Polland and Haberger (No 3)

FAMILY COURT OF AUSTRALIA

POLLAND & HABERGER (NO. 3)

[2009] FamCA 849

FAMILY LAW – CHILDREN – With whom children live and spend time – Undefended hearing

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT:

Mr Polland

RESPONDENT:

Ms Haberger

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

1581

2007

DATE DELIVERED:

5 AUGUST 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

5 AUGUST 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR HAMS

SOLICITOR FOR THE APPLICANT:

MADISONS LAWYER

THE RESPONDENT:

NO APPEARANCE

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS CURTAIN

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

TAYLOR SPLATT & PARTNERS

Orders

That all extant parenting orders are discharged.
That the husband have the sole parental responsibility for the children T born … March 2002 and K born … August 2004.
That the children live with the husband.
That the wife spend time with the children on each alternate Sunday between the hours of 10.00am and 6.00pm commencing 16 August 2009 upon condition that:
(a)the wife text the husband a confirmation of her intention to attend at the handover point and have the children for the time stipulated under these orders, such text message to be received no later than 7 days prior to the relevant due date for handover; and
(b)that the changeover occur at the C Police Station.
That the Independent Children’s Lawyer be discharged from the proceedings.
That the wife be at liberty to communicate by telephone with the children on each Wednesday between the hours of 5.30pm and 6.30pm.
That the Independent Children’s Lawyer serve upon the wife at her last known address by pre-paid mail, a copy of these orders and the reasons for judgment in due course.
That the costs of the Independent Children’s Lawyer be reserved to be determined in the event that the wife makes any further application under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
That the husband’s costs be fixed in the sum of $2500 and be reserved to be determined in the event that the wife makes any further application under Part VII of the Act.
That the wife pay to the husband the sum of $275 being the cancellation fee of Dr E.
That all proceedings be otherwise dismissed and removed from the list of cases awaiting a hearing.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That 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 under the pseudonym Pollands & Haberger is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1581 of 2007

