ROMERO & CHAVEZ

[2011] FamCA 387

FAMILY COURT OF AUSTRALIA

ROMERO & CHAVEZ [2011] FamCA 387

FAMILY LAW – CHILDREN – Where there are three children of the marriage – No orders sought in relation to the eldest child who is almost 18 years old – Where interim consent orders provide for shared care on a fortnightly cycle –Where the mother seeks the father’s time with the children be limited to alternate weekends and half holidays – Where the father and the Independent Children’s Lawyer seek shared care on a fortnightly rotational basis – Where the Independent Children’s Lawyer proposes shared parental responsibility except for education and medical issues, which should be the sole parental responsibility of the mother – Where the mother and father live in reasonable proximity – Where parties have been largely compliant with interim orders – Where both parties’ behaviour undermines the other parent’s relationship with the children – Where the father was investigated for possession of child pornography some twenty years ago – Where the mother believes the father has an addiction to internet pornography and has exposed the children to it – Where a court appointed psychiatrist deemed the father no danger to the children in the form of sexual abuse.

FAMILY LAW – CHILDREN – Religion – Where an interim injunction has been in place prohibiting either party from taking the children to any religious service without the written permission of the other party – Where the children are of high-school age and have expressed complaints as to the injunction – Injunction regarding attendance at religious services to be removed. 

FAMILY LAW – ORDERS – Draft parenting orders are proposed, with final orders to issue following submissions from the parties and the Independent Children’s Lawyer – Mother and father to have equal shared parental responsibility, but for medical and educational decisions – Mother to have sole parental responsibility in relation to medical and educational issues – Children to live with each parent in a shared care arrangement in a fourteen day cycle.

FAMILY LAW – PROPERTY SETTLEMENT – Where consent orders for property settlement were made over two years ago – Where the father seeks the property orders be set aside under section 79A – Where the father seeks the former matrimonial home be transferred to the mother and that she pay him the sum of $40,000 – Alternatively the father seeks the former matrimonial home be sold and proceeds divided equally – Final property settlement orders remains outstanding – Property settlement to be heard and determined on adjourned date – Parties given leave to produce updated financial statements.

FAMILY LAW – CONTRAVENTION – Where contravention applications filed by the mother remain outstanding – Contravention applications to be heard and determined on adjourned date.

APPLICANT:

Ms Romero (formerly Chavez)

RESPONDENT: Mr Chavez

INDEPENDENT CHILDREN’S LAWYER: Ms Lucette Collett, Solicitor

FILE NUMBER: BRC 2969 of 2008

DATE DELIVERED: 30 May 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 6 August 2010 and 2 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Mother appearing in person

COUNSEL FOR THE RESPONDENT: Mr Byrne of Counsel appearing for the Respondent Father

SOLICITORS FOR THE RESPONDENT: Sharma Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER

Mr Andrew of Counsel

Orders

1. The reasons for judgment are published from Chambers with the matter to be relisted at 11.00 am on 6 June 2011 at the Brisbane Registry of the Family Court to receive submissions on the final form of orders.

It is noted that publication of this judgment under the pseudonym Romero & Chavez is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC2969/2008

Ms Romero (formerly Chavez)

Applicant

And

Mr Chavez

Respondent

REASONS FOR JUDGMENT

1. This litigation represents a clash of cultures, a clash of values, a clash of religious beliefs and a clash of personalities.

2. The respondent father (Mr Chavez) was born in Country 1 in South America in 1963.  The applicant mother (Ms Romero) was born in Country 2 in Central America in 1969, although the father deposes to the fact she was born in Country 1 in South America.  Regardless of where she was born I am satisfied her family’s country of origin is Country 2 in Central America.  The mother’s case information document of the 19 July 2010, Part C – Chronology, confirms the parties commenced a relationship in Australia in about 1990.  They resided together for approximately two years before they married in 1991.

3. Three children were born during the course of the relationship:

   ·V - … August 1993;

   ·J - … November 1995; and

   ·R - … February 1997.

4. In 1995 the parties relocated to Country 2 in Central America, where the parties’ second son was born.  After a period of about sixteen months the parties decided to return to Australia.  Upon their return they established their own business.  This business venture was ultimately not successful and the parties lost a considerable amount of money as a result.  Each party sought paid employment thereafter. 

5. The litigation was primarily about what parenting orders should be made in relation to the children.  The determination of final property settlement issues also remains outstanding as does certain contravention applications filed by the mother.

6. It is common ground that there is to be no order in relation to the eldest child who is now almost 18 years of age.  This was reflected in consent orders which issued on 21 July 2010, shortly before the first day of hearing in this matter on 6 August 2010.  At the resumed hearing on 2 December 2010 I was informed there had been no contact between the eldest child and his mother for the last six months.

7. In her case information document, and at all relevant times throughout the proceedings the mother sought that she have; “95 per cent custody and sole guardianship”.  She sought orders that the father spend time with the children on alternate weekends from Friday afternoon until Sunday afternoon and for half school holidays.  A proposal for half school holidays and alternate weekends on my calculations approximates the father spending 20 per cent to 25 per cent of the year with the children.  It appears the mother’s assertion that she have 95 per cent of custody of the children is inconsistent with the particulars of the arrangements she proposes but no point was made of this, other then it reinforces the obvious stance of the mother that the father’s time with the children should be limited as far as possible.

8. The father’s proposal at all relevant times has been that the parties share time with the children equally on a fortnightly rotational basis.

9. On the 24 November 2009 when the matter had been in my docket for some time, the parties agreed to interim consent orders which provided that from the commencement of the 2010 school year the children were to live in a shared care arrangement on a fourteen day cycle.  Although the agreement for equal time was expressed to come into effect from the commencement of the 2010 school year, there is evidence which indicates it was implemented immediately after the making of the orders.

Property Settlement

1. Consent orders for property settlement were entered into before a Registrar on the 23 October 2008. By his response document of the 29 May 2009 (paragraph 7) the father brings an application under s 79A to set aside the consent orders for property settlement and for there to be a re-hearing on property settlement issues. The orders that he seeks are that the former matrimonial home at C Street, Brisbane Suburb 1, which has been occupied at all times since separation by the mother, be transferred to her name and that she pay him the sum of $40,000. He seeks an alternative order that the home be sold and the proceeds divided equally.

2. It appears to be common ground that there was separation under the one roof from about August of 2007 with physical separation occurring later in 2007 when the father moved out of the former matrimonial home.

Draft Orders as Proposed by the Independent Children’s Lawyer

1. Draft orders as proposed by the Independent Children’s Lawyer adopted the position as sought by the father, namely there be shared care on a fourteen day rotating arrangement.  It was also proposed that there be an order for equal shared parental responsibility for the children except for education and medical issues which should be the sole parental responsibility of the mother.

2. The other orders as drafted by the Independent Children’s Lawyer did not seem to be the subject of any contention.

3. Despite the high level of dysfunction and lack of communication between the parties, the interim orders have by and large been complied with.  The parents live in reasonable proximity with the father in a property at Brisbane Suburb 2 and the mother continuing to reside in the former matrimonial home at Brisbane Suburb 1.

Witnesses

Applicant Mother’s Case

1. The only witness for the mother was herself.

Respondent Father’s Case

1. The only witness for the father was himself.

Independent Children’s Lawyer

1. The Independent Children’s Lawyer relied on the following:

   ·a report of Ms B dated 28 August 2008.  Ms B, a social worker, gave evidence before the Court;

   ·a report of psychiatrist, Dr F.  Dr F’s report is dated 7 May 2009.  Dr F gave evidence by way of telephone link upon the first day of the hearing;

   ·Issues Assessment Report prepared by Ms D, family consultant, dated 31 July 2009.  Ms D also gave evidence by way of telephone link;

   ·reports of Ms M, psychologist and college counsellor at School 1, the school at which the three boys attend.  Ms M gave evidence before the Court.

2. I propose to follow my usual practice and consider the reports of the independent experts first before turning to a consideration of the evidence of the parties themselves.

Report of Ms B

1. Ms B is a social worker in private practice in Brisbane.  In her report (paragraph 5) she reports the mother’s account that when residing in a unit at Brisbane Suburb 3 some time prior to the marriage, police arrived one morning wishing to question the father in connection with “child pornography”.  There is no record in the police file detailing any such event.  The mother’s evidence was quite vague.  She referred to the people who attended as “private detectives”.  I am prepared to conclude that what she intended by this was plain clothes police officers.  There appears to be a considerable discrepancy between the parties as to how many police attended and what ensued.  I was urged by the Independent Children’s Lawyer to accept the father’s version.

