Tirkel and Loebenstein

FAMILY COURT OF AUSTRALIA

TIRKEL & LOEBENSTEIN

[2008] FamCA 73

FAMILY LAW – CHILDREN– Relocation— period for residence parent to pursue training - limited to training, rather than subsequent employment because of terms of notation to recent final orders.

Family Law Act 1975 (Cth) s 60B & 60CC

Hayman and Hayman (1976) FLC 90-140 at 75,679-69,770;
Houston and Sedorkin (1979) FLC 90-699 at 78,727;
Newling and Newling (1987) FLC 91-856 at 76,467
G & G [2000] Fam CA 12 at pars 29-31.

APPLICANT:

MS TIRKEL

RESPONDENT:

MR LOEBENSTEIN

FILE NUMBER:

NCF

2897

2002

DATE DELIVERED:

6 February 2008

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Mullane

HEARING DATE:

15 & 16 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

Baker Love, Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Page Q.C. with Mr Tregilgas

SOLICITOR FOR THE RESPONDENT:

NRM Lawyers

Orders

The parenting orders of 16 July 2007 regarding the parties’ children L … and M … both born … December 1998 are suspended until 21 July 2009 or such earlier time as the mother ceases full time training.

By consent during the suspension of the orders of 16 July 2007 pursuant to order 1 the children are to live with the mother and the mother must ensure they live in the Newcastle area or in northern Sydney.

By consent during the suspension of the orders of 16 July 2007 pursuant to order 1 the children are to spend time with the father as follows:

3.1 on each alternate weekend from 8.30 pm Friday until the commencement of school on Monday or on Tuesday in the event that the Monday is a public holiday or pupil free day;
3.2for the whole of each school vacations at the end of Terms 1 and 3 of a school year and for the first half of each summer school vacation and each school vacation at the end of the second term of a school year;
3.3on the weekend in which Father's day occurs if the weekend is not otherwise a weekend included in (a) above provided that the children shall reside with the mother on the weekend in which Mother's day occurs;
3.4overnight or for an evening meal on not more than two occasions in each school term in the northern Sydney area upon the father giving to the mother 7 days notice of his intention and the father shall collect the children from the residence of the mother or from the activity at which the children shall be attending and shall return the children to the residence of the mother or where such time spent is overnight then to the school attended by the children.

By consent for the purposes of the weekend and vacation times set out in paragraph 3 hereof:
4.1the vacation periods shall commence on the last day of the school term and for the vacation at the end of Terms 1 and 3 conclude at 8.30 pm on the day prior to the commencement of school;
4.2      pupil free days will be included in the school vacation periods;
4.3in the event that the school vacation period in a summer vacation or vacation at the end of Term 2 is an odd number of days, the additional day shall be spent with the mother;
4.4the mother must deliver the children to the father's residence at the commencement of each vacation or weekend period and the father shall return the children either to the schools attended by them or to the mother's residence in the event that they are not attending school;
4.5the weekends on which the children shall spend time with the father shall commence as follows:
i)        term 1 2008 - Friday February 8 and each alternate weekend thereafter;
ii)       term 2 2008 - Friday May 2 and each alternate weekend thereafter;
iii)      term 3 2008 - Friday August 1 and each alternate weekend thereafter;
iv)term 4 2008 - Friday October 24 and each alternate weekend thereafter;
v)       in 2009 every second weekend of each school term.

By consent the parents must ensure the children may communicate with the father by email and/or telephone at any time.

By consent the father may communicate with the children or either of them by email and/or telephone (landline or mobile phone) at any time

By consent each of the mother and the father must advise the other in writing of the address and landline telephone numbers of the residence of the children from time to time.

By consent the mother must do all such things necessary to authorize the principal of the schools attended by the children to provide the father copies of reports concerning the children and newsletters and notices to parents.

By consent each of the parties is at liberty at all times to attend functions at the schools attended by the children and shall keep the other advised of the occurrence of such functions which come to their notice in sufficient time to enable the attendance of the other party.

By consent each of the parties must notify the other immediately upon the occurrence of any medical emergency occurring to the children or either of them.

By consent each of the parties is restrained from enrolling or involving the children or either of them in weekend organized activities such as team sports, music lessons that would require or encourage participation by the children or child on weekends when they are either residing or spending time with the other party save with the consent of the other party.

By consent by 31 May 2008 each party must attend and complete a course in parenting after separation approved or nominated by the Manager of the Child Dispute Service of the Court’s Newcastle Registry and must:

12.1telephone the Manager within 7 days and obtain the necessary approval or nomination;

12.2 attend each session of the course;
12.3 pay the reasonable fees for the course;
12.4upon completion of the course obtain a letter from the provider certifying sessions attended and completion of the course; and

12.5 promptly provide the other party’s solicitor with a copy of the letter.

These Orders incorporate and have attached to them a document setting out:

13.1the obligations that these Orders create;
13.2the consequences that may follow if a person contravenes an Order;
13.3the availability of programs to help people understand the responsibilities under parenting orders; and
13.4the availability and use of location and recovery orders to ensure that parenting orders are complied with.

