Ramsay and Wade
[2016] FCCA 1658
•29 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAMSAY & WADE | [2016] FCCA 1658 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – best interests of the children – parental responsibility – equal shared parental responsibility – where parties agree that they should have equal shared parental responsibility for the children – two children aged 7 and 5 years – anger management course – whether father should attend an anger management course – time for anger management course passed – (religion omitted) Christmas Day – 7 January in each year is (religion omitted) Christmas Day – arrangements for children to spend time with the father on (religion omitted) Christmas Day – (religion omitted) Easter – arrangements for children to spend time with father on (religion omitted) Easter Sunday – Father’s Day – Mother’s Day – arrangements for Father’s Day and Mother’s Day – need to reduce conflict between parents at changeover – changeovers to be at school wherever possible – alcohol – consumption of alcohol – restriction on consumption of alcohol by father whilst children in his care – drugs – prohibited drugs – restriction on self administration of prohibited drugs whilst children in father’s care or for 24 hours beforehand – smoking – where children suffer from asthma – restriction on smoking near children – injunction for personal protection of mother or other members of maternal family – whether evidence sufficient to warrant injunction – physical chastisement of children – restraint on parties from using physical discipline on children. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B |
| Cases cited: Ramsay & Wade-Ramsay [2012] FMCAfam 1436 |
| Applicant: | MR RAMSAY |
| Respondent: | MS WADE |
| File Number: | SYC 5648 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 19-22 August, 2-3, 9 October 2014 |
| Date of Last Submission: | 9 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2016 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Reeve |
| Solicitors for the Applicant: | Marsdens Law Group |
| Counsel for the Respondent: | Ms Murphy (direct brief) |
| Counsel for the Independent Children's Lawyer: | Mr Ladopoulos |
| Solicitors for the Independent Children's Lawyer: | John Spence & Associates |
ORDERS
All previous parenting Orders are discharged.
The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2010.
The children X and Y are to live with the Mother.
The children X and Y are to spend time with the Father as follows:
(a)during the school term, unless otherwise agreed between the Father and the Mother in writing, in a two week cycle commencing on the first Thursday immediately after the date of these Orders and recommencing on the first Thursday of each school term in 2016 and all years ending in an even number thereafter and on the second Thursday of each school term in 2017 and all years ending in an odd number thereafter, as follows:
(i)in the first week of the two week cycle, from the conclusion of school on Thursday until the commencement of school on the following day; and
(ii)in the second week of the two week cycle, from the conclusion of school on Thursday until the commencement of school on the following Monday PROVIDED THAT if the Monday is a public holiday or a pupil free day then until the commencement of school on the Tuesday;
(b)During the New South Wales school holiday periods at the end of the first, second and third terms in each year unless otherwise agreed between the Father and Mother in writing , as follows:
(i)In 2016 and all years ending in an even number thereafter from immediately after school on the last day of the school term until 6:00pm on the second Saturday of the school holiday period; and
(ii)In 2017 and all years ending in an odd number thereafter from 6:00pm on the second Saturday of the school holiday period until the day that the children are required to attend school at the commencement of the new school term;
(c)During the Christmas/January school holiday periods, unless otherwise agreed between the parties in writing, as follows:
(i)From 9:00am until 6:00pm on 7 January in each year being (religion omitted) Christmas Day;
(ii)In the Christmas/January school holiday period at the end of the fourth school term in 2016, for two (2) periods of seven (7) consecutive nights commencing at 9:00 am on Saturday 7 January 2017 until 10:00am on the following Saturday AND at 10:00am on Saturday 21 January 2015 until 10:00am on the following Saturday;
(iii)In the Christmas/January school holiday period at the end of the fourth school term in 2017, for two (2) periods of nine (9) consecutive nights commencing at 10:00 am on Boxing Day Tuesday 26 December 2017 until 10:00am on Thursday 4 January 2018 AND at 10:00am on Saturday 13 January 2018 until 10:00am on Monday 22 January 2018;
(iv)In the Christmas/January school holiday period at the end of the fourth school term in 2018 and each alternate year thereafter being years ending in an even number from 6:00pm on Christmas Eve 24 December until 6:00pm on 10 January; and
(v)In the Christmas/January school holiday period at the end of the fourth school term in 2019 and each alternate year thereafter being years ending in an odd number from 6:00pm on 23 December until 6:00pm on Christmas Eve 24 December AND from 6:00pm on 10 January until 6:00pm on Australia Day 26 January in each odd numbered year.
Unless otherwise agreed between the parties in writing, the children X and Y are to spend additional time with the Father as follows:
(a)On each of the children’s birthdays each year as follows:
(i)from immediately after school until 6:00pm if on a school day; or
(ii)from 10:00am until 2:00pm if not a school day;
(iii)on the weekend of Father’s Day from immediately after school on the Friday until the commencement of school on the Monday; and
(iv)on (religion omitted) Easter Sunday in each year from 9:00am until 5:00pm; and
(v)such other times if any as the parties shall agree in writing.
Unless otherwise agreed between the parties in writing, the children’s time with the Father in accordance with Order (4) above is to be suspended on:
(a)each of the children’s birthdays in each year as follows:
(i)from 4:00pm until 7:00pm if on a school day; or
(ii)from 10:00am until 2:00pm if not on a school day,
unless the children:
(iii)have been in the Mother’s care earlier that day or the day before; or
(iv)will be in the Mother’s care later that day or the following day; and
(b)on the weekend of Mother’s Day from immediately after school on the Friday until the commencement of school on the Monday morning.
For the purposes of these orders, all references to school terms and school holidays means New South Government school terms and school holidays respectively.
For the purposes of facilitating the above Orders, unless otherwise agreed between the parties in writing, changeovers where the children go from the care of one parent to the care of the other parent in accordance with these Orders, will take place at the children’s school or schools if occurring at the start or end of a school day and otherwise will take place at the McDonald’s Family Restaurant at (omitted).
The Father and the Mother must:
(a)provide each other with and keep each other informed of the names and addresses of the children’s treating doctors and any dentist, optometrist, psychologist, psychiatrist, counsellor, therapist or other health professional who may treat the children;
(b)inform each other in writing as soon as practicable of any appointment with any health professional in relation to either or both of the children; and
(c)ensure that the other parent is provided with a copy of any report by any treating doctor or any other health professional in relation to either or both of the children within seven (7) days of having received that report.