2. I acknowledge that this incident took place some twenty years ago.  I am prepared to find that there was some incident where the police called investigating the issue of child pornography.  I am unable to prefer the version of one party or the other beyond that observation.

3. At paragraph 7 of her report the report writer records the father describing the mother’s “driving” personality – “what she wants goes – she is the boss”.  This general description of the mother is echoed in later reports and accords with my own observations on the evidence.  It was quite apparent that the mother’s personality was much more forceful than that of the father who appeared positively obsequious in comparison.

4. At some point during the relationship the father commenced attendance at the Jehovah’s Witness Church and sought that his wife attend with him.  She did so for a period of time but subsequently did not persist with this.  She took an affirmation when giving her evidence and when questioned on this aspect indicated she was not involved with any organised religion.

5. The mother says the father accessed pornographic sites on the home computer in 2007.  When she discovered these sites she terminated the relationship at that point in time (August), although there was a period of separation under the one roof until November or December that year.  At that time the wife sought a protection order and the father was required to move out of the matrimonial home.  He moved close by to live with his father.

6. At paragraph 17 the report writer notes:

   “17.…Reportedly the children have witnessed much unpleasantness and it appears that [the father] has involved the boys in detailed discussions about their mother’s adulterous behaviour; about his religious beliefs that place him in a special and responsible position as head of the family, and about the family’s financial issues.”

7. I shall have detailed observations to make on this aspect later in these reasons.  Suffice it to say for present purposes it would be my observation that both parties have involved the children in detailed discussions undermining the other parent’s position.

8. At the time of separation under the one roof, the mother regarded the relationship as at an end and thereafter engaged in independent social outings.

9. At paragraphs 19 and 20 of her report Ms B notes:

   “19.[The father] stated that he wants to have influence with the boys and wishes to have equal shared care and responsibility.  He indicated that shared responsibility was not enough and he referred to [the mother] as a controlling person who tended to convince people with her smile and her looks.

   20.[The mother] wants the boys to continue their education at [School 1] while [the father] wants the boys to attend a State School on account of the family’s present financial situation.”

10. At paragraph 24 the report writer observes that both parties are of Latin heritage and were raised within the Catholic tradition.  I note from the marriage certificate that the parties were married in a Catholic church in Brisbane in 1991.  At all times the children have been enrolled in Catholic schools and are secure in their future attendance at a well regarded Catholic school in Brisbane.  The mother is no longer practising a particular religion and the father has converted to the Jehovah’s Witness Faith.

11. Each parent disputes that he/she has involved the children in the dispute but in different ways each parent has managed to do so.  But one instance is to be found at paragraph 30 of Ms B’s report where she reports the Father as saying:

    “…he had told the boys that, ‘if you marry a girl that is a boss you are in trouble’.”

12. Ms B gives a series of other examples where the Father has made singularly inappropriate comments to the children:

    Paragraph“35.     …I said to the boys, “I hope you never turn out like her”.

    Paragraph“36…I told the boys, that I wasn’t going to sleep with women like their mother does.”

13. At paragraph 37 it is recorded:

    “37.[The father] diminished his alleged use of pornography stating that such materials are around in certain workplaces and are abundant on the internet, ‘I even told the boys, one click and it is so easy to get pornography’.”

14. The father has clearly given inconsistent evidence at different times as to his accessing pornography on the Internet.  I shall particularise these inconsistencies later in these reasons when considering the issue of credibility.

Wishes of the Children as Expressed to Ms B

1. At paragraph 59 Ms B reports in relation to the eldest child:

   “59.[V] stated that in general things had improved at home and he indicated that there would be further gains if, “Mum would let go off [sic ] me a little, she needs to relax more and not be so protective of us”.  [V] added that, “Dad gives me more leniency, Mum underestimates my ability to be responsible; she does not give me the chance to look after myself”.”

2. At paragraph 63 she reports on the child J’s wishes:

   “63.…[J] talked openly about wanting to, “see more of Dad.  [V] agrees with me that we like to spend one month with Mum and one month with Dad.  We miss him and he misses us”.  [J] was observed to hold his father’s hand right through the children’s joint session with their Dad.”

3. At paragraph 66:

   “66.…[R] explained that his mother had said that attending violin lessons was not negotiable.  He said that the thing he likes about his Dad is that, “he is always kind” and that, “Mum helps us with our homework when we have a problem”.  [R] stated that Mum would be nicer if, “she did not get so angry and think she is going to win every argument”.”

4. As part of her overall assessment at paragraph 69 Ms B notes:

   “69.School Reports documented good progress however, there is no doubt that the boys would perform even better at school should they be freed up from protracted and unwarranted emotional burdens.  Above all, the children require a supportive and positive relationship with each parent and a sense of security for all family members in terms of being able to work through life’s difficulties by means of effective communication and negotiation.  The ongoing dispute has taken its toll; even though the children appeared to be doing fine, they impressed as hurt, frustrated, and concerned regarding their father’s ‘exile’ from the family.”

5. At paragraph 86 as an extension of the assessment process Ms B records:

   “86.I formed the impression that the children’s views and opinions were genuine insofar as their respective position did not appear to result from any deliberate external pressure other than influences accumulated over time.  However, [V] and [J’s] views appeared to be guided by their father’s feelings of sadness and they considered it only fair that each parent should spend time with the children on a fifty-fifty basis.  Essentially, the children seemed to have a need for supportive and positive relationships with each parent and a sense of well being for all members within their family.”

6. Under the heading “Recommendations” the report recommended that there be a sexual abuse risk assessment of V carried out by Dr F.  That report is annexed to Dr F’s affidavit filed on the 14 May 2009.

7. Overall I was impressed with Ms B’s report.  Unfortunately the parties, in their role as parents, do not appear to have taken on board her observations as to the need for better communication between the households with less criticism of the other parent.  As noted previously, it is a sad fact that as at

   
   

   2 December 2010 the eldest child V has not seen his mother for the last six months.  It was in July 2010 that the Court ordered by consent that V no longer be a part of the child related proceedings and it would seem that from shortly after that time V has elected not to spend time in the Mother’s household.

Report of Dr F

1. At page 2 of this report the mother describes the current contact as a “nightmare”.  She added, “there are multiple logistic issues that have to be done”.  These remarks were made at a time when the father’s time with the children was only on alternate weekends.  Since at least the beginning of 2010 the time spent has been equally divided.  The logistical nightmare as described by the mother did not feature greatly in the oral evidence or cross examination in the proceedings before me.  The parties appear to be able to send text messages as to the arrangements.  It would appear that given the age of the boys they are increasingly independent.  If the account given by the father is accepted, because of the mother’s work commitments, the children were frequently at the Brisbane Suburb 1 home by themselves.

2. The mother informed Dr F that it was her proposal that the father’s time with the children be supervised.

3. Importantly, at page 3 of the report at paragraph 3 she describes events in the latter half of 2007, immediately prior to separation.  She informed the doctor:

   “…There was no actual sexual assault”.

   I will elaborate on this aspect later but suffice it to say for present purposes, in her oral evidence the mother complained that she was raped by the father on a number of occasions.  These allegations also surface in the father’s account when interviewed some months later by the family consultant.

1. As to the diagnostic issues, Dr F invariably adopts a methodology whereby he gives a provisional diagnosis based on his observations arising from the interview and only then does he read the documentation that has been forwarded to him and writes a conclusion as to whether there is any change from the provisional diagnosis.

2. The provisional diagnosis at page 9 records:

   “…The mother [Ms Romero] presents as having significant histrionic traits.  She is rich in affect and expressivity and with a certain dramatic flare in her account.  However further information is required with respect to whether the traits are severe enough to constitute personality disorder.

