Mitty and Mitty

[2010] FamCA 718

FAMILY COURT OF AUSTRALIA

MITTY & MITTY [2010] FamCA 718

FAMILY LAW – CHILDREN – with whom a child lives – with whom a child spends time – relocation interstate

Family Law Act 1975 (Cth)

APPLICANT: Ms Mitty

RESPONDENT: Mr Mitty

FILE NUMBER: SYC 8326 of 2007

DATE DELIVERED: 26 July 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 19 – 23 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Ms Gordon

THE RESPONDENT: Mr Mitty in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Makare

Orders

(1)That the Mother has sole Parental Responsibility for the Children namely, H born … March 2003, L born … June 2005 and S born … December 2006.

(2)That the Children shall live with the Mother.

(3)Subject to fulfilling the condition set out in Order 6 hereof, the Mother is permitted to relocate the children’s residence to Queensland.

(4)That for a minimum period of three (3) months, commencing from the date of these Orders (or so soon thereafter as may reasonably be arranged), the parents each forthwith attend upon an individual counsellor for family counselling to assist them in the implementation of these Orders. The counsellor is to be approved or nominated by the Independent Children’s Lawyer. The parents are each hereby authorised and directed to show to each counsellor a copy reason for judgement and/or Dr RO’s reports. The parents must:

a)   attend the first appointment nominated by the counsellor;

b)     promptly pay the counsellor’s reasonable fees for each appointment;  and

c)     attend all subsequent counselling appointments the counsellor reasonably nominates during the said three month period.

(5)That within three (3) months from the date of these Orders the father is to complete a Parenting After Separation Course and provide to the Independent Children’s Lawyer a copy of the associated certificate of completion.

(6)It is a condition precedent to the mother being permitted to relocate the children’s residence to Queensland that she forthwith contact the P Child and Family Support Contact Centre and promptly do all things necessary to register herself and the children to participate in the centre supervising time for the father to spend with the children at that centre as is required by these Orders.

(7)The father shall communicate and spend time with the children as follows:

a)   Via telephone each Tuesday at 6pm, with the father to call a telephone number nominated by the Mother.

b)     Each of the children’s birthdays at 6pm, with the father to call a telephone number nominated by the mother.

c)     The father is to spend time with the children, under supervision at the P Child and Family Support Contact Centre located at P in the state of Queensland, or such other supervisors as may be agreed between the parties on one day each fortnight, or at times (no more frequent than fortnightly) as otherwise directed by the P Child and Family Support Contact Centre. To facilitate such time each party must:

i.Contact the P Child and Family Support Contact Centre within seven (7) days to arrange an appointment for assessment for suitability

ii.Attend the assessment

iii.Comply with any appointment made by the P Child and Family Support Contact Centre.

iv.Comply with all reasonable rules of P Child and Family Support Contact Centre.

v.Comply with all reasonable requests or directions of the staff of the P Child and Family Support Contact Centre.

vi.The parties shall each pay the fees nominated by the P Child and Family Support Contact Centre for the provision of its service.

d)     the father’s supervised time with the children at the P Child and Family Support Contact Centre may be on a weekend or a week day. The determination in relation to the day of contact to be made by the Contact Centre on the basis of the next available day for contact to commence upon the parties complying with Order 6(c)(i).

(8)After three(3) months of the father spending time with the children as set out in Order 7 the father spend time with the children as follows:

a)   On the first weekend of each month from 12noon on Friday until 12noon on Sunday.  The father is to cause the children to telephone the mother prior to going to bed for the evening on the first evening of each block of time the children spend with the father.

b)     Where a gazetted Queensland long weekend falls on a date where the father is to spend time with the children in accordance with the provisions of Order 8 (a), and that long weekend is inclusive of a Monday, then Order 8(a) is suspended for the period of that long weekend and the father is to spend time with the children from 12noon on Saturday until 12noon on Monday. The father is to cause the children to telephone the mother on Saturday prior to going to bed.   

c)     For one week in the December 2010 school holidays to commence at 12noon on the first day after the public school term ceases and changeovers shall occur at 12noon seven (7) days after commencement.

d)     Commencing in 2011, during school holiday periods for one (1) week of the April, July and September public school holidays, such weeks to be agreed between the parties and in the absence of agreement for the first half of each of these school holiday periods.

e)     Commencing in 2011 for half of the Christmas school holiday period such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years.

(9)For the purpose Order 8 the school term and Christmas school holidays are deemed to commence at 12noon on the first day after the public school term ceases and changeovers shall occur at 12noon on the day in the middle of the school holiday period.

(10)For the purpose of Orders 8 inclusive, contact changeover will occur at the P Family Relationship Centre, with the party collecting the children paying for any costs associated with changeover, or any other place as agreed between the parties.

(11)For the purposes of the father spending overnight time with the children pursuant to Order 8 the father shall exercise overnight time at the home of the paternal grandmother Mrs Mitty (Snr), located in the north of the State of New South Wales or in the alternative at the home of the paternal Uncle B Mitty.

(12)Each party shall advise the other as soon as practicable of any medical treatment or medical emergency affecting the children during any period of time that the children are in that parties care.

(13)The mother shall provide an authority to each of the children’s treating medical professional, authorising that professional to provide to the father information regarding the children’s treatment, referrals, medication and any other information regarding the children’s medical history.

(14)The mother shall provide an authority to the children’s pre-school, kindergarten or school authorizing the provision of information to the father including school photograph Order forms and reports.

(15)Each party is restrained from denigrating the other, or discussing the current proceedings, in the presence or hearing of the children and from causing or allowing any third person to denigrate the other party in the presence or hearing of the children.

(16)Each party forthwith provide to the other party details of current contact telephone numbers and should there be any change in the future expeditiously provide the new number.

(17)The appointment of the Independent Children’s Lawyer be extended for a period of four (4) months from the date of these Orders.

(18)The application for costs sought by the Independent Children’s Lawyer is dismissed.

(19)Should the father either currently have a computer with the capacity to run video conferencing (sometimes referred to as Skype) or in the future acquire such a computer and should he notify the mother by email of his desire to have his weekly telephone call with the children occur by medium of video conferencing then the mother is to use her best endeavor’s to facilitate such communication for all of the children.

(20)By consent, I make Orders as per exhibit X4 as set out hereunder:

WITHOUT ADMISSIONS

1. That other than any application pursuant to section 94 of the Family Law Act, and pursuant to section 118(1)(c) of the Family Law Act, each of the father and mother be and are hereby restrained from commencing any further proceedings under the Family Law Act against the other, without first obtaining leave from a Judge of the Family Court of Australia.

