving the home and the family.
It is the father’s case that the boys would prefer to live with him and are extremely reluctant to spend time with their mother. It is the father’s case that whilst he has tried his very best to encourage [X] to have a relationship with his mother he did not believe that he or the Court should make the children do anything that they do not want to do.
It is also the father’s view that Mr S poses a risk to the children because of alleged mental health issues[6].
[6] Paragraph 29 of the Family Report of Ms B of 8 March 2012.
The father denied allegations of family violence on his part and denied that the children had been exposed to high conflict between the parents prior or since separation.
Discussion
This is a particularly difficult and complex matter consequent upon neither parent implementing the interim orders of 14 February 2012 that both [X] and [Y] live with their mother and spend time with their father pursuant to such orders, broadly each alternate weekend from after school on Friday until back to school on Monday morning and on the alternating intervening weekend from after school on the Friday until 3.00pm on the Saturday. A number of injunctive orders were made affecting both parents as set out fully in paragraph 16 above.
It is of great concern to the court that both parents have been unable to comply with the interim parenting orders leading to the final hearing and which has resulted in the children being separated from each other, [X] being separated from his mother and [Y] separated from his father. The boys had spent time with each other in the absence of their parents only at their school, [W] School which each attended until the end of 2012. No enforcement proceedings were brought by either parent.
It was not until late July 2012, following the orders made on 20 July[7] that the arrangements for the parents to see the children at Interrelate were put into place with such time commencing towards the end of September 2012[8].
[7] See paragraph 21 above
[8] See exhibit ICL3
I have considerable doubt that any further therapeutic intervention would assist either parent to come to a better understanding of the reasons for the current crises affecting their children or enable either of them to better communicate with each other to assist their children. My reasoning is that both parents have attended the “Building Stronger Families” course conducted by Interrelate and the “Parents not Partners” program during 2012[9] but there has been no apparent benefit.
[9] See schedule A of exhibit ICL3
It is a sad reflection that each parent regards the other with barely disguised disdain.
It seems to me the options open to the court are as follows:
a.Leave in place the present arrangement whereby [X] lives with the father and [Y] lives with the mother and they spend time with each other and the other parent at Interrelate. This option is not supported by the Independent Children’s Lawyer or either parent;
b.Both children live with the mother and be quarantined from spending any time or communicating in any form with the father for a period of about 3 months or longer as proposed by the Independent Children’s Lawyer and supported by the mother who had originally sought a 12 month period of quarantine;
Or in the alternative that both children spend time to be supervised with the father at Interrelate for the same period;
Followed by the children spending time with the father each alternate weekend and half school holidays under what may be called a conventional regime
c.That both children live with their father and spend time with the mother as was the original application by the father but changed by the time of final submissions;
d.The children living week about with each parent that was not proposed or sought by either parent or the Independent Children’s Lawyer during the course of the hearing.
It is of further concern to the court that the mother by the end of May had become disillusioned with the proceedings and what she perceived to be an inability or unwillingness on the part of the court to enforce the orders previously made and which led to the loss of her faith in the system and the feeling that it was pointless continuing with any court proceedings. The mother perceived that the court had made orders whereby the children would live with her and that the father had successfully ignored them and it appeared to her that there was little she could do about it[10].
[10] Paragraphs 35 to 37 inclusive of the mother’s affidavit sworn and filed 13 September 2012
Such was the state of the mother’s disillusionment that she wrote to the court on 30 May 2012 declaring her intention to discontinue her application both because she felt it pointless and she because of costs and not qualifying for Legal Aid and feeling unable to represent herself on the premise she found her ex husband very intimidating and overwhelming[11]. In such letter, the mother expressed her concern that she perceived [X] to be severely traumatised by what had happened and being aggressive and destructive at school and fearing for his ongoing development. The mother perceived there was no point in her trying to obtain final orders that [X] live with her as the father had ignored such orders and “gets away with it”.
[11] See annexure “C” to the mother’s afidavit sworn and filed on 13 September 2012
Consequently, the mother did not attend the family report interviews on 2 July 2012 for the full Family Report ordered for the hearing.
The mother revised her view prior to the final hearing and obtained continuing legal representation with her former solicitors.