Both the Father and the Mother will be entitled to:
(a)attend any appointments with any treating doctor or other health professional relating to either or both of the children; and
(b)discuss the child or children’s condition with the treating doctor or other health professional
PROVIDED THAT the attendances are to be at the discretion of the treating doctor or health professional.
The Mother must ensure that the Father is notified as soon as practicable if, while in her care:
(a)either of the children is admitted to hospital;
(b)either of the children is involved in a medical emergency; or
(c)either of the children will be required to take medication when he or she spends time with the Father, in which case the Mother is to advise the Father of the details of the medication required to be taken and provide the Father with sufficient medication to cover the first 72 hours of the children’s time with him.
The Father must ensure that the Mother is notified as soon as practicable if, while in his care:
(a)either of the children is admitted to hospital;
(b)either of the children is involved in a medical emergency; or
(c)either of the children will be required to take medication when he or she returns to the care of the Mother, in which the Father is to advise the Mother of the details of the medication required to be taken and provide the Mother with sufficient medication to cover the first 72 hours after the children return to her care.
By this Order, any school which the children are attending from time to time is authorised to provide both the Father and the Mother with a copy of all reports, circulars, notices and documents in relation to either of the children including copies of all school reports, reports on school progress and behavioural issues, information about school photographs, newsletters and notices received in relation to functions, parent teacher nights and similar activities to which parents of children attending the school are normally invited as well as any information which may be sought from time to time by the Father or Mother in relation to either or both of the children.
Both the Father and the Mother are permitted to attend:
(a)any school event relating to either of the children to which parents are ordinarily invited; and
(b)any of the children’s extracurricular activities to which parents are ordinarily invited.
The Father and the Mother must notify each other in writing of any change to their telephone contact numbers within three (3) days of any change occurring.
The Father and the Mother must notify each other in writing of any proposed change to their place of residence no less than fourteen (14) days prior to the proposed change.
For the purposes of communicating information about the care of the children or issues relating to parental responsibility between the parties, the Father and Mother are to:
(a)communicate by telephone or text message for matters of an urgent nature; and
(b)otherwise communicate by writing or email.
The Mother must take all reasonable steps to ensure that her brother Mr N is not present at changeovers.
For a period of six (6) months from the date of these Orders, the Father must take all reasonable steps to ensure that the children or either of them are not left in the presence of Ms V unless he or one of the following adults is present:
(a)the paternal grandmother, Ms M;
(b)the paternal grandfather, Mr T; or
(c)the paternal aunt, Ms N.
The Father and Mother:
(a)must ensure that the children attend:
(i)any regular medical or health appointments; and
(ii)any regular extracurricular activities which have already been arranged or in which they have already been enrolled as at the date of these Orders; but
(b)are restrained from:
(i)re-enrolling either of the children in such activities; or
(ii)enrolling either of the children in any further extracurricular activities
if those activities would involve the children being required to attend at a time when they are in the care of the other parent unless the other parent has agreed in writing to the children participating in those activities.
The Father and the Mother are restrained from discussing with either of the children or permitting any third person to discuss:
(a)the alleged incident between X and his cousin on 2 July 2012;
(b)these proceedings; or
(c)the Reasons for this Decision.
The Father is restrained from:
(a)consuming alcohol at any time when the children are in his care, or for twelve (12) hours beforehand; and
(b)administering to himself any prohibited drug, at any time when the children are in his care or for twenty-four (24) hours beforehand.
The Father is restrained from smoking tobacco in the presence or the near vicinity of the children or either of them at any time when they are in his care.
The Father and the Mother are restrained from speaking to or about the other parent or a member of the other parent’s immediate family in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the children or either of them or permitting any third person to do so.
Neither party is to use any form of physical discipline or physical chastisement on either of the children or permit any third person to do so.
Where possible and except in cases of emergency, the parties are to ensure that the children should receive medical treatment from their usual doctor, Dr E, when they require medical attention.
The Mother is permitted to obtain Australian passports for each of the children and the father is to do all things necessary to complete any passport application within fourteen (14) days of receipt.
The mother is permitted to retain possession of the children’s passports when issued.
In the event that either party wishes to travel internationally with the children or either of them:
(a)The party wishing to travel with the children must give the other party no less than sixty (60) days’ notice of his or her intention to travel internationally with the children or either of them;
(b)The party wishing to travel with the child or children must provide to the other party no less than four (4) weeks prior to the date of intended travel copies of all flight information, itineraries, accommodation information, addresses and contact details of where and with whom the child or children will stay whilst out of Australia; and
(c)The other party must give written notice to the party wishing to travel with the child or children no later than two (2) weeks prior to the date of intended travel whether or not he or she consents to the child or children travelling internationally.
IT IS NOTED that publication of this judgment under the pseudonym Ramsay & Wade is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5648 of 2012
| MR RAMSAY |
Applicant
And
| MS WADE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for final parenting orders in respect of the parties’ two children, a boy called X, who was born on (omitted) 2008 and a girl called Y, who was born on (omitted) 2010. The children are aged 7 years and 9 months and 5 years and 7 months respectively.
Orders Sought
The Applicant is the Father. The orders that he seeks are set in his Case Outline of 19th August 2014 and provide that:
a)the parties should have equal shared parental responsibility for the children;
b)the children would live with him and spend time with the Mother each Wednesday evening and each alternate weekend from Friday afternoon until Sunday evening; and
c)further orders as set out in his Amended Initiating Application filed on 29th July 2014.
The Mother changed her position at the final hearing after most if not all of the evidence had been taken. Whilst she had previously sought an order that she should have sole parental responsibility for the children, in a Minute of Orders handed up in Court on 9th October 2014, the last day of the hearing, she now seeks that the parties should have equal shared parental responsibility for the children.
