Rennick and Rennick (No 2)

[2009] FamCA 1156

FAMILY COURT OF AUSTRALIA

RENNICK & RENNICK (NO. 2) [2009] FamCA 1156

FAMILY LAW – CHILDREN – Relocation – Mother primary care giver – Her mental, emotional, financial well-being better served by move – Children to stay with mother – Mother permitted to stay in Queensland central coast

APPLICANT: Mr Rennick

RESPONDENT: Ms Rennick

INDEPENDENT CHILDREN’S LAWYER: Kendall Hawdon

FILE NUMBER: BRC 3108 of 2007

DATE DELIVERED: 28 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 26, 27 & 28 October 2009

REPRESENTATION

THE APPLICANT: Appeared in person

SOLICITOR FOR THE RESPONDENT: Mr S Fisher, Solicitor, Neumann & Turnour Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr J Selfridge

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Forest Glen Lawyers

Orders

IT IS ORDERED

1. That all previous orders in relation to the children of the marriage be discharged.

2. That the children, C born … October 1999 and K born … January 2005, live with the Mother.

3. That the Mother be permitted to reside with the said children in N.

4. That except as otherwise provided, the Father and the Mother are to have equal shared parental responsibility for the said children, including but not limited to:

   (a)the said children’s education;

   (b)the said children’s religious and cultural upbringing;

   (c)the said children’s health;

   (d)changes to the said children’s living arrangements that make it significantly more difficult for the said children to spend time with each parent.

5. That notwithstanding order 4, the Mother be at liberty to forthwith enrol K to undertake such surgery in relation to his phimosis condition as may be recommended by Dr R or Dr L.

6. That the process to be used for resolving disputes about the terms or operation of these orders shall be as follows:

   (a)The parties shall consult with a Family Dispute Resolution Practitioner to assist in resolving any dispute or reaching agreement about changes to be made.

   (b)The Father shall pay the cost of the Family Dispute Resolution Practitioner.

   (c)In the event that the parties cannot agree on a Family Dispute Resolution Practitioner, the Mother shall nominate three Practitioners and advise in writing details of their fees, experience and availability.

   (d)The Father shall choose one of the listed Practitioners within seven (7) days of receipt of the list.

   (e)If the Father fails to choose, the Mother may choose.

   (f)In the event the Father is unable or unwilling to meet the costs of the Family Dispute Resolution Practitioner, the Mother be at liberty to make the final decision in relation to the matter in issue requiring resolution.

7. That the said children spend time with the Father as follows:

   (a)for the first half of the Christmas school holiday period 2009/2010 and the second half of the Christmas school holiday period 2010/2011 and alternating each year thereafter;

   (b)for the Easter, June/July and September school holiday periods;

   (c)should the Father travel to N for a weekend, from 9.00 am to 5.00 pm on either the Saturday or the Sunday of that weekend, or from 9.00 am Saturday to 5.00 pm Sunday if the Father is remaining in N for the entire weekend, provided that the Father first give the Mother seven (7) days’ notice of his intention to travel to N.

8. That all changeovers for time spent with the children take place at T.

9. That the Father communicate with the said children by telephone and/or Skype as follows:

   (a)every Sunday, Tuesday and Thursday between 5.00 pm and 6.00 pm, with the Father to initiate the call;

   (b)at any other times when the said children wish to telephone the Father or at such other times as may be mutually agreed;

   (c)the Mother shall ensure that the Father is informed of the telephone number upon which the said children can be reached at those times, and ensure she is available and ready to receive the call.

10. That the Mother authorise any school attended by the said children to:

    (a)provide the Father with copies of the said children’s school reports, notices, other publications and any information he may request about the said children;

    (b)enable the father to attend school functions and activities usually attended by parents.

