MOREIN & MOREIN

[2017] FamCA 501

FAMILY COURT OF AUSTRALIA

MOREIN & MOREIN [2017] FamCA 501

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Where the parties have agreed to a suite of orders but were unable to agree on parental responsibility – Where the relationship between the parents is characterised by longstanding conflict – Where to grant sole parental responsibility to one parent would fuel the conflict between the parents and have a negative impact on the children – Orders made for the parents to have equal shared parental responsibility.

FAMILY LAW – COSTS – Costs of the Independent Children's Lawyer – Where the mother is in receipt of Centrelink benefits and a small amount of child support from the father – Where the mother claims the father is concealing his true income – Where the father is ordered to pay half of the costs of the Independent Children's Lawyer.

APPLICANT:

Ms Morein

RESPONDENT: Mr Morein

INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer

FILE NUMBER: SYC 6802 of 2014

DATE DELIVERED: 17 July 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 10 and 11 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Mark Rahme & Associates

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

IT IS ORDERED

1. That the parents have equal shared parental responsibility for the children S born … 2003, M born … 2005 and W born …2008.

2. That within 30 days the father pay to the Legal Aid Commission the sum of $4,551 by way of costs of the Independent Children’s Lawyer.

IT IS ORDERED BY CONSENT

All previous parenting orders be and are hereby discharged.

1. The children of the children of  the marriage namely, S born … 2003, M born … 2005 and W born … 2008. (Hereafter ‘S’, ‘M’ and ‘W’.

   Shall live with the mother.

2. That the children, W and M shall spend time with the father as follows:

   a.During school terms:

   i.Commencing the first weekend of each term, from the conclusion of school or 3:00pm on Fridays until 6:00pm on Sundays, thereafter in alternate weeks;

   b.During the Term 1, 2 and 3 school holidays as follows:

   i.For the first half of the school holidays from after school on the last day of term to 6pm on the middle Saturday of the holiday period;

   c.During the Term 4 school holidays as follows and subject to the provisions of para 6 (d) and (e) herein:

   i.In December 2017/January 2018 and each alternate year thereafter, for the first week of the school holidays, commencing from 10am on the first Saturday to 8pm on the following Saturday and each alternate week thereafter; and

   ii.In December 2018/January 2019 and each alternate year, from the second week of the school holidays, commencing at 10am on the second Saturday of the holiday period to 8pm on the following Saturday and each alternate week thereafter;

   d.Other times as agreed between the parents in writing.

3. S’s reintroduction to the father

   i.Prior to S spending time with the father pursuant to the provisions of Order 5 herein, S and the father shall attend upon an agreed therapist for the purpose of the therapist facilitating a reintroduction of S’s time with the father;

   ii.The sole purpose of this therapy shall be to reintroduce the relationship between S and the father;

   iii.In order to facilitate this therapy:

   a.   The father shall obtain an appropriate Mental Health Plan from his General Practitioner and otherwise, he shall bear the costs of this therapy;

   b.   The mother shall facilitate S attending upon this therapist at such times and places as may be directed by the therapist including attending personally if so requested;

   c.   The father shall attend upon the therapist at such times and at such places as directed.

   d.   The Independent Children’s Lawyer has leave to provide the therapist with a copy of the Family Report herein and she shall be at liberty to liaise with the therapist if required.

4. The child S shall spend time with the father as follows:

   a.During school terms:

   i.Commencing the first weekend of each term, from 9:00am until 8:00pm on Saturday, thereafter in alternate weeks. This time to coincide with the weekends the father spends with M and W;

   b.During the Term 1, 2 and 3 school holidays as follows:

   i.On the first Saturday of the school holidays from 9:00am until 8:00pm.

   c.During the Term 4 school holidays, from 10am to 8pm on the Saturdays that the M and W spend with their father in accordance with Order 3 (c) herein.

   d.The time that S spends with the father in accordance with order 5 (a) to (c) may be extended in the event that S expresses a view to extend this time.

   e.The father shall collect S from the mother  at the commencement of his time and the mother shall collect S from the father at the conclusion of the father’s time as set out in Order 8;

   f.At such other times as agreed between the parents in writing.

5. Notwithstanding any other Order, the children shall spend time with the parents on the following special occasions as agreed or, failing agreement:

   a.Mothers’ Day and Fathers’ Day

   i.If Mothers’ Day falls on a day the children are to be in the father’s care, then the children shall spend time with the mother from 6:00pm Saturday of that weekend to 6:00pm on Mothers’ Day.

   ii.If Fathers’ Day falls on a day when the children are to be in the mother’s care, then the children shall spend time with the father on Fathers’ Day from 6:00pm Saturday of that weekend to 6:00pm on Fathers’ Day.

   b.Father’s birthday and Mother’s birthday

   i.If the father’s birthday falls on a day that the children are to be in the mother’s care, the father shall spend time with the children from after school to 6:00pm (on a school day) or from 9:00am to 6:00pm (on a non-school day).