   The Father [Mr Chavez] in contrast presents as being affectively restricted and with obsessional traits.  Again as to whether these issues are of an extent which constitute personality disorder requires further information. …”

   (Page 10)

   “…I note that the combination of an affect rich histrionic woman with a dramatic flare married to an affective restricted obsessional and perhaps controlling man is not an uncommon situation in the Family Court.  While such relationships can be mutually satisfying and highly successful, when things go wrong there are often difficulties post separation. …”

3. With these observations by the doctor I can only concur.

4. At page 11 of his report under the heading “Conclusions” Dr F notes:

   “…There is nothing in the material I have seen or in the interviews to suggest that the father represents a danger to his children in the form of sexual abuse.  If he has accessed pornography and the children have had access to this, this is obviously inappropriate.  I note his explanation for this.  - - -

   Assuming that there are no issues of child safety that should concern the Court, then it seems to me that personality issues in the parents are not of such magnitude as to significantly impact on their ability to be effective parents, whether as contact parents or in a shared care arrangement or as primary care providers.  - - -

   It seems to me that the older children are now of an age where their views can be taken into account by the Court.  With respect to R it seems essential that arrangements are put in place so that he has adequate time with both parents, this does not necessarily transfer to a shared care arrangement on a “50/50” basis.

   It seems to me that all three children have suffered a major disruption in their lives as a result of the parental relationship.  It would seem important to ensure that there is minimal disruption with respect to other aspects of their life such as their education.”

5. Since this report was released it would appear the parents have done precious little to take the pressure off the children which has been placed on them as a result of the ongoing dysfunctional relationship.

Report of Ms D, Family Consultant

1. Ms D interviewed the parties and the children for this assessment on

   
   

   22 July 2009.  Again, this was at a time when the children were only spending alternate weekends with their father.

2. On pages 2, 3 and 4 of the report, she sets out the views expressed by the three boys.  There is clearly a uniform approach taken by the boys that they should spend equal periods of time in each household.

3. There was a degree of suspicion on my part at one stage that the boys had been coached to adopt this position by their father.  Upon further reflection, I am of the view this is unlikely.  It is more a case of the boys feeling sorry for their father and wanting to provide him with equal time to compensate for the sadness that he expresses.  It is also a means of having time away from what they perceive to be the controlling and strong willed behaviour of their mother.

4. Under the heading “Parents’ Understanding of Child’s Needs” she notes:

   ·“[The mother] presents as very strong willed and openly states that  

   she would prefer that [the father] play no part in the children’s lives, however she also acknowledged that he is the boy’s father.  [The mother] described her children in terms of their achievements and mentioned nothing of their emotional, physical or psychological selves.

   ·[The father] described his children in terms of emotional, behavioural

   and psychological selves. …

   ·…Throughout the interview [the mother] used the word “control”

   many times when discussing the situation or her children.”

5. At page 5 of the report Ms D notes:

   ·“…[The mother] appears to not value [the father’s] opinions, and views them as irrelevant as she is/was the children’s primary care giver and therefore is more in tune with what the boys needs are.

   ·[The father] presented as timid, his body language and expressions  

   were observed to seemingly be one of defeat, sadness and distress.

   ·[The father] stated that [the mother] will not compromise in any way,  

   with anything, as she “likes to run and control things”.

6. At page 6 of the report it is noted:

   ·“[The father] commented that he finds it too painful to speak with

   her as it brings up the accusations and lies that [the mother] has

   made against him.  [The father] became incensed when speaking

   of the accusations of the assault and rape, alleged by [the mother]

   perpetrated by him.

   ·In relation to the pornography [the father] stated that he has

   filters on his computers and the boys are supervised at his home,

   and therefore they do not access pornography and he certainly

   does not expose them to it.

   ·[The father] reported that he knows that one or two of the boys

   have accessed pornography at their mother’s home as they are not

   properly supervised and do not have the same technology so to

   avoid an accidental download.  [The father] stated that he is

   aware that at least one of the boys has been exposed to

   pornography through text messages at school

   (Two of the three boys disclosed to the report writer that this had occurred and that it would not happen again as they had promised their father who had spoken to them about it).

7. At page 7 of the report Ms D notes:

   ·The Family Consultant asked all the boys about their alleged

   exposure to pornography, two of the boys agreed that they had

   been exposed to it. However, denied that any of their exposure

   had come from their father.  Both acknowledged that their exposure was either by accidentally downloading it from the internet at their mothers or through photos being sent by text message from peers at school.”

8. Under the heading “Summary” at page 8 of her report the following appears:

   ·“[The mother] for the better part appears to be child focused,

   however, appears to lack the ability to see past her own situation and her need to control the children so they meet her expectations.  [The mother] appears to have limited insight into the impact her

   proposal is having on the children.  Initially she stated that she

   was receptive to feedback, however, in practice was observed to be

   dismissive and was defensive in relation to how her behaviour

   affects the children.

   ·On the other hand, [the father] appears to be child focused but

   also emotionally wounded by the allegations made by [the mother] and finds it difficult to engage with [the mother] on any level.”

9. I have no hesitation in accepting the accuracy of the family consultant’s report.  There was no challenge to the observations she has made or the conversations as reported by her.

Evidence of Ms M

1. Ms M was a gem of a witness.  It is readily apparent in her dealings with the boys and their parents she has handled a difficult situation with true professionalism, dedication and compassion.

2. Annexed to her affidavit filed on 19 May 2010 are two reports, dated 26 March 2010 and 30 April 2010 respectively.

3. Ms M has been counselling the three boys since V self-referred in late November 2007 after his parents separated.

4. It is apparent from Ms M’s evidence, which I accept unhesitatingly, that the mother was using the boys’ wish to remain at their current school as a lever to place pressure on them to revert to seeing their father only on alternate weekends.  In various ways she led the boys to form the view that she had been paying the fees and unless they primarily remained in her care they could no longer attend the school.  The reality was the school authorities had made it abundantly clear they would not press either parent for payment of fees and the boys’ attendance at the school would not be jeopardised.

5. In her first report she details meetings with all three boys on the 9 and 16 March 2010.  In the final paragraph on page 2 she observes:

   “All children clearly expressed one main concern which was the fear of having to leave [School 1].  They all expressed that remaining at [School 1] was extremely important to them and if custody had to be returned to their mother, to enable them to remain at [School 1], then this is what they wished to occur.”

6. I accept that the father was not willing to pay a fair share of the boys’ education expenses at this private school.  The mother being far more dynamic and persistent in her wish to see her children receive the best possible education, was faced with an unfair burden in arranging for payment of the whole of the expenses of their education.  What she was not entitled to do, in my view, is to in effect threaten the boys that unless they stayed with her a greater percentage of the time, they could no longer attend the school.  In any event, it is apparent from the evidence that she had known for months that the school would not be pressing for fees, prior to the boys being properly informed that their attendance at the school was guaranteed.

7. Annexed to her first report are teacher assessments for each subject for each of the three boys.

8. There was cross examination of Ms M on whether the boys’ grades had improved or deteriorated in the period since commencement of the 2010 school year when the equal share arrangement commenced.  I am unable to make an adequate finding on this aspect on the evidence available, but if the boys’ results have in any way deteriorated it is likely to be a measure of the impact of the dysfunctional relationship between their parents that has brought about this result.

9. At an interim hearing on the 21 May 2010 the Independent Children’s Lawyer produced a letter she received from the school principal.  The letter which is dated 22 April 2010 reads:

   “Please find attached the letter to [the mother] from [Mr H] confirming the Colleges position.

   I wish to confirm my conversation with your office as follows:

   1.No school fee debt is owing.  The boys are currently on full concession.

   2.There has been no correspondence written or verbal indicating that the boys are no longer to continue here.

   3.The College will continue the present arrangement to provide stability in their lives.”

10. In the second report at page 3, Ms M records:

    “…common feelings between all the children included:

    -Ideally, they wish that contact would remain 50% with each parent and for them to also remain at [School 1]

    -However, if contact had to increase with their mother, in order to remain at [School 1], then the children would like this to occur

    -Ideally would like the Family Law Court to finalise the family situation

    -Confused about whether or not they are allowed to attend church with their father.”

11. In the course of her oral evidence Ms M was asked about an approach by the mother to V for him to sign a statutory declaration indicating that he wished to primarily live with her.  A meeting was held on the 27 May with Ms M, the mother and V in attendance.  It is not greatly relevant whether the blank statutory declaration form had been completed in any fashion at that point in time.  It is clear from her evidence that on the 24 April V had approached Ms M concerned about the request from the mother.  At the meeting the following month she counselled the mother in no uncertain terms that it was not appropriate to involve V in the parental dispute in this fashion.  This conduct by the mother is but one more example of her “win at any cost” attitude.  It was singularly inappropriate for her to place pressure on V particularly in circumstances where it is likely that by the time of the meeting she knew that the boys’ attendance at the school was no longer an issue.  The terms of the letter of the 22 April, previously quoted, refers to a letter to the mother clarifying that situation.

