Reynolds and Reynolds
[2011] FMCAfam 105
•24 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REYNOLDS & REYNOLDS | [2011] FMCAfam 105 |
| FAMILY LAW – Children aged 5 and 3 – final arrangements for care – mother and children live in [B], South Australia – father lives in [A], Western Australia – parties’ parenting relationship poor and mistrustful – father’s relationship with children disrupted following parties’ separation in 2009 – father seeks to spend time with children at his home in Western Australia – protective concerns – sleepwalking – meaningful relationship – overseas travel – costs. |
| Family Law Act 1975, ss.4; 11C; 11E; 60CA; 60CC; 61DA; 65DAA; 65DAC; 65DAE; 117 |
| MRR v GR [2010] HCA 4 Kuebler & Kuebler (1978) FLC 90-434 Line & Line (1997) FLC 92-729 Sahin & Sahin [2008] FMCAfam 1031 Bright v Bright (1995) FLC 92-570 |
| Applicant: | MS REYNOLDS |
| Respondent: | MR REYNOLDS |
| File Number: | ADC 4378 of 2009 |
| Judgment of: | Brown FM |
| Hearing dates: | 26 October 2010 & 20 January 2011 |
| Date of Last Submission: | 20 January 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 24 February 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson |
| Solicitors for the Applicant: | Lynch Meyer |
| Counsel for the Respondent: | In Person |
ORDERS
The parties have equal shared parental responsibility for the children [X] born [in] 2005 and [Y] born [in] 2007 (hereinafter referred to as “the children”).
In the exercise of their equal shared parental responsibility for the children the parties are to consult with each other in respect of all major long term decisions pertaining to the children, which include but are not limited to issues about:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health (including psychological health);
(d)The children’s names; and
(e)Any changes to the children’s living arrangements which significantly interferes with the operation of these orders, particularly with the arrangements for the children to spend time with each parent.
In the event the parties are unable to come to a joint decision about any major long term issue pertaining to the children they are to consult jointly with a family dispute resolution practitioner as defined by section 10G of the Family Law Act1975 and seek the assistance of such family dispute resolution practitioner to come to a joint decision about the major long term issue pertaining to the children in dispute between them.
The mother and father shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and
(c)Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
The children live with the mother.
The children spend time with the father as follows:
(a)From 9:30am on 18 April 2011 until 4:30pm on 19 April 2011;
(b)From 9:30am on 22 April 2011 until 4:30pm on 23 April 2011;
(c)From 9:30am on 26 April 2011until 4:30pm on 27 April 2011;
(d)From 9:30am on 11 July 2011 until 4:30pm on 13 July 2011;
(e)From 9:30am on 17 July 2011 until 4:30pm on 19 July 2011;
(f)From 9:30am on 3 October 2011 until 4:30pm on 5 October 2011;
(g)From 9:30am on 7 October 2011 until 4:30pm on 9 October 2011;
(h)From 9:30am on 20 December 2011 until 4:30pm on 27 December 2011;
(i)For periods of up to seven (7) days in each subsequent South Australia school holiday other than the end of year school holidays as specified in order 6(j) and subject to any applicable condition specified by these orders;
(j)From December of 2014 onward for half of each end of year South Australian school holiday starting with the second half in 2014/2015 and each alternate year thereafter and the first half in 2015/2016 and each alternate year thereafter; and
(k)At any other times and on any other conditions as the parties may agree from time to time.
The time specified in order (6)(a) to (e) take place at either [B] or [C] in the State of South Australia on condition that the father notify the mother in writing of the address at which he proposed to spend time with the children 28 days prior to the time specified in these orders.
The time specified in order (6)(f) and (g) take place in [A], Western Australia with the mother to be responsible for her costs of travel and the costs of the children’s travel between South Australia, Western Australia and return and with the mother to be available to collect the children from the father for the period between 4:30pm on 5 October 2011 until 9:30am on 7 October 2011.
The time specified in order 6(i) and (j) may take place in [A] Western Australia subject to the conditions relating to the children’s travel set out in these orders.
The father be responsible for his costs of travel and any necessary accommodation expenses arising pursuant to him spending time with the children as a consequence of spending time with the children pursuant to orders (6)(a) to (e) hereof.
It will be a condition of the father spending time with the children pursuant to order (6)(h), (i) and (j) that he has spent time with the children in accordance with the provisions of orders (6)(a) to (g) in the sense that he has spent graduated periods of time with the children, in South Australia, unless the parties agree otherwise. In particular it is open to the parties to transpose the provisions of orders 6(a) to (g) to other school holiday periods subject to financial considerations.
The father give the mother fifty-six (56) days notice, in writing, of his intention to take time with the children pursuant to order (6)(i) and (j) hereof and advise her of the arrangements made by him for the children to travel between Adelaide, Perth and return.
The father accompany the children, during all air flights between Adelaide, Perth and return, at his own expense, in order to facilitate him spending time with the children pursuant to these orders, other than the time specified in order 6(g) and 6(j) until such time as the child [Y] has attained the age of seven years.
In the event the mother believe the children need to be accompanied on any air travel between Adelaide, Perth and return after [Y] has attained the age of seven years she shall be responsible for the costs of such accompaniment.
The mother be responsible for the costs of the children travelling between their home and Adelaide in order to facilitate the father spending time with the children pursuant to orders 6(h), (i) and (j) hereof.
The parties share equally the costs of the children’s air flights between Adelaide, Perth and return in order to facilitate the father spending time with the children pursuant to these orders (other than the time specified in order 6(g), (i) and (j)) until such times as [Y] has attained the age of seven years at which time the father will be responsible for paying for all of the children’s necessary travel expenses between Adelaide, Perth and return.
The father make all necessary arrangements to book and pay for the costs of the children’s travel between Adelaide, Perth and return fifty six (56) days prior to the date specified for the children to depart Adelaide and provide the mother with flight details, including dates and times of departure and arrival in writing immediately following the booking, with the mother to reimburse the father her half of the children’s travel expenses arising from order 6(h) and the periods arising from order 6(i) hereof in respect of the holidays occurring prior to the seventh birthday of the child [Y], fourteen (14) days prior to the children’s departure from Adelaide arising from these orders.
The father be responsible for booking and paying for the children’s return airfares between Adelaide, Perth and return to facilitate him spending time with the children pursuant to order 6(j) hereof and he provide the mother with 56 days written notice with flight details etc.
In carrying out his responsibilities to make the children’s necessary travel arrangements pursuant to order 15 hereof the father shall use his best endeavours to obtain the cheapest possible economy air tickets for the children between Adelaide, Perth and return.
The mother will be entitled to spend the first half of the Christmas school holiday period in 2012/2013 with the children but otherwise the father will be entitled to arrange to spend time with the children for a period of seven (7) consecutive days during the first half of the end of year school holiday in 2013/2014 pursuant to order 6(i) hereof so that such period includes Christmas Eve, Christmas Day and Boxing Day.
The mother provide the father with details in writing of the children’s dietary needs, particularly any food allergies from which they suffer prior to each period of time the children spend with the father and the father is ordered to abide by these dietary restrictions and requirements.
An injunction issue and the father be restrained from drinking any more than three (3) standard alcoholic drinks as defined by the Commonwealth Department of Health & Aging during each twenty-four (24) hour period the children are in his care.
The mother is permitted to travel with the children outside of the Commonwealth of Australia subject to the following conditions:
(a)She shall give the father at least twenty-eight (28) days notice in writing of her intention to travel overseas with the children and concurrently with such notice she will provide the father with a comprehensive itinerary which will include the departure and return dates of the children’s travel outside of Australia and the country or countries which the mother and children will be travelling to and the approximate dates on which the children will arrive and depart from each such country as well as contact details for the children during such travel.
The father is directed to sign the necessary passport renewals for the children to give effect to these orders.
The parents authorise by this order, the schools, kindergartens and day care centres attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at the expense of the parent requesting same).
During the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that other persons do not denigrate or insult the other parent in the presence or the hearing of the children.
Each parent be at liberty to attend at the children’s school, pre-school or kindergarten for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
All other applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Reynolds & Reynolds is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 4378 of 2009
| MS REYNOLDS |
Applicant
And
| MR REYNOLDS |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Reynolds “the mother” and Mr Reynolds “the father” are the parents of [X] born [in] 2005 and [Y] born [in] 2007.
These reasons for judgment concern the appropriate arrangements for the parenting of [X] and [Y], particularly the time they should spend with their father and whether that time should be subject to any conditions, specifically the location where that time should take place and its duration.
The parties have known each other since childhood. They married in [N], Western Australia, [in] 2004. At the time, they were involved in managing a [business] owned by members of the father’s family. The father has significant family connections in Western Australia, particularly in [A], in the State’s South West.
In late 2005, the family moved to [B] in the East of South Australia. At the time, the mother’s family had a farm and other business interests in the area. The parties lived on a property owned by the mother’s parents and were involved in business ventures with them.
In [B], the marriage between the parties fell into difficulties. They separated, in acrimonious circumstances, on 25 March 2009. It is the father’s apprehension that he was “evicted” from the parties’ former family home and sacked from the business in which he had been previously employed and which was effectively controlled by the mother and her parents.
The mother has many criticisms of the father’s behaviour during the marriage. She asserts that he had issues to do with the over consumption of alcohol; was both a disinterested and lax parent; and posed a risk, to both her and the children’s safety, because of sleepwalking. She had particular concerns about the father’s attitude to gun and motor vehicle safety.
The father either denies these claims or asserts the mother has exaggerated them to serve her own interests in these proceedings. It is his position that, following separation, the mother, in concert with her family, dictated to him the terms and circumstances in which he could spend time with [X] and [Y].