Otherwise any outstanding applications between the parties are dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as Tirkel & Loebenstein.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 2897 of 2002

MS TIRKEL

Applicant

And

MR LOEBENSTEIN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This was a hearing of parenting proceedings concerning the parties’ twin sons who turned 9 in December 2007.
Consent Orders were made in this Court on 16 July 2007 and they provided for the boys to reside with the mother, and for them to spend time with their father for half each school vacation, on some special occasions, and then every second weekend in school terms from end of school Friday to start of school Tuesday. There were various other orders that are not important for the purposes of this hearing.
The mother seeks to move with the boys to Sydney in order to pursue her career. The father opposes that. At the hearing the position of the parties changed and the dispute between them was on much narrower issues.

THE ISSUES

The orders the father sought by amendment during the hearing are alternative 1 in Exhibit F1 viz:
1)       The operation of the orders made 16 July 2007 be suspended until 23 January 2009.
2)       The children […] shall reside with the mother in either the Newcastle area or the northern Sydney area.
3)       The children shall spend time with the father as follows:
(a)      on each alternate weekend from 8.30 pm Friday until the commencement of school on Monday or on Tuesday in the event that the Monday is a public holiday or pupil free day;
(b)      for the whole of the school holiday periods in April and in September 2008 and for the first half of the school holiday periods in July 2008 and December 2008;
(c)      on the weekend in which Father's day occurs if the weekend is not otherwise a weekend included in (a) above provided that the children shall reside with the mother on the weekend in which Mother's day occurs;
(d)      for an overnight or evening meal on not more than two occasions in each school term in the northern Sydney area upon the father giving to the mother 7 days notice of his intention and the father shall collect the children from the residence of the mother or from the activity at which the children shall be attending and shall return the children to the residence of the mother or where such time spent is overnight then to the school attended by the children.
4)       For the purposes of the weekend and holiday times set out in paragraph 4 hereof:
(a)      the holiday periods shall commence on the last day of the school term and conclude at 8.30 pm on the day prior to the commencement of school;
(b)      pupil free days will be included in the school holiday periods;
(c)      in the event that the school holiday period is an odd number of days, the additional day shall be spent with the parent who has the second half of such holiday period;
(d)      the mother shall deliver the children to the father's residence at the commencement of each period referred to in paragraph 4 hereof and the father shall return the children either to the schools attended by them or to the mother's residence in the event that they are not attending school;
(e)      the weekends on which the children shall spend time with the father shall commence as follows:
(i)term 1 2008 - Friday February 8 and each alternate week end thereafter;
(ii)term 2 2008 - Friday May 2 and each alternate week end thereafter;
(iii)term 3 2008 - Friday August 1 and each alternate week end thereafter;
(iv)term 4 2008 - Friday October 24 and each alternate week end thereafter;
5)       The children shall communicate with the father by email and/or telephone at any time.
6)       The father shall communicate with the children or either of them by email and/or telephone (landline or mobile phone) at any time
7)       Each of the mother and the father shall advise the other in writing of the address and landline telephone numbers of the residence of the children from time to time.
8)       The mother shall do all such things necessary to authorize the principal of the schools attended by the children to communicate with the father in relation to all aspects of the children's progress and behaviour and to provide reports and notices relating to the children to the father.
9)       Each of the parties shall be at liberty at all times to attend functions at the schools attended by the children and shall keep the other advised of the occurrence of such functions which come to their notice in sufficient time to enable the attendance of the other party.
10)     Each of the parties shall notify the other immediately upon the occurrence of any medical emergency occurring to the children or either of them.
11)     Each of the parties is restrained from enrolling or involving the children or either of them in weekend organized activities such as team sports, music lessons that would require or encourage participation by the children or child on weekends when they are either residing or spending time with the other party save with the consent of the other party.
12)     On or before 30 October 2008, each of the parties will do all such things and attend all such appointments with a psychiatrist agreed to by the parties or failing agreement as nominated by the Director of Court Counselling in Newcastle for the purposes of the examination of each of the parties and the production to the parties and their legal advisors only of a report in relation to the psychiatric health of each of them and for the purposes of the this process no communication shall be had by the psychiatrist or either party with Dr [R] and the costs of such attendances and the production of the reports shall be paid by the father.
13)     Upon publication of the reports referred to in paragraph 13 hereof, each party shall be at liberty to list the applications for final orders for direction or for the making of interim orders.
14)     Prior to the listing of the applications and prior to 24 August 2008, the mother shall do all such things necessary to obtain appointments which enable the completion of her [training] in the Newcastle Area.
In oral submissions in the hearing, the mother’s counsel indicated her agreement with the father’s proposals except for the following:
1)Order 1 – the mother proposed that period of suspension be until 23 January 2010.
2)Order 8 – the mother proposes that the authorisation be for provision of documents be reworded to refer to “copies of reports, newsletters, and similar documents”.
3) Orders 12 and 13 – the mother opposes any such orders.
4)Order - 14 the mother proposes that if such an order is made, the period be to 24 August 2009; not 24 August 2008.
In relation to the issue concerning the father’s proposed Order 8, the father agreed to the mother’s proposal.
It was also agreed that appropriate amendments would need to be made to paragraph 3(b) and 4(e) if the Court decided that the suspension of the July 2007 Orders would continue beyond 23 January 2009.