12. In the course of cross examination of Ms M by the mother, the mother asserted that it was the first time she had heard that the boys wanted to spend equal times in each household once they were made aware they could remain at the school.

13. The transcript (page 58) is in the following terms:

    “[The mother]:         Yes.  Really this is a surprise to hear about the boys wanting more custody to go to the father now that they know they can remain at [School 1].  I have been speaking with the boys through the last two weeks, because they haven’t been with me; they have been with their father.  So do you then say that because the boys are wanting their father to be making all of the decision making, that the boys don’t – I’m just a bit confused, because this is like – this is the first time that I hear this, now the boys saying we want the father to be the main decision maker when, since November last year, nothing has been resolved., because the father has not agreed to sign consent forms to go to excursions.”

    …”

14. There is an element of duplicity about the mother’s position.  Clearly she knew from the reports of Ms B and Ms D that the boys’ expressed wish was to share equal time with each parent.  It is apparent from the letter produced from School 1 that as early as April 2010 she knew that there was no pressure on account of school fees.  It was not until the Court directed in July that the boys be informed that there was no risk that they would be asked to leave School 1 that they resiled from the position that they would spend more time with the mother for the sole reason that it guaranteed their continuation at the school.

15. The witness agreed that there had been a change in the position of the boys in recent times but their newly stated position was a position that had been relayed by them to report writers throughout 2009.

16. At transcript page 60 Ms M advised:

    “…that’s been the whole drive for these boys, and it’s just been told to them that “If they want to stay at [School 1], you need to have more custody contact with mum”.”

17. There was cross examination of Ms M in relation to the father withholding consent for R going on an excursion which included a visit to a Buddhist temple.

18. I am not accepting of the father’s evidence as to the explanation he gave about this.  I will elaborate on this in more detail when considering the issue of credibility.

Evidence of the Applicant Mother

1. In her case information document filed on the 19 July 2010 the list of documents appears in Part D.  It lists court orders, the reports to which reference has previously been made and only makes reference to two affidavits of the mother one filed in the Federal Magistrates Court on the 3 April 2008 and a further affidavit filed on the 16 July 2010.

2. Because the mother was not legally represented I followed my usual practice of reading additional affidavits of the 21 July 2010, the 17 August 2010 and a third affidavit sworn on the 1 December 2010 and filed by leave on the

   
   

   2 December 2010 (this affidavit related solely to property settlement issues).

3. At paragraph 18 of her first affidavit the mother deposes to approaching counselling services through her work environment to help her understand the father’s problem – being what the mother perceived to be his addiction to pornographic material.

4. Records were produced from the counselling service.  I ruled that those records were admissible but seemingly through an oversight they were not marked as an exhibit.  I am more than satisfied from a perusal of the documents at the time that there was an admission made to the counsellor by the father that he had viewed pornographic material.  As noted above there are various passages in the evidence where the father accepts that this is the case and at other times, such as in the interview with Dr F, has denied this is the case.

5. In her affidavit of the 17 August 2010 which was filed after the first date of the hearing on the 6 August 2010 the mother deposes at paragraph 1 in the following terms:

   “1.Sunday 1 August 2010 my son [R] left to spend the next two weeks with his father as per court orders 24 November 2009.  Sunday 8 August during my weekly cleaning I notice that [R] had left his mobile phone under one of the dining tables.  Because of previous history with explicit porn material found on his various technology devices I decided to investigate, and found Porn material hidden in one of the folders of the phone.  Mobile phone that [the father] has provided [R] with against my permition [sic].”

6. In her parenting questionnaire document filed on the 24 November 2009 she elaborates on the information supplied at question 17:

   “Do you have any other concerns about your safety or the children’s safety other than while attending Court?  If yes, what are those concerns.”

   The mother had replied:

   “Exposure/supply of porn material (see attached document).”

7. In the attached document in elaborating on paragraph 17 she confirms that on the 8 March 2009 she had found USB, mobile phone and PSP:

   “…belonging to [R] with large amounts of explicit porn material.  Several attempts to contact [the father] are made but with no response.”

8. Throughout the course of her oral evidence the mother was adamant that the source of the pornographic material could only have come by copying same from the father’s computer.  As Counsel for the Independent Children’s Lawyer observed during the course of final submissions, there is no evidence to confirm that this is the case and in fact a body of evidence would suggest that the mother’s belief is incorrect.  At transcript page 83 when questioning Ms D the mother states:

   “[The mother]:         Now, Ms D I have provided the court with a copy of the material that I have – that I seized from one of the younger son, at the time nine years old, and is downloads of movies after movies after movies of porn, and hundreds of pictures of photos that he downloaded while on holiday with the father.  Now, would you say, then, that is – it’s normal for children of nine years old to be involved in this kind of activity?  Is it normal? - - -”

9. Exhibit 2 which is a document tendered by the mother appears to relate to a series of documents of pornographic nature created on the 25 June 2009 and the 28 June 2009.  There is an indication on the first page of the document that the file was modified on the 1 March 2009.  It is not clear to me how a document created in June 2009 could be modified in March 2009, but it was not the subject of any evidence and I am unable to make any other observation on that aspect.

10. Despite the mother’s assertion as questioner that the children were with their father at this point in time, there is no sworn testimony that that was in fact the case. 

11. An examination of the calendar for the year 2009 would reveal that the 25 June 2009 was a Thursday and the 28 June 2009 was a Sunday.  I note that the time on the 28 June 2009 is said to be 2.34 pm.

12. At that period of time the father was only seeing the children on alternate weekends.  Whether Sunday the 28 June 2009 was one such weekend I am unable to say.

13. At transcript page 84 the mother without objection posed the question to the family consultant:

    “[The mother]:         Well, I have evidence to support that [R] did download quite a lot of material from the father’s computer when he was visiting him?

    [MS D]:But the children tell me that they had downloaded it at your home as well.  So I don’t know ---”

14. The mother may have had evidence in some form that the material was downloaded from the father’s computer, but she certainly did not present it to the Court.

1. At transcript page 49 the mother deposed to the fact in the course of her evidence that she still had the hard drive off the computer.  This would make sense as it is unlikely that the family computer was removed from the house by the father at the time he left in 2007.  She has had a considerable period of time to have the computer thoroughly checked but has not sought fit to adduce evidence to that effect.

2. There is evidence that the father has bought each of the boys a laptop computer as well as their own mobile phones.  I leave aside the question whether given the history of this matter this was a wise course to adopt.  The boys have made statements to the effect that they have accessed pornographic material via the computer at their mother’s home, presumably at times when they were in the home on an unsupervised basis.  It would be common enough I would have thought for school children at various ages to be able to exchange this type of material.  I am unable to say where R has received the material the mother has seen on his USB but it is obviously material which could have emanated from any one of a number of sources.  I am not prepared to make a finding that the father has been the source of supply.  I would go so far as to make a finding that the father has not in any way supplied pornographic material to the children.

3. I accept the mother’s evidence that exhibit 2 consists of the images of the web pages of pornographic material that had been accessed by R as displayed on his USB.

Respondent Father’s Affidavit Evidence

1. The father in his case information document only made reference to one affidavit being an affidavit sworn on 20 July 2010 (filed 21 July 2010).  I have had regard also to:

   ·an affidavit filed in the Federal Magistrates Court on the 5 June

   2008 in response to the mother’s initiating application;

   ·further affidavit of the 29 May 2009;

   ·affidavits of 16 April 2010 and 29 November 2010 (being an

   affidavit in relation to the issue of property settlement; and

   ·further affidavit of the 2 December 2010 filed in response to the

   contravention applications lodged by the mother.

Credibility Issues – Respondent Father

1. I can place little reliance on many aspects of the father’s affidavits.

2. I note for example that at paragraph 25 of his affidavit of 5 June 2008 he admits accessing porn from the Internet, “out of curiosity”.  As I have previously noted a statement was made to the psychiatrist denying any involvement of any kind with pornography on the Internet.

3. There are many other aspects of the father’s evidence where I found his credibility wanting. 

4. It is the mother’s version in broad terms that she found the Internet porn on the computer at about August of 2007.  Having regard to the incident which she said occurred prior to the marriage in 1991 she had had enough and was not interested in any form of marriage counselling.  Thereafter, she proceeded to act in the relationship as if she was a single woman.