11. That the Father:

    (a)not allow the said children to sleep in his bed;

    (b)not smoke in the presence of the said children (including in any motor vehicle in which the said children are travelling);

    (c)not allow any other person to smoke in the presence of the said children (including in any motor vehicle in which the said children are travelling);

    (d)not discuss these proceedings in the presence or hearing of the said children;

    (e)not denigrate the Mother in the presence or hearing of the said children.

12. That the Mother:

    (a)not discuss these proceedings in the presence or hearing of the said children;

    (b)not denigrate the Father in the presence or hearing of the said children.

13. That the Mother keep the Father advised of significant school and extra-curricular activities undertaken by the said children and the Father be permitted to attend same.

14. That the Mother and the Father inform each other as soon as practicable of any medical emergency involving the said children.

15. That the Mother authorise any medical practitioner, psychologist or other health care professional upon whom the said children have attended to communicate with the Father and to provide the Father with information about the said children and any consultations and treatment they receive as requested by the Father at his expense.

16. (a)     That the Father pay the Mother’s costs thrown away on the first day, such costs as agreed and failing agreement as taxed.

    (b)That the payment of those costs be stayed pending determination of the property proceedings between the parties.

17. That the Independent Children’s Lawyer be discharged.

18. 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 Rennick & Rennick is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3108 of 2007

MR RENNICK

Applicant

And

MS RENNICK

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

ex tempore

1. In this matter, the Court is called upon to determine competing applications in relation to the parenting arrangements for two children, C, born in October 1999, and K, born in January 2005.

Background

1. Prior to separation in October of 2006, the family lived together in G.  At separation, the mother took the children to N and took up residence with her mother and her stepfather.  The father subsequently filed applications in both the Family Court and the Federal Magistrates Court seeking orders for shared parental responsibility and significant time with the children.  He also sought orders requiring the mother to relocate to G to properly facilitate those proposals. 

2. Sadly, this matter has now been litigated in each of those Courts for the three years since separation.  Orders have been made from time to time requiring the mother to return to G or to D, and the mother has relocated from time to time, only to return to N. 

3. The mother and children have remained in N since about September of last year, and the mother now asks this Court to make orders enabling her to remain in N with the children.  The travelling time between G and N is said to be of the order of between seven and eight hours. 

4. The Mother argues that a shared parental responsibility order is not viable, and contends that the children’s relationship with their father should be accommodated by school holiday contact and regular communications.

5. There is a substantial conflict between the parties in terms of their respective accounts about the circumstances leading to separation and those relating to the mother’s need to remain in N. 

6. The mother says that the relationship was marred by family violence in the form of the father’s emotional abuse and verbal denigration.  She said she was, and remains, fearful and apprehensive about any contact with the father.  She says she has felt the need to separate and move to N for her own safety and welfare and for the welfare of the children. 

7. Whilst the father acknowledges some altercations in the marriage, he denies that they were of the nature or to the extent alleged by the mother, and asserts that those difficulties provide no justification for the mother’s removal of the children and her resistance to any return.  He contends that the mother’s attitude in this regard is evidence of her real motivation, which is to marginalise his role in the children’s lives.

8. For her part, the mother informs the Court that, whilst the need to take flight was the catalyst to the move, there were at the time other imperatives, and that since that time many other matters have emerged which would draw the Court to conclude that the proper orders in all the circumstances would be those which would enable the children to remain with her in N.  In particular, she says that she would be most anxious about the prospect of living in close proximity to the father and his family.  She said that such an arrangement in the past impacted adversely upon her health and emotional wellbeing.  She says G is a comparatively small town, with limited accommodation and limited education and employment opportunities. 

9. The mother maintains that the father has consistently failed to provide levels of financial support for herself and the children.  She says that, by residing with her mother in N, she has available to her a high level of physical, financial and emotional support.  She says she has been able to pursue studies and part-time work in N, and those opportunities would not be available to her in G.  In particular, she wishes to complete her studies as a nurse.  She says it is only as a result of her mother’s support that she has been able to manage the tasks of childcare, study and part-time work in the past.  She believes that the opportunities she is pursuing in N are beneficial not only to her future, but also to the future of her children. 