2.   Such leave as provided in Order 1 must be sought in the first instance by an ex-parte  application supported by affidavit, and if leave is granted then any application the subject of the application for leave be filed and served in accordance with the Rules.

(21)Should the parties need to communicate with each other then they are to do so by email unless it is an emergency.

(22)The father’s application for an Order preventing the children being removed from Australia is dismissed.

(23)Pursuant to section 65DA(2) and s62B of the Family Law Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

(24)I note that the proceedings are now concluded in this Court.

(25)All Outstanding Applications are dismissed and the proceedings are removed from the List of Matters awaiting finalisation.

NOTATION

A)The Court notes the content of a document signed by each of the parties on 23 July 2010 following the rising of the court at the conclusion of the hearing on that day. The Court notes that there was no application for a departure Order made to the Court and in the circumstances the court accepts the document (now marked as exhibit X5) as an undertaking by the father to the court.

B)The Court notes that the father gives the following undertaking to the Court:

The father undertakes to pay the mother $200 per week as child support, starting 1 August 2010 and payable at the end of each month to an account nominated by the mother.

(1)       IT IS NOTED that publication of this judgment under the pseudonym Mitty & Mitty is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8326 of 2007

MS MITTY

Applicant

And

MR MITTY

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1.Mr Mitty (the father) and Ms Mitty (the mother) are the parents of three children, H born in March 2003, L born in June 2005 and S born in December 2006. In the hearing before me the father represented himself whilst the mother was represented by a solicitor and Counsel. The Independent Children's Lawyer was represented by Counsel.

2.All three children currently live with their mother in a Sydney suburb. The mother proposes to move her residence to an area close to Brisbane where her parents now live and conduct a business. The father opposes that move.

3.The mother proposes that there be no specific Order for the children to spend time with their father. She proposes an Order which would allow her to determine when it will be appropriate for the children to see their father.

4.The father proposes that the children live with their mother in Sydney and spend time with him.

5.Although the mother does not accept the father lives in T in central-east New South Wales, he asserts he does and that is where he wishes to live in the future. The father has not been in paid employment since shortly after the separation. He asserts that he will shortly have paid employment in the T district.

6.This trial was allocated hearing dates in April of this year when it was expedited because the mother’s lease on her current accommodation was to expire on 23 July 2010. Specific Orders were made by me for the filing of evidence in the case. The witnesses to be relied upon were specified by the parties at the time the trial was allocated a hearing date. The days allocated for the hearing (5) were seen by me as ample to accommodate the hearing at the time it was set down. In Order to accommodate the hearing to the five days allocated I set limits on the cross-examination of witnesses. In the circumstances of this case I formed the opinion that the times allowed were ample and appropriate.

7.These parties have been involved in extensive litigation in this Court, with a number of interim Orders having been made. The mother has made allegations of violence by the father against her, and each parent accuses the other of having breached Orders. The mother has repartnered, however, she does not live in a full time domestic relationship with her partner at this time.

8.A single expert, Dr RO, was appointed in this matter and has prepared two reports, the latter being by way of an updated Report received by the Court on 13 January 2010.

Background facts

9.Under this heading I find the following facts:

10.In 1967, Mr Mitty (“the father”), was born and is currently 42 years of age.

11.In 1977, Ms Mitty (“the wife”), was born and is currently 32 years of age.

12.In 2002 the mother and father were married in Sydney.

13.In March 2003, the eldest child of the marriage, H, was born and is currently 7 years of age.

14.In June 2005, the second child of the marriage, L, was born and is currently 5 years of age.

15.In March 2006 the parties separated. The mother contends that the duration of the separation was approximately one month, however the father says it was for ten days. The parties subsequently reconciled.

16.In December 2006, the youngest child, S, was born and is currently 3 and a half years of age.

17.In October 2007 the parties separated.

18.On 26 October 2007 the mother says the father commenced paying $500 per week for the benefit of the children and herself.

19.In November 2007 the mother says she commenced receiving Centrelink payments.

20.On 5 November 2007 the mother applied to T Local Police for an Apprehended Violence Order (“AVO”).

21.On 23 November 2007 the mother alleged the father ceased to pay financial support.

22.On 26 November 2007 the mother’s application for an AVO was listed at T Local Court, but adjourned to 14 February 2008 upon the father giving “bail undertakings”.

23.On 30 November 2007 the Child Support Agency issued an assessment at $360.92 per month.

24.On 4 December 2007 parenting Orders were made at T Local Court to the effect that the children live with the mother, and spend time with the father each Saturday from 10.00am to 5.00pm; each Wednesday from 4.00pm to 7.00pm and on other occasions in the presence of a suitable adult. The proceedings were otherwise transferred to the Sydney Registry of the Family Court of Australia.

25.On 4 January 2008, the mother alleged the father made telephone calls to the wife, in breach of his bail undertaking. This is denied by the father.

26.On 15 January 2008 the mother’s solicitor informed the father’s then legal representatives that the mother proposed to relocate from T to Sydney at the end of January 2008. The father did not agree to the mother relocating.

27.On 17 January 2008 the mother asserts, and the father denies, that the father was arrested by T Local Police and an interim AVO was issued. The Order was served on the father, with the AVO proceedings adjourned to 14 February 2008.

28.On 19 January 2008 the mother signed a 12 month residential lease for a property in the northern suburbs of Sydney in the State of New South Wales.

29.In February 2008 the mother entered into a loan agreement with her parents in relation to monies advanced for the financial support of the mother and the children and for assistance with the mother’s legal fees.

30.On 12 March 2008 Orders were made by Judicial Registrar Loughnan, inter alia, confirming the interim parenting Orders made at T Local Court on 4 December 2007. The Orders further provided that the father pay the mother $350 per week spouse maintenance and that a single expert psychiatrist be appointed. The mother alleged non compliance with the spouse maintenance Order, and which the father denied. The father sought a review of those Orders.

31.On 5 June 2008 Orders were made by Justice Fowler, inter alia, that the Orders made in the Local Court at T be discharged and that the children live with the mother and spend time with the father on the first weekend of each cycle of four weekends, in Sydney from 10.00am on Saturday until 2.00pm on Sunday and on the third weekend of each cycle of four weekends in T from 10.00am on Saturday until 2.00pm on Sunday. The children’s time with the father was subject to the father arranging an agreed person to supervise the children whilst they are spending time with the father. Further Orders were made in relation to changeovers, and the use of a communication book.