5. For his part, the father denies or glosses over the finding of Internet porn and says that in effect the reason for the breakdown of the marriage was the mother going out socially at night and having relationships with other men whilst still residing in the house together.

6. On balance, I am inclined to the view that the father has played down the extent of his involvement in perusing pornographic material on the Internet.  Because of my reservations about the credibility of both parties, I am unable to make any finding that the father has accessed child pornography.  As noted previously I am also not prepared to make a finding that he has in any way deliberately allowed the children to have access to pornographic material.  Had he been using the computer for these purposes and the children were, as I expect, computer literate, they would have little difficulty in at least following the history of the files that the father had accessed.

7. At page 6 of Dr F’s report he details the father’s version as to the reason for the breakup of the relationship.  He quotes the father as saying:

   “…I don’t know.”

8. I would be of the view that this explanation by the father is at best disingenuous.  Clearly, the mother’s version of the breakup of the marriage had been at that stage spelt out in Ms B’s report as well as earlier affidavits to which the father had previously responded.

9. At page 6 when asked who took the initiative in the separation, the father replied:

   “I confronted her.”

10. I would be of the view that it was the mother who terminated the relationship.  Whether she was acting bona fide in laying the blame on the Internet porn, I am unable to say.  It is a matter of conjecture but she may have well reached the conclusion she wanted to move on with her life as it was no longer a fruitful relationship and thereafter used the Internet porn as a convenient excuse.  It is equally plausible the nature and quantity of the porn she discovered disgusted her to the extent she saw no future in the relationship.

11. There are aspects of the father’s behaviour which could only be described as sneaky or deceitful.  In other respects he was quite open to Ms B in describing to her (perhaps unintentionally) how he has spoken to the children and influenced their views by discussing matters which were far better left unsaid.

12. As I have previously noted the father’s explanation for refusing R permission to attend an excursion to a Buddhist temple did not equate with the terms of the note from the school which was read into evidence.  Clearly, in evidence the father was saying that he had left it to R.  Where the rest of the class were all going on the excursion I find it inconceivable that R would decline to attend.  The most likely explanation is that the father was of the view that it conflicted with his religious beliefs.  It is a concern for me that the father’s religious beliefs should take such an extreme form that he would be opposed to a child undertaking a comparative study of other religions by simply visiting a Buddhist temple.  The irony of the fact that the children are attending a Catholic school where they are subjected to religious instruction on a mandatory basis is also not lost in the detail.

Credibility Issues – Applicant Mother

1. I have previously made reference to the admission to Dr F at page 3 of his report that, “there was no actual sexual assault”.

2. At transcript page 86 Counsel for the Independent Children’s Lawyer asked the mother:

   “MR ANDREW:      Now, [Ms Romero], you make, in our affidavit of 3 April 2008, at para 22, allegation of rape against [Mr Chavez].  That’s right, isn’t it?

   [The mother]:          …yes.

   …

   MR ANDREW:        And that includes several times he would force himself upon you.  You would kick with your legs, you would tell him that you would call the police, but he wouldn’t stop.  Yes?

   [The mother]:          Yes.”

3. I did not advert to it at the time but I am not entirely convinced that paragraph 22 of the mother’s affidavit of 3 April 2008 is an unequivocal concession that she had been raped.

4. The paragraph is in the following terms:

   “22.Several times after the children had gone to bed, he would try to force himself on me, I would kicked [sic] him with my legs as hard as I could and told him that I would call police but he would not stop.  He would accuse me of infidelity and tell me that if he ever caught me he would not do anything to me but he would kill the other man in my life.  There were several occasions when the children woke up from my crying and screaming and told the Father to stop.”

   [underlining added]

5. The mother is a very forthright individual.  The question was put to her that she had made allegations of being raped and she conceded that that was the case.  There is evidence in the report of the family consultant that the father was clearly of the view that he had been accused of raping her.

6. At transcript page 87 when questioning whether the children were awakened by the screaming the question was put:

   “MR ANDREW:      Does that mean that they’re awakened by, effectively --- you screaming out, “No”--- and “Stop” to the father while he’s attempting to rape you?  Yes?

   [The mother]:  Exactly.

   MR ANDREW:        That’s the picture?

   [The mother]:  Yes.

   MR ANDREW:        And this is on several occasions, unfortunately?

   [The mother]:  Yes.”

7. It is difficult to reconcile this evidence with the statement made to Dr F that there was no actual sexual assault.

8. There are a number of aspects of the mother’s evidence which would lead me to be not accepting of the veracity of her testimony on a global basis.  But one minor example is her insistence to Dr F that he had already interviewed the father even though his interview was to be a week later.  The mother gave evidence that when she contacted the police with a complaint that the father had accessed child pornography, as she had informed the police that the father had deleted the material, she was informed there was no further point in investigating.  I find such a version unlikely but am unable to make a specific finding.

9. The area of evidence where the mother’s testimony is most questionable is in the pressure she has brought to bear on the children to spend the greater amount of time with her by suggesting they would be unable to continue to attend their current school when she well knew that was not the fact.

10. She appears to have little insight into the fact that by yelling at the children, bossing them and screaming at them she is alienating them from her affection.  The mother is much more devoted to the children’s academic success than the father is.  She perceives she is at all times acting in the best interests of the children but it is not a view shared by the three boys.

Presumption of Equal Shared Parental Responsibility When Making Parenting Orders

1. Section 61DA is in the following terms:

   “61DA         Presumption of equal shared parental responsibility          when making parenting orders

   61DA. (1)      When making a parenting order in relation to a child,   the court must apply a presumption that it is in the best   interests of the child for the child’s parents to have   equal shared parental responsibility for the child.

   (2)      The presumption does not apply if there are reasonable   grounds to believe that a parent of the child (or a person   who lives with a parent of the child) has engaged in:

   (a)      abuse of the child or another child who, at the time,   was a member of the parent’s family (or that other   person’s family); or

   (b)      family violence.

   …”

2. I have reviewed the evidence carefully and I am more than satisfied that there is no issue of family violence.  I note the mother’s allegations about the father assaulting her in 2007.  As I have indicated because of inconsistencies in her testimony I am unable to make a firm finding, but in any event note that the events of that time were almost four years ago and there is not the slightest suggestion in the intervening period that the children are subjected to violence or witnessed violence in either household.

3. As to the issue of abuse of any kind, I accept that exposure of the children to Internet porn of any description by a parent would constitute abuse, but again, for the reasons given, I am unable to make such a determination.  Clearly, exhibit 2 would indicate that R had Internet porn on a USB device.  It is apparent that two of the boys (not identified) disclosed to Ms D that they had accessed Internet porn.  Because the mother in August 2007 was satisfied that her husband had accessed porn on the Internet, she automatically assumed that if the children have accessed pornography it must have occurred in their father’s household.  As I have indicated I am not prepared to make such an assumption. 

4. The contention of the mother is that she should have sole guardianship.  The father’s proposal is for equal shared parental responsibility.  As I have noted the Independent Children’s Lawyer’s recommendation was that there should be shared parental responsibility except for questions of medical treatment and educational issues.

Religious Issues

1. I propose to briefly touch on the issue of religion. 

2. Section 116 of the Constitution of the Commonwealth provides:

   “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious tests shall be required as qualification for any office or public trust under the Commonwealth.”

3. There was a degree of disharmony and complaint at various times in interim proceedings in this matter, partly as a result of the father providing to the children a card issued by his religion to say the children were not to be given blood transfusions.  There was also dissent in various other areas.

4. On 24 February 2010 I made an interim order in the following terms:

   “…

2.Each party is prohibited from taking the children, [J] born […] November 1995 and [R] born […] February 1997, to any religious services without the permission in writing of the other party.”

1. It is to be noted that the particular prohibition does not apply to the eldest child and that the restriction applied to both parties.  The restriction on the mother was not greatly relevant as there was no evidence that she was taking the boys to any religious services whilst in her care. 

2. It was intended that the interim order would only be in force for a relatively short period of time until the final hearing.  Unfortunately when the final hearing took place in August it did not finish within the time allotted and there have been considerable delays since that time.  I am satisfied that the boys are expressing a wish to attend religious services with the father.  To what extent that is a result of pressure from the father or simply a reaction to being told they are not allowed to go to such religious services, I am unable to say.  It is a matter where I am minded to remove the injunction but it still remains an issue between the parties of reaching agreement where an order for equal shared parental responsibility is in place.  The best interpretation I can place on the situation which is likely to arise is that either parent is at liberty to take the children to religious services.  It is common ground that the children will remain at a Catholic school where presumably they receive a level of instruction in that religion.