   ii.If the mother’s birthday falls on a day that the children are to be in the father’s care, the mother shall spend time with the children from after school to 6:00pm (on a school day) or from 9:am to 6:00pm (on a non-school day).

   c.Children’s birthdays

   i.If the children’s birthdays falls on a day that the children are to be in the mother’s care, the father shall spend time with the children from after school to 6:00pm (on a school day) or from 9am to 2pm (on a non-school day).

   ii.If the children’s birthday falls on a day that the children are to be in the father’s care, the mother shall spend time with the children from after school to 6:00pm (on a school day) or from 9:00am to 2:00pm (on a non-school day).

   d.Christmas

   i.     The mother shall spend time with the children from 6:00pm Christmas Eve until 12 midday on Christmas Day.

   ii.   The father shall spend time with the children from 12:00 midday on Christmas Day until 6:00pm Boxing Day; and

   e.Easter

   i.The mother shall spend time with the children from 6:00pm Holy Thursday to midday on Easter Sunday; and

   ii.The father shall spend time with the children from midday Easter Sunday to 6:00pm Easter Tuesday.

Changeover

1. To facilitate Orders 3, 5 and 6,  unless otherwise stated:

   a.The father shall collect the children from school (if a school day) or from the mother at McDonalds Family Restaurant, Suburb F (if a non-school day) at the commencement of the father’s time and the mother shall collect the children from the father at McDonalds Family Restaurant, Suburb F at the conclusion of the father’s time.

   b.The mother shall collect the children from school (if a school day) or from the father at McDonalds Family Restaurant, Suburb F (if a non-school day) at the commencement of the mother’s time and the father shall collect the children from the mother at McDonalds Family Restaurant, Suburb F at the conclusion of the mother’s time.

Telephone time

1. The father shall communicate with W and M via telephone each Tuesday and Thursday between the hours of 6:30pm and 7:00pm.

   a.To facilitate the telephone communication between the father and the children:

   i.The father shall initiate the phone call to the mother’s mobile telephone number and shall ensure that the phone call is made at the nominated time from an area with mobile phone reception. The mother shall ensure the children have privacy during the phone call.

   b.M and W are at liberty to communicate with the father at other times.

10.Whilst the children are in the  care of the father, the mother shall communicate with the children as follows:

a.During school terms, on Saturdays by telephone between the hours of 6:30pm and 7:00pm.

b.During school holidays, each Tuesday and Thursday between the hours of 6:30pm and 7:00pm.

c.To facilitate the telephone communication between the mother and the children:

i.The mother shall initiate the phone call to the father’s mobile telephone number and shall ensure that the phone call is made at the nominated time from an area with mobile phone reception. The father shall ensure the children have privacy during the phone call.

d.The children are at liberty to communicate with the mother at other times.

11.The parties shall use email or text message to exchange information about the children’s education, health and extra-curricular activities.

12.Each parent is at liberty to attend all events involving the children including:

a.Sporting fixtures;

b.Extra-curricular activities that allow for parental attendance;

c.School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews (subject to the convenience of the children’s teachers), canteen duties and social functions.

13.In the event the children suffer from a serious medical condition or require urgent medical attention whilst in the care of either parent, that parent will notify the other as soon as practicable.

14.These Orders constitute authority for the Mother and Father to each receive copies of school reports, newsletters, notices and school photograph order forms. In the event the children’s schools require written authority by a parent, the parents shall do all acts and things within 7 days of the date of these Orders to facilitate this Order. 

15.These Orders constitute authority for the Mother and Father to each liaise with the children’s treating medical practitioners and obtain information about any treatment of the children and any other medical issues.

Restraints

16.That each of the parties be and are hereby restrained from subjecting any of the children to any form of physical punishment or striking and they shall use their best endeavours to ensure that no other person does so.

17.That each of the parties be and are hereby restrained from –

a.Denigrating the other party or any members of their family to or within the presence or hearing of any of the children and they shall use their best endeavours to ensure that no other person does so.

b.Discussing these proceedings with any of the children, within their hearing or in their presence,

c.Showing any of the children any document pertaining to these proceedings;

d.Installing any form of surveillance or similar application or program on the other parent’s or children’s electronic devices, including, but not limited to their mobile phones; and

e.Recording on any electronic or other device conversations with the children in relation to their views.

18.The parties are restrained from bringing any third person to changeover.

19.Neither party shall interfere with the other party’s collection of the children from school.

20.Within 28 days of the dates of these Orders, the parents enrol in a Tuning into Teen, Engaging Adolescents or equivalent program and complete said program within 6 months of the date of these orders.

21.The Mother and Father shall each keep the other informed of their current residential address, telephone numbers and any e-mail address by:

a.Providing each other with no less than 28 days written notice of any intention to change their residential address.

b.Providing each other with notice of any change in telephone numbers and/or e-mail address within 48 hours of any change.

Family Therapy

22.Pursuant to the provisions of 13C(1)(c) both parents participate in the Keeping in Contact Program through G Group, Suburb A or other service, such as family therapy, as deemed appropriate by G Group, Suburb A.