MR POLLANDS

Applicant

And

MS HABERGER

Respondent

REASONS FOR JUDGMENT

Mr Pollands seeks final parenting orders relating to two children of his marriage to Ms Haberger. The children are a son T born in March 2002 and a daughter K born in August 2004.
For the purposes of these reasons notwithstanding the parties are divorced, I shall refer to them as the husband and the wife.
The matter came before me as the first day of a trial on Wednesday 5 August 2009. The husband and the Independent Children’s Lawyer were represented by counsel. There was no appearance by or on behalf of the wife.
The husband sought to proceed with his application for final orders on an undefended basis. For reasons which follow, I agree that is an appropriate course of action and more importantly, in the best interests of these children.
The husband was born in 1968 and is therefore 40 years of age. The wife was born in 1973 and is therefore 36 years of age.
The parties married in December 1999, separated on 25 May 2005 and were divorced on 29 March 2007.
The husband has remarried in May 2007. His wife is aged 33 years and has two children from her previous marriage who are approximately eight and four years. They are about to come to Australia later in 2009.
The husband is a builder by occupation and I know little about the wife’s current circumstances.
In 2005, there were proceedings between the parties which culminated in orders. That was later varied by a parenting plan. The children up until the end of 2008 lived with the wife but circumstances radically altered thereafter.
On 22 December 2008, the husband filed an application for final orders returnable on 23 January 2009. The application sought orders that he have sole parental responsibility for the children, that they live with him and that the wife spend time by agreement or by court order with the children.
The wife filed a response on 3 March 2009. She was not represented. Her handwritten response indicted that she wanted the children returned to her care and that they should reside with her. Failing that, she sought orders that she have daily contact with the children and face to face time with them every weekend. She went on to say that she wanted to have a say in their spiritual education and that the children not be bound by the applicant’s religion which is apparently Catholicism. She sought orders for the children not to be chastised or bullied and that they be protected from the consumption of alcohol, un-prescribed drugs and exposure to smoking.
The wife also sought a variety of special occasion time in the event that the children were not to live with her.
Interim orders were made by Senior Registrar FitzGibbon on 23 January 2009. The husband was represented by counsel and the mother appeared in person. The matter had originally been listed before Registrar Sikiotis and apparently had been requested to transfer the matter to the Senior Registrar. The Senior Registrar heard the parties and made a variety of orders including significantly:
(a) that the children spent time with their father for specified periods;
(b) that changeovers occur inside S Police Station;
(c)that neither party discuss the proceedings or the evidence with the children.
The Senior Registrar also made orders for the children to be independently represented.
The matter came on for hearing on 4 February 2009 before Mushin J. He adjourned it for six weeks. During the intervening period, his Honour ordered that the children live with the husband and spend time with the wife from 10.00am on Saturday until 4.00pm on Sunday on each alternate weekend with the changeovers taking place at the N Police Station. In addition, his Honour ordered that the wife communicate with the children each second day at 6.00pm by telephone.
In March 2009, the matter came again before Mushin J. His Honour ordered that until further order the children reside with their father and spend time with their mother on each alternate weekend from 10.00am Saturday until 4.00pm Sunday and that there be telephone communication three days per week. Importantly, his Honour ordered that the wife attend upon a psychiatrist nominated by the Independent Children’s Lawyer for the purposes of an assessment.
A variety of other orders were made including an invitation to the Department of Human Services to intervene pursuant to s 91B of the Act.
In his reasons for judgment for the orders made on 4 February 2009, Mushin J noted with concern the wife’s affect. He described it thus:
She was visibly highly upset, shaking and in a very distressed state.
The comments of Mushin J and the orders he made were in the context of the mother consenting to final orders which varied a long standing status quo. His Honour strongly advised the wife to obtain legal representation but in the event that she did not do so, he suggested the matter could proceed on an undefended basis. His Honour also noted that he had read the transcript of the proceedings before the Senior Registrar to which I have referred. He noted the Senior Registrar expressed some concern about the thoughts “uttered by the mother” during the proceedings.
In his Honour’s reasons for the orders made on 18 March 2009, noting that he his Honour was seeking a psychiatric assessment of the mother, he said:
On the father’s side there is extensive material from the Victoria Police with regard to their involvement with this family and particularly the mother. That material has simply strengthened and corroborated the matters of concern which I expressed in my previous reasons for judgment. The material refers to numerous reports of abuse and like matters allegedly by the father against one or both of the children which have been founded by the police to be unsubstantiated.