BACKGROUND

From the boys’ birth in December 1998, to date, they have resided in a property at L, which property was the matrimonial home. The parents separated for about a years in 2002/2003. During that period the children resided with the mother. The final separation occurred in September 2004. Until separation the mother had been the primary carer for the boys. She had provided the large majority of their care. Since separation that arrangement has continued.
In January 2006 Interim Orders were made for the children to reside with the mother and have contact with the father every second weekend in school terms and every second Monday in school terms from after school to 7pm, and for half each school vacation.
In July 2007 the parties reached agreement during the course of a defended hearing regarding parenting issues and Consent Orders were made on 16 July 2007 as follows, including Notations:
1.       The children […] born […] December 1998 (‘the children’) live with the mother.
2.       The children spend time with the father defined as follows:
2.1During school terms on each alternate week from the conclusion of school FRIDAY to commencement of school TUESDAY; the father to collect the children from after school care at the commencement, and deliver the children to school at the conclusion. Such period to commence on Friday 27/7/07.
2.2For one half of all NSW gazetted school holidays being the first half in EVEN numbered years and the second half in ODD numbered years. For the purposes of calculating the school holiday period, it shall commence on the last day of the school term and conclude on the day before school recommences. If there is a pupil free day it shall be included in the school holiday period. In the event that the school holiday period is an uneven number of days then the extra day shall be exercised by the parent who has the second half. Changeover shall occur on the mid point of the holiday period at 5.30pm.
2.3On the Fathers Day weekend in the event that it is not a weekend covered by order 2.1 from after school Friday to the commencement of school Monday.
2.4Except where changeover is to occur at the children’s school or after School Care Centre the parent who does not already have the children collect the children from the other parents residence at the commencement and deliver back to that same residence at conclusion.
3.       The time the children spend with the father be suspended on Mother’s Day weekend from conclusion of school Friday to commencement of school Monday.
4.       The parties shall communicate with the children by way of telephoning the other parents landline telephone number not more than 2 times in each week and before 7.30pm on each time.
5.       Each party shall forthwith provide the other with their mobile and landline phone numbers and keep the other informed within 7 days of any change to the number.
6.       That in the event that either party wishes to attend a seminar that occurs outside of school hours and such seminar will involve them being unable to care for the children for more than 8 hours they shall give the other parent the opportunity to care for the children upon the giving of not less than 6 weeks notice.
7.       The parent who is not with the children on Christmas Day and their birthday shall have telephone contact with the children on each day between 8.30am and 10.00am and the parent with whom the children are living shall ensure the children are available for telephone contact.
8.       Both parents shall ensure that the children when living with them shall attend all organised extra curricula activities and shall return all items of equipment including musical instruments, books and clothing at the end of each period of residence.
9.       Each party bear their own costs of and incidental to these child proceedings.
10.     Each parent give the other notice of any illness injury necessary medical procedure or surgery in relation to the children as soon as possible but no longer than 24 hours from such occurrence.
11.     That the father’s school term weekend to commence on a date nominated by the father such date to be nominated at least a term in advance of the school Term or alternatively such week-end to recommence consistent with the previous school Term.
NOTATIONS
A.       The father agrees that the mother has notified him that for the purposes of her [training] she may have to for a period of time not more than 2 years relocate her residence outside the Newcastle area.
B.       The relocation referred to in Notation A is not anticipated to commence before late January 2008.
C.      The parents intend to use their best endeavours to resolve any dispute about the residence of the children in the event that the mothers needs to relocate pursuant to these notations without resort to application to this Court.
D.      In the event of an application being filed the father agrees that these Orders will not be relied upon by him as constituting a basis for opposing such application by the mother in the terms of the decision in Rice V Asplund.
Generally the parties have since implemented the provisions of the Orders of 16 July 2007.
Since the boys’ birth the father has been in full time employment. The mother prior to the boys’ birth was also employed full time.
From December 1999 till May 2002 the mother worked part time. Then from March to April 2002 she worked for 5 weeks on a full time basis in that role, before resuming part time work 3 days per week for a while, and then 3½ days per week from May 2002 to April 2005.
From April 2005 to January 2006 she worked full time. Then from January 2006 to September 2006, she worked 1 day per week.
In that role the parties shared a workplace; the mother had considerable contact with the father and she found this difficult because of their poor relationship and what she perceived to be a negative approach on his part. It is common ground that the parties have serious ongoing conflict and poor communications. The mother was also concerned about the requirement for after hours work at times when she has the care of the boys. Because of those matters she decided to undertake training to move to another field in lieu of her present field. This field involves very little after hours work.