10. Finally, she says the children are well settled in N.  C attends a private Catholic primary school where she is thriving, and K will be enrolled at that school next year. 

11. The mother says that C is adamant that she wants to remain in N, where she has many friends and is able to pursue a number of activities.

12. In response, the father contends that similar opportunities and family support would be available in G, although his information in relation to the availability of tertiary studies is limited.

Principles

1. The facts and issues in this case bring into focus a number of key provisions of the Family Law Act which prescribe to this Court the approach which should be adopted in such matters.  The case highlights the need for some focus upon the objects and principles of the Family Law Act as identified in s 60B.  Those provisions require the Court to place a heavy emphasis upon the benefits to children of having both parents meaningfully involved in their lives.  At the same time, those provisions recognise that children have a right to be protected from harm. 

2. The Act also requires the Court to proceed on the basis that there is a presumption in favour of equal shared parental responsibility, with a heavy leaning in favour of children being given the opportunity to spend equal or substantial time with each parent and to having each parent participate in significant events. 

3. Section 60CA of the Family Law Act reminds the Court that, in all cases, it must regard the best interests of the children as the paramount consideration.  Section 60CC sets out primary and secondary considerations to be taken into account by the Court in reaching that determination, and I will later touch upon some of those matters. 

4. With so-called relocation cases, there is a need to consider the competing proposals of each of the parties and how they each meet the objects and principles and address the considerations relating to the best interests of the children. 

5. I have already outlined the mother’s proposal that the children reside with her in N and spend holiday periods with their father.  At the commencement of these proceedings, the father, who is self-represented, provided the Court with two alternate proposals.  The first, being his preferred proposal, would see the children reside in G, living with their mother if she chose to join them, a shared parenting arrangement, and shared time under some flexible arrangement which was to include half of school holidays.  In the alternative, and in the event the Court decided the mother should be at liberty to remain in N, he sought flexible phone contact, contact any time the father is able to travel to N, all holidays and a shared parenting regime.

6. Prior to the adjournment, I made some observations about the father, and I accept what he says about the children being his highest priority.  I accept that his heart is in the right place.  I also observe that some of the sentiments expressed by the father are easily spoken.  I have absolutely no doubt about the extent of the father’s love and affection for his children.  I do have some reservation, however, about his insight into how his conduct and his attitude might at times have an adverse impact upon the children.  His relationship with his son is special, and it is perhaps the best demonstration of what he is capable of when his energies are channelled in the right direction.  His son adores him, wants to be with him and enjoys his time with him.  I suspect that is so because, at his age, with his interests, the father is distracted from the conflict between himself and his wife and is entirely child-focused.  As a result, we observe a wonderful relationship. 

7. Sadly, his relationship with his daughter, whilst there is love and affection and attachment, is not as sound.  I fear that is because C, as an older child, is more sensitive to the conflict, more alert to the things that the father might do or say, perhaps without the intention of causing any harm to his daughter, but that is the effect it has.  She loves her mother;  she is primarily dependent upon her mother;  and without anything sinister at all, she identifies with her mother.  So anything the father has to say which denigrates the mother, questions her worth as a person or as a mother, causes difficulties for C, causes her harm and emotional upset.  As we so often see in these cases, how it manifests itself is not that she thinks any less of her mother because of what she hears, but she thinks less of the person who is conveying those negative messages to her.  If it persists, I fear that, sooner or later, C might feel she has to make a choice.  If it continues to be too hard to deal with some features of the time she spends with Dad, she might vote with her feet, as she has done on one previous occasion.

8. I accept that the mother does not want that.  I accept that the mother wants the father to have a meaningful role in each of the children’s lives to the extent that it will be possible, in the circumstances, and I know the father wants that opportunity.  My conviction is, however, that the quality of his relationship with C from this point on is very much in the father’s hands. 