32.On 17 September 2008 the matter was listed before Justice Fowler in respect of the mother’s application for a variation of the interim spouse maintenance Order made by Judicial Registrar Loughnan. The mother’s application was withdrawn by the mother. It was further Ordered that after 15 October 2008 the father communicate directly with the mother by email or in writing in relation to any issues pertaining to the time the father is to spend with the children and/or the names of/or arrangements relating to suitable adults in accordance with the Orders of 5 June 2008. An Order was also made permitting the father to attend the property, “W Property” during daylight hours Monday to Friday, and excluding times when the mother is present on the property, for the purpose of maintaining the property and surroundings at his own expense and upon him undertaking not to cause damage to the property. A number of other Orders were made in respect of the property proceedings between the parties.

33.On 15 October 2008 the mother asserts, and the father denies, that an AVO applied for on the mother’s behalf by T Local Police, was listed for hearing at a Sydney Local Court. The AVO was withdrawn on the father’s undertaking. The father denies giving any undertakings, and asserts the AVO was dismissed.

34.On 8 July 2009 the parties attended a Child Dispute Conference, and the Family Consultant recommended that Dr RO prepare an updated report.

35.On 9 July 2009 the mother asserts that the father filed an Application in a Case seeking Orders in relation to the children, and including that S spend time with the father for half the school holidays; that the children spend time with the paternal grandmother and the father’s siblings. He also sought particulars of the children’s home address and telephone number. Orders were further sought in relation to the enforcement of parenting Orders, and the cessation of L’s employment contract.

36.The 31st of August 2009 was the last occasion of contact between the father and children until Dr RO saw each of the parents and the children in December 2009. The mother terminated the time for the children with the father on a number of grounds.

37.On 2 September 2009 Orders were made by Judicial Registrar Loughnan, inter alia, that an Independent Children’s Lawyer be appointed in this matter. In addition, Sydney area Local Police applied for an AVO on behalf of the mother following the mother’s allegation that the father telephoned her on her mobile telephone. The mother’s AVO application was listed at a Sydney area Local Court and subsequently adjourned for hearing in February 2010.

38.On 15 September 2009 the mother filed a Response to an Application in a Case seeking Orders which included that the mother have sole parental responsibility for the children, and that an Order made by Justice Watts on 15 December 2008, that the children have telephone contact with the father, be discharged.

39.On 12 October 2009 the father filed a reply to the wife’s Response, seeking Orders which included that the children live with the father for a period of 9 months.

40.On 23 October 2009 further Orders were made by Judicial Registrar Loughnan, including that the parties be granted leave to inspect documents produced on subpoena by NSW Police and Orders were made by consent in relation to the appointment of Dr RO. In summary, it was Ordered that unless the parties and Independent Children’s Lawyer agreed to the contrary in writing, the parenting Orders made 15 December 2008 be varied to the effect that, until further Order, the father spend time with the children at Relationships Australia Children’s Contact Service. It was noted that the Centre should be able to facilitate two hours, once per fortnight. Orders were made in relation to facilitating contact at that Centre.

41.In mid 2010 each of the parties withdrew applications for property Orders and the property proceedings were discontinued.

42.On 19 July 2010 the matter was listed for a five day hearing before me in respect of the parenting proceedings.

CREDIT

43.Before setting out my findings in relation to matters of credit I note that in the father’s cross-examination of witnesses he rarely put to them his version of facts. This style of cross-examination is of real significance when the Court comes to consider matters of credit. Fortunately for the father the children were represented by the Independent Children's Lawyer who tested witnesses’ versions of fact where that was seen as necessary.

The Mother

44.The mother gave her evidence in a straight forward and apparently honest manner. She responded appropriately to the questions asked. She answered questions without apparently having to think for any lengthy period of time. In other words, her answers appeared spontaneous and well remembered. There were some departures from that general presentation when she was unable to remember clearly some events.

45.I do not consider all of the mother’s evidence was given accurately. An example of such an occasion was the assertion put to Mrs LY that in a telephone conversation with the mother she had told the mother that the father occupied a cottage on the LY property in exchange for work performed on the property. Mrs LY denied any such assertion and I accept her evidence in relation to same. There were other examples where the mother attributed to witnesses in this case statements which they categorically denied. At such times I had doubts that the mother was accurately reporting the conversations. I did not think she was deliberately lying, rather perhaps reconstructing her recollection of the conversations. There were only a few of these types of allegations and overall I was not concerned with the mother’s basic honesty.

46.Unless I specifically hereafter set out that I have not accepted the mother on some fact then I have accepted her evidence in preference to that of the father and his witnesses.

Mrs W

47.Mrs W is the maternal grandmother. She gave her evidence in an apparently honest manner. There is conflict between her evidence and that of the father and of the paternal grandmother (father’s mother). I was impressed with the way she gave her evidence and her sincerity. I prefer her evidence to that of the father and the paternal grandmother to the extent that they differ.

48.In relation to the evidence given by the paternal grandmother that the maternal grandmother had said to her in a telephone conversation, shortly before the paternal grandfather’s funeral, words to the following effect: “[the father] has not paid child support and the children will not be attending the funeral”, I find that there was a reference made by the maternal grandmother to the fact that the father had not paid child support, however, not in those terms. I accept that the conversation was otherwise as asserted by the maternal grandmother.

Mr MS

49.Mr MS is the mother’s partner. I found him to be an impressive witness and person. He gave his evidence in an apparently honest manner. I accept his evidence in preference to that of any other witness who may have proffered conflicting evidence.  He presented as a person who has been able to maintain reasonable objectiveness in the face of a circumstance which might be expected to challenge the ability of most to do so.

Mr W

50.Mr W is the maternal grandfather. I was impressed with the way in which he gave his evidence and the content of same. I prefer his evidence to that of the father to the extent there is a difference.

The Father

51.Before the father gave his evidence and during the time he gave his evidence I administered a warning to him about the consequence of not answering questions which had been asked of him. I warned him against arguing with Counsel for either the mother or the Independent Children's Lawyer. I informed him that should he fail to answer questions asked of him or should he be argumentative with a questioner then he could expect submissions to be made that I should not accept his evidence in preference to other witnesses’ or parties’ evidence.

52.The father presented himself in a courteous manner to the Court and was respectful to witnesses, those who represented the mother and those who represented the Independent Children's Lawyer.

53.I regret to say there were many occasions where the father failed to answer questions asked of him. He largely did not argue with a questioner. He frequently sought to avoid answering questions with a simple yes or no where that type of answer was clearly called for. On a few occasions I noted that despite repeated attempts to have him address the question asked of him he failed to do so.