From January 2006 to January 2007 she worked 3 days per week. From January 2007 she has worked full time in the same role.
The mother commenced these proceedings by an application filed on 4 October 2007.
Dr R is registered Psychologist in private practice. She has post-graduate qualifications in clinical psychology.
She is a member of the Australian Psychological Society, the APS College of Clinical Psychologists, the APS College of Forensic Psychologists, the Australian Association of Cognitive Behaviour Therapy, the Australasian Critical Incidents Stress Association, Australian Society for Traumatic Stress Studies, and the Australian and New Zealand Association of Psychiatry, Psychology and Law.
Her clinical appointments have been as follows:
2002 - present- Full time private practice, Clinical & Forensic Psychologist,
1992-2002 - Part time private practice, Clinical & Forensic Psychologist,
2001 - present - Children's Court Clinic
2001 - present - ACT Victims Services - Authorised service provider
1999 - present - NSW Victims Services, Authorised Report Writer
1998 - present - Family Court of Australia
1998 - present - NSW Victims Services, Approved Counsellor
1992 - present - NSW Police Service - Approved Counsellor
1990-91 - Hunter Area Health Service Counselling Service
1989 - Hunter Area Health Service - E Health Centre
She has been involved in research and teaching including over 35 years tutoring and lecturing in psychology, 3 post graduate degrees in psychology and numerous publications in refereed professional journals and books.
Dr R’s academic appointments have comprised:
1985 - 2002 - Senior Lecturer in Psychology,
1972 - 1985 - Lecturer in Psychology,
1970 - 1972 - Teaching Fellow in Psychology, 1967 - 1970 - Tutor in Psychology,
Dr R was appointed to prepare the Welfare Report in relation to the children in the earlier proceedings and her first report was released on 23 October 2006. She also prepared a second report in those proceedings, which was released on 20 March 2007.
In both those reports Dr R found that the children’s interests would be best served by residing predominantly with the mother and spending time on a regular basis with their father.
On 19 October 2007 the parties with legal representation attended mediation, but the proceedings were not resolved.
After conducting interviews and observations in November, Dr R prepared a further report, which was released on 13 December 2007.
She concluded that report with the following findings and opinions:
Evaluation
68.      It appeared to the writer from the interviews for this Report that post separation there have been genuine difficulties in the workplace for [the mother] and [the father] given that they inevitably continue to have professional contact in a [workplace] setting. It is understandable that [the mother] has taken steps to complete training in a different [field] to try to alleviate a difficult situation.
69.      It is also very probable in the writer's opinion that the workplace difficulties and/or tensions between the parents may be transmitted in some way to the children, since both children probably know that their parents still have some contact with each other. To this end it appears to the writer that it is in [the mother’s] long-term interests and de facto in the children's long-term interests for her to develop a career that is independent of [the father].
70.      The major difficulties in this matter at this point in time appear to be attributable to the parents' communication style. As noted in the earlier Reports [the father] appears to be either unwilling or unable to engage in open and honest communication on emotionally loaded matters. This is evident in the way he has terminated his relationships with both [the mother] and Ms [S] at different times with both parties indicating independently to the writer that they had no idea that he was about to leave them.
71.      The writer stands by the earlier assessment that [the father’s] communication style does not augur well for [the children] if he were to be their primary carer, particularly as they move from the latency stage of development into adolescence and young adulthood. As observed in the earlier Report, the stages of development that [the children] are about to enter will very likely be quite challenging at times. There will be times when they will need explanations or justifications of parental decisions. [The father’s] avoidant style will be likely to cause considerable hostility and anger if he is unable to give the boys explanations and reasons for his decisions at critical times.
72       The mother, […], has been the children's primary carer since birth and, as such, has provided the children with the day-to-day stability of their lives. It is very probably the case that they have acquired an understanding of her expectations of them and understand her style of communication. To that end the mother more than likely provides the children with the most secure emotional base.
73       Concerning what happens after the mother completes her training, it appears to the writer that there is not, and cannot be, any guarantee that she will be able to find employment [in her new field] in the Newcastle area on completion of her training. .
74.      As noted, the children are apparently enrolled in Sydney […] School for 2011 and beyond. The writer has formed the opinion that if [the mother] moves to Sydney with the children for 2008 and/or 2009, then it would be unrealistic for her to return to Newcastle for 2010, and then to return to Sydney in 2011 for the children's education. Returning to Newcastle for one year (2010) it could be argued would be disruptive for the children.
75.      Given that both parents apparently agreed some years ago for the children to receive their secondary education in Sydney it could be argued that the move to Sydney proposed by the mother for 2008 is simply a matter of timing and such a move would simply be occurring sooner rather than later.
76.      Nevertheless, a move for the children at the beginning of 2008 could be seen to disadvantage the father unless there is compensatory time for the loss of time he currently spends with the children each alternate Monday and Tuesday.
77       To summarize, in the writer's opinion, the main advantage for the children in moving with the mother in 2008 is that both children have expressed the wish to live primarily with the mother who, unsurprisingly, is still their primary attachment figure. The children are still young and vulnerable and obviously feel more emotionally secure with the mother.
78.      The disadvantage for the children in moving with the mother in 2008 is that they will lose the Monday and Tuesday morning currently spent with the father each alternate week.
79.      The advantage for the children in remaining with the father in Newcastle is that they will continue to develop a strong bond with the father.
80       The disadvantage for the children in remaining in Newcastle with the father is that as far as the writer is aware, the children have not spent more than 2-3 weeks in the father's care since they were born. As far as the writer is aware he has not undertaken the responsibility of organizing the children for school or for after school activities. It is therefore unknown and untested as to how well he will cope as a single parent with a demanding professional career.
81       In addition, it is inevitable that the children would miss the mother if they live predominantly with the father. Both indicated that they would miss Mum more than they currently miss Dad if their living arrangements were reversed.
82       A further possible disadvantage for the children if they were to remain with the father in Newcastle is that he may decide to resolve his childcare difficulties by arranging to cohabit with his current partner and her two children. As indicated earlier in this Report, neither [of the children] want to live in the same house as [the father’s] partner's son, [W]. There does not appear to have been any resolution of the children's differences over the last twelve months. Given the views expressed by [the children] to the writer, it would not be reasonable in the writer's view to place [the children] in this position. It is unfortunate that the writer has not been able to observe the relationship between [the children] and [W] and [N].
83.      The writer has formed the opinion that the mother is more in time with and more focused on the children's needs than is the father. This is undeniably attributable to the fact that she has been the children's primary carer since their birth.
84.      The writer's view of the father as a caring father was confirmed in the interview for this Report.
85.      The writer is of the opinion that [the father] will need to address his tendencies to avoid conflict and confrontation if he is to maintain a rewarding parenting relationship with [the children] through their later childhood, adolescence and early adulthood.
Recommendations
86.      It is recommended that the children [L] and [M] continue to live predominantly with the mother, […].
87.      It is recommended that the children spend time with the father […] on a regular basis at his place of residence.
88.      It is recommended that the children do not routinely, and as a matter of course, spend significant time with Ms [S] and [N] and [W].
89       It is recommended that [the children] spend time with the father each alternate weekend from after school on Friday until Sunday evening, with the times defined and agreed to by the parents.
90       It is recommended that [the children] spend half of each of Term 1, 2 and 3 school holidays with the father, or as otherwise agreed between the parties, depending on their work commitments.
91       In addition it is recommended that the father have additional time each school holiday period to compensate for the loss of Monday and Tuesday times each alternate week under the current Orders. This will need to be defined with reference to each parent's work commitments and with no less than three month's notice.
92.      It is recommended that [the children] spend the first half of the Christmas school holidays with the mother in even numbered years and the first half of such holidays with the father in odd numbered years. It is noted that the children' s birthdays will fall in the first half of such holiday period.
93.      It is recommended that [the children] have telephone contact with the absent parent on their birthday.
94.      It is recommended that telephone contact between the children and the absent parent is liberal and flexible and as requested by the children.
95.      It is recommended that the father initiate telephone contact with the children at least once per week.
96.      It is recommended that [the children] spend Mother's Day and Father's Day with the appropriate parent.
97.      It is recommended that every effort be made for [the children] to spend part of each parent's birthday with that parent if it occurs on a weekend while they are in primary school.
On 15 and 16 January 2008 the hearing proceeded. Considerable time was occupied by negotiations between the parties (with the help of the lawyers) occupying considerable time and those resolved many of the issues.
The mother has been interviewed for and offered a training position in Sydney commencing 21 January 2008. The contract is for one year and can be extended. She proposes to accept the offer, commence on 21 January and she and the boys would reside in the Western suburbs. She proposes the boys will attend G Public School and use the before and after school care there.
Final orders were made by me on 18 January 2008 and these are the reasons.