The concern which arises from the mother’s disillusionment is that if the orders proposed by the Independent Children’s Lawyer and supported by her are put into place the mother will require a great deal of fortitude and commitment to ensure that such orders are effective for both children and ultimately their relationship with their father if indeed the court finds that such proposed orders are in the children’s best interests and should therefore be put into place.
The court must also consider in the context of this case and very carefully the consequences and effect upon both children and the subsequent approach to their parenting by both parents of the putting into place of any of the options which it is open to the court to consider but more importantly that which is proposed by the Independent Children’s Lawyer.
I consider it is necessary therefore to review closely the events leading up to separation and following separation.
The period leading up to separation until interim orders 14 February 2012
There was little testing during the hearing of the allegations made by the mother that the father was often violent and abusive toward her before the family moved to Australia, and which the father denied.
The mother referred to the father as having a history of involvement with the police prior to cohabitation and which included him being charged with assault occasioning grievous bodily harm and kidnapping and her belief was that the father had spent some time in gaol prior to the matter being finalised[12].
[12] Paragraph 29 of the mother’s affidavit sworn 18 January 2012
In cross examination, the mother was obliged to concede that the father had been acquitted of such charges as a consequence of a Judges’ direction to a jury which the father had subsequently told her but about which she had no independent knowledge. When asked why she had not included that information in her affidavit the mother said it related to his character.
It is clear from the evidence of both the mother and the father that after arrival in Australia there were frequent loud arguments between them where insults were traded and some profanities were used although the mother denies using the profanities until after separation.
I accept the mother’s evidence that toward the end of 2011 the mother found the relationship with the father intolerable and intended to end the relationship after a period of reluctance to do so consequent upon threats which I accept the father had made to the mother in the following terms:
“If I can’t have you then no one will have you whilst I am breathing I will never let you go.”
I accept the mother’s evidence that on 15 November 2011 she told the father that she wanted to separate from him and from that time the parties slept in separate rooms. It is less than clear why the mother did not leave the home at that time and take the children with her given that she had immediate family support available to her in the form of her grandparents who lived in [P] should that be necessary.
The mother’s evidence is to the effect that the father made conflicting statements to her after 15 November to the effect that he wanted the relationship to continue but also threatened her if she commenced a relationship with anybody else. The father does not deny he said this to the mother.
The mother chose on 27 December 2011 to meet her friend Mr S with a view to going to the beach. This friendship commenced after separation[13].
[13] Paragraph 74 and 75 of the mother’s affidavit sworn 18 January 2012
It was this event which put into train a number of events which took the parents and their children beyond any possible reconciliation and acted as a catalyst for the subsequent disintegration of the family. Having found that, it is necessary to make findings as to which parent bears the greater responsibility for the following events and whether one or both parents have failed to exercise appropriate parental responsibility and the extent to which that has occurred.
The evidence of the father is that on the evening of 27 December he was at home with the boys where they then lived at [omitted]. The father’s evidence was to the effect the mother had told him that she was going into [P] that evening to the [omitted] Tavern to meet some girlfriends.
The father told Mr Byrnes in cross examination that he received a telephone call from a friend at some time between 6.00pm or 6.30pm to the effect that the friend had seen the mother pass in a vehicle, that he had followed the car to the beach and observed the mother park and get into another car. The father was emphatic that his friend, whom he had later but reluctantly identified but had not called as a witness did not take any photos or videotape. The father was adamant that he did not arrange for anybody else to videotape the mother and Mr S.
It is significant in my view that at the Child Dispute Conference on 30 January 2012 with Ms B when both parties attended separately by telephone, Ms B reports the father as conceding he had recently taken photographs of the mother with a man but denied showing such photographs to the children.
The father agreed in cross examination that he did not know the occupant of the other car. When it was put to him by Mr Byrnes that he did not know whether the mother had been with another man the father said:
“yes, because the gentleman told me they were quite passionate”.
When it was suggested by Mr Byrnes to the father that he had said in his earlier evidence that his friend had told him only that the mother had run from one car to another car the father added:
“with another man”.
When it was put to him that he had not said that previously the father said:
“well, she was with another man”.
When it was put to the father that he had not given that account previously the father said:
“you didn’t ask”.
I was left with the distinct impression the father was being either clever or shrewd or possibly deceptive with these responses but a specific finding is unnecessary because of what ensued.