The wife has a different view. It is her position that she did whatever she could to support the children having a proper level of relationship with their father but she wanted them to be safe from “his drinking, irresponsibility and his lack of commitment”.[1]
[1] See mother’s affidavit filed 5 November 2009 at paragraph 56
In the aftermath of the parties’ separation, the mother went to New Zealand, with the children, for a few weeks. She returned to [B] in mid-April. Thereafter, the father spent brief periods of time, during the day, with the children. In early May, Mr Reynolds went to [A]. He says he left [B] because he had no accommodation or employment in the town.
Between late April and 2009 and March of 2010, it is common ground between the parties, that the father did not spend any time whatsoever with [X] and [Y]. They continued to live in [B] with their mother.
Mr Reynolds was in [A], where he commenced employment as an [omitted]. Ms Reynolds’ main source of income was social security payments.
The mother commenced these proceedings on 5 November 2009. She sought final orders in respect of the division of the parties’ matrimonial property. In terms of arrangements for [X] and [Y], she proposed that the parties should have equal shared parental responsibility for the children, who should continue to live with her and spend time with their father on terms and conditions as stipulated by the court.
On an interim basis, Ms Reynolds sought an urgent award of interim spousal maintenance. She also sought injunctions restraining
Mr Reynolds from dealing with any item of matrimonial property or any of the plant and equipment owned by the partnership, by then dissolved, in which he had been involved with the mother and her parents. At this interim stage, she had no specific proposals as to the time the children should spend with the father.
The father responded to this application on 11 December 2009. He did not oppose the mother’s proposal that [X] and [Y] should continue to live with her. He did, however, propose specific arrangements for him to spend time with the children.
He proposed that they should spend four periods each year with them, each such period to be a minimum of seven days in duration. He proposed that he would meet the costs of the children’s return airfares between Adelaide and Perth, it being his position that he should spend time with [X] and [Y] at his home in [A].
The parties competing applications first came before the court on 14 December 2009. The emphasis, in the hearing, was on property matters, particularly on issues to do with the business partnership. At that stage, the father had no specific proposal to visit [B] to see the children and the mother had no plans to go with them to [A]. There was an impasse between them and limited information with which to resolve it.
In these circumstances, I made orders to the following effect:
·The parties attend a family dispute conference;
·Each party file and serve a brief affidavit, setting out his or her respective proposals for the father to spend time with the children in February 2010;
·The father have telephone communication with [X] and [Y] each Sunday and on Christmas Day at 6:00pm;
·Further considerations of the children’s issues be adjourned to 15 February 2010.
The mother filed an affidavit, as ordered. The father did not. In her affidavit, Ms Reynolds indicated that the father had proposed to her that he spend time with the children in Adelaide. He apparently suggested that he spend time with the children, for short periods of time, with the time to be initially supervised by her and then to become unsupervised shortly afterwards.
Mr Reynolds apparently proposed that the mother and the children could stay at a hotel in Adelaide, for this period of proposed contact. The hotel in question is familiar to Ms Reynolds and members of her family. However, it was apparently booked out at the relevant time because of the Clipsal car race and no alternative venue could be sorted out.
In addition, it was Ms Reynolds’ position that she was unable to travel away from [B] because of her responsibilities to mind the livestock and other animals on her parents’ farm. She was also concerned about watering her vegetable garden and being away from the property, during the fire season.
The mother also alluded to an alternative suggestion put by
Mr Reynolds, who had suggested he spend time with the children at [C], a beach resort on the south east coast. Ms Reynolds also had some reservations about [C]. It was her position that the most appropriate place for the father to spend time with the children was at [B].
In this context, she proposed that the children begin by spending one hour with the father, with the time to be supervised by her. Thereafter, she was willing to move to some unsupervised time, but only of two hours in duration. The parties attended the family dispute resolution conference on 12 February 2010. Both parties attended the conference by telephone.
One of the purposes of such conferences is to enable the court to seek advice from the family consultant convening such a conference [section 11E].[2] As a consequence, confidentiality does not attach to what is said in such conferences [section 11C]. Accordingly, it is a common practice that, following such conferences, the family consultant concerned prepares a written memorandum of advice for the court.
[2] Hereinafter all references in [ ] are to the Family Law Act 1975
To the parties’ credit, they were able to reach some interim agreement in respect to Mr Reynolds re-establishing spending time with [X] and [Y]. It was agreed that Mr Reynolds would spend time, with the two children, at the home of mutual friends, at [B], during the day, on two occasions in mid-March of 2010.
Thereafter, it was agreed that Mr Reynolds would spend time with the children at [C], at the holiday home of mutual friends, although different friends to the ones in [B]. During this visit, it was agreed that Mr Reynolds would have one overnight period with the children.
The mother complains that the father was late in respect of both the mid-March visits and on each occasion he returned the children early. This reinforces her position that the father is not really committed to spending time with the children and finds it difficult to care for them for extended periods of time.
The mother only agreed to the children spending time with
Mr Reynolds, at the [C] shack, because other adults, whom she trusted, were going to be present. She deposes that she was alarmed at the prospect of the father sleepwalking. In order to deal with this issue,
Ms Reynolds, to use her own terminology, “primed” [X] about “daddy’s sleepwalking”.
The agreement reached by the parties was formalised into an order of the court, which was prefaced by extensive notations as follows:
·That the mother will provide the nappy bag, bikes and packed lunches for the children when they spend time with the father on 13 March 2010 and 14 March 2010.
·That the mother will provide snacks, water bottles, beach toys, bikes, bathers and car seats for the children when they spend time with the father at [C] between 2 April 2010 and 5 April 2010.
·That the father will supply nappies for [Y] when he spends time with the children at [C] between 2 April 2010 and 5 April 2010.
·That the mother will stay with the father and the children from 11:30am to 12:30pm on 2 April 2010 in order to ensure that the children are settled in at [C].
·That if the children become distressed during their time with the father at [C], the father is to take the children to Mr and Ms A at [K].
The considerable detail of these notations confirms my overall impression of the mother that she is a protective parent, who has a significant need for oversight of the children.
Following these orders, the parties agreed to have another family dispute resolution conference in April, after the [C] visit. In the meantime, the property proceedings between the parties continued on to a conciliation conference. At this conference, it became apparent that there were modest amounts of property available to be divided between the parties.
In these circumstances, the parties reached agreement about the property issues. However, it remains my view that issues relating to property and the parties’ mutual allegations of financial impropriety against the other, during their relationship, remains a considerable source of friction and bitterness between them. In my view, issues to do with post-separation politics remain potent in this case.
On 14 April 2010, final property orders were made. By this time, the father was acting on his own behalf. He continued to live in [A]. The mother and children remained living in [B]. Ms Reynolds was able to retain the services of her solicitor.
On 12 April 2010, the parties attended the second family dispute resolution conference. The convenor of the conference was Dr B. Dr B described Ms Reynolds as being “child focussed and trying to assist the father in maintaining regular contact with their two young children.”
It was common ground between the parties that Mr Reynolds remained in regular communication with the children via telephone and Skype, although [Y] was described as having a “limited attention span in regards to this type of communication”.
Dr B described Mr Reynolds as being “more focussed” on establishing a maximum of four visits per year with the children, for minimum periods of up to one week, with the time to occur in either South Australia or Western Australia, at his discretion. In addition, Dr B reported as follows:
“Mr Reynolds appeared to not understand the importance of regular time with his very young children to assist them in feeling comfortable in his care.”
Dr B also reported that the parties had been able to reach substantial agreement about final arrangements for the care of [X] and [Y]. It was reported that the parties had agreed that Mr Reynolds would spend a maximum of four separate periods of time with the children, for a minimum period of one week, provided he gave Ms Reynolds one month notice of the period of time he proposed.
When the children started school, it was agreed that Mr Reynolds would spend half of each school holidays with the children. It was also agreed that the children would be exchanged between the parties in Adelaide, but, Mr Reynolds would be available to travel with them, to Western Australia, provided that on the first occasion of such travel, Ms Reynolds also accompanied [X] and [Y] to assist them to settle in their father’s household.
Mr Reynolds agreed to meet the cost of the children’s return airfares between Adelaide and Perth. The parties remained in dispute as to the payment of Ms Reynolds’ necessary travel expenses. Dr B also noted that Ms Reynolds had indicated a preference for the father to spend one or two further visits, with the children, in South Australia, prior to the first visit to Western Australia.
Importantly, the parties agreed that they would have joint parental responsibility for [X] and [Y] and would contribute equally to the children’s school expenses. The parties were unable to agree on issues pertaining to the children travelling overseas. It being the case that many members of Ms Reynolds family live overseas.
Notwithstanding this apparent wide ranging agreement, the parties were not able to reach a settlement of the children’s issues.
Ms Reynolds deposed as follows:
“…Whilst the advice to court dated 12 April is an accurate representation of the agreement that the father and I reached during that telephone conference, after the conference I reflected on the agreement and realised that I was not comfortable with the agreement.[3]
[3] See mother’s affidavit filed 5 October 2010 at paragraph 154
Accordingly, on 22 June 2010, when the matter returned to court, I designated a date for final hearing and ordered that a family report be prepared. The date designated for the hearing was 26 October 2010. The family report was prepared by Ms U and was released to the parties on 13 September 2010.
No further specific orders were made for Mr Reynolds to spend time with [X] and [Y]. The parties however were able to agree on
Mr Reynolds seeing the children in September of 2010, when he visited Adelaide for a few days.
Ms U recommended as follows in the family report:
“The children [X] and [Y] should live with their mother
Ms Reynolds and visit their father Mr Reynolds in Adelaide or Western Australia several times per year. Visits should each be up to seven days at times agreed between the parties at least four times per calendar year until both children reach school age. Visiting times should then be rearranged for school holidays and when Mr Reynolds can visit [B].”[4]
[4] See family report of Ms U at paragraph 41
Ms U did not formally propose any process of “stepping” these visits. Rather Ms U proposed that Ms Reynolds be “nearby” during the children’s first visit “in case she was needed”, but otherwise
Mr Reynolds was to have the children for the full time of each such visit.
