Pallas and Pallas (No 3)

[2013] FamCA 956

FAMILY COURT OF AUSTRALIA

PALLAS & PALLAS (NO 3) [2013] FamCA 956

FAMILY LAW – CHILDREN – interim

APPLICANT: Ms Pallas

RESPONDENT: Mr Pallas

INDEPENDENT CHILDREN’S LAWYER: Rebecca Bailey

FILE NUMBER: WOC 856 of 2012

DATE DELIVERED: 3 December 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 23 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell, SC

SOLICITOR FOR THE APPLICANT: Reid Family Lawyers

COUNSEL FOR THE RESPONDENT:: Mr Batey

SOLICITOR FOR THE RESPONDENT: Linden Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Rebecca Bailey & Associates

Orders

1. Order 2 of the Orders dated 15 April 2013 be varied so that it reads:

   2. Subject to Order 3, the father spend time with the children, as follows:

   2.1 Each Tuesday from 4.00pm to 7.00pm; and

   2.2On three out of every four Saturdays, from 9.30am to 5.30pm.

2. I note the father undertakes not to bring any contravention application against the mother if B fails to attend pursuant to Order 1.

3. Unless the parties otherwise agree in writing, for the purpose of changeover, the parties shall meet at the playground near the beach at T Town as facilitated by the supervisor at the supervisor’s discretion.

4. Order 4 of the Orders dated 15 April 2013 be varied so that it reads:

   4. The father’s time with the children be suspended for the period of the mother’s travel pursuant to Order 7.

5. Order 7 of the Orders dated 15 April 2013 be varied so that it reads:

   7. Subject to Order 8, the mother be permitted to travel with the children to Country O for a period of no more than four weeks, which period shall take place during the NSW Christmas school holiday period.

6. For the purpose of travel for the Christmas 2013 period, the mother is  restrained from removing or attempting to remove the children from the Commonwealth of Australia unless the following criteria are met:

   6.1 As soon as is practicable, the mother shall give the father notice of any intention to travel, such notice shall be in writing (email or SMS) and the father shall acknowledge receipt of that advice within 48 hours of receiving same.

   6.2When providing notice, the mother must also provide a copy of the children's travel itinerary including flight numbers, the addresses of where the children will be staying during the holiday and contact telephone numbers.

7. Upon return to Australia, the parties are to agree in writing on two occasions (totalling 11 hours) the children are to spend make-up time with their father, and in default, the children are to spend time with their father on the second Thursday after they return to Australia from 4.00pm – 7.00pm, and the first Saturday the children would not otherwise be with their father from 9.30am – 5.30pm.

8. The father and the mother shall do all things to cause C to commence and continue therapeutic counselling with Ms F from Term 1, 2014, including (but not limited to):

   8.1.Sign any document and give all necessary consents to Ms F providing such therapy or treatment;

   8.2.Equally paying any cost between the benefit payable by Medicare and the actual costs of therapy;

   8.3.Communicating and engaging with Ms F in relation to any aspect of C’s treatment or therapy that requires the participation of the parents, or the exercise of any aspect of their parental responsibility.

9. The children, B (and C from Term 1, 2014) attend for counselling upon Ms F, Psychologist, at times and frequency as recommended by her and either individually or together as recommended by her provided that such appointment times do not require the children to be removed from attendance at school. In the event that Ms F is not able to provide therapy to the children in accordance with this Order, then the children shall attend upon an alternate psychologist located in the H region as agreed but failing agreement then as recommended by Ms F and the Independent Children’s Lawyer.

10. Other interim applications by the parties that have not been adjourned to another date are dismissed.

11. Pursuant to s 65DA(2) and s 62B, 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. 

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

FILE NUMBER: WOC 856 of 2012

Ms Pallas

Applicant

And

Mr Pallas

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The mother applies to change the frequency and duration of the time the children spend with their father, and seeks orders that would allow her to travel with the children to Country O for four weeks over Christmas 2013.

2. The parties had entered into interim consent orders on 6 September 2013 as a result of two changes in circumstances. Firstly, B and C’s commencement at a mainstream school, and secondly, the withdrawal of Ms N’s services as supervisor. The father’s time with the children is now supervised by Care South Contact Service, pursuant to Order 2 of Exhibit 2 of the Orders dated 6 September 2013.

APPLICATIONS

1. The mother adopted the Independent Children’s Lawyer’s proposal that C and D spend time with their father every Tuesday from 4.00pm to 7.00pm, and three out of every four Saturdays from 10.00am to 6.00pm, and that B spend time with the father in accordance with her wishes.