9. I do have doubts about the father’s sentiments, but what comes with those expressions of love and support is a responsibility to make sacrifices and to do the right thing by your children.  In this case, it will require the father to reflect upon what has happened, to examine where he can improve and seek out appropriate professional help for C’s sake.

10. I know it is seven or eight hours from G to N, but I find it a little difficult to accept that a father would never travel from G to N to see his children.  Work is a high priority, but the father says his children are his higher priority.  So the father has to back up his words with his actions and make some sacrifices for his children.  Hopefully, he will put himself in a position where he can provide them with some financial support, because the more he can provide the children and the mother with support, the easier the mother’s job will be and the better off the children are going to be.  The mother has had to struggle in the three years since separation without that support and the children are the ones who share that hardship. 

11. In relation to the mother, I have had the opportunity to read the extensive material.  I have had the opportunity to observe her and to reflect upon decisions she has made and I have reached a firm conclusion that, although there were difficult consequences facing her and the children, and particularly the father, as a result of some of the decisions she has made, I accept that they have been child-focussed decisions.  In particular, it was not an unreasonable perception on her part to conceive that life in G was going to remain difficult and that she was not going to function well as a person and as a mother in that environment, particularly without financial support from the father and whilst under attack from the father and his family in a small town environment.  The mother found herself under medical treatment and in need of antidepressants to survive from day to day.

12. I have read the maternal grandmother’s affidavit and I found her descriptions of her daughter striking.  The deterioration she observed in her daughter, her drastic loss of weight and her emotional fragility provided an environment which was far from ideal for these young children.  It is clear that this was not a situation that was going to provide the children with optimum parenting.

13. I have been very impressed by the mother.  I find that she has coped very well in very challenging and difficult circumstances.  I accept that her response to C’s resistance to see her father was entirely appropriate.  Rather than take advantage of that development to turn C further from her father, she sought appropriate professional help and, as an end result, successfully secured sufficient improvement in her daughter’s welfare to enable contact to be resumed and the relationship to be resumed.

14. The mother is not fond of the father.  That is the reality.  The immature, insensitive response would have been to take advantage of C’s difficulties.  However, the mother took the more difficult steps and chose the ones that were clearly best for her daughter.  It convinces me that the mother does, in fact, understand the value and the importance of her children having as healthy a relationship as is possible with each of their parents.

15. The mother has also made sacrifices dealing with the reality of the fact that the father does not provide financial support.  She has sought the support and help of her mother which has been willingly given.  She has seen the need to improve her education and training so that, in the longer term, she can better secure her future, which is to the benefit of her children.  She has, of necessity, undertaken part-time work.

16. The best evidence of the mother’s efforts and capabilities are the two children.  C has experienced difficulties as a result of her parents’ separation and exhibited some struggles in dealing with her time with her father.  Notwithstanding those problems and with the mother’s resources, no doubt assisted by the maternal grandmother and in turn supplemented by the help of professionals, C presents as a child who is thriving.  She is doing well at school.  She has developed a healthy circle of friends and a healthy interest in extra-curricular activities.  She has maintained a relationship with her father.

1. K appears to be a delightful young boy who lights up a room when he walks in and lights up his father’s life, and the fact that the mother has been the primary care giver and has navigated a path through those difficulties for her two children so that they remain comparatively healthy, contented children, is to her credit.

2. My concern is that that current, comparatively healthy state of affairs is certainly fragile in relation to C and at risk if there is not an improvement in the environment for these children in the future.

3. Having made those observations of the parties, I turn to the balance of the evidence which, in this case, emerges largely from the multitude of reports prepared by Mr O and Mr S and, more recently, Ms B.  Those reports really represent spot pictures of the progress of this case and, sadly, in some respects, they are evidence of continuing conflict and the limited improvement in the lots of these children, until we get to the stage where C is reported as saying to Ms B that she just wants the fighting to stop.  She can not handle it any more.  She wants decisions to be made and she wants to be able to be a child.  She wants her parents to be adult enough to make the future better than the past.