As Ms U’s evidence turned out, because of their bluntness, these were not helpful recommendations. Mr Reynolds was happy to adopt them. On the other hand, Ms Reynolds had and continues to have very considerable reservations about them. Essentially, she believes Ms U’s ostensible formal recommendations are unworkable in the short to medium term.
The mother’s position is that she wants the children to see their father regularly. However, she asserts that this needs to be in the context of “a regular and gradual build up of contact” rather than an “instant week long contact”, particularly as the father has cut short many of his recent visits with the children.
In addition, Ms Reynolds would like someone to be present with the father and the children, during any periods of overnight time, to safeguard [X] and [Y] in the event of the father sleepwalking.[5]
[5] See mother’s affidavit filed 5 October 2010 at paragraphs 163-167
The case provides the following difficult issues, which are easy to summarise but difficult to answer:
·[X] is five years five months old; [Y] is three years two months. The children are young and obviously cannot travel independently or easily.
·Since April 2009, the children have spent irregular and brief periods of time with their father and only once for an overnight period.
·This is a considerable proportion of the children’s lives and must have implications for the level of their relationship with the father, particularly its ease and comfort.
·Mr Reynolds is resolute in refusing to come and visit the children in [B], where he says he has no support and would be forced to rent accommodation for himself and the children.
·More subtly he is resentful at his perception that he must be forever beholden to Ms Reynolds, in any arrangements for him to spend time with the children.
·
On the other hand, Ms Reynolds says it is far easier for
Mr Reynolds to travel to [B] to see the children than for them to be uprooted and potentially psychologically upset by travelling to [A]. This will also be cheaper.
·More subtly, she asserts that the father is putting his own emotional need to be seen to be in control ahead of the needs of [X] and [Y] to feel emotionally secure and supported.
·Mr Reynolds argues that for the children to have a proper and “meaningful” level of relationship with him and his family, [X] and [Y] need to spend regular periods of time with him, in his home environment, in [A].
·For it to be financially viable for him, these visits need to be of a reasonable duration and specified well in advance, so he can save for and make the necessary arrangements for the children’s travel to [A].
·The mother is concerned at the prospect of the children being plunged into a long visit, far away from her and their home, for which they are emotionally unprepared. She fears it may be psychologically traumatic for them.
·Whatever is the outcome, given the ages of the children concerned and the distance between their parents’ respective homes, it will be expensive and logistically difficult for the children to spend time with their father.
·Neither party is in a strong financial position but each views the other as having access to other sources of financial support. In the mother’s case, she believes the father is underestimating his income from self employment. In the father’s case, he believes the mother’s parents are able to assist the mother financially.
·The parties mistrust one another and do not communicate well. This state of affairs is unlikely to change in the short to medium term and indeed these proceedings may have exacerbated this state of affairs.
·As such, given the dynamics of the parties’ circumstances and relationship, there is a risk that the children may lose the potential to have a warm and intimate relationship with their father in future. This may have significant consequences for their best interests.
·In all these circumstances, is there a viable way to “step” the periods of any time, which the father spends with the children, so that they can return to their mother’s care intermittently in order to provide both [X] and [Y] and Ms Reynolds herself with reassurance.
·What are the likely implications, for [X] and [Y], of their parents’ poor and mistrustful relationship, particularly in the context of a handover situation.
·The mother views the father as a compromised parent, who lacks insight.
·The father views the mother as being unduly controlling and as unsupportive of maintaining the children’s relationship with him.
·Essentially, Mr Reynolds asserts that the mother is disingenuous when she says she wants [X] and [Y] to have a relationship with him because the reality is that she places as many barriers in the way of it occurring as she can think of.
·On the other hand, Ms Reynolds asserts that Mr Reynolds is not really committed to having a relationship with the children, unless he can dictate its terms to her for reasons arising from their failed marriage.
·What is the significance of the father’s acknowledged history of sleepwalking for the children and their safety.
These proceedings are directed towards resolving this complex dispute between the parties and, as far as is possible, finalising arrangements for the care of [X] and [Y].
What has happened more recently
The final hearing of the matter was scheduled for 26 October 2010, with the necessary affidavit material to be filed prior to 15 October. The mother complied with the filing regime, the father did not. He did not file any further affidavit material whatsoever.
Ms Reynolds filed an amended application proposing that Mr Reynolds spend time with [X] and [Y], for two consecutive days, between 9:00am and 7:00pm on each such day on six occasions each year. No location was suggested for this regime of time. She also proposed that, in default of agreement, the children would be collected by
Mr Reynolds from their mother’s home.
In addition, the mother sought specific orders which would permit her to take the children out of Australia for holidays. To give effect to this proposal, she sought orders directing the father to sign the children’s necessary passport renewal forms. She undertook to provide the father with an itinerary and other travel details in respect of any such overseas trip.
When [Y] turns six, in December of 2013, Ms Reynolds proposed that the parties should meet once again with Dr B to discuss changes to her proposed regime. No doubt Ms Reynolds was aware that her current proposal must necessarily be a provisional one, reflective of the tender years of the children concerned, and given Mr Reynolds strongly stated desire to spend longer periods of time, with the children, at his home in Western Australia.
On 30 September 2010 Ms Reynolds filed an application seeking that Mr Reynolds obtain a medical report, at his own expense, from some suitably qualified expert, to ascertain whether his sleepwalking posed any risk to [X] or [Y], particularly in the context of overnight care. She filed an affidavit in support of her application.
It was her position that during the five years of the parties’ marriage, Mr Reynolds would sleepwalk frequently. She also deposed that, about two or three years earlier, on two separate occasions, whilst
Mr Reynolds had been asleep, he had grabbed her arms and squeezed them hard enough to cause small bruises and on the other occasion had grabbed her around the neck. She also asserted that the father had walked into the children’s bedroom, whilst he was asleep.
The father did not produce the medical report proposed. In these circumstances and given the absence of any trial affidavit material from Mr Reynolds, the mother applied to adjourn the trial scheduled for 26 October. I was not disposed to grant the adjournment. Rather, I was hopeful that the process of the trial would perhaps lead to some concrete regime leading to a situation whereby Mr Reynolds could spend time with the children, in an overnight setting, at his home in [A].
I reached this conclusion because, in her trial affidavit, Ms Reynolds had indicated that she was travelling to [M], in south west Western Australia, in early December 2010 to attend the wedding of a friend. She deposed as follows:
“I would really love for the children to come and see the father and his family and would be disappointed if the opportunity was wasted.”[6]
[6] See mother’s affidavit filed 5 October 2010 at paragraph 175
I was fortified in my belief that something productive might come of the hearing proceeding by comments Ms U made in the family report. In particular, she reported as follows:
“The adults involved in this matter appear to be reasonably focussed on the best interests of the children and able to communicate about their needs. This suggests they may be able to negotiate the remaining issues around time and overseas travelling. Both parties agree on shared parental responsibilities for the welfare of their children and while this could be difficult because of geographical distance, it is considered to be in the children’s best interests.”[7]
[7] See family report at paragraph 34
Regrettably, my expectation miscarried. The sticking points being the issue of the payment of the children’s airfares between Adelaide and Perth and the vexed issue of overnight time, in the context of the mother’s concerns about the father’s sleepwalking. It was my own experience that the parties had little capacity to compromise.
Mr Reynolds raised concerns about the difficulty of him being able to take time off work, during what was the busy period of his working year. The mother was worried about the father spending overnight time with the children, in premises where there was no other adult present. In this regard, the father proposed his parents be present but, at the time in question, they had plans to go on holiday.
Ultimately, I made the following orders:
“During the period of adjournment the father spend time with the children [X] born [in] 2005 and [Y] born [in] 2007 as follows:
(a) on 5 December 2010 from 10.00 am until 5.00 pm;
(b) on 7 December 2010 from 10.00 am until 5.00 pm;
(c) on 9 December 2010 from 10.00 am until 5.00 pm;
(d) on 11 December 2010 from 10.00 am until 5.00 pm;
and it being noted that it is open to the parties to agree on any additional times in the event that the mother and children concerned remain in the area of [A] Western Australia.
The time outlined in order (1) hereof take place at the father’s home in [A], Western Australia subject to the following conditions:
(a)the father pay the cost of the children’s return airfare from Perth to Adelaide to accommodate this time and he provide the sum necessary to purchase the fares to the mother on or before 20 November 2010 to a bank account nominated by the mother or in some other manner as agreed between the parties;
(b)the mother book the children’s return airfares and use her best endeavours to obtain the cheapest fare available between Perth and Adelaide by 3 November 2010 and advise the father of the details of the airfares and the cost thereof by sending the details to the father’s email address; and
(c)the children be exchanged at the [A] [business omitted] at the beginning and end of each such period.
(d)In the event the father is unable to spend time with the children on a week day, he is to advise the mother accordingly.
The father consult with a General Medical Practitioner of his choice in [A], Western Australia and seek a referral to a medical specialist who practices in the area of sleep disorders in order to undertake an assessment of his somnambulism and in particular whether it is amenable to treatment or is in the opinion of the expert concerned currently in remission and further whether the father is likely to pose a threat to any person, including the children herein as a result of any condition relating to sleepwalking from which he suffers.”
One aspect of the evidence, which came out on 26 October 2010, was that Mr Reynolds was then involved in a relationship with Ms T. Ms T lives in suburban Adelaide and has children of her own. Accordingly, it seemed possible to me that the father could spend time with the children, at Ms T’s home in Adelaide. Such an outcome would go some way to addressing the logistical issues arising in the case and assuaging the mother’s concerns about the father’s sleepwalking.