2. The father opposed that application. He seeks that during school term, all three children spend time with him from 3.45pm to 6.45pm on Mondays and Thursdays, and three out of every four Saturdays from 9.00am to 5.00pm.

ISSUES

Overseas travel

1. The mother seeks to travel to Country O for four weeks over the 2013-2014 Christmas school holidays. Pursuant to the Orders of 15 April 2013, the mother and the children were permitted to travel to Country O for four weeks during July and August 2013.

2. The father seeks by way of final orders that the mother spend a maximum of five weeks overseas per year, such weeks being during the July school holidays and for one half of the Christmas school holidays. That is, notwithstanding the children spent four weeks overseas in the middle of this year, the father agrees to the children spending three weeks overseas at Christmas.

3. The father says that long periods of time away from him would have an adverse effect on the children’s relationship with him. As counsel for the mother pointed out, the parties are only a week apart in relation to the time overseas this Christmas. If the children were to spend four weeks overseas, rather than three weeks, that would result in the father missing out on spending time with the children on two or three occasions (based on the current orders).

4. The Independent Children’s Lawyer pointed to paragraph 25 of the father’s affidavit where he says that he did not see the children from 5 September 2013 until 21 October 2013 as a result of changing supervisors. The father gives evidence that upon recommencement of their time with him, D and C were affectionate to him, expressed that they had missed him, and were happy during the contact visit. The Independent Children’s Lawyer submitted that this is not a case where the children’s relationship with the father has been significantly impacted by a short cessation in contact.

5. The father says in his affidavit “I understand [the mother’s] desire to go to [Country O] and the benefits that travel gives to the children to spend time with [the mother’s] family.”

6. The children’s first language is Country S. They have spent significant periods of their life in Country O. I accept the mother’s evidence that the children have a very strong bond with all of their extended maternal family.

7. I find it is in the children’s best interests to travel to Country O for four weeks.

8. Order 8 of the Orders dated 15 April 2013 requires the mother to give four weeks’ notice to the father of her intention to travel. Given that Christmas is now less than four weeks away, and the father is well aware of her intention to travel, I shall order that the mother provide the father with notice and her itinerary as soon as is practicable.

9. Neither party sought a formal order in relation to makeup time. Counsel for the mother said there was no issue with the mother providing makeup time. Given I have found it is in the children’s best interests to travel to Country O for four weeks, I find it is appropriate to order makeup time in relation to the one extra week the children will be overseas. I will order that the parties agree in writing on two occasions the children will spend with the father. Such time is to be additional to any time the father would ordinarily spend with the children.

10. The Orders of 15 April 2013 included an order for the children to have skype contact with the father while they are overseas. I accept it is appropriate for the children to speak to the father while they are overseas. The mother seeks that Order 9 of 15 April 2013 be varied such that, failing agreement between the parties, the children speak to their father at 9.00am local time, rather than 8.30am. I have no evidence upon which to base that decision. There is no agreement from the father. The current order will stand. That does not mean that the parties may not reach some different agreement.

The days the children spend time with their father

1. Pursuant to the orders made by consent on 6 September 2013, the children are currently spending time with their father five times a fortnight; three hours each Monday and Thursday, and six hours on alternate Saturdays.

2. The mother and Independent Children’s Lawyer seek to reduce the frequency of contact, but increase the duration of contact. The Independent Children’s Lawyer seeks C and D spend time with their father on Tuesdays afternoons for three hours, and spend time with their father on 3 out of every 4 Saturdays for eight hours. The Independent Children’s Lawyer submitted this would still result in the father spending 36 hours with the children over a four week cycle.

3. The father seeks that C, D and B spend time with him for three hours every Monday and Thursday. He agrees to the children spending eight hours with him on three out of every four Saturdays (although, as I indicate below, the parties disagree as to the commencement time and conclusion time).

4. The Independent Children’s Lawyer submitted that Dr M’s report did not prioritise the frequency of contact between the children and the father over the duration of contact.

5. The Independent Children’s Lawyer submitted that reducing the frequency of weekday contact from twice a week to once a week would reduce the stress on the children. She further submitted that, given B and C are now in mainstream schooling, they would only have one late night a week.

6. It is common ground that B is resistant to spending time with the father. B is now 11 and a half years old. The Independent Children’s Lawyer seeks an order that B spend time with the father in accordance with her own wishes. In circumstances where the father has made an undertaking not to bring any contravention applications in relation to B, it is appropriate that B continue to be ordered to spend time with the father.

7. I conclude that it is in the children’s best interests, as an interim arrangement, for the children’s time with their father to be on less frequent occasions without reducing the overall time they spend with him.