3. Having regard to the ages of the boys and the strong views they have expressed complaining of the injunction in place, I propose to remove such injunction.

Responsibility for Medical Treatment

1. At an interim hearing the mother was pressing for permission for V to have a cyst removed.  The father appeared to be opposed to such an order.  Ultimately permission was given to the mother to have the procedure carried out and this was done.  The mother is concerned that in about February 2009 R had a heavy fall at an ice skating rink and she was not notified.  I accept that this event did occur and find it was remiss on the part of the father not to have informed the mother by way of text message or some other form of communication.  Again, there was an issue during interim proceedings as to the appropriateness of the father giving to each of the children a card that they were not to receive blood transfusions.  It may be that in the event the children need a blood transfusion there is some substituted form of treatment but there is no acceptable evidence on this aspect before the Court.

2. I propose to accept the reasonableness of the position put forward by Counsel for the Independent Children’s Lawyer that in all of the circumstances the mother should have decision making power in relation to ongoing medical treatment.  There will be three conditions attaching to such an order namely it would not apply in the event of emergency treatment in the father’s household.  It would be conditional on the mother informing the father of the nature of any proposed treatment and finally, the father would be authorised to approach any treating medical practitioner to obtain a report on whatever treatment the child has received.

Educational Issues

1. The Independent Children’s Lawyer submitted that the mother should have decision making for the children’s further education.  There was no dissent as I recall by Counsel for the father on the form or terms of such an order.  Clearly the mother has demonstrated a far greater capacity to be interested in the children’s educational advancement.  The evidence of the father in the course of cross examination on his knowledge of the children’s progress at school was quite unconvincing.  He did not know the names of the teachers and he barely knew what subjects the boys were studying.  I would be of the view that the father is not in a position to assist the boys to any great extent with their homework where I expect that the mother would always make it her business to familiarise herself with the boys’ homework needs and obtain whatever assistance was required in this regard.

2. I have previously referred to the evidence that R was refused permission to go on a school excursion.  I would be quite confident that the mother would at all times ensure that the children attended excursions and extra curricular activities in which they were engaged.  I would have far less confidence in the father acting in a similar vein.  I note that the father proclaimed an attitude of religious tolerance in the course of his evidence, but again, it is an issue about which he could be very selective.

3. I propose to make an order that the mother be in charge of the children’s educational issues.  Again, this would be subject to an order that she is to keep the father informed and the father is authorised to obtain information and reports from the school at his own expense.

Presumption of Equal Shared Parental Responsibility

1. Apart from the medical and educational exceptions, I see no reason why the presumption in the legislation should not be given effect to and an order will issue in such terms.

Section 60CC Factors

1. Section 60CC2(a) is in the following terms:

   “Primary considerations

   (2)      The primary considerations are:

   a.        the benefit to the child of having a meaningful relationship              with both of the child’s parents.”

2. I am unable to be confident that either parent is able to promote a meaningful relationship between the two boys and the other parent.  The mother’s position varied between the father having only supervised time to a concession that he have only 5 per cent of time with the boys – even though the arrangements she proposed in fact amounted to a considerably higher figure than 5 per cent.  The father has made comments to the boys disparaging of their mother which were clearly inappropriate comments to make.

3. When cross examined by the mother as to why he had not encouraged the eldest child to communicate with her for the previous six months, the father was quite unconvincing in his responses.

4. In summary, the mother does not value the development of a relationship between the boys and their father.  The father is afraid of the mother, perceiving any form of communication with her will lead to yet more conflict.  Each parent has little insight into how his/her behaviour has impacted adversely on the boys.  It is a text book example of the adults focusing on their own feelings of hurt/guilt and not having a child focused perspective.

5. Section 60CC2(b):

   “b.“the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

6. As previously noted I am more than satisfied there is no evidence of family violence involving the children or neglect.  The only risk of harm to the children is the psychological harm caused by the dysfunctional relationship between the parents.  I accept that psychological harm would have been caused to the boys if either parent has inadvertently allowed the children to have access to Internet porn via the adult’s computer.  I am unable to make a positive finding on this aspect other than to note the boys’ statements as detailed in the family consultant’s report.  I have reason to doubt the reliability of the account given by the boys to the report writer.

1. Section 60CC3(a):

   “(3)     Additional considerations are:

   a.any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.”

2. Having regard to the ages of the children I place considerable weight on this factor.  There is no need to elaborate on the children’s strongly expressed wishes other than to note that the boys have expressed consistent views over a lengthy period of time to three adults namely Ms B, Ms D and

   
   

   Ms M.  An order for equal time reflects the consistent arrangement which has been in place for 18 months.  There is no evidence that such arrangement has had a detrimental affect on the children.

3. There was to my recollection no reference made to the terms of s 65DAA:

   “65DAA        Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   (1)      Equal time    Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”

4. To my mind this is a textbook example of where this oft criticised amendment should apply.  It is high time that the strongly held views of the boys should be honoured and accepted.  I accept an order for equal time would be in the best interests of the children and such an arrangement is reasonably practical.

5. Section 60CC3(b):

   “(b)     the nature of the relationship of the child with:

   i.         each of the child’s parents; and

   ii.other persons (including any grandparent or other relative of the child)”

6. I am satisfied the children love their parents.  The parents clearly have quite different parenting styles with the mother being much stricter.  This is not of itself a bad thing.  From the boys’ point of view however their perception is their mother sits them down to have a discussion but proceeds to pay no regard to what they have to say.  The father is much more lenient and more likely to let the children engage in activities as they wish.  It is an atmosphere that the boys have appreciated in contrast to the stricter rules applicable in their mother’s household.

1. Section 60CC3(c):

   “(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”

2. This has previously been discussed.  I have no confidence the situation is likely to improve.  I will hear submissions as to whether the parties are willing or should be required to attend a parenting course but it is probably too late for any meaningful change to occur.

3. Section 60CC3(d):

   “(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   i.         either of his or her parents; or

   ii.any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living”

4. There is unlikely to be any change.  Under the orders that I propose to put in place the boys will continue to remain at the same school.  I note the current arrangements have been in place for the last 18 months and there is no acceptable evidence led to show that the arrangement is not working or that there has been any detrimental impact on the welfare of the children as a result of the consent orders of November 2009.

5. Section 60CC3(e):

   “(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis”

6. This sub-section is not relevant.

7. Section 60CC3(f):

   “(f)     the capacity of:

   i.         each of the child’s parents; and

   ii.any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs”

8. There is compelling evidence of the mother providing for the children’s intellectual needs and the father providing for their emotional needs.  I am unable to make any further relevant observation.

9. Section 60CC3(g):

   “(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant”

10. I have no relevant observation to make.

11. Section 60CC3(h):

    “(h)if the child is an Aboriginal child or a Torres Strait Islander child:

    i.the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    ii.the likely impact any proposed parenting order under this Part will have on that right”

12. This section is not relevant.

13. Section 60CC3(i) is as follows:

    “(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents”

14. I have nothing further to add other than to observe the parents should make a concerted effort to put aside their own feelings and focus on improving communication.

15. There will be milestone events, some in the near future, some in the distant future, such as school formals, speech nights, graduations, 18 and 21^st birthday parties, engagements, weddings, christenings and the like.  It would be to the benefit of the boys if they were safe in the knowledge that their parents could attend such events together without acrimony and that the parents could show sufficient maturity to engage in a level of co-operation by doing something as difficult as sitting next to each other or speaking civilly to each other.

16. As I understood some of the questioning of the father it would seem that his religion does not recognise Christmas or birthdays as events to be separately celebrated.  If this be the case it is curious in his amended response document filed 19 June 2008 by paragraph 5 he seeks an order that:

    “5.Notwithstanding the above, on their birthday, the children spend at least six hours with the parent with whom they are not spending usual time and six hours on Christmas Day with the parent with whom they are not spending the Christmas school holidays.”

17. Before making final orders I will hear the parties as to whether an order in these terms should be made.

18. I find the other sub-paragraphs of 60CC are not relevant. 

19. As I noted I will hear from the parties before issuing final orders, but unless persuaded to the contrary the final orders are likely to issue in the following terms:

    1.The child V born … August 1993 shall live with and spend time and communicate with each parent in accordance with his wishes.