The Mother also seeks orders that:
a)the children should live with her;
b)the children should live with their father:
i)each alternate weekend from after school on Friday until the following Monday morning, with the children being collected from and delivered to school by the Father or their paternal grandmother only;
ii)for one week during the school holidays, including the Christmas/January school holidays;
iii)on 7th January in each year, being (religion omitted) Christmas Day;
iv)during (religion omitted) Easter in each year;
v)on the Father’s birthday;
vi)on the children’s birthdays;
c)the Father’s time with the children will be suspended and the children will be returned to the care of the Mother:
i)from 9:00am on Christmas Eve until 5:00pm on 27th December in each year;
ii)for the entire Easter (not (religion omitted) Easter) period from the Thursday before Good Friday;
iii)on the Mother’s birthday;
iv)on the Mother’s Day weekend from after school Friday until before school on the Monday; and
v)from 5:00pm on 25 January until 5:00pm on 28 January in each year (to cover Australia Day);
d)Changeover is to take place at the children’s school or the patio area of the McDonald’s Family Restaurant at (omitted), New South Wales;
e)The Father is to be restrained from consuming any alcoholic drink or administering to himself any prohibited drug at any time when he is spending time with the children or for 24 hours beforehand;
f)There should be an injunction for the personal protection of the Mother, her parents and her brother under the provisions of s.68B of the Family Law Act 1975 (Cth);
g)The Father should not contact the Mother except in writing via SMS or emails or via the communication book for the purpose of parenting issues;
h)A non-denigration order;
i)The parties to keep each other informed about accidents, injuries or illness sustained by the children;
j)Where possible the children are to be treated by Dr E when they require medical attention; and
k)The parties are to be restrained from imposing any physical discipline on the children.
Background
A comprehensive chronology was prepared by the Father’s solicitors as part of the Father’s Case Outline and recourse has been had to that document when preparing this background summary.
The Father was born on (omitted) 1981.
The Mother was born on (omitted) 1982.
The parties commenced their relationship in 1998 and were married on (omitted) 2007.
The parties’ son, X, was born on (omitted) 2008.
The parties’ daughter, Y, was born on (omitted) 2010.
The parties separated on a final basis on 1st January 2012. The children remained living with the Mother.
From January to April 2012 the children were spending time with the Father under the supervision of the paternal grandmother. The Mother reduced that time in April 2012.
On 29th June 2012 the parties attended mediation at the Family Relationships Centre in (omitted). A certificate under s.60I of the Family Law Act 1975 was issued.
An incident occurred in August 2012 where the Mother told the Father that the child X alleged that his cousin had put a biscuit up his bottom. The Mother reported the allegations to JIRT.
The Father then spent time with the children for two hours at a time supervised by the Mother.
The Mother commenced proceedings for an Apprehended Personal Violence Order against the Father naming herself, the children, her parents and her brother as the protected persons on 30th August 2012. The Application was returnable before Fairfield Local Court on 26th October 2012. The Application was dismissed on 23rd April 2013.
The Father commenced proceedings in the Federal Magistrates Court[1] on 21st September 2012 seeking parenting and property orders.
[1] Now the Federal Circuit Court
An Independent Children’s Lawyer was appointed on 7th November 2012;
The parties were directed to attend a Conciliation Conference before a Registrar on 21st January 2013 in respect of the property application;
On 21st January 2013 the property proceedings settled at the Conference and the Registrar made orders by Consent.
A Court Expert Report by Dr C was released to the parties on 14th May 2013.
The parties were divorced on 3rd June 2013;
The Father filed an Amended Initiating Application on 12th March 2014 seeking orders for the children to live with him and spend time with the Mother.
The Mother filed a Response, seeking that the Father should have supervised contact with the children at a contact centre.
The Father commenced contravention proceedings against the Mother on 20th March 2014.
The Mother filed an Amended Response seeking that she have sole parental responsibility for the children, that the children should live with her and spend supervised time with the Father at a contact centre.
The Father filed a further amended Application in which he sought that the children should live with him and spend time with the Mother on a fortnightly basis.
Proceedings against the Father in the Local Court were dismissed on 31st July 2014.
The Application came on for final hearing from 19th to 22nd August 2014 and was adjourned part-heard to 2nd and 3rd October and then 9th October, when the last evidence was taken and final submissions were made.
Interim and Contravention hearings in this Court
The parties have engaged in a significant amount of litigation since the father filed his Initiating Application on 21st September 2012.
On 19th December 2012, after a hearing on 10th December 2012, I handed down an interim decision providing that, in summary:
a)the Mother was to have sole parental responsibility for the children;
b)the children were to live with the Mother;
c)the children were to spend time with the Father on defined occasions under the direct supervision of the paternal grandmother;
d)the Father was restrained from consuming any alcoholic drink or administering to himself any prohibited drug at any time when spending time with the children or for 24 hours beforehand;
e)the Father was directed to attended chain of custody urinalysis on no fewer than two occasions each month in respect drugs of abuse.[2]
[2] Ramsay & Wade-Ramsay [2012] FMCAfam 1436
On 7th February 2013 those Orders were varied and a Court Expert Report was ordered to be provided by Dr C, a Clinical Psychologist.
The Father commenced proceedings against the Mother alleging that she had, on no fewer than eight occasions between 20th February and 16th March 2014, contravened the parenting Orders. On 8th July 2014 the Mother was found to have contravened those Orders on the eight occasions claimed by the Father and the proceedings were adjourned to allow the Mother, who was not legally represented, time to file and serve an affidavit in support of any contention that she had a reasonable excuse for all or any of the contraventions (Ramsay & Wade-Ramsay[3]).
[3] [2014] FCCA 1431
The contravention proceedings came back to Court on 20th to 22nd August 2014 and on and a decision was handed down on 26th August 2014 (Ramsay & Wade (No.2)[4]). In that decision, I found that the Mother had established a reasonable excuse for contravening the Orders on 20th and 23rd February 2014. I went on to find that the Mother had without reasonable excuse contravened the Orders on six occasions between 27th February and 16th March 2014.
[4] [2014] FCCA 1989
I also made interim parenting Orders in respect of an Application by the Independent Children’s Lawyer arising from the part-heard substantive proceedings heard over three days from 20th to 22nd August 2014. Those Orders varied the earlier interim parenting Orders so as to provide that in summary:
a)The parties were to have equal shared parental responsibility for the children;
b)The children would continue to live with the Mother;
c)The children would spend time with the Father on various occasions, including:
i)Alternate weekends during the school term from after school on Friday until the start of school on the following Monday; and
ii)Two periods each of seven nights during the school holiday period at the end of Term 4 in 2014;
d)Changeover would take place at the child X’s school if on a school day or at the McDonald’s Family Restaurant at (omitted) on other occasions;
e)The Mother was to take reasonable steps to ensure that her brother Mr N was not present at handovers;
f)The Father was to ensure that the children were not left in the presence of their cousin Ms V unless one of the following adults was present:
i)The Father;
ii)The paternal grandmother;
iii)The paternal grandmother; or
iv)The paternal aunt;
g)The Father was restrained from consuming any alcoholic drink or administering to himself any prohibited drug when spending time with the children or for 24 hours beforehand;
h)The Father was to undergo chain of custody urinalysis when requested by the Independent Children’s Lawyer;
i)The parties were restrained from discussing with the children the alleged incident involving X and his cousin on 22nd July 2012 or these proceedings;
j)The parties were restrained from denigrating each other or members of each other’s family in the presence or hearing of the children;
k)The parties were to use a communication book;
l)The Father was to complete an anger management course; and
m)The parties were to attend upon Dr C for the purpose of an updated Family Report.[5]
[5] Ramsay & Wade (No.3) [2014] FCCA 2051
On 9th October 2014 I handed down a decision imposing a sanction on the Mother in respect of the finding that she had contravened the interim parenting orders without reasonable excuse on six occasions (Ramsay & Wade (No.4)[6]). The Mother was required to enter into a bond under the provisions of s.70NEC of the Family Law Act without surety or security for a period of twelve months on condition that she should be of good behaviour during the term of the bond.