In this context, I directed that Mr Reynolds file an affidavit setting out his proposals as to where he wished to spend time with the children in future and more particularly how he proposed that any travel expenses be met. I also directed that he file an affidavit from Ms T, if he proposed to utilise her home for visits with the children.
The visit of early December to [A] did not get off to a good start. Firstly, Mr Reynolds did not pay his share of the children’s fares to a bank account nominated by Ms Reynolds, as the applicable order specified. Rather, he chose to pay the sum required to the Child Support Agency, which applied the moneys to his arrears of child support.
Ms Reynolds regards this action as a piece of petty bastardry.
Mr Reynolds justifies his actions on the basis that it provided him with formal proof of the payment. I think Ms Reynolds explanation is the more plausible one.
In any event, it is Ms Reynolds position that she found it difficult to purchase the necessary airfares for the children, from her own financial resources. As a consequence, she borrowed money from family and friends. The prospect of her visit with the children to [A] being extended was extinguished. Instead, she had to shorten her visit.
In this context, it was ostensibly agreed between the parties that
Mr Reynolds would spend time with the children, on Saturday and Sunday the 4th and 5th of December respectively, so she could return to South Australia on Monday 6th December.
In addition, the parties agreed to an alternative handover location. The mother delivered the children to the father’s address in [A]. She then went on to the wedding in [M], which was her personal reason for travelling to Western Australia. No specific arrangements were made between the parties as to how the children were to be returned to
Ms Reynolds.
Unbeknown to Ms Reynolds, the father had made arrangements for the children to attend a Christmas party at his parents’ home. This party was attended by many of the children’s paternal relatives. It is Mr Reynolds’ evidence, which I accept, that the children enjoyed this occasion very much.
In the early evening, Ms Reynolds telephone Mr Reynolds to arrange to collect the children. The parties argued about whether the mother should drive to [A] or the father should drive the children to [M]. The distance involved is around 40km.
In any event, the children spent the night at their paternal grandparents’ home. The father deposed that he wished to make a point to the mother. He says the children slept well and were happy. The mother regards his behaviour as abusive and controlling. It distressed her.
Notwithstanding these difficulties, further arrangements were made between the parties for Mr Reynolds to spend time with the children, from 22 to 24 December, to coincide with medical appointments the children had in Adelaide and Mr Reynolds visiting Ms T. This visit included one overnight stay at Ms T’s home.
Ms Reynolds deposed that she was pleased to meet Ms T and had confidence in her, particularly as she had children of her own. However, it is her position that [X] in particular was unsettled following this visit and the earlier visit in [A].
She says that [X] began to wet the bed and both children have had behavioural problems, particularly in terms of anger issues. In this context, she has arranged for the children to see a child psychologist and counsellor in [G]. She could not recall the psychologist’s name.
In contrast, Mr Reynolds’ perspective is that the visit went well. He and the children engaged in a number of excursions, including a trip to the beach. He deposes that the children were happy and excited during the visit.
More recently again, on the evening prior to the resumed hearing,
Mr Reynolds had an evening meal, at his hotel, with [X] and [Y]. At his direction, the visit was to conclude at 7:00pm. Ms Reynolds arrived at this time. However the visit went over time until around 7:50pm. Mr Reynolds’ evidence was that [X] told him he wanted to spend a longer period of time with his father.
In response to suggestions that he had unreasonably departed from arrangements made for him to spend time with the children, both in [A] and Adelaide, Mr Reynolds replied that he was “sick and tired of being bossed around by her [Ms Reynolds]”. This reply, although perhaps not thought through by Mr Reynolds, has an air of authenticity to me.
As directed, Mr Reynolds filed his trial affidavit on 30 December 2011. To this affidavit was attached a report of Dr P, a respiratory and sleep physician, who practises in Perth. Mr Reynolds consulted him on
19 November 2010 for assessment of his parasomnia and particularly his somnambulism.
In the history, which he recounted to Dr P, Mr Reynolds described having walked in his sleep as a child and more recently, during his marriage, having thrown out his arms, during sleep, hitting his wife on the chest. He denied any recollection of having strangled Ms Reynolds whilst asleep. He also described talking in his sleep.
On the basis of this history, Dr P concluded as follows:
“Based on this history, it is likely that he had infrequent episodes of somnambulism (sleepwalking) in mid-childhood and possibly in adolescence, but there is no clear history of him sleepwalking as an adult, except based on his wife’s statements in court proceedings. Somnambulism is a slow wave sleep-based (non-REM) parasomnia which is not uncommon in childhood, usually benign and often disappears during adolescence or by adult hood. Sleepwalking is uncommon in adulthood, but may be precipitated by periods of stress or sleep deprivation in individuals predisposed to somnambulism. Sleepwalking is almost never associated with behaviour harmful to others, and the most important aspect of management of this condition, when present, is prevention of harm to the sleepwalker. In this case, I see little evidence that he has been sleepwalking in adulthood.
He is known to talk in his sleep, and somniloquy (sleep talking) is also a non-REM parasomnia, but may occur in REM sleep as well in relation to dream and patient. Semi-purposeful movements such as sitting up and moving his arms during sleep and occasionally more rapid arm movements (such as that inadvertently resulting in him hitting his wife during sleep) are more in keeping with REM sleep behaviour disorder, however the movements are relatively non-specific, benign and would not normally be investigated in clinical practice. Occasionally REM sleep behaviour disorder may result in inadvertent self injury or harm to the partner, however that is in more extreme cases, and I am hard pressed to be certain that he has this disorder, and if present, at most it is likely to be mild. In more severe cases of REM sleep behaviour disorder, appropriate medication at night is effective in controlling the problem.”[8]
[8] See report of Dr P dated 19 November 2010 annexed to the father’s affidavit filed 30 December 2010
Notwithstanding this conclusion, Dr P arranged for Mr Reynolds to take part in a diagnostic polysomnigraphy report or supervised sleep study. This occurred on 1 December 2010. It revealed that
Mr Reynolds slept normally and there was nothing to indicate a movement disorder in his sleep.[9]
[9] See affidavit of the father filed 7 January 2011
Ms Reynolds does not accept the validity of these reports. It is her position that the history provided to Dr P by Mr Reynolds was not complete, particularly as for self apparent reasons, he (Mr Reynolds) is not in a position to recount his behaviour during sleep.
Prior to the resumption of the hearing, Mr Reynolds informed Ms Reynolds that the relationship between him and Ms T had come to an end. Accordingly, the utilisation of Ms T’s home, in Adelaide, for visits between Mr Reynolds and the children is no longer available in this case.
Accordingly, in the light of the purported agreement reached between the parties during the family dispute resolution conference with Dr B and the ostensible recommendations made by Ms U in the family report, Mr Reynolds’ position, prior to the resumed hearing of 20 January 2011, was as follows:
·He should spend four separate periods of time with the children, each year, for a minimum of seven days on each such occasion;
·The visits should take place at [A];
·He would collect and return the children in Adelaide;
·He would accompany the children, at his own expense, until they reached a suitable age to travel independently, which he suggested would be around ten years of age;
·The parties should otherwise pay one half of the children’s costs of travel between Adelaide and Perth by air;
·He remained opposed to signing the children’s passport applications and for a blanket order to be made permitting them to travel overseas;
·He proposed giving thirty days notice of his intention to take time with the children.
The mother’s position, at the resumed hearing, is difficult to express with exactitude. I will attempt to summarise it as follows:
·She wants the father to spend time with [X] and [Y], so that there can be a relationship between the father and the children;
·Her preference would be that any time takes place in [B];
·She is worried about overnight time, given what she sees as [X] and [Y]’s reaction to the two recent periods of overnight time;
·In these circumstances, she would propose waiting to hear what the psychologist in [G], whom she will consult shortly, proposes in respect of appropriate arrangements for the children to spend time with their father;
·However, she does not want to adjourn the proceedings, until after that information is to hand;
·She cannot afford to contribute to the children’s travelling expenses;
·At this stage, she is opposed to the father having overnight time with the children. Necessarily this rules out the children travelling to Western Australia;
·She wishes comprehensive orders to be made, which will permit the children to travel overseas with her, without the necessity to return to court prior to each proposed trip.
Accordingly, notwithstanding Ms U’s impression that the parties had some facility to work together to achieve some solution to the problems, which confront them in this case, it is my apprehension that they remain deadlocked.
The evidence
I consider both Mr Reynolds and Ms Reynolds to be honest and pleasant witnesses, who each tried to tell the truth about their relationship together as they each saw it. I also have no doubt that both love [X] and [Y] very much indeed and both want the best for the children.
They are, however, quite different in temperament and personality and these differences inform their respective attitudes to the responsibilities of being a parent. They also currently view the other through a distorting prism of hostility, as a result of the circumstances surrounding their difficult separation and the events since.
This is particularly so in the case of Mr Reynolds, who feels hard done by at what he sees was his unfair eviction from [B], which left him no alternative but to return to Western Australia, where he could work and have familial support but which meant he would be far away from [X] and [Y].
In turn, Ms Reynolds feels let down financially. She says it was the father’s choice to move to [A] and he must now live with the consequences of his decision, in terms of the appropriate location for him to spend [X] and [Y].
The mother is a protective parent, who is prone to anxiety. She seems highly organised in her parenting. The father is more laize fare but considers himself to be competent in his parenting. Certainly he does not think he is an irresponsible parent and is resentful that the mother gives him no credit in this regard.
Underpinning Mr Reynolds’ case is his conviction that he has an entitlement to spend time with the children, in [A] and the mother is disingenuous in the positions she has adopted, which are designed to appear reasonable but are quite the opposite.