23.The parties shall facilitate the children, S, born … 2003, M, born … 2005 and W, born … 2008 attending upon the G Group H Program, or other service, such as family therapy, as deemed appropriate by G Group, Suburb A.

24.For the purposes of Orders 21 and 22:

a.Within 7 days of the date of these Orders, the mother and the father are to contact G Group, Suburb A and arrange an appointment with that service;

b.Each parent shall to notify the other parent and the Independent Children’s Lawyer by email of the date of the appointment within 48 hours of making the appointment;

c.Each parent is to attend the initial appointment with the family therapist of the Keeping in Contact Program or other service as deemed appropriate by G Group, Suburb A and any subsequent appointments that may be scheduled by the therapist.

d.That each of the parents shall facilitate the children attending upon the therapist, if directed to do so, including but not limited to encouraging the children to attend the H Program or other service nominated by G Group, Suburb A at such times and at such places as the therapist may direct for the purposes of individual and/or family therapy.

e.Each parent will do all things necessary to comply with the reasonable recommendations of the family therapist, including (but not limited to) recommendations as to time to be spent between the parents and the children.

f.That each of the parents be and are hereby restrained from discouraging the children to participate in the therapy process and they shall use their best endeavours to ensure that no other person does so.

g.That each of the parents shall follow the reasonable recommendations or directions of the therapist as to the continued attendance for family therapy and/or to any parenting program or other program.

h.Leave is granted to the Independent Children’s Lawyer to provide to G Group Suburb A, a copy of the Family Report dated 30 May 2017.

i.In relation to the cost of the family therapy :

i.The parties are to pay the costs of their own attendance upon the therapist;

ii.The father shall pay the cost of the children’s attendance upon the therapist (if required);

iii.Such costs are to be paid directly to the therapist upon receipt of any invoice issued.

j.Therapy with the family shall be focus upon the following:

i.improving co-parenting and communication between the parents

ii.assisting the children with emotional regulation and  dealing with challenging family circumstances;

iii.assisting the parents in responding to the children’s emotional needs;  

NOTATION:

A.The school holidays are defined to commence at the end of the last day of school term and conclude at 6pm on the Sunday prior to school commencing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Morein & Morein has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 6802 of 2014

Ms Morein

Applicant

And

Mr Morein

Respondent

REASONS FOR JUDGMENT

1. Ms Morein (“the mother”) and Mr Morein (“the father”) are the parents of S born in 2003, M born in 2005 and W born in 2008 (“the children”).

2. Since 2014, the mother and the father have been engaged in proceedings relating to their financial affairs and the parenting of their children.

3. The parties separated at the end of October 2014 after a period, since at least 2011, characterised by family violence and argument. Each of the parents accuses the other of instituting the violence. There is little corroborative evidence provided by either of them.

4. In October 2014, in ex-parte interim proceedings, the father was restrained from assaulting, molesting or interfering with the mother and was ordered to vacate the former matrimonial home and restrained from being within 500 metres of the home.

5. The most graphic and compelling evidence is provided by the notes of the children’s therapists at a time when the parents were living together. S was referred to a psychologist, Dr J. She saw him on 21 December 2011. S disclosed to Dr J significant examples of physical and emotional abuse and instances of domestic violence between the parents.

6. All three children have been referred to therapists, presenting with problems of anxiety and depression associated with their parents arguing.

7. In 2011, there was an incident of family violence by the mother perpetrated upon S and which necessitated medical treatment. On this occasion the mother hit S in the face with a rolling pin. The mother gave evidence that this was an accident and that she is deeply regretful, and that she and S have since resolved their relationship.

8. The records produced by the NSW Police are replete with complaints by each parent against the other. On at least one occasion, the police records note that the mother has injuries consistent with her complaint about the father.

9. On 20 April 2017 there was an incident between S and the father. If S’s version of that event, set out in a document written by her and annexed to the mother’s affidavit, is accepted, that was an occasion on which the father perpetrated family violence on her.  Since that time, the children have not spent time with their father except on a very brief occasion when the boys joined him for coffee.

10. M and W have alleged violence against them by members of the father’s family.

11. On any view of the evidence, the relationship between the parents was, and remains, characterised by strife, and the level of conflict between the parents, palpably expressed in their oral evidence, remains extreme.

12. The matter was listed for hearing in relation to parenting.

13. An Independent Children’s Lawyer (“ICL”) was appointed for the children. Shortly before the hearing it was necessary for the Court to make an order to facilitate the ICL conferring with the children.

14. The Court was also assisted by a Family Report and by cross-examination of the Family Consultant.

15. After the completion of the evidence and very clear recommendations by the Family Consultant, the parents, with the assistance of the ICL, were able to resolve the day-to-day parenting issues and entered into Consent Orders.

16. They have agreed on orders which will reinstate the weekend and holiday time that the boys spend with their father. In relation to S, the orders provide that, after some therapeutic intervention, she have day-time only contact with her father. The parents have also agreed to ongoing therapeutic intervention for all three children.