    2.Unless otherwise agreed to in writing by the parties, the children, J born … November 1995 and R born … February 1997, shall live with the parents in a shared care arrangement in a fourteen (14) day cycle.

    3.The Mother and Father shall have equal shared parental responsibility for the children, except education and medical issues which shall be the sole parental responsibility of the Mother.

    4.The Father is to be at liberty to attend any school function to which parents are invited and at his own expense may request he be supplied with the children’s school reports, school photos, news letters and any other material forwarded to parents of children attending the school.

    5.The Father is at liberty, at his expense, to request a report or any information from any medical practitioner or treating health professional who may have seen the children for any treatment.

    6.The Mother is to advise the Father in writing of any medical treatment the children receive together with the names of the medical practitioners or health professionals and the address at which such treatment has been carried out.

    7.Each parent is to immediately inform the other in writing of any medical emergency or serious injury involving the children as soon as reasonably practicable.

    8.Each parent keep the other informed of any change of address, telephone number and email address within seven (7) days of such change.

    9.Each parent will ensure that the children attend all school and extra curricular activities in which the children are engaged when they are in that parent’s care.

    10.The children spend school holiday periods with each parent as may be agreed by the parents in writing, but in the event they are unable to agree then with the Mother for the first half of the school holidays in years ending with an odd number and the second half of the school holidays in years ending with an even number.  At all other times the children are to spend school holidays with the Father.

    11.The Independent Children’s Lawyer is discharged.

    12.The property settlement issues and outstanding contravention applications are to be heard and determined on 6 June 2011.

20. In summary form my reasons for making orders in these terms are as follows;  the order for equal shared parental responsibility follows the presumption laid down by the legislature.  I have given my reasons for making an exception in relation to medical and educational issues.

21. As for the order that the children should spend equal time, I note that this accords with both the letter and the spirit of s 65DAA.  It is an arrangement that represents the status quo as it has been in place for 18 months.  It is an arrangement to which the parties have each consented at that time.  It is an arrangement which the boys have expressed strong views they wish to see continue.  It matters little whether the boys’ views arise because they feel sorry for their father, or for some other reason, the fact is their views at this age should be respected.  I see no compelling reason to accede to the position advanced by the mother to limit the father’s time, particularly in circumstances where the eldest child when given the opportunity has ceased communication with his mother.  I note that the orders to be made were supported by the recommendations of the Independent Children’s Lawyer.

Outstanding Contravention Applications Filed by the Applicant Mother

1. The mother has filed two contravention applications, the first on the 22 July 2010 and the second on the 31 August 2010.  It is noted that the first one was filed about a fortnight before the first date of hearing namely the 6 August 2010.

2. Having regard to the comments I have made and the reasons given in relation to the making of children’s orders, for the need for the parties to be less conflictual, I do not see the prosecution of the contraventions as being particularly helpful at this point in time.  However, I wish to stress that I am making the following comments by way of assistance to the parties in the earnest hope that they may resolve the matters or at the very least narrow or reduce the issues in dispute.  I appreciate the mother has not had the opportunity to be heard other than in the supporting affidavits she has filed.

3. I also appreciate the following:

   ·The mother is not legally represented.

   ·I have not heard any submissions in relation to the prosecution of

   the contraventions.

   ·In relation to the first contravention there is no evidence that the

   application has been served.

• The father has not filed any material – he is not obliged to do so until a prima facie case has been made out.

1. The onus of proof is on the mother to establish that the orders have been breached.  If that is done, the onus of establishing the existence of a reasonable excuse falls on the father.

First Contravention Application Filed 22 July 2010

Count 1

1. Count 1 relates to a complaint that is said to arise from a breach of paragraph 2 of the Federal Magistrates Court order of the 8 May 2008.  That order was in the following terms:

   “That the Father spend time with the children as agreed between the parties in particular, for every second weekend from Friday 3.30 pm until Sunday 4.00 pm commencing 16 May 2008.”

2. The mother asserts that between 2008 and 2010 the father without any reasonable excuse refused to comply with the order and has never returned the children at the set time of 4.00 pm Sundays.

3. I would not allow a contravention application to proceed in relation to such a broad sweeping allegation.  I note that at least since early 2010 paragraph 2 of the orders of 8 May 2008 has been superseded by paragraph 6 of the consent orders of the 24 November 2009, which provided for the parties to spend equal time with the children on a fourteen day rotating basis.  There may be breaches the mother can establish to cover the period from 8 May 2008 until the

   
   

   24 November 2009, but she would need to explain why she delayed such a lengthy period of time before making complaint about the alleged late return of the children on certain weekends in this period.  She would also need to give specific dates for times when the children were said not to be returned, detail whether there was any messages sent and how long after the stipulated time the children were in fact returned.

Count 2

1. It is said that the father breached paragraph 1 of the orders of 8 May 2008 that the children live with the mother, in that on the 14 March 2009, without any reasonable excuse he removed R from her home without knowledge or consent.  In her affidavit she details how she went to the father’s house and proceeded to involve the police.  There is specificity of date.  It may well be the father has a reasonable excuse, it may not, but prima facie this is a contravention which the mother may elect to proceed on.

Count 3

1. The children were to spend from 9.00 am until 5.00 pm on Mother’s Day.  The mother asserts that on 9 May 2010 the father without reasonable excuse, refused to allow the children to spend the allocated time with her.  The difficulty with prosecuting this contravention is that the orders of November 2009, by necessary implication, replaced the orders of May 2008.  The orders of 2009 simply stipulated that the parties were to have alternating periods of fourteen days.  There was no separate provision to make Mother’s Day an exception to this order.  It may well be argued that the order 4(g) of the order of 8 May 2008 by necessary implication was superseded by paragraph 6 of the order of November 2009.

Count 4

1. The mother alleges that the father breached paragraph 6 of the order of the 8 May 2008, which required the parties to inform the other of any medical emergency or serious injury involving the children, as soon as reasonably practical or within 72 hours.  The mother says that on 8 February 2009 the father did not communicate or inform her that R had suffered an accident requiring medical treatment at a hospital.  The child came home with no medical explanations from a doctor or the father.  Whether the particular injury which, as I understand the complaint consisted of the child having some sutures to an injury on his face caused by a fall at a skating rink, constitutes a medical emergency or serious injury, will be a matter for argument.  The mother would also need to explain why it has taken some 17 months to make a complaint about that particular conduct by the father.

Count 5

1. The father is said to have breached paragraph 9 of the order of 8 May 2008 that:

   “All communication between the Mother and Father concerning the children be in writing, text or telephone only.”

2. She complains, without specifying any date, that the father without any reasonable excuse refuses to communicate with her concerning the children and continues to use the children as messengers.  I would have thought it was at least arguable that there is no obligation on the father to communicate with the mother at all.  The only prohibition is that if there is to be communication, it is to be by writing, text message or telephone.  There is similarly no prohibition on the use of the children as messengers although such behaviour is deprecated as not being in the children’s best interests.

Count 6

1. That the father breached paragraph 12 of the orders of 8 May 2008 which require him to:

   “…ensure that the children attend all school and extra curricular activities in which they are engaged when they spend time with him.”

2. The mother asserts that in the period 2009 to 2010 the children did not attend math tuition and for the date 3 April 2010 they did not attend a music lesson and the 8 May 2010 they did not attend a music lesson.

3. I note that the order of the 8 May 2008 paragraph 3 provides:

   “3.That the Mother and the Father have the long term welfare, care and development of the children.”

4. This is what the law stipulates in any event unless orders provide an exception giving one party exclusive right to make such decisions.

5. It remains a question of evidence whether the parties jointly agreed to the maths tuition and the music lessons.  It would seem having regard to the length of time the children have been attending music lessons by necessary implication, the father has taken the children to attend music lessons.  If for say 90 per cent of the music lesson times the father did attend and on a few selected dates did not attend, even if he was found to have done so without reasonable excuse, in my experience any penalty to be imposed would be a nominal type penalty.

Count 7

1. By paragraph 2 of the orders of the 24 February 2010 each party was prohibited from taking the children J and R to any religious services without the permission in writing of the other party.  The mother asserts that the father without her written consent, took the children to a Jehovah’s Witness religious service on the 30 March 2010.