His position in respect of these proceedings is best encapsulated in his own words: “I am sick and tired of being bossed around by her”. This attitude permeates his opposition to the children travelling overseas and his refusal to visit them in [B].
The mother finds the father difficult to deal with. Her perception being that if he does not get his own way, he will not compromise but rather will “fly off the handle”. She does not trust his judgment. Consequently both parties think that the other is unreasonable and not focussed on the best interests of [X] and [Y].
At this stage, the parties have fundamentally different views as to how [X] and [Y]’s interests will be best served. The mother is focussed on the day to day need of the children to have stability and emotional security. The father more focussed on the desirability of the children having a comprehensive paternal relationship. Both of these perspectives have validity.
Onto the unpromising emotional topography existing between the parties is superimposed the enormous practical difficulties arising in the case – the tender ages of the children; the lack of continuity in their relationship with their father; the distance between the parties’ respective homes; and their mutual lack of financial resources. Accordingly, it is difficult, if not impossible, to find clear solutions to the problems created by this case. This difficulty is compounded by the inability of the parties to empathise with the situation confronting the other.
a) Background
The mother was born [in] 1980. The father was born [in] 1978. The parties met as children in 1985. They both grew up in [N].
b) The father’s sleepwalking
I accept that the father has a history of sleepwalking. I also accept that it is a concern to the mother. However, it is my view that she has unwittingly overstated her concerns.
In cross-examination, she conceded that the children had never been harmed by their father during a sleepwalking episode and she did not believe that either child had personally witnessed an episode of their father’s sleepwalking.
In terms of her allegation that the father had injured her, during a sleep related incident, she indicated that she had received “just bruising”, which had not required any specific medical intervention.
In all these circumstances, I do not consider that the father’s sleepwalking alone represents an unacceptable risk to the children. In my view Dr P’s assessment of the father’s sleepwalking represents a more reliable and objective assessment of the likelihood of risk occurring to a bystander of the father’s sleepwalking than does
Ms Reynolds, albeit hers is based on personal experience.
c) The father’s behaviour during the marriage
The mother’s case is that the father drank to excess during the marriage. The father bluntly refutes this assertion in his answering affidavit. In cross-examination, he conceded his drinking may have got “out of the limit a bit”, but it was only because “he was being stressed by [Ms Reynolds]” at the time.
Mr Reynolds is unwilling to agree to an order that he not drink alcohol to excess during any periods the children are in his care. His objection is not based on the lack of precision in the proposed order or its unenforceability. Rather, he objects to it on the basis that it would represent an unwarranted intrusion into his private affairs. At this juncture, he seems unable to comprehend that such an order may provide Ms Reynolds with some reassurance and so assist him in his aim to spend more time with the children.
In 2009, Mr Reynolds consulted his general medical practitioner in [B]. I suspect that this was at Ms Reynolds urging. He described drinking five to eight mid-strength beers per night, which he drank at home alone, as a means of helping him cope. Ms Reynolds is of the view that the father has also suffered from depression, during the marriage. Something Mr Reynolds denies.
At this juncture, it is difficult to assess what is Mr Reynolds’ current level of drinking. It is his position that his alcohol use is not currently an issue, particularly since the parties separated. I do not think that the issue of the father’s previous alcohol consumption should, of itself, act as a bar to the father spending time with [X] and [Y]. However, the mother’s concern about the issue is part of the complex background to this case and provides part of the explanation as to the level of deadlock.
The mother says that the father had only “very limited involvement for caring for the children during our marriage”.[10]Ms Reynolds asserts that Mr Reynolds regarded anything to do with providing care for [X] and [Y] as being her (Ms Reynolds’) job. Again, Mr Reynolds bluntly refutes this situation.
[10] See mother’s affidavit filed 5 October 2010 at paragraph 71
It seems to me to be more likely than not that, during the parties' marriage, they divided their familial responsibilities along conventional lines, with the father perceiving himself to be more the family’s breadwinner and the mother being more responsible for child caring and home making duties.
Such a state of affairs, does not, of itself, disqualify a parent from being a child’s carer, following parental separation. It is a common phenomenon that many separated parents, particularly men, have to reappraise their parenting skills, following relationship failure. Many men are more than capable of ‘stepping up to the plate” and becoming competent parents following separation.
Again, it seems to me, that this is one of the themes of the current case. Mr Reynolds is resentful at what he perceives to be the mother’s unwarranted criticisms of him. For her part, Ms Reynolds is highly apprehensive about what she perceives to be Mr Reynolds deficient parenting skills and current lack of support and role models to improve them.
In this context, Ms Reynolds was sanguine about Mr Reynolds spending time with [X] and [Y] at Ms T’s home. She had confidence in Ms T because she was a mother, who had children of her own.
Ms Reynolds remains highly apprehensive at the prospect of
Mr Reynolds spending time with the children, in an overnight setting, if there is not some other adult present in whom she (Ms Reynolds) has confidence.
Again, Mr Reynolds sees this as an unwarranted intrusion into his relationship with the children. He does not think that such a requirement is necessary. He is resentful at the suggestion his time with the children needs supervision.
Mr Reynolds is currently living in a caravan on a farming property owned by his parents. They live in a large homestead on the other side of the farm. Mr Reynolds has said that, in the event of the children coming to stay with in [A], he would arrange for [X] and [Y] to sleep over in his parents’ home.
One of the mother’s more recent criticisms of the father’s parenting concerns the exposure of the children to muesli bars, during the overnight visit of April 2010. The children are apparently allergic to peanuts, which are contained in muesli bars. The mother was very concerned about this occurrence, particularly as the father appeared to be somewhat offhand about it.
The father does acknowledge that the children had access to muesli bars. He confirms his knowledge of the children’s allergies. More importantly, he indicated that he would be willing to abide by any dietary restrictions placed on [X] and [Y] by the mother as a condition of the children spending time with him.
d) Child support and financial matters
Mr Reynolds estimates his income as being somewhere in the vicinity of $40,000.00 per annum. His statement of financial circumstances estimates an average weekly income of $1,030.00.[11] I accept
Mr Reynolds is not a well resourced person financially but am concerned that he has not been completely forthcoming about his financial circumstances.
[11] See father’s financial statement filed 11 December 2009
Mr Reynolds describes himself as a [occupation omitted]. I accept that he has no specific trade qualifications and does not own any machinery of his own. Accordingly, when he engages in [occupation omitted], he uses the equipment supplied to him.
So far as the Child Support Agency is concerned, Mr Reynolds child support income is currently nil. As a consequence, he is assessed to pay the statutory minimum amount of child support which is currently $196.00. He has been in arrears in respect of the payment of this sum.
Mr Reynolds has not as yet completed his tax return for the 2009/2010 tax year. He does his own accounts. In answer to a question from me, Mr Reynolds indicated that he had issued invoices, in a total amount of somewhere between $6,000 and $9,000 for the last quarter or so. This answer was both vague and unconvincing. I am concerned at
Mr Reynolds’ reticence to disclose his financial circumstances.
However, in my view, it is to Mr Reynolds credit that he is prepared to commit himself to paying for a substantial component of the children’s travelling expenses between Adelaide and Perth and is willing to pay his own fares necessary to accompany them on each such journey. He told me he has “pestered” Virgin Blue for a discount fare arrangement for himself.
At present flights between Adelaide and Perth range in price between $120.00 and $250.00. He estimates that, if the court makes the orders which he seeks, he will have to commit around $5,000 per annum to his and the children’s necessary airfares. On his evidence, this represents a significant component of his income.
Mr Reynolds says that he will be able to budget to save this sum, particularly if he has sufficient notice of the children’s times of travel. In these circumstances, he asserts that it is only fair that Ms Reynolds should make some contribution towards the children’s travelling expenses.
Ms Reynolds is understandably resentful that, since the parties separated, she has had to assume financial responsibility for [X] and [Y] with negligible assistance from Mr Reynolds. Her major source of financial support is social security. However, Ms Reynolds deposes that she has re-partnered and has some involvement in her new partner’s business.
Ms Reynolds has been legally represented throughout these proceedings. She has filed several lengthy affidavits in the proceedings. I am unaware as to how she has funded the case.
Mr Reynolds describes his parents as being comfortably off. The impression I have is that Ms Reynolds’ parents are also financially secure. What assistance the respective grandparents are prepared to provide to each of the parties is not known to me.
e) The family report
In interview with Ms U, Ms Reynolds acknowledged that [X] missed his father. This fact was confirmed by Ms Reynolds partner, Mr N, who accompanied her to the appointment with Ms U. He indicated that [X] frequently talks to him about his father and “especially misses him”.
During an observed interaction between the father and the children,
Ms U described [X] as expressing pleasure at seeing his father. Both he and [Y] were described as talking animatedly with their father and as appearing relaxed and comfortable in his presence. Ms U described Mr Reynolds as coping well with the children, during the observed interaction.
Ms U was not greatly concerned at the description given to her of
Mr Reynolds previous sleepwalking behaviour, which she did not think was likely to pose a threat to the children. However, she thought it likely to be useful if Ms Reynolds was on hand during the children’s first overnight visit with their father.
In order for the children to develop a relationship with their father
Ms U considered it to be important for Mr Reynolds to have the children “full time during his visits, not for a few hours at a time”.[12]
[12] See family report at paragraph 37
Ms U’s recommendation that Mr Reynolds should attend a sleep clinic was apparently a mechanism designed to provide reassurance to
Ms Reynolds rather than medical treatment for Mr Reynolds.
Ms U identified that both parties had concerns about the children’s safety, whilst in the care of the other. In the father’s case, these concerns centred on the children travelling overseas. In the mother’s case, these centred on the father’s sleepwalking. Ms U urged the parties to communicate with one another about these issues and find ways to reassure the other about his or her respective concerns.