The material refers to frequent discussions between members of the police force and members of the Department of Human Services of the State of Victoria with regard to this family and records members of the Department of Human Services as being of the same view as the Victoria Police with regard to the unsubstantiated nature of a large number of allegations made by the mother against the father in his conduct towards the children.
While it has not been an advantage to the mother I have had the advantage today of her appearing in person. I have had the opportunity not only of hearing her oral submissions and reading her affidavit material but observing her affect and conduct in court. Those observations completely confirm in my mind the evidence to which I have previously referred with regard to the mother’s conduct not as to the truth of the facts but as to her conduct with regard to her criticisms of the father and her failure to substantiate them with evidence other than from her own mouth.
The matter seems to have remained dormant until it came before Registrar Sikiotis on 28 May 2009. On that occasion, Mr Ham of counsel appeared for the husband. The wife appeared in person and the Independent Children’s Lawyer appeared.
The evidence of the father before me is that the wife has not seen the children since just prior to that last hearing. In other words, as I finalise this matter today, there has been no contact between the children and their mother for somewhere between two and three months. No explanation has been given for her absence.
Mr Curtain on behalf of the Independent Children’s Lawyer has told me that letters have been written to the wife. None of those have been returned unclaimed and there has been no response to them.
It was quite clear in the orders of Registrar Sikiotis of 28 May 2009 that 5 August 2009 was to be the first day of the trial before me. It was clearly noted that the proceedings were to be conducted pursuant to Division 12A of the Act. Various orders were made for the husband and wife to file material. Registrar Sikiotis ordered the Independent Children’s Lawyer to serve a copy of the orders on the wife and I am advised that that has occurred.
The wife was called outside of the court and there has been no appearance. It is difficult in cases involving children to draw inferences about parental conduct where there is no assistance from the litigant. There was no question in my mind that the parties understood this was to have been a final hearing. Added to the absence of the wife from the proceedings and the fact that she has not filed any further material, I sadly find that the wife has not been an active participant in the lives of the children subsequent to May. It is in the best interests of the children for the uncertainty about the involvement of their mother in their lives come to an end.
It is also important to recognise that the parties and in particular, the wife have an obligation to provide to the Court extensive material not only about what has happened in the past but also what proposals should be contemplated by the Court for the purposes of making an order which is ultimately in the best interests of the children. That must apply not only in respect of how and where the children live but also in relation to decisions about parenting responsibility. This is a case in which the wife has not complied with any orders of the court since May 2009. She was urged to obtain legal advice and apparently has not done so. Importantly, Mushin J ordered that the wife undertake a psychiatric assessment. The husband’s evidence is that he was requested to pay for that in advance and he did so. The wife did not attend the appointment with the psychiatrist as a result of which the husband’s money was refunded to him save for a cancellation fee of $275. No explanation has been given by the wife for her failure to attend but it was obviously a matter of significant concern to Mushin J and it is also to me. The power to hear a case on what is often described as an undefended hearing is set out in Rule 11.02(2)(c) of the Family Law Rules 2004 which provides:
(2) If a party does not comply with these Rules, the Regulations or a procedural order, the court may:
…
(c) determine the case as if it were undefended;
An undefended hearing means literally that the respondent does not participate at all. The mother has chosen not to appear today and has ignored all requests to try and work out some solution for her children.
I do not know what her views are about the care of the children or how she is going to participate in future in their lives but having regard to the evidence I have heard to which I shall refer, the husband is certainly indicating that subject to some restraints, she should be having some time with them.
It is appropriate therefore that the husband have leave to proceed in the absence of the wife.
The husband relied upon an affidavit filed on 22 December 2008 sworn by himself and another by his legal practitioner filed on 7 April 2009. He also relied upon two affidavits filed by the wife on 3 March 2009.
In addition, the husband gave oral evidence.