2. I note there is nothing in her affidavit to evidence this breach. 

Second Contravention Application Filed 31 August 2010

1. There are three complaints of contravention in this application.  In the first contravention it is said that on the 31 July 2010 without reasonable excuse contrary to paragraph 2 of the order of 24 February 2010, the father took the children to a Jehovah’s Witness religious service.

Count 1

1. I note in her affidavit of 31 August 2010 filed in support of this contravention application, her only source of information was a phone call around

   
   

   1.00 pm on the 31 July 2010 when she spoke to her son V and he informed her that they were all at the Jehovah’s Witness’ hall.  The order of

   
   

   24 February 2010 did not relate to V.  The statement attributed to the child is a far cry from establishing that the two younger children actually attended the service on that date.  It is a matter upon which I am prepared to hear submissions in the event the mother wishes to proceed with this complaint.

Count 2

1. Contrary to paragraph 12 of the order of the Federal Magistrates Court of

   
   

   8 May 2008 to ensure the children attend extra curricular activities the father without any reasonable excuse on 31 July 2010 did not ensure the children attended their music lesson.  The father has filed an affidavit in relation to the contravention filed on 31 August 2010.  His explanation that the children had left their music instruments at school and that he actually attended the venue at L Street, Brisbane Suburb 4.  Why he would do that when the children didn’t have their music instruments is yet to be explained.  Prima facie if the children do not have their musical instruments with them and because they are locked up at school and are unable to obtain them, it would seem to me to be a reasonable excuse not to take the children to a music lesson.  It would be an exercise in pointlessness.  However, I am open to hearing submissions on this aspect.

Count 3

1. The third count is in similar terms to the first count save that the children are said to have attended the church service on the 7 August 2010.

2. On the adjourned date of 6 June 2011 I will proceed with these matters but I would sincerely urge the parties to consider through the services of the Independent Children’s Lawyer giving mutual undertakings, if necessary in writing, to comply with orders in the future.  I have always taken the view when dealing with contravention applications that rather than raking over the ashes of the past and attributing blame it is far better to look to the future to ensure that as far as possible all orders are fully implemented.

Outstanding Property Settlement Issues

1. Although the property settlement matter was set down to be heard along with the application in relation to children’s orders, I note at page 22 of the transcript I expressed the view that it was not until a month prior to the hearing that the father had instituted an application under s 79A. At that time I intimated that I would leave the property settlement issues to one side to ensure that the children’s issues were dealt with with priority.

2. The parties entered into consent orders on 23 October 2008.  Those orders are in the following terms:

   “BY CONSENT IT IS ORDERED:

   1.That the husband transfer the matrimonial home located at [C Street, Brisbane Suburb 1] in the State of Queensland to the wife.

   2.That the wife take over the outstanding mortgage in the sum of ONE HUNDRED AND SEVENTY FOUR THOUSAND DOLLARS ($174,000) (approximately).

   3.That within one hundred and twenty days (120) from the date of the Court Orders the wife to pay and immediately commence steps to pay, all of the following outstanding debts:

   a.[Lender Co 1]  -  currently $28,000

   b.[Lender Co 2]  -  currently $55091.13

   c.[Lender Co 3]  -  currently $6325.50

   d.Australian Tax Office -                 currently $73,830.96

   e.[Lender Co 4]  -   currently $6,690

   f.[Lender Co 5]          -  currently $18,325

   NOTATION:

   Regarding the Australian Tax Office debt the Tax Accountant is currently negotiating the debt.  Whilst the wife will assume all responsibility and indemnify the husband and will come to an arrangement with the Australian Tax Office if necessary.

   4.The parties retain all other items currently in their name, possession and control including the money in their respective Super funds and Bank accounts.

   5.If the wife has not complied with her obligations in paragraphs 2 and 3 above within the time specified then the matrimonial home be sold by auction.

   6.The sale proceeds to be distributed as follows:

   a.In payment of outstanding mortgage.

   b.In payment of the debts referred to in paragraph 3 above.

   c.Real Estate Agents Commission.

   d.Conveyancing solicitor’s costs and other outlays.

   e.Any balance to be divided between the husband and wife on the basis of 35% to husband and 65% to the wife.

   7.The parties be responsible for any other debts in their own names.

   NOTATION:

   A.Minutes of Consent entered at Conciliation Conference before         Registrar O’Neill 21/8/2008.”

3. As I have indicated on the 7 June 2010 in an amended response document the father sought for the first time that the original consent orders be set aside.  By paragraphs 7, 8, 9, 10 and 11 of those orders he sought orders in the following terms:

   “7.That pursuant to s.79A of the Family Law Act 1975, the Orders made by consent by the Federal Magistrates Court on 21 September 2008 be set aside.

   8.That the respondent do all acts and things necessary to transfer to the Applicant the matrimonial home situated at [C Street, Brisbane Suburb 1] and contemporaneously with the transfer, the Applicant pay to the Respondent a sum of $40,000.

   9.In the alternative to paragraph above paragraph, the matrimonial home situated at [C Street, Brisbane Suburb 1] be sold within three months of the orders either by and the sale proceeds be divided equally between the parties after taking into account the Real Estate Agent’s commission and debts payable to (a) [Lender Co 2] (b) [Lender Co 3] (c) Australian Tax Office, (d) [Lender Co 4] (e) [Lender Co 5].

   10.That the Applicant and Respondent retain all other assets which are in their names, possession and control.

   11.That the applicant pay the Respondant’s [sic] Costs of and incident [sic] to these proceedings.”

4. The mother has not been legally represented. Although she has filed detailed affidavit evidence I cannot find any reply type document to indicate her position in relation to the s 79A application. I have proceeded on the basis that she opposes the setting aside of the consent orders and wishes to have the property settlement orders enforced.

5. It is abundantly clear that the mother has not paid all of the outstanding creditors as provided for in the consent orders.  The father originally said that as she had not complied with paragraphs 2 and 3 to pay the creditors he was not prepared to sign the necessary transfer documents and he had legal advice to that effect.  The view that I took in the matter was that paragraph 1 was not conditional in any way but the father was to transfer the matrimonial home to the mother, but in the event the creditors were not paid within the stipulated period of 120 days, in that event the property was to be sold.  The mother kept saying she could not extend the mortgage to pay out the creditors because the father refused to sign the transfer documents and the matter was in check.

6. Section 79A of the Act is in the following terms:

   “79A  Setting aside of order altering property interests”

   (1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:

   (a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance, or

   (b)in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or

   a person has defaulted in carrying out an obligation imposed on the  person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; …”

7. As I understand the presentation of the father’s case it is not only that the liabilities of the parties have not been paid to date but more importantly that the liabilities in most instances were seriously overstated.  It appears to be common ground that the liability to Lender Co 1 simply does not exist.  The liability to the Australian Tax Office is approximately $40,000 less than stipulated.

8. It is also apparent that the orders when made were based on the premise that the three children would remain in their mother’s care.  Orders are now to be made that the care of the children is to be shared.

9. It is certainly an arguable case under s 79A that whether deliberately or inadvertently the liabilities of the parties were overstated, that can constitute a basis for setting aside the orders. In the wife’s favour is the fact that at all times she has been responsible for the payment of the mortgage since the orders were made and other outgoings of the property. Balanced against that she has had the use of the property. There would really need to be an accounting exercise to measure market rental for a property and balance that outgoing against the actual outgoing incurred by the mother. It may well be that the figures would balance out. That is a matter of conjecture at this stage on my part.

10. The mother would need to be given credit to the extent to which she has reduced the liabilities from the time of the consent orders to the present time.  Fifty per cent of those liabilities would appear to be for the benefit of the father.

11. The matter of property settlement will proceed.  The parties are given leave to produce updated financial statements.  It would seem that the mother has filed a document sworn on the 1 December 2010 with numerous annexures but has not actually filed a statement of her financial circumstances.  The Court would need to know what her income is, what her current bank balances are and other assets.

12. Where the father is willing to accept a payment of $40,000 it may well be that to save further litigation the parties can reach a compromise where the father will withdraw the property applications in exchange for payment of some sum of money.  If the parties wish to proceed with the property settlement I will hear and determine that on the adjourned date. 

13. I made the observation at the time of the hearing on the 6 August 2010 that the property settlement material had not been well prepared on either side.  Although there has been some material filed since that time, my comments still stand.

I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 30 May 2011.

Associate: 

Date:  30 May 2011