[6] [2014] FCCA 2333
The relevant law in respect of applications for parenting orders
When a Court is considering making parenting Orders, it must consider the matters set out in Part VII of the Family Law Act. In particular, the Court must consider:
a)The objects of Part VII and the principles underlying those objects as set out in section 60B of the Act;
b)Section 60CA, which prescribes that the best interests of the child must be the paramount consideration;
c)Section 60CC, which sets out how a court determines what is in a child’s best interests, in subsection 60CC(2) (which contains the primary considerations) and subsection 60CC(3) (which contains additional considerations):
d)Section 61DA, which deals with the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child (and when the presumption does not apply or is rebutted); and
e)Section 65DAA, which requires the Court to consider whether it is both in a child’s best interests and reasonably practicable for the child to spend equal time with each parent, or, failing that, whether it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with the each parent.
All of these matters have been considered, so far as they are relevant.
The issues between the parties appear to be:
a)the Mother's concerns about the Father's previous abuse of alcohol or prohibited drugs;
b)the Mother's concerns about the Father's inability to protect the children from harm whilst in his care or at the home of his parents, noting in particular the allegation of the assault on the child X by his cousin involving the biscuit being put in the child's bottom; and
c)the lack of trust between the parents.
There also appears to be poor communication between the parents themselves and some degree of hostility between the extended family on each side of the parents, notably the Mother's mother and her brother on the Mother's side and the Father's parents on the other side. That said, the paternal grandmother Ms M is on record as expressing regret at the breakdown of the relationship. And it was certainly the Father's position that of all of the girlfriends that he had had the Mother was the only one of which his parents approved. The parties were, in fact, childhood sweethearts and did not have much in the way of other relationships.
It is fair to say that over the course of the proceedings between the parties the concern about abuse of alcohol or prohibited drugs by the Father seems to have faded into the background. Indeed, it had been the Father's evidence that he had first experimented with marijuana when he was 16 or 17 years old and started using speed, a form of methamphetamine, when he was in his early 20s. His drug use had escalated between the ages of 27 and 30, during which time it had become apparent that there were problems in his marriage and he had stated that he used drugs as a coping mechanism.
As far as alcohol is concerned, it is the Father's case that he has been sober since January 2012 and had had approximately 18 weeks of treatment from a psychologist.
In my view, the issue of drug abuse or alcohol abuse by the Father, whilst it was the Mother's evidence that this was a serious problem during the marriage, seems to have faded into the past. It is certainly not the case that there had not been a problem of the Father's drug taking or excessive drinking. The Mother's evidence was that this was a serious issue and in 2011 she had insisted that the husband had sought medical help. This certainly seems to have worked.
The issue involving the biscuit said to have been placed by the child's cousin into the little boy's bottom has dominated these proceedings. The Mother, in fact, reported it to JIRT and there was evidence from the Mother's practitioner, Dr E, that there was some signs of an inflammation and a tearing around the child's anus. The Mother, in fact, produced a photograph of the affected area. Although the matter was duly reported, no proceedings were taken. The evidence was that the child X was extremely reluctant to talk about the incident at all.
It was decided by the authorities that there was virtually no evidence upon which any action could be taken. Notwithstanding this result, it has been the view of the Mother and certainly of her mother, that the child remained in danger, certainly from his cousin when at his parents' place and it has been the Mother's view that the Father and his parents had not adequately supervised the children. It has always been the Father's case that there was just no evidence that this incident had ever happened.
It was the case, however, that as a result of the interim hearing on 10th December that quite restrictive orders were made on the Father's contact with the children, originally to be under the supervision of the paternal grandmother with the children not to be brought into contact with their cousin at any time and restrictions on the Father consuming alcoholic drink or prohibited drug and orders for chain of custody urinalysis.
The contravention proceedings brought by the Father against the Mother were a reflection of the poor relationship and the poor communication between the parties and can be traced back to a serious lack of trust between the parents. These proceedings occupied time which had been allocated for the final hearing and the evidence involved in those proceedings has also thrown some light on the substantive proceedings. One piece of evidence that eventually was shown involved a recording of an incident at the McDonald's Family Restaurant at (omitted) where the Mother had alleged threatening and intimidatory behaviour by the Father and members of the Father's family. There was also an allegation that the Mother's brother had behaved in an equally untoward manner.
Regrettably, the vision did not show any of those allegations. What it did show very clearly was the little boy X rushing up to his father and flinging his arms around him most enthusiastically with obvious affection and indicating that he was extremely pleased to see his father. That is to my mind, strong independent evidence of the little boy's views as far as his father is concerned.
It was the case after the proceedings on 20th to 22nd August that not only did the Court make orders in respect of the contraventions but at the instigation of the Independent Children's Lawyer, an application was made for interim parenting orders. As I commented at paragraph 1 of the decision:
The application is unusual in that it has been made during part-heard proceedings for final parenting orders.[7]
[7] [2014] FCCA 2051 at [1]
I noted at paragraph 13 of that decision that the substantive parenting proceedings were part heard that the Father and Mother had given their evidence, Dr C the Court expert, had given some evidence by telephone but would give further evidence on a later occasion and would provide an updated report. The Mother was part heard in her evidence in the substantive case. I went on to say at paragraph 14:
Noting that the substantive proceedings will still take up to a further three days, as so much time had to be devoted to the contravention proceedings, the Independent Children's Lawyer has proposed some interim orders that would vary the interim orders of 19 December 2012 as modified by the consent orders of 7 February 2013. One of the aims is to recommence the father's time with the children.[8]
[8] [2014] FCCA 2051 at [14]
I set out at paragraph 15 of the decision the interim orders proposed by the Independent Children's Lawyer which were opposed by the Mother who by that stage was represented by counsel but those orders were agreed to almost entirely by the Father through the Father's solicitors. It is noteworthy that the interim orders proposed by the Independent Children's Lawyer are very similar to those proposed as final orders by the Independent Children's Lawyer. They did, however, include a proposed order relating to a requirement that the Father should be restrained from consuming alcoholic drinks or administering to himself any prohibited drug whilst spending time with the children and that he should continue to submit to chain of custody urinalysis within 24 hours of a request by the Independent Children's Lawyer.