RELEVANT LAW

The objects of the children’s provisions of the Act are set out in Subsection 60B(1) which provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Subsection 60B(2) provides:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Subsection 60B(3) provides:
(3)      For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)      to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)       to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)      to develop a positive appreciation of that culture.
Subsection 60CC provides:
Determining child’s best interests:
(1)      Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
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; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(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;
(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);
(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;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i)       the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.

SUBSECTION 60CC(3) FINDINGS

The findings under subsection 60CC(3) are as follows:

a) Views of the child

It needs to be said that where children of separated parents have been exposed to conflict between their parents about parenting issues, such as living arrangements, as these children have, preferences on those issues expressed by the children to one of the parents are notoriously unreliable. That is because of the risk that the statement is made by the child only for the purpose of demonstrating loyalty to the parent, reassuring that parent of the child’s love and reinforcing the relationship with that parent. For that reason I have not relied on such statements.
Similarly, exposure to the conflict can lead to negative statements by the children to one parent about the other parent, particularly if the first parent does not reject or reality test such statements and thus conveys to the children he or she has such a negative view of the other parent as to be keen to hear such negative statements. The boys have been exposed to the parents’ conflict and hostility to each other and have experienced each of them to be receptive to negative stories about the other. On the evidence it appears that each of them has not rejected, discouraged or reality tested such statements, and thus instead demonstrated some enthusiasm to hear them. Such statements are accordingly considered as unreliable because of the risk that they are invented, coloured or exaggerated because of the child’s need to demonstrate alignment with, and loyalty to, the receiving parent in the parental conflict.
In November Dr R interviewed each boy for about 40 minutes. Neither boy expressed any wish to live with the father or any opposition to the proposed move to Sydney. They both appeared to understand the mother’s plans. L expressed enthusiasm about moving to Sydney, and said “It wouldn’t worry me too much” to miss out on the Monday and Tuesday contact with his father each fortnight. He said he would prefer to move with his mum and would miss his mother more (if he didn’t) than his father (if he did). He recognised it would be sad leaving his friends, but said “it wouldn’t worry me too much” to change schools.
M said he views the possible move at about 7/10 where 10 is “like to heaps” and 0 is “don’t want to go”.