1. The parents were unable to agree on parental responsibility. The mother sought sole parental responsibility but modified her position in submissions, in accordance with the position adopted by the ICL, to sole parental responsibility only in relation to health and education. Both the mother and the ICL agreed that, if she had sole parental responsibility for education and health, she should be restrained from changing the children’s schools without the consent of the father.

2. The father sought equal shared parental responsibility.

3. The other matter on which the parents could not agree was the application of the ICL that they contribute to the costs of the ICL.

PARENTAL RESPONSIBILITY

1. On any view of the allegations of each of the parents, the presumption in favour of equal shared parental responsibility has been rebutted by the fact of family violence.

2. The question to be answered is whether it is in the best interests of the children that their parents have equal shared parental responsibility or for some other arrangement to apply.

3. It is instructive to consider the evidence of the Family Consultant, which is the only objective evidence available.

THE EVIDENCE OF THE FAMILY CONSULTANT

1. The Family Consultant interviewed the family on 3 April 2017 and prepared a report dated 30 May 2017.

2. The mother told the Family Consultant that she thought W would like to keep the arrangements in relation to spending time with his father as they are, but that she believed that M and S would want to spend less time with their father.

3. The mother told the Family Consultant that S had a “bad” relationship with her father because the father does not treat S well; indeed, the mother alleged that the father treated S in the same way as he did the mother during the marriage. The mother told the Family Consultant that “S is aware of things that have happened and is very smart, so cannot be lied to or manipulated.”

4. The mother said that W does not have bad memories of his father and is influenced by his father buying him gifts and tends to defend his father because he thinks that S and M are somehow against the father.

5. The mother alleged that, during the marriage, the father was verbally, emotionally, physically and financially abusive towards her.

6. In relation to the incident where the mother hit S in the face with a rolling pin in 2011, the Family Consultant reported:

   She said that she was rolling dough and arguing with [the father] and [the father] hit her and she was angry and upset. She said that [S] used rude words and she meant to “slap” (tap) her mouth with her hand but accidently hit her with the rolling pin. [The mother] said that she cried and apologised to [S], calmed her and took her to the doctor and the dentist. [The mother] said that she does not think the incident had an impact on her relationship with [S] as [S] understood that it was an accident.

7. The mother denied that there had been any other occasion when she hit S.

8. At the time the Family Consultant interviewed the parents, the mother told the Family Consultant that there was no real dispute apart from the issue of parental responsibility. She said that she did not agree that she should have to seek the father’s consent to enrol the children in extra-curricular activities because, she said, he refuses to agree to anything. The mother proposed that the paternal family members be restrained from verbally or physically disciplining the children and from denigrating her.

9. In relation to the issue of parental responsibility, the mother told the Family Consultant that she believes that whatever decision she wishes to make for the children the father will oppose, regardless of the children’s interests.

10. In relation to the difficulties over the children’s schooling, the Family Consultant recorded:

    She said that [the father] wanted the children to change school because he is “pretending” to have no money and said the school fees were too expensive. She said that she obtained the schools’ agreement to lower their fees to the level of the schools that [the father] proposed so that the children could remain in their schools, but that [the father] still refused to consent to them remaining there for another six months, which created uncertainty for the children. [The mother] said that the “biggest issue” is that [the father] is “dishonest”. She alleged that he manipulates the figures so that it looks like he has no income, but that he is actually wealthy. She alleged that he does not provide financially for the children unless it somehow “serves him in the community”.

11. The father told the Family Consultant that his main concern relating to the children is that the mother manipulates them to feel negatively about him. The father alleged that the mother abuses him when he is talking to the children on the phone, accusing him of having kicked her and the children out of their home and the children out of their schools. The father told the Family Consultant that the mother has an “aggressive and controlling nature” and that she wants to “‘ruin him’ and ‘ruin’ his reputation”. The father said that the mother has “made false allegations against him, claiming that he was violent, in an attempt to justify her separation from him after he had his leg amputated and that she provided court documents to his ‘political enemies’”.

12. The father told the Family Consultant that the mother had hit him and held a knife towards him and that she had physically assaulted S on several occasions resulting in S bleeding from her face. The father told the Family Consultant that he did not know if the children were currently at risk of physical harm with their mother, but he thinks they are definitely at risk of psychological harm with her.

13. In relation to the father’s proposals, the Family Consultant noted:

    [The father] indicated that he is not currently proposing that the children live with him upon legal advice and because he has a lack of financial resources to pursue such a proposal in the Court. He said that he previously received incorrect legal advice and that, in hindsight, he should have proposed that the children live with him much earlier in the Court process.

14. The father told the Family Consultant that his relationship with S is the most complicated out of all the children. He said that S can be disrespectful to him and that she is stubborn. The Family Consultant recorded:

    [The father] said that [S] has been impacted by [the mother’s] alleged manipulation and that she ([S]) blames him for what has happened. He said that she pesters him and questions him but that he refuses to discuss things with her that he considers inappropriate for her to know about and she feels angry with him. [The father] said that he has told [S] that she needs to respect him and that there are consequences of her not showing him respect. He said that he has found [S] to lie to him many times about what he has or has not said and also in order to achieve what she wants.