The husband’s amended application was filed on 29 June 2009. In that application, he sought orders that he have sole parental responsibility for the children and that they live with him and that time between the wife and the children be by agreement. Initially the husband changed that position to specific orders that the wife spend each alternate weekend from 10.00am Saturday until 4.00pm on Sunday with the wife on condition she gave notice and that the location occur at the G Police Station. Initially that position was also supported by the Independent Children’s Lawyer. However as a result of the evidence that I heard predominantly in relation to the fact that the mother’s whereabouts are currently unknown and therefore the circumstances under which the children would be living are unknown, I indicated I was not at all comfortable about the block period proposed.
Where the husband and the Independent Children’s Lawyer did not agree was in relation to the handover point. It is common ground that the handover of these children has traditionally been at a police station and as I have outlined above, one order provided for the handover to occur inside the police station. That is as a result of the behaviour of the wife.
The husband’s evidence was also contained in an affidavit filed 7 April 2009. That affidavit responded however to the material filed by the wife.
What follows therefore are findings of fact. It does without saying that the standard of proof falls upon the applicant and that the standard applied has been that set out in s 140 of the Evidence Act 1995 (Cth) namely the balance of probabilities.
The father indicated the reason for bringing the application as his concern about the health of the wife. Those observations of the wife caused him to fear and have concern about, the emotional and physical safety of the children.
According to the husband, the mother was assaulted seriously as a teenager on two separate occasions and he explained those as the cause of her current problem as she had been diagnosed with post-traumatic stress disorder. He said that that diagnosis affected her day to day behaviour and impacted adversely upon the children.
The husband said that the wife had attended a number of psychologists over the years and a psychiatrist as a result of a suicide attempt when she was in her teenage years.
The husband’s evidence indicated a level of paranoia on the part of the mother. She changed the crèche of the children on a number of occasions believing there was some form of conspiracy against her by other mothers and because they were talking behind her back. She constantly believed that the telephone number was tapped resulting in complaints to Telstra.
The husband said that prior to separation, the wife would spend lengthy periods in bed neglecting the children and he came home to find the children scrounging food and unattended. He said that during this period of time despite his attempts to assist her, he was met with verbal abuse, obscenities and on occasion, physical assaults. He said these regularly occurred in the presence of the children.
The husband also said that the wife had reported him to the Department of Human Services and to the police sexual assault unit on at least seven occasions in the previous years to 2008. No action was ever taken against him because those involved in the investigations were concerned about the state of the wife.
This general problem gave rise to intervention by the Department of Human Services in December 2008. That period of time included the wife obtaining an intervention order on an ex parte basis against the husband but ultimately, the police who had apparently instituted the complaint chose not to proceed with it.
The husband said that on all occasions, the allegations made against him were groundless. That in turn led to the husband making an application to vary the orders made in 2005 which had been varied by an agreement between the parties by way of a parenting agreement in 2007. In turn, that led to the proceedings before the court to which I have earlier referred. On 3 March 2009, the mother filed a typed affidavit which responded to the affidavit of the husband. She said that the husband had sent people to her home and in the middle of the night she could hear noises. She ventured outside to find someone had been in her car which ended up “blowing up” one day. Accordingly, she had to travel by public transport.
She accused the husband’s sister of verbally intimidating her. She went to the police station for the purposes of the handover of the children only to find that the policeman began to shout at her saying that she was being ridiculous and told her to stop being immature. She was asked by the police officer to leave the police station and that in turn forced her to hurriedly say goodbye to the children. The wife asserted that the husband and his sister were using intimidation techniques.
In a second affidavit filed the same day, the wife comprehensively set out details of evidence she wished the court to rely upon for the hearing in March 2009. She set out that she had bonded well with the children.
The wife referred to the fact that the husband had been given the children “reluctantly” on 4 February 2009. She said that over the years he had harassed and pressured her into agreeing with whatever he wanted and had often stated that he would take the children from her. She said that she had read the material produced under subpoenae by the Victoria Police and the Department of Human Services and believed that they were “corrupt and untrue”. She said the children had no hope of being with their “birth mother” because of “mishandled information and lies”.
The wife said that the husband was harassing and threatening her every week with texts as well as through solicitor letters and “silence threats” were the applicant husband was sending someone around to her home. None of these assertions by the wife is supported by any material that I have read including the comprehensive subpoena documents attached to the affidavit of the husband’s solicitor.