54.There are particular areas of dispute which are very relevant to the parenting dispute in this matter. Those include the following:

(a)Was the father violent to the mother;

(b)Did the father act in an inappropriate manner at changeovers of the children; and

(c)Is the father living at T.

55.As will be seen later in these reasons the question of my accepting or otherwise, the evidence of each relevant witness features very importantly in the determination of these fact issues.

56.As will be seen later in these reasons, having considered all the evidence relating to the mother’s allegation that the father had been violent to her, I accept that he was violent. Such a determination is made in the face of absolute denial by the father. I have also concluded that the father acted inappropriately on some changeovers of the children as the mother and her witnesses have asserted. This again was in the face of the father’s denials or protestations that he was not the cause of any incident. Having so determined those two very important issues or relevance and credit I have cause to consider the extent to which the father’s other evidence is accurate. However, as in most cases, just because a party cannot be believed on one issue in the case does not mean that the entirety of their evidence is then not accepted.

57.Unless I specifically, in these reasons, state to the contrary when addressing issues of fact, then it should be understood that I have preferred the evidence of the mother and her witnesses to the evidence of the father.  

Mrs Mitty Snr

58.Mrs Mitty Snr is the paternal grandmother. She gave her evidence in an apparently straight forward and responsive manner. She appeared stern in her presentation and response to most questions. She gave one answer in a manner which appeared to me to have a touch of anger attached to it. There were clear contradictions in her evidence and that of the mother and the maternal grandmother.

59.Having considered her evidence carefully and compared the content and manner of presentation of the mother and the maternal grandmother I do (subject to what I have said earlier) prefer their evidence to that of the paternal grandmother.

Mr BT

60.Mr BT presented as a witness of truth. I was impressed by him as a witness. He answered questions in a spontaneous manner. He was sensitive to the father’s position of being self represented and was courteous to him and respectful of him. I accept his evidence.

Mr RH

61.Mr RH gave his evidence in a very direct manner. The circumstances in which he came to give evidence in the case, at all, are most extraordinary. He claimed not to be a witness for either of the parties but rather a volunteer for the Court to assist the children and the Court. He claimed that he had refused to provide an affidavit at the request of the mother because he had provided her with a telephone and flowers and he was concerned about the view the father might take of him in those circumstances. He also claims the mother had asked him to give false evidence.

62.During his oral evidence he claimed he was vulnerable financially to an action by the National Australia Bank arising out of work he had performed for the parties. That work had been in the nature of book keeping for the parties’ business. He had also sent, under cover of an email from his business, to the National Australia Bank, cash flow projection figures for the business. Under cross-examination he denied he knew those figures were false.

63.In his affidavit evidence, he had failed to refer to a very significant event. That event was an attendance by himself with Mr BT on a Police Station on about 17 August 2007. Exhibit M10 contains evidence of information provided by Mr RJ and Mr BT to the Police on that occasion.

64.It was entirely unclear to me, where Mr RH thought the threat to his financial security may come from. That is, was one of the parties a greater threat in terms of information that could be provided to the National Australia Bank against his interests than the other? Given that there are so many unanswered questions about Mr RH’s motivation in giving evidence in the case I consider that it would be unwise to rely on any part thereof.

Mrs LY

65.Mrs LY was a very impressive witness. She appeared to give her answers in a very honest and straightforward manner. She displayed a personality that was warm and very concerned for the well being of the subject children. She has clearly built a considerable affection for the children, having had so much contact with them over the last few years. I am satisfied that she has a genuine concern for the well being of the Mitty children. I am prepared to accept her evidence in its entirety.

66.The consequence of the above finding is that I prefer the evidence of Mrs LY to that of the mother to the extent there is conflict.

The affidavit evidence

acceptance of evidence

67.Division 12A of PART VII of the Family Law Act 1975(Cth) now sets out the principles for conducting child-related proceedings. The effect of that Division on the conduct of a hearing in a parenting case is that objections to affidavit evidence are not generally allowed. Thus all of the material in an affidavit read in the hearing is part of the evidence. It is then for the judge to apply weight to that evidence.

68.In this matter I have applied no weight to evidence which is hearsay unless it falls within the exception generally applied to the evidence of what has been said by any of the subject children in this case. Given the age of the children I have been unable to apply any real weight to what has been said. The children’s statements, as reported in this case, are of significance for the fact that they were made not as to the veracity. The fact that the children were making very negative statements to each parent about the other was an important matter for me.

69.Where the affidavit material of the witnesses has been framed as a submission or without particularising I have been unable to give it any weight to the extent that it was intended to be received by me as the truth of the fact. I have set out in these reasons some of the material contained in the affidavits which I have not been able to give weight in that regard, however, I have been able to consider as representing an opinion held or an attitude taken in relation to a particular person or event.

70.I have given weight to the evidence of the mother’s witnesses where they have repeated words of the mother complaining about the father’s conduct towards her in order to defeat a conclusion of “recent invention”.

Dr RO’s Report dated 8 January 2010

71.Dr RO prepared an updated Psychiatric Report in this matter on 8 January 2010, and which was filed on 13 January 2010.

72.On 3 December 2009 each of the parents were seen individually by Dr RO. On 16 December 2009 Dr RO saw the mother’s partner, Mr MS, and also saw the father with the children.

73.Dr RO does not support a relocation of the mother to Brisbane under the current circumstances of the children having no contact with the father, unless the father is agreeable for visits to occur at his mother’s home, if this were geographically viable. The single expert considered that:

“[t]his arrangement would hopefully be supportive to both children, as they would engage with extended paternal family, and to [the father] to ensure he can emotionally contain himself in the children’s presence. The contact would need to occur with [the father] and [the mother] NOT having contact with each other, preferably through neutral third parties, and at a frequency of three days a month and half school holidays.”

74.It was recommended that under the current circumstances contact occur in a contact centre, where the father will have support to contain himself and farewell the children and leave. The recommended frequency of contact by the expert is once per fortnight for six months, increasing to another attempt at the previous arrangement, but with S to also attend. Dr RO however considered that “[s]hould this fail again, the question of whether the benefits for the children of an engaged relationship with their father outweigh the disadvantages of disruption to their development will need to be addressed again.”