The changeover location

1. The changeover location is currently R Park in P Town.

2. The mother initially sought that the supervisor collect the children from the mother’s home in I Town at the commencement of the time with the father, take the children to Q Town to meet their father, and deliver the children to T Town at the conclusion of the father’s time with the children.

3. The Independent Children’s Lawyer proposed (and the mother agreed) that changeover occur at Q Town, rather than the mother’s house. She submitted that it was important for the mother to be an active facilitator in the children spending time with the father.

4. The mother says the current changeover location is a 30 minute drive from the children’s school, and her home. She says she is driving two hours to deliver and collect the children for each contact visit.

5. The father opposes any change the changeover location. He says that that location is closer to his home, resulting in only ten minutes of travel time. He says given that, during the week, the children spend three hours with him, it would “significantly cut into the time that the children are with [him]” to spend 40 minutes travelling to get them back to his home.

6. He further says:

   The collection of the children from [the mother’s] house will also significantly add to the cost of the supervisor, which is currently $1,140 per week. I have been advised by Care South that currently I am not charged for a travel rate if the children are collected and dropped off at [R Park]. If the children were to be collected and dropped off from [the mother’s] home in [I Town], this would incur travel charges as follows:

   a.Weekday rate would increase from $362 per contact to approximately $729,

   b.Weekend rate would increase from $835 per contact to approximately $1,429…

7. The father also says that the children are used to changeover at R Park.

8. Counsel for the father submitted the variation the mother seeks is for her own convenience, rather than being in the children’s best interests.

9. As the mother points out, reducing the frequency of contact with the father during the week will save the father money.

10. I accept that given the limited amount of time the children spend with the father during the week, it is appropriate for changeover to be at a location close to the father’s home.

11. The mother’s evidence is that T Town is approximately ten minutes from the father’s home. If all changeovers were to occur at T Town it would minimise the mother’s driving time and have no detrimental effect on the father’s time with children.

12. I have no evidence of the financial impact on the father if the changeover location is T Town. However, given the logic of a changeover position that is geographically in between the father’s home and the children’s school, I will order changeovers occur at the playground near the beach at T Town unless the parties otherwise agree in writing.

The commencement time the children spend with their father

1. B and C commenced mainstream schooling on 2 September 2013. B and C finish school at 3pm.

2. The children currently spend time with their father from 3:30pm to 6:30pm on Mondays and Thursdays and from 11am to 5pm on alternate Saturdays.

3. The mother and Independent Children’s Lawyer seek to change the time the children spend with their father during the week to 4pm to 7pm.

4. The mother asserts that the children’s anxiety is exacerbated by the pressure of arriving at the changeover location on time. She further gives evidence (supported by Ms N) that it often takes up to 30 minutes to persuade the children to spend time with their father.

5. The father seeks the time be changed to 3:45pm to 6:45pm. The father says that he believes the children could be delivered by 3:30pm but “accept[s] that there may be some short delays from collecting the children at school and… [is] prepared to compromise on a 3.45pm pickup.”

6. The father says that “it is difficult to get supervisors once the supervision time is after 6pm.” I am unable to readily accept that assertion, given the father’s own proposal will result in supervision after 6pm.

7. I accept the mother and Ms N’s evidence that the children’s reluctance in attending contact visits with their father often results in the mother and supervisor spending a significant amount of time encouraging the children to attend. I find that it is appropriate for the father’s time to commence at 4pm, which would allow sufficient time for the mother and children to arrive at the changeover location and will decrease the likelihood of the father’s time being impacted by problems surrounding the changeover process.

8. The mother seeks to change the time the children commence time with their father on Saturdays to 10am to 6pm. The father seeks the time on Saturdays be from 9am to 5pm. Counsel for the mother submitted a later start time would give the children more time in the morning.

9. I have no evidence upon which to base a decision. The decision is non-judiciable. Exercising the wisdom of Solomon, I will order that the children spend time with the father on every three out of four Saturdays from 9.30am to 5.30pm.

Attendance upon therapists

1. The father seeks that B attend a new family clinical psychologist to address the enmeshment and anxious attachment between B and the mother. B is currently undertaking therapy with Ms F.

2. In his report dated 26 July 2013, Dr M opined that it is difficult to determine whether B’s attendance with Ms F would lead to an improvement in her relationship with the father. Dr M notes “Ms F seemed to feel that progress in this respect has been slow so far, if at all.”

3. The father says that B has been attending on Ms F for three months. The father has attended three sessions with B. He says he is concerned the therapy is not progressing. He says that Ms F “had an expectation there would be greater progress” and “expressed her concern about the lack of progress”.