It is difficult to follow why the situation has come to this because the wife’s affidavit is articulately written and would appear to show a reasonably accurate historical record.
In respect of the post-traumatic stress disorder, the wife said that the husband was misinformed. She said she had been suffering because she did not have her children and she had a constant pain in her chest. She said she missed her children terribly. She said the husband’s abuse over the years had drained her and left her “wary”. There is no evidence that I can see other than the wife’s assertions in any of the material produced pursuant to subpoenae which would corroborate what the wife says.
The mother confirmed what the father said about the father’s historical retelling of what had happened to her in her teenage years and she denied that the husband encouraged counselling. Quite the contrary, she said he complained about the cost of counselling.
The wife said that the husband was a violent man. But there were no specifics set out in the affidavit. She said that she was a good caring mother and did her best to protect her children. She said that both of the children were scared of the husband.
At paragraph 62 of her affidavit, the wife said the following:
DHS have only been informed of some of the genuine concerns I have for the children. The applicant’s family and friends protect the applicant and have also inflicted pain on the children. One particular time [T] explained how someone was using a stick to hit his legs. There have been many other incidences, one particular incident my son claimed that his “zio” had dropped him on the head on the concrete, sexual matters including other family members, punches to the head and back and nose and thrown down stairs and more. It frightens me what [the children] have been through.
It is hard to follow exactly what all of that was about but I have had the opportunity to hear from both counsel for the Independent Children’s Lawyer. Each has indicted that there is no basis in any of the material to be concerned about statements such as that.
The wife went on to say that T had told her and a policeman about sexual abuse. According to the Independent Children’s Lawyer, I should have no concerns about the child in the husband’s care.
The mother alleged that records had disappeared off the N police system. She said she had reported things in the past but there was no record of the. She said that reports to the “DHS” or the police were inconsistent with what she was told. She said she was not aggressive or abuse nor was she suffering from any psychological illness. She said that if anything, she was getting worn out from being an advocate for her children and the children not being listened to.
The mother did say that she was writing things herself because she was waiting for approval from Legal Aid and that she was unsure about her solicitor because of the terrible situation she had been put in. She had previously had a solicitor but he had let her down by not acting properly on her behalf.
Notwithstanding those assertions in March 2009, the mother has not participated in the proceedings further nor seen the children since shortly after that period of time.
I have read the affidavit of Mr B filed 7 April 2009 in which he annexed a variety of documents drawn from records produced pursuant to subpoenae. Based on the documents to which Mr B refers as a response to the assertions of the wife, I could not find that there is any substance in the matters to which she has sworn. On the balance of probabilities therefore, I find that there is no substance to those matters.
Because of the fact that the affidavit material of the husband was somewhat outdated, I requested that he give evidence to give me some indication as to what was happening in the children’s lives. He said that the school reports showed that the children were average to above average and that they were mixing well with friends. They were settled in the environment in which they were living. He said that K was obtaining speech pathology assistance and both children were getting counselling because they felt they had been abandoned by the mother. He said it helped them to talk and understand that it was not their fault that their mother did not have any relationship with them. In respect of the children individually, he said that K did not raise her mother although T had mentioned his mother on a couple of occasions simply to point out things that he and the wife had done together. He thought that K was coping better than T but that T was hurting on a different level. The children were therefore seeing the psychologist on a fortnightly basis.
He said that with the situation about to change with his new wife and children coming to live in Australia, he needed a bigger home and as a result, he had put down a deposit. He said the location generally would be the same and that the children would not need to change schools.
When asked as to the whereabouts of the wife, he said he had no idea. He said there were immediate family in the area but others were overseas. In respect of the maternal grandmother he said he had a decent relationship with her until the separation and that subsequent to April 2009, there had been no contact at all.
In relation to child support, he confirmed there was an assessment of $65 per month but he was not receiving that sum and there was currently a dispute with the Agency which arose out of the timing of the change of the children pursuant to the orders.
The husband also said that there was an intervention order in his favour against the wife and no intervention against him in favour of the wife.
He said he had concerns about the wife’s capacity to care for the children and the prospect of the children staying with the wife overnight in uncertain circumstances was something that troubled him.
He thought that if a condition was put on orders then the wife would contact him if she wanted to see the children.
In relation to the question of the handover point, he was adamant that a contact centre was not appropriate because of the reactions of the wife and that the police presence seemed to have some impact on her compliance.
As to which police station should be involved, he said that they had tried S but not C and that C was closer for the purposes of costs of travel and the time that the children were in the motor car.
In terms of the evidence, I have no reason to doubt what the husband says. He is currently the only person caring for the children and the involvement of the wife remains a mystery.
Section 60B of the Act reads as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The objects of the Family Law Act 1975 (Cth) (“the Act”) are clear and the principles which underlie those objects are the focus of attention in any proceeding in which there is a dispute about parenting orders. However, the fundamental principle that must govern the determination is set out in s 60CA which reads:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Whilst the best interests of the child are not the only consideration they are clearly the paramount consideration. In this case, I have little alternative because I have no information provided to me. Having regard to the statements set out in the reasons for judgment by Mushin J expressing concern about the behaviour of the wife together with the evidence that I have taken into account, it seems to me that the choices are clear.
To determine what is in the best interests of the children, I am obliged to take into account the matters set out in s 60CC of the Act.
Section 60CC(2) provides primary considerations are:
(a)the benefit of the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Obviously in addition to a primary consideration, it is one of the objects of the Act that children have the parents involved in their life to the extent that they benefit from having a meaningful relationship with them. I cannot force a parent to participate in the lives of the children. In this case I have no understanding of what sort of relationship the children have with their mother. I accept that the husband has engaged a counsellor to assist the children to understand what is happening in their lives and I do propose to leave the door open for the wife to have an opportunity to build the relationship but it must be in limited circumstances based on the evidence that I have. Those limited circumstances arise because of the need to protect the children from physical or psychological harm by not only being subjected to the abuse and violence which has occurred at changeovers but also the unusual behaviour of the wife particularly in relation to reporting incidents which seem to have no basis in reality.