4. The father actually used those terms in his own evidence and the matter moved in the right direction when the father said those things, and when he openly apologised to the mother for his role in the past difficulties.  However, as I have said in another context, it is easy to say things.  It is now time to back them up with actions.  The mother needs to be respected and supported as the children’s mother, as, of course, the father needs to be respected and accommodated. 

5. One of the key components of this case, in terms of justification of the mother’s actions in the past and in support of her application to be at liberty to remain in N in the future, is the issue of family violence.  Happily, the case as presented before me did not labour that part of the history, but it nevertheless remains a significant part of the history and, in broad terms, I accept the mother’s account of the past.

6. I take the view that the father’s denial of problems to the extent alleged by the mother is not a deliberately false account.  I suspect the reality is that the father does not appreciate that he can intimidate;  that his way of dealing with his work mates and the challenges of life is, perhaps, different to others, and that he does not fully appreciate the impact he can have upon his former wife and also upon C.  At the same time, I do believe that the father has minimalised his role.  The fundamental point is, I accept that the mother is not inventing her assertions and that she is concerned and anxious when the father is around.  I accept that her confidence, her wellbeing was being undermined in that environment and that she felt the need to seek medical assistance and that she had prescribed for her antidepressants.  I am satisfied that the mother’s responses to that situation were not designed to marginalise the father, but were designed to do what she thought was best both for herself and directly and indirectly for her children.

7. Although there is a prospect that a return to G with a new appreciation of these things might result in the creation of a better environment than existed in the past, I accept, firstly, that such improvement cannot be guaranteed and that, in any event, the mother’s apprehension that her wellbeing, both psychologically and emotionally, might be greatly compromised if she is forced to return to G, is a fair and reasonable position for her to take.  I also find that taking the risk that the progress that has been made by the mother might be compromised and that there may be a significant setback is certainly not in the interests of these children.

8. What emerges from the family reports is that, as the counsellors have struggled through the last three years to make recommendations, the need for stability, predictability and certainty has continued to become an increasingly important aspect of this case.  C, in particular, is at a particularly sensitive, vulnerable stage of her life and development.  An order that might see her mother’s functioning and parenting compromised at this stage of C’s life would be highly undesirable.

9. In this case, there is another layer to that aspect of the matter, in that I accept C’s strong preference is to remain in N.  I accept the evidence of Ms B that that view is one reached independently by C, although, like Ms B, it is acknowledged that it would be influenced by her mother’s attitude, not in a sinister way but in a practical sense.  The mother is the primary caregiver.  C would be aware of the mother’s attitude and would observe upon how her mother has, herself, been happier and less anxious since she has been in N. 

10. C is only 10 and 10-year-olds do not decide these matters.  Courts are obliged to have regard for children’s wishes as they get older, and I am entirely satisfied in this case that, if C was forced to return to G against her wishes, she would be upset for herself, she would be upset for her mother and, in an over simplistic way, she would blame her father.  I would be concerned that the relationship between C and her father, which has, from time to time, been fragile, might be greatly compromised.  The very objective of the father in having C back in G theoretically so that he could have a more meaningful relationship and spend more time with her, might be frustrated.  He might see his relationship with his daughter deteriorate, rather than being enhanced.

11. In relation to considering the competing proposals in the context of s 60CC, I have already touched upon the views of the children and the implications of making a decision against C’s wishes. 

12. In terms of the nature of the children’s relationship with their parents and other persons of significance, it is clear that the children’s primary attachments are to their mother, who has been their primary caregiver and provided the bulk of the children’s nurture and support through their lives.  Of course, the father is the next most significant person in the children’s lives, and they have important and valuable relations with him which should be fostered.