b) The children’s relationships

The children have a close and positive relationship with both parents. That has been the case since their births. But on the balance of probabilities the relationship with the mother, because for all of their lives she has had a much greater parenting role than the father, is a stronger relationship. The court also adopts Dr R’s opinion that living with the mother is likely to provide the boys with a more secure emotional base.

The next most valuable relationship for each of the boys is with each other. For each of them it is a close, enjoyable and supportive relationship.

c)Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent

Subsection 60CC(4) provides:
4)       Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)      has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii)      to spend time with the child; and
(iii)      to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii)      spending time with the child; and
(iii)      communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)    If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Two relevant issues under this paragraph are:
·the willingness and capacity of the mother to facilitate the children spending time with the father and communicate with him if she and the boys are living in Sydney, compared with the position if they continue to reside in Newcastle: and
·whether her willingness or capacity will deteriorate if they are there for a longer, rather than a shorter period.
In September 2004 the mother resisted the father’s requests that the boys spend each second weekend with him, but later she agreed. In June 2005 and subsequently she refused his requests that the time the boys spent with him every other week on Monday from end of school to 7 pm be extended to start of school Tuesday.
The father complained that in October 2005 when he telephoned to speak to the children the mother terminated his call. In December 2005 when the father wanted to spend part of Christmas Day with the boys there was a flurry of correspondence. The mother steadfastly refused. She threatened to not facilitate the boys spending any time with their father over the Christmas/New Year period unless the father agreed to her proposals and gave a written undertaking to return the children. The father capitulated.
On 30 January 2006 the mother consented to interim orders for the boys to spend time with their father for half school holidays, part of Christmas Day each year and each second weekend in school terms from 5.30pm Friday to 5.30 pm Sunday (Monday if it is not a school day).
Those orders also provided for the boys to have telephone contact with the father as agreed, but failing agreement from 6 pm to 6.30 pm on Tuesdays and Thursdays. The father complains that sometimes he heard the mother during a call saying “Come on, you need to get off the phone now”. The father’s evidence is that often the calls lasted 1-2 hours with each boy. On the evidence the father has not established that the mother’s conduct was unreasonable. Indeed it appears the length of the calls was often unreasonably intrusive in the mother’s home and would have prevented adherence to evening routines, including bed time.
The Court accepts that in March 2007 the mother refused to let the father collect the boys from after school care (at the YMCA) at 5.30pm at the commencement of weekend contact. Instead the mother persisted in collecting them at 5.30 pm or later and by the time she took them home and they changed and completed packing, they were not available to go with the father until 5.45 pm or later.
In the final orders made by consent in July 2007 the mother consented to the boys spending time with their father for each Fathers Day weekend, half school holidays (including alternate Christmas Days) and on “alternate weekends” in school terms from end of school Friday to start of school Tuesday. She also consented to telephone communication with the father up to 2 times per week before 7.30pm.
In August 2007 there was a series of email correspondence between the parents that illustrates well their poor level of communication and discussion. It reflects badly on them both and shows each of them as seeking to impose his or her wishes on the other rather than indulge in genuine negotiations. Order 11 provides that the father can elect (by written notice given at least a term before) whether the weekends in a term will commence on the first or second weekend of the approaching term. In default the weekends would commence “consistent with the previous term’. The correspondence relates to weekends in the 4^th term commencing 15 October. If the default provision applied, the first weekend in the 4^th term would be the second weekend.
Eight emails passed between the parties before any mention of the issue of whether the father had given the required notice. In the 9^th Email, which is dated 31 August, he alleged he nominated the first weekend as 19 -21 October “almost 2 months ago”. If he had given such notice in early July, as he alleged, it would have satisfied the requirement for “written notice given at least a term before”. But the mother in her response did not admit any such notice and denied compliance with the requirement. The alleged email is not in evidence. The Court is not satisfied on the balance of probabilities that the father satisfied the requirement for notice. On the balance of probabilities the position the wife took that the children should be with her on the weekend of 19-21 October, unless she agreed otherwise, was correct. And the husband’s claim to be entitled to have the boys on that weekend under the orders was wrong.
The mother told Dr R in November that she is happy to maximise the time the children spend with their father when they are living in Sydney. She said she is happy for them to be with him every second weekend and for extra time (beyond half) in school holidays. She said the boys love their father and want to spend time with him.
On the evidence the mother has since separation behaved in ways that failed to adequately facilitate the boys spending time with the father. But since 2005 there has been no major problem in that regard. Similarly in 2005 she failed to facilitate adequate telephone communications between the boys and their father. But there has been no such failure since. The mother has facilitated the time the children spend with their father and their telephone communications in accordance with the court orders since January 2006. The Court is satisfied that the mother is likely to continue to do so if the children reside in Sydney for up to 2 years. Her willingness and capacity to facilitate the boys spending time with, and communicating with, their father over that time is likely to be adequate.