In the evaluation section of her report, Ms U stressed the developmental need of the children to have a meaningful level of relationship with their father. She also pointed to the fact that both children were observed to be comfortable in their father’s presence and each expressed a wish to spend more time with him. Ms U reported as follows:
“The children both expressed a desire to see their father more often and while Ms Reynolds has encouraged visits to some extent, she is limiting Mr Reynolds’ opportunity to be a parent in her endeavour to protect them from his sleepwalking habit. The impact of her proposal would also be detrimental to the children’s wellbeing by inhibiting their developmental needs to enjoy a close relationship with their father.”[13]
[13] Ibid at paragraph 36
This was the background to Ms U’s blunt recommendation that [X] and [Y] should visit their father, in Adelaide or Western Australia, several times per year and each such visit should be up to seven days in duration.
In cross-examination from counsel for the mother, Ms U significantly moderated this proposal, particularly in the light of what were described as the behavioural issues displayed by the children following the most recent visits with their father.
Essentially, given that Mr Reynolds had had sporadic time with the children, in the almost two years since the parties separated and given that there had not been frequent overnight stays, Ms U considered that it was not unreasonable for the father’s time with the children to be progressed slowly. She conceded that, at the present time, given the circumstances and the ages of the children concerned, it was potentially very traumatising for them to spend seven consecutive days with their father.
Ms U agreed that there could be many reasons why [X], in particular, was displaying disturbed behaviour following his most recent visit with his father. She agreed that it may be an indication that he was missing his father and wanted to spend more time with him. It also might be a reaction to the tense and difficult relationship between his parents. In cross-examination, Ms U reiterated her view that the children needed to spend time with their father and form a positive relationship with him.
One of the consequences of the cross-examination of Ms U by the mother’s counsel was to place the obvious logistical difficulties present in the case to the forefront of Ms U’s thinking. In this context Ms U accepted that the proposed visits between [B] and [A] represented “a lot of travelling for two little boys”.
Ms U also considered it would be useful, if the children could reconnect with their mother directly during each of the first few visits with their father, on a regular basis. For these reasons, Ms U accepted that it was probably better for visits between the children and their father to occur in South Australia, at least initially.
Accordingly, Ms U indicated that she was in agreement with the children having a stepped process of spending time with their father. She indicated that there could be many ways to arrange this but in general terms she proposed that the visits should begin with one or two overnight stays before progressing to stays of three or four nights, depending on how the children coped.
There could be consecutive blocks, of this duration, during each visit, interspersed with the children spending a day or two with their mother, leading up to, eventually, a week long, uninterrupted block of time with their father. Ms U did not think it “outlandish” for the children to travel to Western Australia for the 2010/2011 school holiday period.
The legal principles applicable
The service of [X] and [Y]’s best interests is the most important consideration in this case [section 60CA]. This is the paramountcy principle. [X] and [Y]’s best interests are the paramount or most important consideration in this case.
The provisions, in the Family Law Act1975, relating to children, rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm, as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in how a court determines what is in a child’s best interests by section 60CC(2).
The aims and principles of the part of the Family Law Act [section 60B], which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm, from being subjected to abuse, neglect or family violence.
When deciding what parenting orders to make, it is the best interests of any child concerned which is the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in section 60CC.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made.
The primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act section 61DA]. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Although the parties have many issues and difficulties in their post-separation parenting relationship, they have consistently agreed that they should have equal shared parental responsibility for [X] and [Y]. Given the absence of issues concerning family violence, neglect and abuse, I do not propose to look behind the parties’ agreement. It is clear to me that both wish to be closely involved in all aspects of their children’s lives, as [X] and [Y] grow to maturity.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[14]
[14] See MRR v GR [2010] HCA4 at paragraphs 13 and 15.
The legal principles to do with a child travelling outside Australia, with one of his or her parents, in circumstances where the other parent concerned opposes that travel, are complex. Fundamentally, the court must determine whether the travel proposed is likely, on balance, to be in the child’s best interests. Necessarily this exercise must invoke the weighing and assessing of competing considerations and the balancing of the applicable section 60CC factors.
In considering the overseas travel proposed, the court must obviously turn its mind to the potential impact the travel may have on the child concerned’s ability to have a meaningful relationship with the other of his or her parents [section 60CC(2)(a) & (3)(b)]. Such considerations raise the following practical issues and criteria:
·the length of the proposed stay out of the jurisdiction;
·the bona fides of the application;
·the effects on the child concerned of any deprivation of time spent with the parent who remains in Australia;
·any threats to the welfare of the child concerned by the circumstances of the proposed environment overseas;
·the degree of satisfaction which the court has that a promise made by a party to return to Australia will in fact be honoured.[15]
[15] See Kuebler & Kuebler (1978) FLC 90-434 at page 72,205
Fundamentally, the court must make some assessment of whether there is any risk that the child concerned will not be returned to Australia, in spite of undertakings to the contrary. Obviously, such a possibility has potentially very serious ramifications for the child concerned. It may result in the severance of his or her relationship with one aspect of his or her family.
In such circumstances, the court is required to consider whether it is appropriate to impose conditions or impose securities to ensure the return of the child concerned to Australia. In determining whether some form of security should be imposed, the court is directed to consider the following factors:
·In fixing the sum of money as security, whether the sum is such as to realistically entice the person removing the child to return to Australia and also to adequately provision the party remaining in Australia to take action for the return of the child, if necessary.
·The degree of risk that the departing parent will not return to Australia.
·Whether the country of travel is a signatory to the Hague Convention on Child Abduction[16] and the likelihood of deviation to a non-convention country.
·The financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased.[17]
[16] Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980.
[17] See Line & Line (1997) FLC 92-729
The Australian Passports Act 2005 provides the legislative framework for the issue of passports to Australian citizens. Pursuant to section 11(1) the relevant minister is prohibited from issuing a passport for a child unless either each person who has parental responsibility for the child consents to the child travelling internationally; or an order of a court of the Commonwealth, a State or a Territory permits the child to travel internationally.[18]
[18] See Australian Passports Act 2005 at section 11(1) (a) & (b).
There is no controversy that between the parties that they should share parental responsibility for the children concerned in this case. Accordingly I am satisfied that this is not a case which could be resolved through any other of the specific administrative processes provided by the Australian Passports Act.[19]
[19] See Sahin & Sahin [2008] FMCAfam 1031 per Riethmuller FM.
The impression I have is that [X] and [Y] have many interested and loving relatives, on both their father’s and mother’s side of the family, particularly in the form of their grandparents. Although I cannot be certain, I suspect that these grandparents, on both sides, will be willing to assist their respective child in giving effect to the orders, which I propose to make. In any event, I would hope that this would be the case.
In my view, it is likely to be important to [X] and [Y]’ sense of identity that they gain a sense of where they fit in, in their wider family. In general terms, children do better if they understand that they are part of a wider family, comprised of grandparents on both sides, uncles, aunts, cousins and the like.[23]
[23] See Bright v Bright (1995) FLC 92-570 at 81,658
The children’s maternal grandparents live in New Zealand. In my view it is likely to be in [X] and [Y]’s best interests if they have an opportunity to spend time with their grandparents in their home environment. Given Ms Reynolds’ strong connections with Australia, it is unlikely she will elect to remain permanently in New Zealand with the children. In any event New Zealand is a signatory to the Hague Convention. Needless to say, it is a safe and well governed country.
Although it is my view that Mr Reynolds behaved inappropriately, when he retained the children overnight last December, I accept his evidence that [X] and [Y] were enjoying the party which was taking place at their paternal grandparents’ home. In my view, the children need to develop and maintain a warm relationship with their grandparents. In the case of their paternal grandparents, this can only easily occur if [X] and [Y] visit their father in [A].
c) The willingness and the ability of the parties to encourage a close and continuing relationship between the children and the other parent
The legislation requires me to consider the extent to which both parties have fulfilled or failed to fulfil their responsibilities as parents [Family Law Act section 60CC(4)]. One of these responsibilities is the facilitation of a meaningful relationship between any child concerned and the other of his or her parents.
Mr Reynolds is critical of Ms Reynolds for not properly supporting his relationship with [X] and [Y]. I consider that there is some substance to his criticism but also accept that, in the bigger picture, Ms Reynolds does want [X] and [Y] to know their father well.
As I stated earlier, the problems in this case are easy to state but solutions for these problems are harder to find. It is my apprehension that neither party has been particularly willing to find the solutions required for this case other than those preferred by him or her. This had led to the extreme polarisation in the parties’ positions. In these circumstances, the court must find its own compromises, after its consideration of the various section 60CC factors.
Although Mr Reynolds has his criticisms of Ms Reynolds, he cannot be described as blameless. The reality of the situation since early 2009 is that Mr Reynolds has provided little, if any, financial support for [X] and [Y], who have been totally reliant on their mother for the supply of their day to day necessities.
In addition, although Mr Reynolds had valid and understandable reasons for wishing to move to live in [A], the fact remains that he largely abrogated his responsibility for supplying the children’s day to day needs to Ms Reynolds. These actions have contributed significantly to the difficult relationship which currently prevails between the parties. In these circumstances, it is not helpful for
Mr Reynolds to categorise Ms Reynolds as being unreasonable.
d) The likely effect on the children of any changes in their circumstances
Assessing the affects of changes and separations are at the heart of this difficult case. Obviously, this cannot be a precise exercise and must involve some degree of speculation. It is impossible, at this juncture, to predict a perfect outcome in this case. This is chiefly because of the difficulties the parties themselves have in working together to smooth out potential difficulties and find solutions to problems before they become endemic.