15. In contrast, the father told the Family Consultant that his relationships with M and W are “quite good” and he finds he gets along well with them. The father told the Family Consultant that all three children enjoy their time with him and that there have been times when M and W would like to have stayed longer.

16. The father told the Family Consultant that he had been driving the children to school because the mother said that her car had broken down “but that he has now told her that he cannot do it any longer. He suggested that it is [the mother’s] responsibility to transport the children to school if she has them living with her and said that he is ‘sick of the lies’.”

17. The Family Consultant spoke to each of the children separately. She reported:

    From the outset, [S] indicated that she was concerned about her views being shared. She said that she was worried that her father would question why she had said certain things and then try to convince her to think differently. [M] and [W] also indicated that they were concerned about their father’s and paternal uncle’s response to what they might say during their interview for this report. The family consultant is mindful that both parents will scrutinize the family report and has concerns there may be some repercussions for [S] because she has been so vocal and for all three children if they have said anything that might seem negative about their father.

18. In relation to S, who at the time of the interview was 13 and a half years old, the Family Consultant reported:

    [S] perceives that her father tries to convince her to be on his “side” whereas her mother allows her to have her own opinions. [S] perceives that her father accuses her of telling her mother everything, which she does not consider she does. [S] feels that her father, paternal grandmother, paternal uncle and other family members and friends all lecture her about her behaviour and what she should and should not think, say and do. [S] seems to perceive that her mother trusts her opinions and is not threatened by her relationship with her father but that her father does not trust her and seems to be threatened by her relationship with her mother.

19. The Family Consultant reported:

    [S] said that she and her father argue, usually because he subtly “puts down” her mother and she defends her. [S] seems to be aware of conflict between her parents about financial issues and things that have happened in the past and she seems to be aligned with her mother’s point of view. [S] perceives that her father retells stories of actual events but changes important parts to imply that her mother did the wrong thing. [S] feels that she knows her own mind and has her own opinion about what has happened in the past. [S] said that her parents have been getting on better more recently as they were able to meet with her “tutor” at school together which she seemed to think was a positive thing.

20. The Family Consultant reported:

    [S] said that she has some good experiences with her father and that she finds him to be “nice” and “thoughtful” at times. [S] said that she loves her father. She said that she is quite similar to her father in some of their likes and interests. … However, she also seems to experience her father to be insensitive, critical and harsh. She gave many examples to demonstrate her strong feelings. [S] says that she has had experiences with two different paternal family members that have made her feel uncomfortable which she has discussed with her mother, but her father seems to disregard and ignore her feelings. [S] seems to perceive that her father wants to spend time with her and her brothers when he can take them to social events. However, she perceives that he seems unwilling to drive them to school when they need him to because their mother’s car broke down. This seems to cause [S] confusion and frustration.

21. S described a relationship with her mother characterised by shared and enjoyable experiences and conversation. S told the Family Consultant that she and her mother have arguments but that she does not consider that there are problems in their relationship although, when she was younger, she and her mother did not get on very well. S thought this was related to the constant arguing between her parents and said that she has been much happier since her parents separated.

22. The Family Consultant reported:

    [S] suggested that it might be better if she spent less time with her father, perhaps just for one day each alternate weekend. She said that she does not think that [M] and [W] should spend time with their father without her also being present. [S] said that [W] gets on very well with their father. She said that [M] sometimes feels positively towards their father and sometimes feels negatively toward him. [S] said that she enjoys spending time during school holidays with her father as they do some interesting things but she finds it difficult when she is unable to communicate with her mother for long periods of time.

23. The Family Consultant reviewed the material subpoenaed from S’s school which indicated that a staff member reported S having said, after she was interviewed for the Family Report, that her father and paternal family members criticised and admonished her for having raised the issue of a paternal family member having inappropriately touched her in the past. The school recorded that S was distressed by what the paternal family had said to her.

24. S had also reported to the school that her father had hit her and that in recent times, police had attended at her father’s home and her mother’s home to conduct welfare checks.

25. In relation to M the Family Consultant reported:

    [M] perceives that his parents do not talk to each other much. He seems to think that his father is nice to his mother at times but that he talks negatively about her at other times. [M] perceives that his father considers that he and [the mother] are on opposite sides and that [the father] expects him ([M]) to be on his side and not say anything negative about him. [M] thinks that his father wants to “win” at Court, which would mean that he and his siblings would change schools and their mother would have no home and no money. [M] said that he thinks that his mother wants him and his siblings to spend time with their father because “he’s our Dad”.

26. M described always having positive experiences with his mother despite the fact that she gets angry and smacks him, which he said could be amusing sometimes.

27. In relation to his father and the paternal family, the Family Consultant reported:

    [M] described having some positive experiences with his father including playing soccer with him. He perceives that the majority of his experiences with his father are not enjoyable and include his father screaming and swearing at him and his siblings.