75.Dr RO considered that the children have positive relationships with their father and wrote that “[h]e is a significant person to them and undoubtedly is identified by them as their father in a meaningful way.” Dr RO set out four factors that the children’s relationship with the father required protection from. Firstly, it was considered that they required protection from the ongoing parental acrimony and ill feelings towards the extended family. Dr RO considered that given the poor communication and lack of trust between the parents and an inability to accept differences, they would remain alienated. Secondly, the single expert considered that the children’s relationship with the father needed to be protected from the father’s expressions of distress around the separations from the children, and thirdly, the mother’s efforts to have contact cease. Finally, it was said that the children required protection from contact arrangements, including relocation, which would jeopardise the children being able to spend time with the father.

76.In view of the reports that the children were exhibiting distress through emotional and behavioural changes during 2009, Dr RO considered that this was probably because of the abovementioned four factors, which the single expert said “have been operating to varying degrees since the parental separation”. A further contributing factor was said to be the children’s need to adjust to the mother’s developing relationship with Mr MS.

77.The mother reported having intermittent panic attacks, reactive to the stressors associated with the father. However she was said to have been functioning in an appropriate manner and achieving career goals. Dr RO wrote that “[h]er improved emotional state since not having to interact with [the father] after contact stopped has undoubtedly helped the children to become settled.” It was considered by the single expert that Mr MS “…seemed an appropriate stepfather figure although he is incorrect in what he has described as the motivating factor behind [the father’s] relationship with the children.”

78.Dr RO’s concerns about the mother’s parenting capacity arise from “…her contributions to the ongoing mutual parental hostility and her appearing to place having the financial resources to send the children to private schools above giving them the security of an ongoing, close relationship to their father.” Furthermore, the single expert wrote, in relation to the mother, “I am concerned she is inclined to follow through with her stated aim to Police to stop contact” and said the mother did not appear to have contemplated that “part of the upset for the children could be about missing [the father] when they are not with him”. Dr RO said in her report that she held concerns that the mother and Mr MS “…devalue the essential nature of the children’s relationship with their father.”

79.The father was said to appear to be committed to parenting the children, but that there were also times when he had been inappropriate in how he demonstrated his attachment to them. Dr RO considered it to be of concern that the father has pursued legal matters personally, when the children might have benefited from him having legal advice and being in paid employment and paying child support. The single expert went on to say that the father “…must understand the children’s overall development needs to be protected more than any disturbing visits with him. If he cannot help them settle, then they could all be faced with the prospect of identificatory visits only (ie. two to three visits per year).”

80.On the occasion that the children were seen with the father, it was noted by Dr RO to be the first contact in nearly four months. S was said to have said excitedly, “Dad’s here”, L peeped around a corner at him and H joined the father for a positive reunion, and showed no distress when the maternal grandmother left without farewelling them.

81.The father gave the children their Christmas presents, and the report details their delight at the presents and their interaction with the father. Dr RO noted that whilst the children were demanding of the father’s attention, he “…remained calm and sensitive to them individually.”

82.When Dr RO was talking to the father about how to make the transition from him to Mr MS after the appointment, the Report records that “[L] declared ‘I want Daddy to stay here. I want Daddy to stay at our house forever” and [H] stated ‘he can’t’”. When told that the father had to leave, L was said to have launched herself into the father’s arms, and H and S were both happy kissing and cuddling him. The children were said to have shown no separation anxiety as he left, although H called another goodbye from a distance and looked out the window for the father.

83.The mother was said to have presented as relaxed and self-assured but was described as seeming tearful as she described how stressful the last two years had been. The mother said she did not have any concerns about the children since their time with the father ceased in August 2009, until the Contact Centre arrangements could be made. The mother said that when the children had been seeing the father, H would cry before and after visits. The mother further reported to Dr RO that she was concerned the father was using the children for comfort, as opposed to giving them comfort, as H had asked the mother “do you think Daddy’s OK…he always told us he needs us with him because he has no one to play with him”.  Dr RO considered that this could be a reflection of the father’s lack of psychological awareness about child development, or alternatively H’s way of saying that he needs the father.

84.At changeovers the mother reported that the father would be crying, including that he would sit in the car crying, with the children who were also crying. In addition, the mother asserted to the single expert that the father was often late returning the children, including one occasion when he was one and a half hours late, and then threatened to return to T when the mother contacted him. The mother said the father would denigrate her in front of the children at changeovers, and say he hated her and that call her a “manipulating bitch” and said that on one occasion he twisted her arm as she opened the car door to get the children. 

85.Mr MS similarly told the single expert that on “many occasions” he observed the father in tears, on one knee and holding onto the children and that he had seen L “extremely scared” in the father’s car, when the father would not allow the children to get out. He said that for a few weeks after contact the children would be badly behaved.

86.The father have a different account of the changeovers, “…alleging it was a dynamic between the children’s behaviours and their mother’s aggressive reaction which was noxious, not his own tears and separation anxiety.”  Dr RO wrote that, “[i]f one accepts this version of events, [the mother] is quite correct in determining such experiences are not in the children’s best interests and would undermine what otherwise seem to be happy experiences with him.”

87.In August the mother also said that there were changes in L’s behaviour, and that she was fighting with her brothers, hitting the mother and not talking and also that S would wake in the night and scream and was “clingy” and “cranky” after returning from spending time with his father. She described to Dr RO that her “biggest concern” was that “if things don’t change, [the father] will start pushing them around if they don’t agree with him”.

88.The mother said to Dr RO that the father had threatened her, alleging that she stole cattle, and that she approached the Police to have the father’s telephone number blocked and an AVO was applied for, on her behalf, which the mother said was to be heard in February. In July 2009 the mother said she thought the father would hurt her, as he seemed to get angry. The mother reported having seen a psychologist for five sessions, and that H also had one session with her.

89.Explaining his accusations that the mother and maternal grandfather stole cattle, the father accused them of cutting locks to his property and said about 127 cows belonging to his brother were stolen at the end of 2008. The matter was apparently being investigated by Police.

90.In relation to H, the mother said he was in Year 1 at school and has a lot of friends but described instances in which she said the father had not been flexible in relation to arrangements, for example not changing a weekend when H had two birthday party invitations. She further said that the father did not take H to his grand final rugby game. The mother described having felt “scared” by how angry H could be. Mr MS told Dr RO that since contact had ceased H’s behaviour in particular had improved, as he was said to have previously been aggressive and would hit the mother, be uncommunicative and refuse to accept discipline.

91.In relation to not taking H to the ruby match, the father said H had not wanted to go back, but that if J had wanted to go he would have taken him. The father also said he discovered it was not the last match and that it would have necessitated a 5.00am start and six hours of travel each way, which the father did not think would have been fair on the other children. He said he did not remember the mother asking him to swap that weekend, nor his reasons for not changing the weekend when H had birthday party invitations.