Accordingly, it seems to me that the only way that I can engender a meaningful relationship between the wife and the children is if I make some provision for her placing the onus on her to organise the time with the children. It must be in circumstances where the children are protected as best I can arrange.
There are a number of additional considerations in determining what is in the best interests of the children.
I do not have any evidence about the views expressed by the children but having regard to their ages, I would have little concern about giving their views much weight.
All of the evidence points to the fact that the nature of the relationship between the children and their father is a sound one and I have little knowledge about how the children will react to their mother. She has not provided me with any assistance.
The husband has indicated the willingness and ability to facilitate a relationship albeit with appropriate safeguards. That must be seen as something to his credit. He has also taken the issue of the absence of the wife seriously by arranging counselling to try and help the children through that difficult stage of understanding the absence of their mother.
I have taken into account that with no information about how the wife would care for the children, nor how they would react to being away from their father, it is appropriate for me to take a cautious approach.
There are possibly practical difficulties associated with the wife having time with the children on the basis of her evidence in early 2009 indicating that she no longer has a motor car. However, the public transport system is such that she could endeavour to get to for example the C railway station which is not far from the C police station. In those circumstance, I do not see any financial impediment to the wife having time with the children.
I do not understand what the wife’s position is in relation to her ability to provide for the needs of the children. Those needs include emotional and intellectual needs. The wife’s lengthy affidavit in March 2009 gave me little insight as to how she would provide for the children and hence her capacity to do so. On the basis of the evidence that I have, I have no concerns about the capacity of the husband to care for them.
One of the questions that a court must take into account in determining what is in the best interests of the children is how each parent shows their attitude towards the children and the responsibilities of parenthood. One of the sad facts in this case is that the wife has absented herself from participating. She has not fulfilled the order of the Court by attending upon a psychiatrist which may have given some insight into the difficulties of the nature to which I have earlier referred. I would not conclude that she is an irresponsible parent by her lack of involvement. It may very well be as a result of her paranoia or some health issue. However, that does not solve my dilemma as to why she has not participated in these proceedings with or without legal representation.
Section 60CC requires me to take into account any family violence order that applies to the husband. There is a final order in existence. It is a proven fact that children who are exposed to conflict suffer emotionally later in their lives. It destabilises the relationship within families. The family violence order speaks for itself and establishes that the court at least that made the order was concerned about the behaviour of a parent. In this case therefore I conclude that the wife does not take the role of parenting seriously by behaving the way she has notwithstanding there may have been some problems with her mental health.
One of the options open to me was to give the wife another opportunity to participate in the proceedings but having regard to her deathly silence in the area, I do not think that that is fair to the children. Section 60CC(3)(l) requires me to consider whether it would be preferable to make an order that would least likely lead to further proceedings being instituted. On the evidence before me, the husband is indicating a willingness to provide some time with the wife providing she gives appropriate notice and the time is limited. That seems to me to be a sensible order which would stop the parties constantly being involved in litigation.
Section 60CC(4) requires a court to contemplate not only what one parent has done to facilitate contact between the children and the other parent but also how a parent has taken up the opportunity to spend time with the children. In this case, I am satisfied that the husband has facilitated the contact by consenting to various orders and taking them seriously by participating in the requirements of those orders. I am very concerned about the fact that the wife has not taken up the opportunity to spend time with her children and her absence has obviously caused serious problems for the children to the extent that they have required counselling. That is a problem that may be explained by her mental health issues but it certainly does not assist the children.
In my view, it is appropriate to make orders for the children to live with their father and for him to provide time between the children and their mother under limited circumstances.
In every parenting case, a court is obliged to start from the presumption that the parents have equal shared parental responsibility for the children. The presumption can be rebutted if the court is satisfied that it is not in the best interests of the children for that presumption to be applied. There is no relationship between the husband and the wife in relation to the children and the absence of communication makes it impossible for decisions to be made about the future of the children without conflict. With the absence of the wife not only in the lives of the children but in the decision making processes, it is my view that not only should the presumption be rebutted but that the husband should have the sole parental responsibility in this case.
The husband also sought that I make an order for costs but having regard to the absence of information about the wife’s financial circumstances, it would be difficult to make an order that the wife pay those costs. That is particularly so having regard to the fact that a court is obliged pursuant to s 117 of the Act to start from the premise that each party is obliged to pay their own costs. The court may depart from that rule if there are circumstances so justifying the making of an order and if that is the case, the court is obliged to take into account the matters set out in s 117(2A). In this case however both the husband and the Independent Children’s Lawyer have asked me to fix their costs and reserve them to be reviewed only in the event that the wife makes further application for orders under Part VII of the Act. I think those orders are sensible in the circumstances. Similarly, the husband seeks an order that the wife pay the money that he lost as a result of her failure to attend Dr E pursuant to the orders of the court. The husband should not be out of pocket in relation to that having regard to the fact that the court required him to pay for the wife to be examined and for that issue to be determined at a later stage. Accordingly, it is appropriate for the wife to pay the costs of $275. Whether the husband can ever enforce that payment is a matter for another day.
Accordingly, I make orders in terms of the formal orders at the start of these reasons for judgment.

I certify that the preceding Ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 7 August 2009

[2009] FamCA 849

5 AUGUST 2009

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Remedies

Jurisdiction

Procedural Fairness