    [M] seems to perceive that his uncle, “[MR L]”, is rude and unkind to him, as he has said things such as that he will put him ([M]) “in the garage to eat cockroaches” and that he will send him ([M]) to the army “to get beaten up” so he will not be a “wimp”. [M] became upset when talking about his uncle’s treatment of him and [W]. He feels that his uncle blames him and shouts at him for things that his father is not worried about. [M] said that his paternal grandmother hit [W] with a soccer shoe and that his paternal uncle threw [W] on the ground.

    [M] indicated that he does not like to spend long periods of time with his father or his paternal grandmother or paternal uncle. He suggested that he would rather spend time with his father each alternate Friday to Saturday only and for less than a week during school holidays.

28. In relation to W the Family Consultant reported:

    [W] perceives that his parents’ relationship is getting better but that it is not very good as they do not talk nicely to each other. He seems to have been exposed to his father talking badly about his mother. [W] thinks that his father wants him and his siblings to spend more time with him but that his mother is happy with the current arrangement. He seems to perceive that his father tries to encourage him to tell his mother that he wants more time with [the father]. [W] was under the impression that, when he was interviewed for this assessment, his mother wanted him to tell the truth about how he feels and his father wanted him to say good things about him [the father]. [W] reported being worried about how his father might respond, and more specifically how his paternal uncle, “[MR L]”, would respond, if he were to say anything negative about his father. W said that his uncle has previously grabbed him and thrown him on the ground.

29. W told the Family Consultant that he enjoys spending time with his father especially when they do outdoor activities, but he also seems to experience his father as being somewhat strict with him and critical of him. W told the Family Consultant that his father has slapped him on the face when he has been angry, which made W very sad.

30. The Family Consultant observed the father and all three children together. W greeted the father and appeared keen to play with him. The father was responsive to W. M and S interacted together. The Family Consultant reported “[The father] instructed [M] to allow him and [W] to join the game as well but [M] refused and there was a bit of banter between the two of them. [The father] appeared awkward and did not know how to join in with [S] and [M].”

31. The Family Consultant commented that W “appeared to become quite hyperactive and seemed to intrude upon his father’s personal space in a confrontational manner. He then displayed active behaviour that could have been unsafe and [the father] told him to stop but he continued.”

32. The Family Consultant noted that S seemed to avoid any interaction with her father. She noted that W continued to bid for his father’s attention but the father appeared to focus on M once he had engaged M in a game. After the observation, the children briefly spoke to the Family Consultant. S criticised M for having interacted with their father and W defended his father against the perceived criticisms from his siblings and described his father as “nice”.

33. The Family Consultant spoke to the father after her observation of his session with the children. The father said that he thought W had seemed alright but that M and S were unsure and bit “cold”. The father was encouraged to reflect on how that made him feel. The Family Consultant reported:

    [The father] said that he loves his children and they love him, but reasoned that they are being manipulated by [the mother] who is “hell bent” on giving him a hard time and ruining his reputation. He said that [the mother] is a “liar” and uses the “female game” that women use in the Family Law Courts. About the observation for this assessment, [the father] said that it was “ridiculous” as they are his children, he loves them and has been with them since their births and he has “not done anything bad”.

34. The father told the Family Consultant that S is at a “danger point” in her life and risks living a life like her mother, who, he said, ran away from home when she was 16. He was concerned that S would rebel against both him and the mother. The father told the Family Consultant that he believes the children are frightened of their mother.

35. In relation to the children’s relationship with their uncle Mr L, the father said that the children have a good relationship with him and they joke around but that he is firm with the children. The father said that the mother provides no discipline and no expectations regarding basic hygiene or chores so the children might perceive their uncle to be quite firm in comparison.

36. The Family Consultant observed the children with the mother and commented that they seemed to have positive meaningful relationships with her. She reported:

    Despite reports that [the mother’s] relationship with [S] was troubled and that she physically assaulted [S] on at least one occasion prior to the parents separating, there are no current indications of such problems. When she was observed with the children, [the mother] confidently structured a game which included all three children and she gave W instruction which adequately contained his behaviour. This short observation seemed to be indicative of [the mother’s] capacity to relate to, engage, and contain all three children.

37. The Family Consultant recommended that the children continued to live with their mother.

38. In relation to the children’s relationship with their father, the Family Consultant reported:

    The children’s relationships with their father appear to be complex and quite different for each of the three children. These differences seem to cause some conflict between the children, with W defending [the father] against criticism made by [S] and [M], [M] showing ambivalence and [S] criticising [M] when he relates to his father in a positive manner. [W] seems to have the most positive feeling towards his father and displayed the most positive interaction with him. He expressed a view that he wants to spend more time with his father but he seems to be under some pressure to report such a view. This might limit the weight that can be placed on [W’s] views. [M] has some positive feeling towards his father but also experiences him in a negative way. Like [W], [M] seems to be under pressure from his father to report positively about him, but he also seems to be influenced by [S] to not engage with their father in a positive manner. Overall, [M] may have greater opportunity to have positive experiences with his father along with [W] and perhaps without [S], if [S] is not happy being there.