92.L was said by the mother to have become definite in August that she did not want to see the father. She has been attending long day care twice a week, at the same day care centre as S.

93.The mother said Mr MS is close to the children, and spends three to four days in each week at her home, and attends some of the children’s events and goes on holiday with them. He is 42 years of age, works in the Information Technology Industry, and has a daughter in the United Kingdom whom he sees once a year. He and the mother plan to live together in the future.

94.At the time of seeing Dr RO the mother had just concluded her first year of a four year part time course at TAFE. In relation to the mother’s wish to move with the children to Queensland, the mother seeks to be involved in a business that her parents are purchasing in Brisbane, and to initially work there two days per week and continue her studies. Mr MS would be transferring his job to also move with the mother.

95.The mother told Dr RO that her wish to relocate was for “financial reasons” and that she would be able to send the children to private schools. The mother did not think the move would impact the children as they are “happy and settled” and have a close relationship to Mr MS and also to the maternal grandparents.

96.Dr RO wrote, in relation to the mother, that:

“[s]he added she wants them to have a relationship with their father in the future but he needs to understand his contribution to their behaviour. She opined he needs help dealing with problems he has, to stop manipulating the children and distressing them. She said she could not see how they can have a proper relationship with him until then.”

97.She told Dr RO that since separation she has always tried to make the children’s time with the father positive, and has never said anything nasty to them about the father.

98.The mother considered there is nothing tying the father to T, as she stated to Dr RO that the he does not have a job or close friends there and that he could thus move to Brisbane or move halfway to northern New South Wales, where his family are.

99.When queried about her contribution towards the family’s difficulties, the mother said she thought that being very stressed would not have helped the children. She said there was no anger in her current relationship. The mother explained the children’s absence at the 3 December appointment by saying she did not think they had to attend.

100.Dr RO’s report records that in about mid-2009 the mother experienced further panic attacks, although she was taking an antidepressant prescribed by her General Practitioner (“GP”) for panic disorder. In the three months prior to Dr RO’s report the mother was said not to have had panic attacks, and did not consider herself to be depressed.

101.In discussing why the children did not attend the paternal grandfather’s funeral in November 2008, the mother said they were “distressed enough” and she wanted to minimise their time with the father. She acknowledged that her mother had written to the paternal grandmother on a few occasions, but said this was because the father tells lies.

102.The father was described by the single expert to have “presented in an ernest, dogged manner. He appeared euthymic with a reactive affect.” He said he has been helping on his sister’s property but has remained living in T and although he recently had a job interview, he has spent most of his time on Court matters.

103.The father told Dr RO that he would not agree to the children relocating to Brisbane as they would then have no contact with his family, and he considered that a further move by the children would be destabilising for them.

104.He denied the mother’s allegations that he would leave the children in the care of his friends. The father said that since August the arrangements in relation to the children had “gone downhill” and he had not spoken to or seen the children since that time. In relation to the changeovers, the father said that when returning to the mother’s care the children would not always want to leave the car straight away, which he said led to the mother “carrying on” – hitting the roof of the car and threatening H that she would get the Police. Dr RO wrote that this “frightened the children, causing [L] to hide behind [the father’s] seat and [H] to lock the car doors and [the father] would have to reassure them.”

105.The father told the single expert that he probably cried at times at the changeovers, but that it was “not a constant”. He was adamant that he had not held the children whilst crying. The father said that returning the children to Mr MS had been more successful.

106.He denied the mother’s allegations that he would leave the children in the care of his friends. The father explained to Dr RO that in May he initiated a review of the time S could spend time with him, and could not understand why S was not included in half school holiday time nor why there was an issue in relation to increasing the time from five days to seven or eight days. Dr RO considered that the father’s uncertainty about why there were different Orders for S, “…reflects his lack of psychological awareness about child development.”

107.The father said he as not able to comment on the mother’s descriptions of the children’s behaviours. Dr RO went on to write that “[w]hen his contribution to the difficulties was queried, [the father] eventually replied he could have done things better but he was not sure how he could have made the transitions easier.”

108.The father said he sent SMS messages to the mother’s mobile telephone “for documentation…proof”, and did not consider that it could have been viewed by the mother as harassment, but said he has not sent her text messages since being told by a lawyer that the messages could be construed in that way.

109.The father denied that he twisted the mother’s arm. In reference to the documentation provided by the maternal grandmother, the father said the mother’s health situation was the same as when he and the mother were together. 

110.In relation to the father, Dr RO wrote that he had seen two counsellors for a total of four to five times following the release of the original Court psychiatric report, but that he and his GP did not then feel he needed further counselling. He denied current symptoms of depression or anxiety, but mentioned his past anxiety from “the humiliation of public arrest and gaol”.

111.Mr MS was described by the single expert to present “…as a pleasant, articulate, confident forty four year old”. He was said to have no history of involvement with mental health, Police or legal services. He said he lives with the mother approximately 60 to 70 per cent of the time, and sees himself as a “stabiliser” and positive role model for the children and believes he is ready to be a stepfather. After what he described to Dr RO as a “baptism of fire” he now loves the children and said they are “great kids”.

112.He transferred with his company to Australia in January 2008, and met the mother in 2008 and is obtaining permanent residency. He has a 4 year old daughter in the United Kingdom, who lives with her mother.

113.The single expert wrote that Mr MS thought the children “should have less extended time with [the father] until [the father] ‘treats them with respect’ for their individual minds and sensibilities.” He told Dr RO that he thought the father does not treat the children with respect, but uses them as a mechanism “to get back at [the mother]”.

114.Dr RO completed an earlier Report dated 9 September 2008. The parents were each seen by Dr RO both with and without the children, in addition to documents before the Court, and documents supplied by the father. The single expert also had telephone contact with Ms Gordon and Dr B, a couples therapist.

115.Both parents were asked whether they had any current concerns about the children. The mother described that H allegedly experiences “pressure from his father” who is alleged to tell him that he wants J to live with him as he has “no one to play with him, look after him”. In addition, she expressed concerns in relation to H and L being taken on motorbikes. The mother further expressed concern that the father would “push them around” as they became older and if they were not exactly as he wishes, for example saying “soccer is for pussies”, despite H being involved in that sport.

116.The father described to Dr RO concerns about the children being able to have a “meaningful relationship” with him, and the children are alleged to have made various comments to him, including “Mummy says we are going to get a new Daddy and you are not going to be our Daddy anymore”. The father also had concerns about the children being with the mother when she drinks alcohol to excess and he told Dr RO that he has had long periods without contact with the children and that telephone contact is irregular. The father asserted that the mother had told him the children do not wish to see him or talk to him.