I did in fact make such orders and I have considered the proposed orders of the Independent Children's Lawyer and of the parties given at the final hearing. The parties had been ordered to attend a Child Dispute Conference as long ago as Monday 5th November 2012. There is a family consultant memorandum to Court prepared by a family consultant Ms A. Family safety factors figured prominently in the report. The family consultant noted that there was a current interim apprehended violence order against the Father protecting the Mother, children, maternal uncle and maternal grandparents.
The Mother had alleged that the Father had used abusive language in front of the children and had attempted to hit the maternal uncle. The Mother had alleged that the Father continued to abuse drugs and alcohol. The Father acknowledged a history of misuse of amphetamines and cannabis but had denied any current use. The children at that time had had no contact with their father for about nine weeks. The Family Consultant noted issues impeding resolution which continued throughout the lengthy history of litigation between the parties being:
a)the Mother does not trust the Father due to his history of using drugs and alleged promises to stop;
b)the Mother does not trust the Father or the paternal grandmother to prioritise the care and protection of the children;
c)the Mother believes X has been abused by his cousin Ms V;
d)the Father does not believe that any abuse has occurred.
Thus, it can be seen that when the parties saw the Family Consultant their positions were polarised. One of the recommendations of the Family Consultant was the appointment of an Independent Children's Lawyer and that was in fact done. The Court has received great assistance from the Independent Children's Lawyer and Counsel for the Independent Children's Lawyer. It was at the suggestion of the Independent Children's Lawyer that the Court appointed Dr C to provide a court expert report.
The Court Expert Report
Dr C’s report was completed on 13th May 2013 and released to the parties the following day. It is a very substantial report in which Dr C interviewed the Father, the Mother, both of the children, the paternal grandmother and the maternal grandmother. I have read through the report with great interest and found it helpful, just as I have found the oral evidence of Dr C most helpful. Dr C noted at page 3, paragraph 4 of his report that a number of observations could be made, the first of which was that whilst the Mother made a considerable complaint about the Father's behaviour alluding to a past history of drug abuse, of intimidating and at times volatile behaviour in their relationship, the central issue for her appeared to be of concern that the Father is irresponsible and unable to be relied upon to protect the children.
Dr C noted the Father had acknowledged that there was a period of significant substance abuse and gave an explanation for that. Interestingly, Dr C made some critical comments about the maternal grandmother. At paragraph 10 on page 4 of his report he said:
It was obvious from the moment that Ms Wade began talking that she had her mind quite set against Mr Ramsay. I am not clear as to whether this evident dislike of Mr Ramsay was present from the beginning of the relationship but there is no doubt that she has a considerable suspicion of and dislike for Mr Ramsay that does have the potential to create difficulties for any reasonable relationship post separation that might form between the parents given the current close and somewhat dependent relationship at the moment between Ms Wade-Ramsay and her parents.[9]
[9] Court Expert Report 14 May 2013 page 4 paragraph [10]
The Mother had said that the issues in the parties' relationship have become more evident once the child X was born. She said the Father had a drug problem when they got together although she did not really notice that at first. She said, however, as time went on that she noted increasing erratic behaviour on the part of the Father. She said at times he would be quite active and euthymic and on other occasions he would appear to be extremely tired.[10] The Father did not resile from saying that there was a period in the relationship when he was using drugs, although said that that period was not as extensive as that which the Mother said. Dr C set out details of the Father's amphetamine use and drug use generally and said, page 5, paragraph 14:
Whilst he doesn't seek to resile from the fact that he was also using cannabis, and using it more than what he should of, and that he was also drinking heavily on occasions when he was trying to cut down on cannabis, he positions his drug use as related to a trauma that occurred in his late adolescence and once he did get treatment for this trauma his drug use behaviour ceased. It is Ms Wade-Ramsay's comment that despite his apparent frank acknowledgment of his drug related behaviours, Mr Ramsay continues to minimise both the extent of his behaviour and the disruption such behaviour caused the family and the risk he posed to the family, such as having drug dealers come to the home.[11]
[10] Ibid page 5 at [12]
[11] Court Expert Report paragraph [14]
The report as I said is a lengthy one. At Page 10 in paragraph 26, Dr C gets onto the alleged assault on X by his cousin Ms V. He reviewed the parties' evidence and the parties' statements. The Mother said she took the child to a doctor the following day after the alleged assault and an anal fissure was observed. There was redness and swelling. It is possible that multiple explanations could be given for the anal fissure, although as I understand it, an abusive event could not be ruled out. And he referred to the letter from Dr E, the general practitioner. Dr C went on to say:
Somewhat disconcertingly, Ms Wade-Ramsay then took a video of the child's bottom and also allegedly conducted an interview on video with the child (as I understand it, reading Ms P's affidavit, the video was, in fact, a mobile phone movie). This is unfortunate because any such action represents a rehearsal and could be perceived as exercising coaching and would lead to contamination of any subsequent investigation. A complaint to DOCS was made and an attempt to interview X by a JIRT team took place, although, as I understand it, X refused to enter the interview room with the JIRT officers. At that stage he was two years old and he had already gone through a fairly traumatic investigation process by his family. I suspect that his emotional state at that time would have been too difficult to enable him to separate in such a formal way from his mum.