1. The Family Consultant reported:

   Having observed [the father] with the children and noting that [S] and [M] both seemed to reject their father’s invitations and [W] seemed not to comply with his instruction, it seems that [the father] may not have the capacity to manage the children and allows [their uncle Mr L] to take over.

2. The Family Consultant was conscious that she had not interviewed the children’s uncle but reported that the children, particularly M, are suffering from distress as a result of their uncle’s involvement with them.

3. The Family Consultant reported that S does not feel that her father understands her, respects her, or values her thoughts and feelings. She acknowledged that this may be a feature of S’s age and that there may be some impact on S’s perception of her parents from having been exposed to conflict between them. The Family Consultant commented that S experiences her father to be dismissive and oppressive.

4. In relation to the information that was provided by S’s school, the Family Consultant described that information as “deeply concerning”. She reported “S’s reported experiences of her father and her paternal family abusing and harassing her for what they believed she reported during her family report interview is what S had expressed concern about happening.”

5. The Family Consultant continued:

   [The father] is conscious of having some difficulties in his relationship with [S] but he seems to consider that this is due to her individual characteristics, some of which he seems to think are similar to her mother’s characteristics which allegedly led [the mother] on a difficult path in her teenage years. It does not seem that [the father] is able to provide the emotional availability, sensitivity, responsiveness, guidance, and support that [S] requires at this time in her life. It does seem that [the father] is able to provide some positive input in [S’s] life, given her perception of their shared interests and personality characteristics.

6. The Family Consultant reported:

   The outcome of this assessment is that all three children have relationships with their father which involve positive elements and negative elements. The negative elements appear to be significant and causing the children psychological distress, particularly [S] at this stage. The children also appear to have been exposed to the negative aspects of the parental conflict and dispute, possibly by both parents, but they definitely have a sense of their father talking about him and their mother being on opposite “sides”. The children can benefit from spending time with their father and this benefit would be enhanced if [the father] and his family were to work toward improving their relationships with the children. If [the father] and paternal family members admonish and threaten the children, it will have devastating results including, most likely, the children increasingly refusing to have anything to do with them.

7. The Family Consultant stressed the need for the father to respect the children’s relationship with their mother and the need for both parents to ensure that they do not expose the children to their conflicts with one another.

8. The Family Consultant stressed the need for the mother not to expose the children to her distress or anguish over financial disputes.

9. In relation to S, the Family Consultant reported that her views should be given significant weight by the Court given her rationale and given the Family Consultant’s assessment of the father’s capabilities. She recognised that the problem that S faces is that, if she spends less time with her father than her brothers, it is possible that this will place her at an increased risk of admonishment and criticism from her father and paternal family members. She stated:

   Again, if this happens, there is a chance that, as [S] grows older, she will cease all contact with her father and paternal family. [S] wants to maintain a relationship with her father. She hopes that it can improve and be a positive relationship. This will largely depend on [the father’s] response to her after this assessment and, if it is the case, after she commences spending less time with him.

10. In relation to the mutual allegations of family violence, the Family Consultant stated:

    Each parent alleges that the other has been physically violent towards them. If [the mother’s] descriptions are accurate, [the father] could be characterised as having displayed a coercive controlling type of family violence over many years, involving repeated violence, the threat of violence and social and financial control. This kind of violence is of concern with respect to [the father’s] capacity to engage in a respectful co‑parenting relationship and his capacity to recognise and meet the children’s emotional needs. If [the father’s] descriptions are accurate, [the mother] could be characterised as having displayed impulsive violent outbursts, triggered by the stress associated with [the father’s] leg amputation and the breakdown of the marriage. This kind of violence is of concern with respect to [the mother’s] capacity to manage the children in the face of increased stress.

11. In relation to the events in 2011, when the mother hit S in the face with a rolling pin, the Family Consultant viewed that event as one of:

    … considerable concern with regard to [the mother’s] impulse control and ability to ensure the safety of the children. This is considered a serious injury of a child. However, [the mother] sought medical attention for [S], acknowledges her actions and expresses remorse which is consistent with the action having been an accident. There is nothing from this assessment to suggest that [the mother] poses a risk of harm to the children or that the children are fearful of her. [The father] seems to believe that [S] is scared of her mother, but this is not borne out by this assessment. [S] appears to experience fear, worry and stress regarding her father’s response to her, not her mother’s.

12. In relation to the issue of shared parental responsibility, the Family Consultant commented:

    [The mother] feels that she and [the father] cannot make decisions together because she thinks that he will refuse anything she puts forward and that he will not prioritise the children’s best interests. [The father] feels that he and [the mother] are capable of making decisions together. There has been a dispute between the parents about which schools the children should attend which has now been resolved although the issue of who should be responsible for the children’s school fees may still be unresolved. The nature of the parents’ relationship indicates that they may struggle to effectively share parental responsibility and make considered decisions together. They each allege that the other has been violent toward them and they each consider that the other is dishonest and mistreats the children so it is foreseeable that they may encounter significant future problems when considering each other’s opinions and negotiating shared decision making.