117.Dr RO considered that the parental relationship was too acrimonious for the parents to appropriately communicate about parenting matters, and the father’s personal life too unpredictable for a shared care arrangement to be in place. In her report, the single expert wrote that “[t]he children’s time with their father requires to be set out simply, clearly and predictably, with the needs of the youngest governing the length of time of the visits and between visits.” It was recommended the children live with the mother, who should transport them to T if the father continues to live there. It was further recommended that the time the father spends with the children, in excess of 24 hours, continue to be supervised until the property proceedings are finalised and the father has found satisfactory employment and received psychological support. If the father remains in T it was recommended the children have contact with him each weekend from Saturday until Sunday, and if he resides in Sydney then several visits a week was recommended. Dr RO considered a review six months after the property settlement to be appropriate in considering final children’s Orders.

118.The disparate history given by each parent about the other’s behaviours was said to make for “diagnostic difficulties”, as both presented as believing their own account of events, and each had supporting affidavit material. However, it was said to be “…clear the couple both contributed to a chaotic lifestyle and unsupportive relationship, with the consequent very significant pressures on both from their financial burden and caring for three young children.” If the mother’s allegations about the father, particularly in relation to the alleged violence, are false then Dr RO wrote that “she has done harm to the children”. It was considered harmful to remove the children from her care, as she has been their primary caregiver and the children are young. If the father’s employment prospects were said to be in T then the single expert considered the children should reside close enough to T to ensure the children maintain “…as robust a relationship with their father as is possible” and so as also to enable the mother to continue to receive support from her family.

119.However, if the father is denying his own capacity for violence then he was said to be a risk to the children, and in those circumstances Dr RO said she “…would not support him having extensive unsupervised time with the children until he is in a situation of no stress (ie. no more than average in the average daily life) and has been able to do psychological work on his behaviour.”

120.When seen with the mother, H was said to have displayed mild separation anxiety and would not agree to be seen by himself. As the children played together they began to squabble. The mother was said to have remained calm, and H was able to play alone in a self contained, persistent manner and L played with her mother’s encouragement. H responded to the mother’s firm direction to share. The children happily left the mother to greet and stay with the father. Dr RO said they were somewhat competitive, and the father gently reprimanded H for snatching. The children were said to be busy and animated, and the older two were more eager to engage the father. The father was appropriately attentive when the children needed to be toileted, and he also later set appropriate limits in relation to their behaviour. When the children were returned to the mother, they cuddled the father at his request, and the mother did not make eye contact with the father.

121.The mother was said to have “presented as an attractive, euthymic, cooperative thirty year old. She had an appropriately reactive affect, crying as she described [the father’s] alleged assaults on her.” She told Dr RO that she and the father are unable to agree on a parenting arrangement and that the father was “not mentally stable to have them for any length of time”. She sought that the children’s time with the father be supervised, because of concerns about their safety, including in relation to riding on the motorbike. She further asserted that the father exerts pressure on H, and elaborated on his alleged mental instability, for example saying that the father has been verbally aggressive and violent towards her, and alleged the father caused her to sustain five “black eyes” in 2007. The mother told Dr RO that having an au pair assist with the children was “also security”, for her as the father was not violent in front of others.

122.The father denied the mother’s allegations of violence. He told Dr RO that the mother’s “black eye” in 2007 was the result of her running into his outstretched hand as he tried to prevent her hitting him after he took her car keys, to prevent her leaving with the children.

123.The mother alleged that during the parties’ relationship the father was “abusive, verbally and physically controlling”. She asserted the father has a history of taking an antidepressant. However, she said that “[i]f things are going entirely his way, [the father] is a loving, kind, generous person”. During the time of the mother’s pregnancy with H, when the father was not working, she said the father would assault her by pulling her hair. She alleged that in the six month period following the birth of each child the father got “very angry” and aggressive towards her. She described him as “good and loving” for half the time and otherwise that he was aggressive.

124.The mother described an incident when the father “trapped” L in the kitchen whilst she was in a walker and screaming, and would not let the mother attend to her, nor did he respond to her. She described to Dr RO that the father was involved in the children’s care and “loving towards them, good at playing with them”. Dr RO wrote that “[the mother] stated she would be worried about [the father] if he had no time with the children as “they’re everything in his world”.”

611.I accept that the move to Queensland may have a destabilising impact upon the children so far as their schooling is concerned. I am aware that the father is concerned the children may regress in their education, at least in the short term. This may particularly impact upon H as he has experienced some educational problems in the past. I consider however, that the risk to the overall wellbeing of the children is greater if their mother is not able to relocate to Brisbane. There are just so many adverse aspects which potentially flow to the mother and the children if they are not permitted to relocate that on balance they outweigh the detrimental aspects of the move to Brisbane.

advantages to the children of living in the brisbane area

612.The move to the Brisbane area will see the mother and Mr MS living in a full time relationship. This will mean the obligation to support the mother financially will move from the Australian Government to the mother and Mr MS. Should the mother be required to remain in the Sydney area it is reasonable to conclude that the relationship between the mother and Mr MS will move to a permanent one in the near future. It is unlikely that the mother will have employment by her parents into the future indefinitely (she currently attends their business in the Blue Mountains two days per week. The business is for sale.).

613.The mother and children will live in a new home owned by Mr MS within about 12 months.

614.The mother and her financial supporters will be able to afford private schooling for the children, a matter which is important to the mother. She has a history of having been educated in a private school.

615.The mother will be happy with the move.

616.The children are looking forward to the move.

617.There will be a much greater geographic distance between the parents’ residences should the father remain living in T. Combined with the fact that the mother will live full time with Mr MS in a house owned by him and be in close proximity to her parents who will provide her with employment, it is probable that the mother will feel more secure in many respects. This is likely to affect her parenting capacity in a positive manner.

disadvantages of relocating to brisbane area

618.The children will need to change school and preschool. H will be attending his third school since the parties’ separation. I note that as the mother’s lease has now expired in Sydney it may be necessary for the children to change schools in any event due to the mother having to find accommodation which she and Mr MS can afford.

619.The children will have to establish new friends and sporting associations.

620.The children’s potential time with the father will probably be less than that available should they live in Brisbane. This is of course dependant on the father being able to parent the children in a way that protects them from ongoing parental conflict and also enables them to change from one parent to the other without being traumatised.

621.The children will be further from their maternal relatives in Sydney.