13. As matters have unfolded, it is clear that the next most significant person in these children’s lives, at this stage, is their maternal grandmother.  She has played a significant role in their support, particularly in more recent times.  She has also provided significant support for her daughter.  Clearly, the relationship between the children and their maternal grandmother is likely to be best fostered under the mother’s proposal. 

14. I accept the evidence of the maternal grandmother that it is her intention to remain permanently resident in N.  I accept that she has been primarily based in N, if not residing there, for the bulk of the last five years, that she has full-time employment, and that there is no intention to move elsewhere.  The joint plans of the mother and the maternal grandmother are to make N their home.

15. In terms of the father’s relationship with his children and the effect of the competing proposals upon that relationship, there is no doubt that, should the mother and children reside in G, there would be greater opportunity for K to expand upon his relationship with his father.  He is a young boy who shares a lot in common with his father, and they obviously have a fabulous time together.  The opportunity to spend more time with his father could only be to the enhancement of that relationship.  However, I have the reservations I have previously expressed about the impact upon C’s relationship with her father in that event.  On the other hand, I have already highlighted my concerns about the adverse impact of imposing such a move upon the mother as a person and a parent, and the resultant adverse impact that would have upon the children’s welfare.

16. In relation to the willingness and ability of the parents to facilitate and encourage close relations with the other parent, this is a significant part of the father’s case.  He argues that N is part of a campaign to remove him or alienate him from the children.  K’s relationship with his father is the very best evidence that that is not the case.  The mother’s responses to C’s difficulties in her relationship with her father is also clear evidence that the mother understands her responsibilities and is prepared to work constructively for the benefit of her daughter.  That part of the father’s case is not made out, in my view.

17. I do not have any reservation about the mother’s capacities in terms of her parenting and of her capacity to meet the physical and emotional needs of her children.  I have expressed concerns about some aspects of the father’s conduct in the past, and I will not cover those points again. 

18. I do have some concern about the father’s apparent failure to provide financial support for his children in the past.  He has a family business, he has many opportunities for growth there and I understand his connections and commitments to that enterprise.  He has a capacity to earn much greater income elsewhere and, therefore, the capacity to provide financial support.  If the family business does not start to bear fruit soon beyond a mere $27,000 per year, then the father might need to make some decisions which better enable him to meet his responsibility as a parent to contribute towards his children’s financial support.  He is heavily in debt and he is not going to get out of it on $27,000 a year.  The children would be better off if he is able to make a meaningful contribution to their support.  The father needs to start walking the walk as well as talking the talk.

19. Finally, I turn to the effect of any change in the children’s current circumstances.  I have really touched upon this aspect of the matter from time to time in a number of contexts.  There are potential advantages in a return to G, particularly in terms of the amount of time and the frequency with which the children could see their father.  It would also give them a greater opportunity to spend time with extended family on the father’s side. 

20. However, I have concluded that the disadvantages to these children of a return outweigh that advantage. 

21. The mother is, and will always be, the children’s primary care giver.  Her wellbeing, therefore, becomes essential to the children’s welfare and development and to their upbringing.  I accept the evidence of the mother, as supported by the maternal grandmother, that the current arrangements have resulted in a stark improvement in the mother’s emotional and physical wellbeing, and that she is functioning much better as a person and a parent.  I accept that the children have benefited from that improvement.  I accept that it is at least possible, if not likely, that that progress would be compromised if the mother were required to return to G against her wishes.

22. I am satisfied that C would be resentful being required to leave her school and return to G and that this might have an adverse impact upon her relationship with her father. 

23. I accept the recommendations of Ms B and Mr O, which are to the effect that the most important thing for these children at this time is stability and certainty, and that their needs are best met currently by the arrangements which have been put in place by the mother.  I am satisfied that, in all the circumstances, the best interests of these children are served by allowing the mother and the children to remain in N.