The report contains a summary by Dr C and a detailed set of statements addressing matters that can be found in section 60CC of the Family Law Act. At paragraph 128 Dr C said:
Mr Ramsay went through a period of substantial and probably dependent drug abuse. Although it is disputed how long the most recent episode lasted for, there is no doubt Mr Ramsay has had a substance abuse problem stemming from his early adult years with at least two sustained periods of heavy use of drugs and alcohol. According to Mr Ramsay, such drug use was a form of self-medication for a trauma he experienced as an adult and treatment for this has had a curative effect on him. Confirmed abstinence is only available since December 2012…[12]
[12] Ibid paragraph [128]
Dr C went on to say:
Thus it remains early days yet for Mr Ramsay to confirm he is capable of a drug free lifestyle.[13]
[13] Court Expert Report at [128]
Dr C commented at paragraph 131 that the alleged assault on the child X is of concern. He said that:
Dr E's finding of bruising and a tear is at the very best highly coincidental and it is, therefore, most unfortunate that expert paediatric assessment of that situation did not occur. X’s opposition to the JIRT interview is most unfortunate.
Dr C did say that at this stage it was impossible to determine whether abuse took place or not. Although even if it did there is no reason to believe that an unacceptable risk of harm exists for X with his paternal family providing some elementary supervisory precautions are taken. Dr C at pages 44 through to 47 addresses the terms of reference. He speaks of the children's wishes and any factors such as level of maturity or understanding that would affect the weight to be accorded to those wishes.
He said that the children are too young to express a wish and in the case of X it would be quite cruel to ask him to do so. It is obvious from the reaction of the children to their parents they are strongly attached to both parents. Although the children are too young to express wishes, their behaviour indicates a strong bond with both parents and that has to be considered in the current assessment.
Turning to the relationship between the children and each other with each of their parents and any other relevant person, he said that at this stage it might be expected that the children's strongest attachment is with their mother, although that was not obvious on the day of observation. On that day, equal attachments and engagement appeared. However, I suspect that Y, in particular does have a primary attachment to her mother despite a strong attachment with her father. The children also have a loving attachment to Ms M who is their paternal grandmother.
As to the likely effect of any change in the children's circumstances including the likely effect on the children of any separation from either of the parents or any other person with whom they have been living, Dr C said that:
It is not considered in my recommendations that a change in living arrangements for the children occur. For the time being, their primary attachment would be with their mother. However, I believe it is not in the child's interests to remain with as little contact as they currently have with their father. Y may require a brief period of acclimatisation to separating for any length of time from her mother but I do not think there is likely to be any difficulties with X. Of greater concern is the distrust the Wade family have of the Ramsay family and the likely interrogation and checking behaviour the children may be subjected to upon return from their father's place. If that were to occur, that could provide a powerful emotional focus on the children which would not be in their interest.[14]
[14] Court Expert Report page 44 at c.
As to the capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs, Dr C said:
I believe both parents have the capacity to care for their children despite some differences in parenting style.[15]
[15] Ibid at d
Dr C then turned his attention to whether the children are at risk of physical or psychological harm in either household. In that regard, he said that:
In recent years, concerns about the father's substance use and supervisory control have been raised. In turn, he has raised concerns about the over-intrusive and potentially alienating behaviour of Ms Wade-Ramsay's extended family. Despite the concerns raised by Ms P, I do not believe there is a genuine risk of physical abuse from the father. In sum, Mr Ramsay is viewed as neglectful and the mother's family is coercively controlling.[16]
[16] Ibid page 45 at e
As to the attitude of the parents to the responsibilities of parenthood demonstrated by the children's parents or any other relevant person, Dr C said:
Both parents claim to have strong orientations to parenting and a concern for their children. An essential feature of the complaints by Ms Wade-Ramsay is of her belief the father oscillates between harsh parenting and low frustration tolerance (possibly associated with drug effects) and a lack of supervisory care. Such behaviours, if established, reflect poorly on parenting skill and responsibility. However, such behaviours are denied by Mr Ramsay who presents himself as being vilified by exaggerated claims of his behaviour by his wife and her family.
In turn, the underlying concern he raises is one of coercive control in which Ms Wade-Ramsay and the family have asserted a kind of ownership of the children, ignoring the children's needs in order to further their control. My assessment did not find that either parent lacked adequate parenting ability and each parent presented with adequate levels of parenting attitudes despite the arguments by their ex-partners.[17]
[17] Court Expert Report page 45 at f
Dr C turned his attention to the effect on the children of any family violence to which they may have been exposed. He said:
It seems X has become quite sensitive to the conflict between his parents. His reported need to monitor and control the drift of possessions between both houses seems to me to indicate a high sensitivity to and concern about the kinds of controlling behaviours his parents or their families engage in. Y’s reaction to her father was seemingly unexpected by both parents, but underscores the strength of the bond between her and her father despite the interruption to contact.
As to the impact on the children and their relationship with either parent of the use by the Father of illicit substances and alcohol during the relationship, Dr C said that:
The impact of the father's substance abuse appears more responsible for the breakdown in the parental relationship. It is not clear to me and, in fact, I strongly doubt the children have any notion of their father as a substance abuser.[18]
[18] Ibid page 46 at h
Dr C turned his attention to each party's awareness of the impact of the Father's use of illicit substances and alcohol. He stated that the Father admitted his problematic use of drugs, although he minimised the impact of his alcohol use and the mother seemed acutely aware of the Father's substance abuse problems. Dr C said:
The difficulty is deciding between Mr Ramsay possibly minimising his substance abuse issues and Ms Wade-Ramsay possibly exaggerating them. However, no matter which view is ultimately taken, the substance abuse issues were significant, impacted on the quality of the relationship and probably some childcare responsibilities by Mr Ramsay when drug or alcohol affected. And a period of abstinence followed by some controlled drinking, if that is his desire, and a period of abstinence from illicit drugs appears indicated in the current situation, if for no other reason than the need for Mr Ramsay to protect his reputation as a parent for whom no impediments to his capacity to supervise his children exists.[19]
[19] Court Expert Report pages 46-47 at i
Dr C recommended that if the Court came to a decision that no unacceptable risk of harm exists for the children with their father, then there appears to be no reason why an agreement such that the children have substantial and meaningful contact with their father should not take place. For the same reason and despite the argumentativeness, shared parental control appears necessary so that both parents can have a meaningful relationship with their children.
He went on to recommend that if joint parental responsibility is ordered, the parents are going to have to work out a way to communicate in a way that is respectful. Communication books may be one such way but providing an agreement is reached that the allegation of the abuse is not a matter that should be seen as destroying future contact between the children and the Father, I think the parents will be best served by mediating their differences. Until a clear understanding between the parents is reached it is unwise to have Ms P involved in transporting the children to and from the Father's home.