4. The mother says that she observes B has a “marked change in her demeanour” after attending upon Ms F. The mother says B “comes out of her sessions smiling and relaxed and seems less tense about life.”

5. The Independent Children’s Lawyer submitted that it would not be in B’s best interests to start attending upon a different therapist in circumstances where she has engaged with the Independent Children’s Lawyer, Dr M, Ms U (for the purpose of an educational assessment) and with Ms F.

6. The Independent Children’s Lawyer sought that C undertake therapeutic counselling with Ms F from the commencement of Term 1, 2014. In his report, Dr M said:

   If [Ms F] is able to assist [B] with her relationship with her father, then at some point it may be of assistance if [C] sees her as well, with the same goal in mind. Given the slow progress with [Mr Pallas] and [B] up until the beginning of July, this will probably not occur for some time and I would not recommend beginning such therapy in any event until [C] has made significant progress into settling into school.

7. The Independent Children’s Lawyer submitted that if counselling were to commence from the start of term 1, 2014, that would mean C had over a term to settle into school.

8. The mother says that C has asked to speak to Ms F. The mother submitted that counselling is important in circumstances where, as the reports of Ms N demonstrate, C is showing increasing resistance to spending time with the father.

9. Although counsel for the father indicated that the father opposed the orders the mother sought, no submission was made against C commencing counselling with Ms F.

10. Dr M’s recommendation that C commence counselling seemed conditional upon Ms F being able to assist B in her relationship with her father and C settling into school. In the context of an interim hearing, I have no objective evidence as to B’s progress with Ms F. Nonetheless reports of C showing increased reluctance to see the father lead me to find it is in C’s best interests to commence counselling with Ms F at the commencement of term 1, 2014.

11. Consistent with Order 11 of 15 April 2013, I will order the parties share equally in the cost of C’s therapy.

12. The Independent Children’s Lawyer sought that B and C’s counselling occur at times that do not require the children to miss out on any schooling.

1. In his report, Dr M notes Ms U’s report in relation to B and C’s significant academic difficulties. Dr M expresses concern in relation B and C’s counselling with Ms F reducing school attendance time.

2. The mother says she is “prepared to travel to Sydney after school to accommodate the children’s attendance on [Ms F].” I accept an order of the nature proposed by the Independent Children’s Lawyer would be appropriate.

3. I note that should Ms F be unable to provide therapy outside school hours, the children may have to attend an alternate therapist situated more locally, in line with Dr M’s recommendation (and the father’s proposal). That therapist is to be as recommended by Ms F and the Independent Children’s Lawyer.

4. The father seeks an order that the mother attend a therapist. The mother sought an order that the father attend a therapist. I am not minded to order that either party attend counselling. That is a matter for the parties. I note the father gives evidence that from March 2013 until September 2013, he attended upon a counsellor, Dr V, and following Dr V’s retirement, he has sought to attend upon Mr W.

Other orders sought by the parties

1. The father also sought orders that he be permitted to have his brother, his brother’s wife and their children be present during the times he spends with the children. Neither counsel, nor the Independent Children’s Lawyer made any submission on that proposal. The current orders do not place any restriction on who may be present when the children spend time with the father, save for a supervisor from Care South Contact Service. In circumstances where the father does not seek for his brother to supervise in place of a supervisor from Care South, there is no need for a specific order permitting the paternal uncle, his wife, and his children to be present when the father spends time with the children.

2. The father sought an order in relation to the spending time longer periods of time with the children during school holidays. Counsel for the father made no submissions on that proposed order. In those circumstances, and in circumstances where I have permitted the children to travel overseas for four weeks over the upcoming school holiday period, I will not make an order that the children spend additional time with the father during school holidays.

3. The mother sought an order removing the children from the Airport Watch List. The children’s names were placed on the Airport Watch List pursuant to Order 10 of the Orders dated 15 April 2013. It is unclear if the children are currently on the Watch List. If the children are on the Watch List, the order remains operative, and the father will need to provide written consent for the children to travel to Country O this Christmas, after receiving from written notice from the mother of her intention to travel.

4. The mother also sought an order in the following terms:

   9. The mother shall encourage and do all things to facilitate the children’s attendance for time with their father but is under no obligation to force the children to spend time with the father against their will.

   I have already referred to the father’s undertaking not to pursue any contravention application in relation to B. The mother has an obligation to make all reasonable attempts to comply with Court orders. I will not make the order sought.

5. The mother also sought an order that the father’s solicitors advise of a time and date for the mother’s solicitors to uplift and copy the father’s disclosure documents. Neither counsel addressed me on this matter. The orders the mother sought in relation to the financial proceedings have been adjourned.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 3 December 2013

Associate: 

Date:  3.12.2013