622.The father will be unable to participate in weekend sport with the children by attending their games as it will be too far for him to travel. The father would be unable to regularly participate in school activities of the children for the same reason.

the advantages and disadvantages of the children remaining in sydney

623.The children may not have a change of schools and friends if the mother can find accommodation in a location which permits them to continue at their current schools. They will probably be able to continue with their current extracurricular activities.

624.The father will have a far greater ability to participate with the children in their extracurricular and school activities.

625.The children potentially will be able to see their father more frequently.

626.The children will probably see more of their relatives who live in Sydney.

627.The children will probably have a good opportunity to maintain friendships in the T District where they lived before separation.

628.They will not in the near future have the opportunity to live in a residence which is owned by the mother or Mr MS and therefore face the constant threat of having to move residence.

629.The mother will be most unhappy about her circumstances.

630.The maternal grandparents will not be able to support the mother emotionally and financially to the same extent that may be available should the mother live near Brisbane.

631.Mr MS will probably have to sell his property in the Brisbane region.

Section 61DA

632.This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies.  The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.

633.The presumption does not apply where there has been family violence.  In this case there has been family violence as has been set out earlier.

634.Notwithstanding that there may have been family violence it would still be open to the Court to make an Order for equal shared parental responsibility if it was determined to be in the best interests of the children.

635.The section further provides in sub-section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.

636.In this case there are a number of reasons why an Order for equal shared parental responsibility would not be in the children’s best interests.

637.I am satisfied the parties have very little trust in each other. The history of conflict between the parties during the marriage and since is extensive. There are many examples cited on each side of inability to co-operate in relation to the children. To require the parties to agree upon matters relating to long term aspects of the children’s lives is, in my view, to cast them into further conflict which is likely to adversely impact upon the children and potentially put in jeopardy the time the children will be required to spend with their father.

Section 65DAA

SECTION 65DAA(1)-(4)

638.This section requires me to consider making an Order for equal shared time for the children with each parent where it is proposed to make an Order for equal shared parental responsibility.

639.I do not propose to make an Order for equal shared parental responsibility.

The Orders to be made

640.On the afternoon of the last day of the trial the parties were able to reach agreement in relation to the mother’s application for an Order under section 118 of the Act. The father in his affidavit on the section 118 Order appeared to be seeking such an Order against the mother. This he acknowledged in the hearing. I propose to make the consent Order.

641.The Independent Children's Lawyer presented a proposed minute of Order at the conclusion of the trial which I have marked as Exhibit ICL3. The father advised me in submission that he would not oppose Orders being made in relation to paragraphs 2, 4, 5, 6(a), 6(b), 7(d), 7(e), 8, 11, 12, 13, 14 & 15 of that minute.

642.The mother in submission told me she would not oppose Orders being made as set out in paragraphs 1, 2, 3, 11, 12, 13, 14 of Exhibit ICL3.

643.As I have already stated I propose to make an Order for the mother to have sole parental responsibility.

644.The parties agree the children should live with the mother.

645.I propose to make an Order allowing the mother to relocate to Brisbane as she seeks. The time of such move will be conditional upon the mother doing all things required of her to register with the P Child and Family Support Contact Centre so as to enable the children to spend time with the father as specified in these Orders as soon as a place can be offered by that contact service.

646.The Independent Children's Lawyer seeks an Order that the parties participate in individual counselling to assist in the implementation of these Orders. The father has consented to that Order, the mother has not. Dr RO said it would be of assistance to the mother and the children if the mother has a counsellor to discuss any difficulties which will inevitably arise in this case from future contact between the father and the children.

647.It is very much in the best interests of the children that such an Order be made. It may well allow the children to have a relationship with their father in circumstances where the absence of such a support would see the relationship fail. I propose to make the Order as sought.

648.The Order for supervised time for the father to spend with the children is opposed by each parent. The mother said she would accept this if it was ordered. The evidence is that the children have been able to enjoy spending time with their father in a supervision centre since early this year and it has not adversely impacted upon their behaviour. It seems to me that the only way the children might be able to continue to have a relationship with their father is to start with this type of contact. I am sure the time for the children to spend with their father would quickly fail if the Orders of the Court provided for the father to spend time with the children as he seeks.

649.For the father’s telephone time with the children he will have to call the mother’s telephone service. The mother needs to provide her telephone number for that purpose. The father should also provide a contact telephone number for the mother to contact him should it be necessary to comply with the Orders.

650.There is some necessary work for the Independent Children's Lawyer to carry out to assist in the implementation of these Orders. In the circumstances the appointment of the Independent Children's Lawyer should be extended as sought.

651.The Independent Children's Lawyer has sought a costs Order as she is required to do as a condition of the grant of legal aid. The mother has an exemption from the Legal Aid Commission of NSW in relation to costs. The father has not applied for one. I think it highly likely he would receive a grant if he sought one. Should he not receive an exemption then I think it most unlikely that costs would ever be recovered. As stated earlier I think it probable that each of the parents will be bankrupts in the near future. I propose to dismiss the Independent Children's Lawyer’s costs application.

652.Dr RO gave evidence of the advantages of children being able to communicate with an absent parent by Skype. I propose to make Orders which will permit the children to communicate with their father by that means should the parents have the available technology to facilitate same.

653.The father sought an Order preventing the children from being removed from Australia. There is no evidence that the mother or anyone else is contemplating such an event. I suspect the father’s concern emanates from the fact that Mr MS is English and has a daughter living in England. At some time in the future it may be that the mother will want the children to travel overseas with her. She will at such times be required to seek the father’s consent or a Court Order. It is an offence to remove children from Australia where there are Orders of the Court without the consent of the other parent or a Court Order (see section 65Y – penalty 3 years gaol).

654.At the conclusion of the hearing the father volunteered to pay $200 per week child support. The solicitors for the wife prepared a Minute of Order for the father to sign. That Minute of Order was provided to me and has been marked as Exhibit X5. The Order was not in a proper form to enable me to make. I brought this to the parties’ attention by email. I said I would be prepared to note an undertaking by the father to the Court in that form. The father advised that he gave that undertaking. The mother’s solicitor reframed a Consent Order. The father has not signed that Order. The mother said, through her solicitor, she would accept an undertaking by the father to the Court. I propose to proceed with noting the father’s undertaking to the Court. 

will the Orders enable a meaningful relationship between the father and the children?

655.The Orders which I propose to make, if they be implemented, will, in my view enable the father to continue and maintain his relationship with the children and vice versa, in a way which will enable a meaningful relationship.

I certify that the preceding six hundred and fifty-nine (655) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate: 

Date:  30 July 2010