I propose to make a fresh Airport Watch order for both children and whilst the evidence establishes that the mother has the passports for the children or access to them I am concerned when the father learns of the orders he may react adversely and be tempted to consider leaving the country with [X]. I do not know, and the evidence does not establish whether the father has access to the children’s passports if they are held by any members of the mother’s family. During the hearing, the father mentioned the possibility of going back to the UK, if the Court made such an order, which it is not empowered to do in my view and he had also spoken to the children about going to the mines which could be anywhere within Australia or abroad. I consider it preferable to minimise the risk by putting the Airport Watch order in place. This will also extend to the mother.
Whilst I have expressed a view that I have little confidence that any orders for the parents to undergo therapeutic counselling will bring about a better understanding of the present difficulties each of the parents faces I will nevertheless make an order that the parents attend such therapy as recommended by the Independent Children's Lawyer. I have no confidence that if I do not make such an order the parents themselves, especially the father will enter voluntarily into therapeutic counselling. I take the view it should be given one last opportunity.
I have a different view about the children attending therapeutic counselling and will make an order accordingly.
It is essential in my view for the Independent Children's Lawyer to retain her appointment at least until after the period of quarantine expires. This will enable the Independent Children's Lawyer to take an active part in monitoring the progress of the children and compliance with the orders and be able to provide assistance to the children if that becomes necessary.
I propose to make orders as envisaged by the Independent Children's Lawyer that the mother be permitted to relocate the children’s place of residence from [W] to [P] and which during the course of submissions Mr Byrnes informed me she would do.
I propose to make an order that the father reimburse the mother for any loss she may suffer as a consequence of terminating her present lease and being required to pay an additional amount of any rental bond. On the evidence before me, the father is in a stronger position to reimburse the mother for such loss and whilst there is no evidence before me as to the likely amount it seems to me it will be something in the order of $1,000.00 or possibly more bearing in mind the mother entered into her present lease at the beginning of August 2012 and more than six months has elapsed. Whilst I do not know the terms of her current holding over or renewed lease I am satisfied it is an order appropriate to be made to enable the mother to relocate as soon as she can.
In the meantime, I propose to restrain the father from visiting the premises where the mother currently resides with [Y] in [W] and where [X] will also be residing.
I also propose to restrain the father from changing his place of residence to a place within a radius of 20 kilometres of where the children are living. I am satisfied that the power to make the injunctive relief which I propose against the father is found in Section 68B and for the welfare of both children and are injunctions for the personal protection of the mother and both children. It is appropriate to remind the father of the provisions of Section 68C of the Family Law Act 1975 (Cth) to the effect that if an injunction is in force under Section 68B for the personal protection of a person there are circumstances defined in the Section which would enable a police officer to arrest the father without warrant. The father may also be subject to contravention proceedings by the mother. It would be as well for the father to acquaint himself with the provisions of Sections 68B and Section 68C and that part of the Act dealing with contraventions and sanctions for breach.
Insofar as concerns the other orders I propose to make in relation to the father I find that if they do not fall directly within the meaning of a parenting order as defined in Section 64B(2)(a)(h) then they fall within Section 64B(2)(i), namely an order dealing with any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
I do not propose to make a specific order that the mother not be engaged in her employment while she is taking care of the children. I am satisfied the mother will be able to exercise appropriate parental responsibility for this to occur which will of necessity involve some discussions with her employer. There may also be times when it is necessary for the mother to enlist help from her grandparents or friends and I take that factor into account. Between the date of these orders and 11 October 2013 there are two periods of school holidays, those at the beginning of July and those at the end of September, beginning of October and it will be for the mother to arrange with her employer to perhaps take leave from her employment during those two periods. That time will enable both children and the mother to enjoy exclusive time together to continue the re-establishment of their relationship.
It is appropriate that the father be informed as to the children’s progress at school during the quarantine period and I will make an order to that effect.
Ultimately, it is a matter for the father as to whether he elects to leave the district to obtain employment elsewhere and to some extent, there is merit in the father considering that course of action on the premise that [X] can be made aware that his father has left the district for the time being but in all likelihood will return to resume his relationship with the children at the end of the period of quarantine.
For these reasons I make the following orders.
I certify that the preceding four hundred and seventy-six (476) paragraphs are a true copy of the reasons for judgment of Judge Coakes.
Associate:
Date: 13 June 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness
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