In my view, any case involving the factors of young children, interstate travel and poor parental relationships is likely to require the court to consider an experimental outcome to ascertain what works and what does not for any child concerned. However, such an experiment must be conducted within reasonable bounds, so as not to compromise the best interests of that child.
On the basis of Ms U’s recommendations, at this stage, I consider that the children are likely to be able to cope with spending extended periods of time with their father, in Western Australia, provided that sufficient foundations have been laid to enable this to occur. It will be the obligation of the parties themselves to do their upmost to ensure that these preparatory steps take place successfully. This will require both financial sacrifice and commitment on their parts.
e) The practical difficulties and expense of the children spending time and communicating with each of their parents
The logistical difficulties in this case are great and the parties’ capacity to provide answers to those difficulties limited. Yet for the children to have an appropriate level of relationship with their father, these answers must be found.
At least initially, it seems to me to be much easier for Mr Reynolds to come to South Australia to spend time with [X] and [Y] and so consolidate his relationship with them, in surroundings likely to be familiar and emotionally supportive to both them and Ms Reynolds.
It is all very well for Mr Reynolds to bridle at the suggestion he must come to [B], a place with which he has unhappy associations, but the fact remains he knows the locale well and I would expect that he has some forms of support in the town. As such, it does not seem unreasonable that he should come to the area for the first two visitation periods.
In my view, the most difficult step will come when the children first spend an extended period of time, with their father, in [A]. It is also likely to be a period when Ms Reynolds is highly anxious about the process. In these circumstances, it seems appropriate that Ms Reynolds be on hand to provide emotional support for [X] and [Y]. This of course will be an expensive exercise.
Every aspect of this case is beset by a difficult financial aspect. I accept that neither Mr Reynolds nor Ms Reynolds can be described as being in a strong financial position. However, I do not think that either has been completely frank regarding the financial resources available to him or her.
Mr Reynolds asserts that he will be able to budget for the children coming to Western Australia, on four occasions each year, on the basis that he would pay one half of the children’s airfares and all of the cost necessary for him to accompany them between Adelaide, Perth and return. This will be a considerable commitment for him of around $5,000 per annum.
In these circumstances, he would want Ms Reynolds to make some contribution towards the children’s fares. I do not think this is unreasonable. In addition, I do not think it unreasonable that
Ms Reynolds pays the expenses relating to her travelling to Western Australia for the children’s first block visit with their father in [A].
f) The capacity of the parties to provide for the children’s emotional and intellectual needs; and
i) The attitude that each parent has demonstrated to the responsibilities of being a parent
These two criteria are so closely interrelated that it is convenient to consider them together. Mr Reynolds was guarded in his assessment of Ms Reynolds’ capacity as a parent but conceded that [X] and [Y] are polite, well cared for children.
In my assessment, Ms Reynolds is a fine parent, who is motivated to do the best she can for [X] and [Y]. I have no doubt that she is more than capable of supplying the children’s educational and emotional needs and has a good attitude to the responsibilities of being a parent.
I accept that Mr Reynolds loves [X] and [Y] very much indeed but am concerned that he has not been an active parent in the children’s lives for the past two years or so. As such, he has not been in a position to supply the children’s emotional and intellectual needs.
I am also concerned that Mr Reynolds has a propensity to focus on what he believes are his entitlements, so far as interacting with [X] and [Y] is concerned, rather than what is in their (the children’s) best interests.
In this regard, it is my view that it is better, in the short to medium term, that Mr Reynolds’ life and schedule be more disrupted than those of the children. For obvious reasons, it is easier and cheaper for an adult to travel interstate than two children of five and three years respectively.
g) The children’s maturity, sex, lifestyle and background; and
h) Aboriginality
Neither party identifies as an Indigenous Australian. Their respective backgrounds and lifestyle appear to me to be broadly similar. Both come from a rural background. They have known each other since childhood.
A very important consideration, in this case, is the tender years of the children concerned. For reasons already provided, support needs to be given to [X] and [Y] to ensure that they are able to develop a proper level of relationship with their father in a manner which is compatible with their respective ages and level of cognitive development. Necessarily, this must mean that the court adopts a cautious approach in this case.
j) Family violence; and
k) Any family violence orders
For reasons already provided, family violence is not a consideration in this case.
l) Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
Ms Reynolds proposes consulting a psychologist in [G] in respect of what she describes as the children’s adverse behavioural reaction to spending time with their father recently. She was not able to advise the Court as to the identity of this psychologist during the hearing of
20 January 2011. Nor has she consulted Mr Reynolds about the issue.
During the course of the hearing, on 20 January 2011, Ms Reynolds indicated that she would be guided by the psychologist in question as to what were the appropriate arrangements for [X] and [Y] to spend time with their father. I am concerned that if I accede to Ms Reynolds’ proposal, in this regard, this can only result in the prolongation of the proceedings and the exacerbation of the tensions between the parties.
Although I cannot guarantee the complete success of the regime, which I propose, it accords generally with what Ms U recommended. In my view, such a regime is likely to be the best means of bringing this bitter litigation between the parties to an end, which is likely to be of benefit to the children concerned in the longer term.
Conclusions
Although the presumption of equal shared parental responsibility applies in this case, it is neither in the best interests of the children nor reasonably practicable for there to be either an equal time regime or a significant and substantial time regime. Even if the parties had a better and more trusting parenting relationship with one another, the distance between [B] and [A] necessarily rules out both such outcomes.
However, the presumption requires the parties to consult with one another about issues to do with the long term welfare of the children, particularly their educational and health needs. This consultation also requires a significant level of participation in this decision making process.
I consider that both parties have some way to go in this regard.
Ms Reynolds has not consulted Mr Reynolds at all about the proposed psychologist in [G]. Up to this stage, Mr Reynolds has not been available to participate in the decision making process pertaining to [X] and [Y]. He decided to live far away from them in [A].
This is a complicated and difficult case. In order to be fully developed individuals, [X] and [Y] need to have a proper level of relationship with their father. Given Mr Reynolds’ decision to live in [A], this will be a difficult objective to achieve, particularly in the short to medium term, when the children are young and the practical difficulties are at their most extreme.
It is not [X] and [Y]’s fault that their father, whom they know and love, lives a long way away from their home and the day to day reality of their lives. They retain an entitlement to know their father and have a relationship with him, regardless of the end of the marriage between their parents and the practical difficulties this has created. It is the responsibility of [X] and [Y]’s parents to ensure that this entitlement of the children is fulfilled.
It is naïve of Mr Reynolds to think that the children can seamlessly transition to spending seven or more consecutive nights with him in Western Australia, given how old [X] and [Y] are at the moment and given that he has spent only modest amounts of time with them in the period since April of 2009 – a vast period so far as the children are concerned.
Mr Reynolds may think Ms Reynolds is obstructive and difficult. She is certainly protective and vigilant, so far as [X] and [Y] are concerned. But given the circumstances of the parties, this does not seem to me to be inherently unreasonable. In addition, as she is the children’s unchallenged primary carer and the children appear to be doing well in her care, it is my view that it would imprudent of the court to ride roughshod over her concerns.
It is likely to provide a more secure base, on which to build a long term and meaningful level of relationship between [X] and [Y] on the one hand and Mr Reynolds on the other, if the court proceeds at a cautious and incremental pace in putting in place arrangements for the children to spend time with their father. Too much too soon is likely to lead to any regime miscarrying and the relationship between father and children being retarded rather than enhanced.
Regrettably the parties in this case are never likely to be able to agree on the appropriate pace for the father’s time with the children to be increased and the conditions which should pertain to that time, particularly where it should occur. For the indefinite future, the parties are likely to have a jaundiced view of one another which will prevent compromise between them. More importantly, their poor parenting relationship will act as a bar to them being able to work out organic and speedy solutions to the inevitable problems, which will arise between them in respect of contact arrangement, because of the logistical issues in this case.
It is also likely to be best for the children if the court brings the litigation between their parents to an end by providing a road map leading to the children spending an extended period of time, in their father’s care, in [A]. It is not appropriate for the proceedings to be prolonged and orders to be made on an ad hoc basis in response to the parties’ changing circumstances.
Rather the court must do the best it can to construct orders which will balance the children’s need to spend time with their father and the requirement that this time take place in a supportive way, emotionally and developmentally, for the children. It will be the responsibility of the parties to implement these orders and support and encourage the children through this process. I appreciate this will require sacrifice and involve difficulty on the part of both Mr Reynolds and
Ms Reynolds.
Given the polarised positions of each of the parties, I am not in a position to give a high emphasis to the convenience of either
Mr Reynolds or Ms Reynolds. Rather, like Captain Jean Luc Picard of the Starship Enterprise, I am compelled to say of my orders to the parties “make it so”. Both Mr Reynolds and Ms Reynolds will have to adapt to the practical difficulties arising to each of them, from my orders, as best they can.
The next school holiday, in South Australia, is between 16 April and 1 May. This includes the period of Easter which runs between 22 and 25 April this year (Anzac Day is on Easter Tuesday). I propose that the father spend three blocks of two days with the children in this period, being between 18 and 19 April; 22 and 23 April (Good Friday and Easter Saturday); and 26 and 27 April.
These visits will take place at either [B] or [C], at the father’s election. He will be responsible for his travelling expenses between his home and the mother’s home and for the cost of his and the children’s accommodation in either [B] or [C]. The children will be able to return to their mother in between the blocks of time for emotional reassurance.
The next holiday is the mid year school holiday running between 9 and 24 July. Again, I consider that the children should spend a portion of this holiday, with their father, in South Australia. I propose that there should be two blocks of three days, separated by an intervening period of three days, during which period the children can again reconnect with their mother.
These periods should occur again in either [B] or [C], at the father’s election. The father will be responsible for the cost of his travel to and from Adelaide and onwards and providing accommodation for himself and the children during the visit.