d) Likely effect of any changes including any separation

The proposed changes will mean that the boys will, during the time they live in Sydney, spend less time with their father. They will not be able to continue developing/maintaining such a strong bond with him. That is because the distance between them combined with his work commitments will make it impractical for him to see them as frequently as he could if they continued living in the Newcastle district.
He will rarely spend mid week time with them in school terms and share the more mundane chores, such as homework and the routines of a working/school week. He will not be able to attend so often at school functions during a school day or in the evening of a school day. He will not be able to attend much at their sports training, music lessons, and any other activities after school that they participate in. (The mother proposes they will be involved in team sports, music lessons and swimming lessons.) If they play weekend sport in Sydney it will be quite difficult for him to travel to Sydney to attend and support them.

e)Difficulty and expense of spending time with and communicating with a parent and whether they will substantially affect the right to maintain personal relations and direct contact on a regular basis

Each of the parents will be in full time employment and have adequate financial capacity to meet the costs of the transport her or she is proposed to provide to implement the children spending time with the father.
The difficulty involved is that the travel time will be more than 2 hours between the parents’ homes. There will be no such difficulty in communications by phone, email, or letter.
The effects of the travel problem on the relationships the boys have with their father have already been discussed.

f)Capacity of each parent and any other person to provide for the child’s needs

The Court adopts Dr R’s views that the mother communicates better with the boys, that she is likely to provide them with a more secure emotional base, and although the father is a caring father and his capacity to care for the children during time spent with him is more than adequate, and “the mother is more in tune with, and more focussed on, the children’s needs than is the father.”
The father’s income is substantially greater than the mother’s and he is better able to provide for the children’s financial and material needs. However, with her income and child support from the father, the mother’s capacity is adequate.

g) Maturity, sex, lifestyle and background of the child and of either parent, and any other characteristics of the child

As male children the boys have a need for a close and positive relationship with a suitable adult male role model. The father has provided that role model and is suitable. If the children live in Sydney, and spend time with, and communicate with, the father as proposed, he will continue in that role.

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

This does not apply.

Attitude to the child and the responsibilities of parenthood

Subsection 60CC(4) provides:
4)       Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)      has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii)      to spend time with the child; and
(iii)      to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii)      spending time with the child; and
(iii)      communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)    If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The attitudes of the parents to the children and to the responsibilities of parenting are adequate.

j) Any family violence

“Family Violence” is defined in S.4 of the Family Law Act as follows:
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
There is no evidence of family violence.

k)Any family violence order that applies to a child or a member of the child’s family

There is no family violence order.

l)Whether it is preferable to make the order that would be least likely to lead to the initiation of further proceedings in relation to the child

The mother’s evidence is that prior to April 2002 she proposed , and the father agreed, that the boys will attend a private high school in Sydney. They enrolled the boys with that high school to commence in 2011. There is no evidence that that is still the intention of either of them and, if it were, that intention could change in the period the boys live in Sydney and attend primary school.
The boys will turn 10 in December 2008 and 11 in December 2009. It appears the boys will complete year 6 in 2010 and attend high school from 2011. There is uncertainty as to what high school(s) the parents will then prefer.
There is also some level of uncertainty (however minor) as to the wife completing her training. If she does complete it, there is uncertainty as to whether she will be able to obtain a position in the Newcastle area.
Overall, the uncertainties are such that there is a likelihood of further disagreement between the parties about where the children live and what school they go. If the parents to each attend a course in Parenting After Separation, that likelihood will be reduced.

m)Any other fact or circumstance the Court thinks is relevant

Other relevant matters appear later in the discussion of the 4 main issues.

PRIMARY CONSIDERATIONS

The findings as to primary considerations under Subsection 60CC(2) are:

a)The benefit to the child of having a meaningful relationship with both of the child’s parents

Whatever the decisions on the issues, the orders will provide that while the boys live in Sydney and the Orders of July 2007 are suspended, they will still spend time with their father for the whole of the vacations at the end of Terms 1 and 3, for half of the other 2 vacations, for each second weekend in school terms, for Father’s Day weekends, and on up to 2 occasions per term overnight on a school day.
The father will be actively involved in their lives. He will share weekends and school holiday time with them, and to a lesser extent than now, time in the school weeks. He is an enthusiastic parent. He relates well to the boys. They enjoy many worthwhile activities together. Together they play board games, read books, and watch DVD’s. At the coast the boys enjoy exploring rock pools in summer and also the cooler months. At the father’s home together they enjoy bike riding on cycle tracks and walks. They play inside with their fish tanks. They go on outings including picnics.
When spending time with the father they sometimes visit the paternal grandparents interstate and their uncle, aunt and 3 cousins. In January 2005 they enjoyed a day cruise with their father, uncle and cousins in the uncle’s cruiser. They boys enjoy playing in the grandparents’ pool with their cousins and playing board games with their grandparents.
The father stimulates them intellectually. The boys will continue to have a meaningful relationship with him and they will benefit much from it.

b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The evidence does not disclose any risk of abuse, neglect or family violence, except emotional abuse by the parents continuing to expose the children to their conflict and involve them in it by the conversations they each have with the children about the other parent. There is a need for both parents to have the benefit of attending a Parenting After Separation Course to gain more insight into the effect of their behaviour and their conflict on the boys.