Dr C went on to express the view that it will also be necessary for the Father to maintain a pattern of random urines for at least the next six months. This is to ensure compliance with the requirement for a drug free lifestyle and to provide some confidence in the Father that he can demonstrate some consistency. In effect, this will mean that an almost 12 month period of documented sobriety will have occurred.
Finally, at paragraph 136 of his report, Dr C returned to the allegation of the abuse of X by the cousin Ms V. He did comment that no risk assessment had been undertaken of that child and it would be inappropriate and abusive to do so in the absence of a substantiated allegation. He went on to say, however:
The uncertainty engendered by the allegation is troubling. But risk in this case is not static and a review of what risk factors might exist in 12 months’ time will probably be necessary. Ms V is now 14 years of age and notionally any genuine risk is abating over time.[20]
[20] Court Expert Report page 48 at [136]
Dr C gave evidence and was cross-examined. He noted that the children had been spending time with the Father as a result of the orders of 26th August and he mentioned that in his report he referred to the distrust on the part of the Wade family towards the Father's family. He commented that the maternal grandmother was convinced that the sexual abuse alleged had taken place. He said that his concerns included a risk of the children's relationships with their father being undermined.
He said the children wanted to see their parents still being parents. It would be far preferable to the parents to resolve their conflict. If the Court were to make orders for the children to live with their mother and spend time with their father there would be an advantage in expanding their time with that parent. This was in answer to a question asked by Mr Ladopoulos of counsel for the Independent Children's Lawyer. He thought that it would be important to maintain a level of off-week contact with the Father although that could be problematic.
In cross-examination by Mr Reeve, solicitor for the Father, Dr C noted that the Father had relapsed from his abstinence on one occasion in November or December 2012. He said that he had had a second interview with the Mother for about an hour. He was confident that the Father was being relatively candid as to his account of his life, particularly his drug use. He was in fact shown the report by Dr E. He thought the letter showed some shift by the doctor in his report. He noted that as a result the Mother had made decisions restricting the Father's contact with the children.
Dr C went on to say that it is an advantage for children to see their parents getting along without conflict. And he referred to what he called "loyalty tugs". He said that it becomes too difficult for a child and they will withdraw from one parent in such circumstance. Sometimes you see that flip in adolescence and sometimes the children will idealise the other parent. Both children in this case have strong attachments to both parents. He noted that X was sufficiently aware of the conflict between his parents. There could be a risk that X could grow up thinking of himself as a victim of child sexual abuse.
He expressed the opinion that it was unlikely that the Mother's household would leave alone the view that the child had been the victim of abuse. He was asked if X would be harmed by growing up in a household where he was told that he was the victim of sexual abuse. He said that he could be harmed if he saw himself as a victim of child sexual abuse. He expressed the view that there was very little likelihood that if left alone the child would suffer any trauma. In answer to cross-examination by Ms Murphy of counsel for the Mother, he said that the likelihood was that with the Father there would have to be some level of supervision because of the Mother's fears. It does not have to be the Father who supervises the child.
He imagined that as the children had been spending alternate weekends with their father since August of that year that those contacts had gone reasonably well. He was informed that the Mother was seeking orders that she does not come into conflict with the Father. He noted that the Mother continued to feel extremely distressed about having to deal with the Father. I have heard evidence from the parties and from extended family members. I note the criticisms by Dr C of the maternal grandmother. I heard her evidence on 9th October and my contemporaneous notes were that I considered her to be an unreliable witness.
I felt that she exaggerated in giving her evidence to the extent that she was unbelievable. She had spoken about an incident where it was alleged that the paternal grandmother had deliberately burned the child Y and cut her finger with a knife. I noted that notwithstanding the seriousness of this allegation it was not reported to the police although it was reported to the Department of Community Services. I note that the Mother was not seeking in her minute of orders any order to protect the child from the activities of the paternal grandmother as set out in the maternal grandmother's evidence.
Submissions
Counsel for the Independent Children's Lawyer, Counsel for the Mother and the solicitor for the Father all made oral submissions to the Court. Mr Ladopoulos of counsel who appeared for the Independent Children's Lawyer noted the disparity in the witnesses and expressed the view that the Father's evidence was more reliable than that of the Mother. He noted the Mother's exaggerations which appeared in her affidavit in respect to safety issues. Even if the Mother's views were genuinely held, he said there was an irrationality to the Mother's beliefs.
He submitted that the children would benefit from having a meaningful relationship with their father. He said that there was no unacceptable risk to the children in spending time with the Father on an unsupervised basis. He said there was no unacceptable risk with the children by being in contact with Ms V. He noted in respect of subsection 60CC(3)(a) that the children were too young to express their views. He submitted the Father appeared to have the ability to meet the children's needs and the Mother's anxieties and fears of the Father overshadowed her ability to meet the children's needs.
He submitted that the children should be spending time with their father during the school term and during school holidays. He noted that the Mother sought a changeover at a separate McDonald's to the McDonald's Family Restaurant at (omitted) as opposed to the McDonald's Family Restaurant at (omitted) and said that the Independent Children's Lawyer was not fussed either way. He referred to the fact of there having been a communication book but said that it had not been a success.
Ms Murphy of counsel who appeared for the Respondent Mother submitted that the Mother had been the primary caregiver for the children. She said that it was in the best interests of these children that the time as set out should continue before there was any increase in the time to the Father. She said her client still had concerns. In particular, she was concerned the Father was still using amphetamines and marijuana on most days. She said no weight had been given to the effect on the mother of the Father's drug affected behaviour.
She noted that the Mother sought protection for herself. As far as the McDonald's Family Restaurant for changeover was concerned, she submitted that the Mother sought the McDonald's at (omitted) rather than (omitted) would be preferable as it was halfway between the parties' residences and it was the Mother's view that gangs congregated around (omitted).
Mr Reeve, solicitor for the Applicant Father, asked rhetorically what are the consequences of children growing up in a household where the prevailing belief is that X had been sexually assaulted and Y had been deliberately burnt and had her finger cut? He submitted the Mother had not learned from these things. He said that Dr E's evidence was equivocal and he noted some of the challenges noted by Dr C, particularly distrust and the false belief that the children and the Mother are victims of abuse. He said the Mother would not let go of this and noted a comment in the affidavit of the maternal grandmother at paragraph 154, the phrase "disgusting behaviours of these people". He gave that as an example of the negative approach by the maternal grandmother.