At this juncture I propose between 11 and 13 July and between 17 and 19 July for these visits. I hope this will enable the father sufficient time to make the necessary arrangements for these visits to occur successfully. He will also be required to advise the mother of the exact location at which he and the children will be staying at [B] or [C] respectively.
Given what Ms U has said about the viability of the children’s relation with their father and the fact that [X] in particular has said he wants to see his father, I consider that these proposals are feasible and will not cause the children unnecessary disruption. They build upon the arrangements which were made last year.
At this juncture, I do not think it workable to await the advice of the psychologist whom Ms Reynolds is due to consult in [G] before constructing the necessary orders. As I say, I consider that [X] and [Y]’s best interests will be served if the court provides a clear template as to how their paternal relationships are to be advanced in the medium term. In this regard I am chiefly guided by the assessment of Ms U that the children need, in a developmental sense, to spend time with their father.
There will probably never be an ideal time for the children to move to the next step of spending overnight with their father in his home in [A]. When I say ideal, I mean that the arrangement will be mutually acceptable to the parties themselves and there can be no concern as to how the children will react to such a development.
However, I am satisfied that a time must come for the children to travel to Western Australia to spend time with their father. I am fortified in this view by the fact that [X] and [Y] seem to have some experience of travelling on aeroplanes, albeit in the presence of one or other of their parents and they have been to [A] to see their father as recently as December of last year.
In all these circumstances, I do not think it impracticable or likely to be contrary to their best interests, when all of the applicable section 60CC criteria are weighed and balanced against each other, for [X] and [Y] to travel to [A] in the end of Term 3 South Australian school holiday, which this year runs from 1 October to 16 October.
As Ms U recommends, Ms Reynolds needs to be on hand to assist with any unforeseen exigencies arising from this proposal. On a one off basis, I propose that she be responsible for her and the children’s travel expenses to and from Perth. Given her connections in that part of Western Australia, I anticipate that she will be able to find suitable accommodation for herself.
It does not seem to me to be unreasonable that she be present during the children’s first extended visit to [A] and she meet the expenses involved in her doing so, particularly as she has previously indicated her willingness to travel to Western Australia to ensure [X] and [Y] are able to have a relationship with their father whilst they are young.
For this third visit, between father and children, I envisage that [X] and [Y] will spend an initial period of three consecutive days with their father before returning to their mother for one overnight stay and then having a further period of three consecutive days. I propose that the first such period be from 3 October to 5 October 2011 and the second such period be from 7 October to 9 October 2011.
After these introductory and supported visitation period between father and children, occurring initially in South Australia and then in Western Australia, with the mother being available to provide assistance and reassurance to the children intermittently, I anticipate that it will be appropriate for the children to spend seven consecutive days in the care of their father during the end of year school holiday in 2011/2012 and in each school holiday period thereafter.
I appreciate this regime is inflexible. As such, it cannot be guaranteed that Mr Reynolds will be able to abide by its conditions. That will be a matter for him and his circumstances. However it will be a condition of the orders that the first three steps of introductory and supported visits occur, in the shape and form which I have envisaged, before the block periods of seven consecutive days occur in Western Australia, unless the parties mutually agree otherwise.
In order to provide some limited flexibility to the regime, it will be open to the parties to agree other arrangements. In particular, they will be able to postpone the commencement and ongoing implementation of the graduated time regime, in the event it is not economically feasible for it to commence in April 2011, with the second and third phases following in July and October respectively, as I have stipulated. However my intent is that each of the three introductory phases of time, between father and children, takes place prior to any extended week long visits in Western Australia occurring.
Given the difficult dynamics currently existing between the parties and the improbability of them being able to move consensually to a regime whereby [X] and [Y] spend meaningful levels of time with their father in the medium term, it is incumbent on the court to do the best it can to preserve the entitlement of the children to have a proper level of relationship with their father.
This means the court must construct the necessary orders and the parties must implement them. I have endeavoured to reach a balance between their respective points of view with what I consider to be the children’s best interest as the overarching consideration. The regime is not perfect and will be difficult to bring to successful fruition.
[Y] will be around four years of age when the first visit of seven consecutive days occurs in Western Australia (provided the intervening visitation steps have occurred). I acknowledge this is a young age. [X] will be six, also a young age. However the children will be able to support each other. I also accept that they know their father and love him. [X], in particular, wants to spend more time with him.
Given the children’s ages, it will be necessary for them to be accompanied by a familiar adult when they travel between Adelaide. Perth and return. This will be an expensive exercise. Mr Reynolds has indicated his willingness to meet this expensive. I will accede to his submission. I also consider it appropriate that the parties otherwise share the cost of [X] and [Y] travelling between the two locations until such time as they ([X] and [Y]) are able to travel unaccompanied, at which time Mr Reynolds alone will be responsible for the children’s travelling expenses.
It seems to me that Mr Reynolds should arrange for the booking of all necessary flights for him and the children, other than the first introductory visit to Western Australia, which will be Ms Reynolds’ responsibility. This will ensure that he attempts to secure the cheapest possible tickets for the children. He should be responsible for paying for the children’s flight from Adelaide to Perth and Ms Reynolds should be responsible for paying for the return fare.
In this day and age of instant electronic communication, via email and when air tickets can be booked on line, there should be no impediment to these arrangements being made and for each party to be aware of what his or her responsibilities in respect of them are. In addition,
Mr Reynolds has ample time to make the necessary arrangements to ensure he is able to spend time with the children at the end of the first and second term holidays later this year.
The father agrees to abide by any dietary strictures placed on the children by their mother. I will direct the mother inform the father of the children’s dietary needs in writing seven days prior to each such visit. I will also make an order restricting the father’s alcohol consumption to reasonable levels during each period the children are in his care. He will be restricted to three standard alcoholic drinks, during each day the children are in his care, as defined by the Australian Government Department of Health and Ageing.[24]
[24] See: Standard Drinks Guide.
As the children spend last Christmas in their mother’s care, it is appropriate that they spend time with the father during the forthcoming Christmas period. In ensuing years, it is appropriate that the festive days of Christmas alternate between the parties each year.
This will mean that the children will be with their mother for [Y]’s birthday in 2011. In 2012, it may be possible for the children to be with their father on this occasion. Apart from Christmas, it is difficult for the court to make specific orders dealing with other special occasions, particularly Father’s Day and [X]’s birthday, given when these occasions fall and the fact that the father’s time with the children must be confined to school holidays at this stage.
After the 2011/2012 end of year school holiday, I will order that the father have the children for seven consecutive days in each subsequent school holiday, other than the long end of year school holiday; provided he gives the mother 56 days (eight weeks) notice of the periods during which this will occur and he makes the necessary bookings for the children’s travel and pays his share of the expenses involved.
Once [Y], the younger child has turned seven, in December of 2014, in my view, it will be the appropriate time for the children to progress to spending half of the long school holidays in their father’s care in [A]. This is also likely to coincide with the stage at which the children will be able to travel unaccompanied by air between Adelaide and Perth. I anticipate by this time they will be comfortable and familiar with the journey.
In my view, it will be of benefit to the children if they have an opportunity to travel to New Zealand to spend time with their maternal grandparents and other members of their wider maternal family. It is difficult to conceive that such travel will represent a threat to their welfare or there is a realistic possibility they will not return to Australia following such visits. In any event New Zealand is a signatory to the Hague Convention and has a similar legal system to that prevailing in Australia.
Travel to other locations in South East Asia is more problematic. In recent times there has been political unrest in Thailand and serious terrorist incidents in Indonesia. However many Australian citizens regularly holiday in such locations, despite the warnings of the Australian Government not to visit such places or take great care when they do so.
I do not think that Ms Reynolds would willingly expose either [X] or [Y] to even the remotest possibility that they would come to harm during any overseas holiday. Nor do I think there is any likelihood that she will not return to this country following any such holiday. In these circumstances, I propose to make the order sought by the mother in respect of the children’s possible overseas travel.
This will require her to give the father twenty eight days written notice of when she proposes to travel. It will also require her to provide an itinerary to him, detailing the countries and locations within those countries which she proposes to visit. If the father is discomforted by these details, he will be able to bring an application before a court of appropriate jurisdiction to either restrict or forbid the travel concerned.
Costs
The mother seeks her costs of the hearing of 26 October 2010. It being her position that these costs were wasted as a result of Mr Reynolds’ dereliction in regards to the filing of his affidavit material.
Mr Reynolds does not agree to a costs order being made against him.
The general rule, in Family Law proceedings, is that each party bears his or her own costs [section 117(1)]. However the court has authority to modify this rule and award costs in favour of a party if it is considered just to do so [section 117(2)].
This discretion is not unfettered. The court is directed to consider the circumstances of each case, prior to making an order for costs and in particular consider the following matters:
·the financial circumstances of each party;
·whether one or other of the parties is in receipt of legal aid;
·the conduct of the parties during the proceedings;
·whether the proceedings were necessitated by the failure of a party to comply with a previous order;
·has one party been wholly unsuccessful in the proceedings;
·was an offer made in writing to settle the proceedings;
·any other relevant matter [section 117(2A)].
Neither party is in a strong financial position. I do not consider that either party has been wholly reasonable during the proceedings. As such, I do not think it can be said that either Mr Reynolds or
Ms Reynolds has been either totally successful or totally unsuccessful. Rather the proceedings were hard fought and neither displayed any great facility to compromise. As such the court had to make a decision.
In addition, I do not think the hearing of 26 October 2010 was wholly wasted. It achieved one of the mother’s objectives – namely
Mr Reynolds attended upon a sleep physician and a report was obtained in respect of his somnambulism. In all these circumstances, I do not consider it just to depart from the general rule applying to costs in Family Law proceedings. I will make no order as to costs.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and two (302) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 24 February 2011
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