13. The Family Consultant recommended that the Court consider allocating all or at least some aspects of parental responsibility solely to one parent.

14. The Family Consultant recommended that M and W spend time with their father each alternate Friday to Sunday, for half of their school holidays and at other times for sport or special occasions as agreed between the parents. In relation to S, she recommended that S spend time with her father each alternate Saturday or Sunday from, for example, 10.00 am to 8.00 pm, for half of her school holidays and at other times for sport or special occasions as agreed between the parents. The Family Consultant recommended that any orders for S to spend time with the father be flexible so that S’s views can be taken into account and she may spend more or less time than is specified in the orders in accordance with her wishes. The Family Consultant said that flexibility will become increasingly important as S grows older and each parent will need to engage in a discussion with her about her views without criticism of her or denigration of the other parent.

15. The Family Consultant recommended that both the parents and the other adult paternal family members participate in courses which aim to improve parents’ awareness of and response to their children’s emotions and to build better relationships. Information in relation to those suggested courses was provided.

16. As can be seen, the parents’ hostility and general distrust of each other was prominent during the interviews for the Family Report.

CONSIDERATION

1. While there is no dispute that all three children would benefit from having a meaningful relationship with both parents, the possibility of that happening will most likely rest with the parents. The Family Consultant, in her oral evidence, identified significant changes that the father needs to make in his parenting, particularly of S. In addition, in her Report, she identified the concerns about the behaviour of members of the father’s family, particularly the father’s brother, towards the children which, if not modified, risk the continued relationship of the children and their father.

2. The children need to be protected from the risk of further psychological harm caused by the parents’ toxic relationship with each other and their continued hostility.

3. On behalf of the mother, it was submitted that the hostility between the parents is such that they can never reach any agreement and that the father will oppose any suggestion that she makes, no matter the reason.

4. On behalf of the father, it was submitted that, despite their hostility, they have been able to reach agreement in the past and that to give sole parental responsibility to the mother would empower her to the detriment of the father and have the effect of fuelling, rather than reducing, the hostility.

5. In cross-examination, the Family Consultant, although she had recommended some allocation of parental responsibility in her Report, conceded that there is a risk that the allocation of sole parental responsibility will fuel the parents’ conflict.

6. In cross-examination, the mother conceded that there is no dispute between the parents about the children’s religious upbringing. They attend the same church and both parents take them to church.

7. The mother was not able to point to any area of disagreement in relation to the children’s health care or to any possible disagreement in the future.

8. Whilst there has been bitter disagreement about where the children live, with the mother accusing the father of leaving her and the children homeless by forcing the sale of the former matrimonial home, and of serious financial misfeasance in relation to the home, they have agreed that the children live proximate to their schools, and the parents’ homes are reasonably close so as to make the children’s movement between their parents practicable.

9. There have been disagreements about which schools the children are to attend and those disagreements have been ultimately resolved by the parties’ lawyers, on some occasions with the necessity for intervention by the Court. At the present time, the parties are in agreement about which schools the children attend and how the school fees are to be paid.

10. The mother conceded that she has arranged extra-curricular activities for the children and that the father has paid the necessary fees. Until the incident on 20 April 2017, the father attended sport and other activities and had taken the boys to soccer training.

11. It is also significant that the parents were able to reach agreement on the arrangements for the children to spend time with their father and on therapy for S, in particular.

12. Ultimately, I accept that to advantage either parent in the power struggle between them would have negative repercussions for the children in that it is likely that the already toxic relationship between the parents would worsen, exposing the children to further risk of psychological harm.

13. The parents will have equal shared parental responsibility.

14. The parents have already agreed on parenting arrangements for the children that do not involve equal shared care. For all of the reasons exposed in the Family Report, equal shared care is not appropriate for these children.

COSTS OF THE INDEPENDENT CHILDREN’S LAWYER

1. The ICL seeks an order that each parent contribute $4,551 towards the costs of the representation of the children.

2. On behalf of the mother, while acknowledging the valuable assistance provided by the ICL, it was submitted that she is in receipt of Centrelink benefits and child support of about $70 per week and that she is simply unable to afford to make any contribution to the costs of the ICL. I accept that submission.

3. The father’s position was that he is also in a parlous financial position and unable to contribute to the costs of the ICL.

4. The father gave evidence that he earns about $40,000 per annum as the manager of a business that employs three professionals in addition to himself. In cross-examination, the father’s expertise was explored.

5. It is the mother’s case that the father deliberately either conceals or diverts his real income so that he does not have to pay child support. It is neither possible nor necessary to determine that issue.

6. In relation to the present application, it is sufficient that the father was represented by senior counsel in the hearing and was represented by senior counsel in at least eight interim hearings throughout the course of the proceedings. He clearly has the ability to pay the very modest amount sought by the ICL.

7. Orders will be made for the father to pay $4,551 within 30 days.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 July 2017.

Associate:

Date:  17/07/2017