Costs of the Independent Children’s Lawyer
As to the question of costs, the Independent Children's Lawyer sought costs in the sum of $16,400, being $8,200 each. He noted that Dr C had been paid separately. He noted that the Mother had already paid the sum of $1,650. Ms Murphy of counsel said that the Mother has no money. She is still in employment but is employed part time and receives child support. She receives $1,100 per fortnight gross from her employment.
Mr Reeve submitted that a costs order would cause financial hardship to his client. He noted that his client had borrowed the sum of $15,000 to meet costs. He said that the Father was on a basic wage of $68,000 per year and pays $650 per month by way of child support. Those then are the submissions and there are various matters to be considered.
Conclusions
My view is that when considering the three proposed sets of orders, those proposed by the Independent Children's Lawyer come closest to meeting what I consider to be the best interests of the children.
The Mother has been the children's primary caregiver and in my view she should continue to be. There have been interim orders in force whereby the Father has spent more time with the children than previously. Nothing untoward seems to have arisen from the Father's increased time and there is clear evidence and clear independent evidence of the children's attachment to the Father. The video evidence of the little boy enthusiastically putting his arms around his father at changeover and the evidence of the Court expert and the Court expert report indicate these children do have a strong attachment to their father.
The allegation of the abuse said to have been committed on the child X by his cousin is one that will remain forever unresolved and the parties' opinions on the truth or otherwise of that allegation remain at arm's length. Even if the allegation were true, when considering the overall nature of the alleged assault and the effect on the child, it is hard to see that such a matter would have a serious effect on the child. Courts get to hear many allegations of child sexual abuse. This does appear to be at the lower end of the scale and in my view unless it is continually harped on by the mother or her extended family, it is a matter that will fade into history.
I am of the view that as far as this child spending time with the Father, that the Father or his parents or the paternal aunt should for a period of time in the foreseeable future (and I think six months is appropriate), take steps to ensure that the children are not left in the presence of the cousin against whom the allegation has been made. It is noteworthy that the Mother seeks some quite restrictive orders against the Father. And my view is that the passing of time means that some of the orders sought would no longer apply.
I am of a view that there should still be some restraint on the Father from consuming alcohol or administering to himself any prohibited drug prior to any time he spends with the children. There does not appear to me to be any strong evidence of any recent alcohol abuse for the Father and I would be of the view that a restraint on consuming alcohol when the children are in his care or for 12 hours beforehand should be sufficient to protect the children from harm. But I will still make an order restraining the Father from administering to himself any prohibited drug either at any time when the children are in his care or for 24 hours beforehand. I might comment that prohibited drugs are prohibited by the law of New South Wales and the Father should not be taking them at all.
The Mother had sought a restriction, which is not in the orders proposed by the Independent Children's Lawyer, that the Father should be restrained from smoking in the presence or in the near vicinity of the children and this was brought about by the children having asthma. This appears to me to be a reasonable request in the circumstances and I propose to make such an order. It is the Mother too who sought an order restraining the parties from using physical discipline or chastisement on the children and this appears to me to be in the children's best interests.
Again I see no reason why the children should not continue to have Dr E as their medical practitioner as he appears to have treated the children over a considerable period of time.
I am also of a view that the Mother's proposed orders relating to the obtaining of Australian passports for the children have some force and I propose to make orders permitting the children to have passports which the Mother can retain. If one or other party wishes to travel out of Australia with the children he or she must give the other party written notice and the remaining parent would have to reply to the proposal in writing in sufficient time certainly if the reply is a refusal to allow for an urgent application to a court if a party wished to consider it.
I have not made any injunctive order under section 68B of the Family Law Act for the protection of the mother and members of the mother's extended family. Whilst there have been incidents in the past, I do not see that any need has been shown for such orders to be made now. I am of the view that changeovers should be conducted in such a way that there is minimal risk of unpleasant interaction between the parents at changeover which is why changeovers should be at school (and I note that both children are of school age) wherever possible and otherwise they can be at the (omitted) McDonalds as the Mother requests.
I do not see that there is any particular value in a continuation of orders requiring the Father to undertake urinalysis for the purpose of detecting illicit drugs in his system.
I do note that it is the Mother who in her proposed orders had raised the fact that the Father's parents are originally from (country omitted) and of the (religion omitted) persuasion and it was raised early on in the proceedings that (religion omitted) Christmas Day is on a different day from Christmas Day as celebrated by other Christian religions in Australia, as is (religion omitted) Easter.
I have made provision for the children to spend (religion omitted) Christmas Day, which is 7th January in each year, with their father on each occasion. There is no particular reason why they would need to spend (religion omitted) Christmas Day with their mother. And the Mother in fact suggested (religion omitted) Easter with the children's father and I have proposed that (religion omitted) Easter Sunday from 9:00am to 5:00pm would be appropriate.
I have made more generous orders relating to the children being with their mother on Mother's Day and their father on Father's Day. The orders proposed by the Independent Children's Lawyer would have involved changeover at a time on the weekend. It is my view that minimising changeovers where the parents meet face to face is helpful. And in each case I have made orders which would provide that the children would spend the entire Mother's Day weekend with their mother from after school Friday until the commencement of school on Monday and the entire Father's Day weekend with their father from immediately after school until the commencement of school on the Monday morning.
Mother's Day and Father's Day usually fall during the school term and in each case there would be a changeover at school which would remove the risk of difficulties at changeover. It does appear to me that with the length of time that has elapsed since the interim orders were made - the interim parenting orders were made on 26th August 2014 - that there has been some degree of relative peace as neither party has sought to come back to court either with a contravention application or an application to vary the interim orders.
Noting the lengthy history of litigation between the parties, I am of the view that if there had been a series of untoward incidents or if the interim orders were seen as clearly not working, that the parties would have one or other of them made an application to the Court by means of an application contravention or an application in a case long before this. Accordingly, the interim orders which are relatively similar to the final orders appear in retrospect to have proven themselves to be in the best interests of the children and I am satisfied that the best interests of the children will be met by the current orders.
The Independent Children's Lawyer did not attend Court when the decision was handed down. The Independent Children's Lawyer is seeking an order for costs which I note is opposed by both parties and was opposed at the time submissions were made, then the Independent Children's Lawyer would need to bring an application in a case within a period of 28 days as provided by the Rules. Otherwise, I am not of the view that I will make an order for costs at this stage. And if the Independent Children's Lawyer wishes to press for such an order then an application will need to be made.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 5 July 2016
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