24. There is an issue about equal shared parental responsibility.  The father seeks shared parental responsibility.  The mother is opposed to it.  I understand the father’s preferences and reasons.  I understand the mother’s reservations.  History does indicate that the mother finds it difficult to engage the father and that, in the past, when the parties are brought together conflict emerges.  At the same time, not only am I obliged at law to regard equal shared parental responsibility as the preferred option, I accept that, as a proposition in any event, children are likely to do better if there is the reality and the perception that each of their parents play a meaningful role in the children’s lives. 

25. I accept what has been said by Mr Fisher on behalf of the wife, that to make such an order may, indeed, represent quite a leap in faith, because the best guide to the future is the past.  The history of three years of conflict and litigation certainly does not provide a great deal of optimism for the future.  However, at the same time, I accept that the father’s open apology to the mother in front of this Court was not an insignificant moment, and hopefully represents a first important step in the father acknowledging his contribution to the past problems and of showing at least a level of respect for the mother and a understanding that she has been harmed by those past events. 

26. I am going to take the father at his word when he says that he is ready to become more adult, he is ready to move on for the sake of his children, and that he does not want to be cut out of the children’s lives.  I hope he will use the opportunity of shared parental responsibility in a constructive way to demonstrate to his children that he respects their mother and that together they are going to make the important decisions about the children’s future.  I hope that, included in a change of attitude, is his understanding and respect that the mother is the person who deals with these children on a day-to-day basis.  She necessarily has a greater understanding of the children’s needs from time to time and I hope the father would pay great heed to what she has to say and give her recommendations careful consideration.

27. The last thing these parties need is to ever be back in Court again.  It has financially destroyed them, and it has taken a heavy toll in a number of other ways. I do propose to take up the recommendation of the Independent Children’s Lawyer that I build into the shared parental responsibility orders a mechanism to enable any disputes that might exist to be resolved without coming back to Court.

28. I do propose to make an order which will enable the mother to forthwith secure K any necessary surgery recommended by Dr R or Dr L in relation to his phimosis problem.  There is ample specialist evidence to support this decision.  The father had recourse to the advice of a general practitioner.  The mother has the advice and recommendation, not only of the children’s treating doctor, Dr L, but the advice of a consultant surgeon to whom Dr L referred this young boy.  Dr R’s advice is entirely clear-cut.  Although I do not know Dr W, the reality is, there is no evidence before me, and whilst I respect the experience of country general practitioners, I defer to the greater expertise of a consultant surgeon who has made very firm recommendations.

29. I do not know exactly how much Dr W knew, but it is a bold general practitioner who would describe a consultant surgeon’s recommendations as nonsense.  In any event, Dr W recommended that, when the child turns five, if the problems are persisting, surgery could be justified.  We are almost there.  I accept what the mother says, that the problem is persisting and, in my view, there should be no further delay in accepting the recommendations of Dr L and Dr R.

RECORDED  :  NOT TRANSCRIBED

1. Finally, on the issue of costs, the Independent Children’s Lawyer makes application for an order for costs.  I do not make that order.  Each of these parties has incurred crippling legal costs.  They are each in very poor financial circumstances and I am satisfied that, in this case, it was in the children’s best interests to have their own independent legal representation and that the community should meet that cost. 

2. In relation to the costs of and incidental to the adjourned first day, I am satisfied that the costs incurred on that day were as a consequence of the matter being adjourned to the second day.  The cause of that was the refusal of the father’s application for an adjournment and the reasons for that refusal were fully set out earlier.  Whilst the father found himself in difficult circumstances, I am not satisfied that he took all the steps he could to prepare himself for the possibility that his adjournment may not be granted, or in other ways prepared the case so it would be ready to proceed.  He did not receive the mother’s material and did not seek it out until the morning of the trial.  That necessitated the matter being stood over to the second day and, whilst those circumstances were brought about in part because of the father’s own poor financial circumstances, I am satisfied that it is not appropriate that the mother should be put to the expense which necessarily gave the father that extra day.  She has her own substantial legal costs to be met.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

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