PARENTAL RESPONSIBILITY

There is no application to change the present situation whereby (pursuant to Section 61C of the Family Law Act) each of the parents has parental responsibility. Equal shared parental responsibility would at present be contrary to the children’s interests because of the poor relationship between the parents, their conflict and their poor capacity to make parenting decisions together.

ISSUE 1:THE PERIOD OF SUSPENSION OF THE 2007 ORDERS

The mother has completed the equivalent of 18 months full time core training in her new field. To qualify she needs to complete another 6 months of core training and 12 months of non core training. The contract she is accepting in Sydney will provide 6 months of core training and 6 months of non core training. The contract could be extended. It was suggested in submissions on the mother’s behalf that if a further contract is offered it will not be for a period less than 12 months. But in the absence of evidence to the contrary, it appears that is a matter for the employer, and there was no evidence from the employer to exclude a 6 months extension.
Mr A gave evidence. He has supervised the mother’s training. His evidence is:
3         It is not possible for [the mother] to complete her training in Newcastle and receive optimum training.
4         The guidelines state that it is highly preferable for a trainee to undertake training at more than one site so that he/she can receive exposure to different situations and exposure to different people who make [different] judgments.
5         I have therefore supported [the mother’s] applications for training positions in other centres in Australia.
6         There is no job available for [the mother] next year in Newcastle as an advanced trainee.
Mr A was not cross-examined. The Court accepts his evidence that in 2008 there are no positions available in Newcastle for the mother to continue her advanced training.
On the question of availability of a training position in 2008 in Newcastle, the Court prefers his evidence to evidence of the father (who is not in the field), suggesting in cross examination there may be.
There is evidence in the husband’s case that supports the opinion of Mr A that the mother should complete her training at a different training institution. In a letter answering questions raised by the husband, Mr J, the Chair of the Advisory Committee in the mother’s chosen field says:
[the mother’s current workplace] is accredited for a maximum of 24 months core training. After this time it is strongly recommended that the trainee move to another site to complete the remaining 12 months of non core training.
It is recommended that training should take place at sites that have been assessed and accredited by the [Advisory Committee]. These training sites should be subject to site visits before accreditation.
The [Advisory Committee] strongly encourages trainees to undertake training in more than one institution to enable them to acquire a sufficient breadth of exposure and experience.)
The Court adopts that evidence in preference to the husband’s evidence in cross examination denying that it is preferable that the wife’s training be at more than one accredited training institution.
The husband has offered evidence of the possibility of the wife accepting a training position in the Newcastle area in some other field, but that is not a course the wife has chosen to pursue and there is no evidence that such a course would address 2 needs of the mother, on which she chose to change fields, although she had already acquired accreditation in her first field:
· To avoid contact in her work with the father at staff meetings, and in the workplace where she is based; and
· To minimise the after hours work in order to be available for the boys.
On the evidence both these needs are reasonable. The parties’ professional interactions and dealings in Newcastle have been marred by disrespect and disagreements. The mother has grounds for her belief that the father has been disrespectful of her. She has refused to attend some professional and staff meetings because he attends. Their poor relationship has lead to her not performing some of her professional duties, such as proper consultations between them and attendance at meetings.

The notations to the final orders of 16 July 2007 make it clear that the parties at the time of consenting that the boys would live with the mother contemplated that the mother might need to move in 2008 to a location outside the Newcastle area for “up to 2 years” for the purpose of training. Notwithstanding that she need a further 18 months of training, the father proposes that the order suspending the present orders be for a period of only 12 months, the period of the contract. But that is likely to lead to further proceedings if the mother wants to complete the remaining 6 months of training at an accredited training institution in Sydney.
The mother seeks that the suspension be for 2 years. But she needs only 18 months to complete the training.
The boys’ interests are best served if the suspension is for 18 months, but ends if, on an earlier date, the training ceases. The whole purpose of the notation in 2007 and the suspension is to facilitate completion of her training; not to pursue some other training or to pursue outside Newcastle a career. On the evidence as it presently stands, it is contrary to the boys’ interests for her to delay her return and the resumption of them living in close proximity to their father beyond the cessation of her training.
Such a decision also more closely conforms with the notations to the final orders of July 2007, which made it clear that what the parties contemplated was the wife and the boys living outside the Newcastle area for “up to 2 years” for the purpose of the wife completing her training. That was an issue clearly taken into account before the parties consented to those orders only 6 months ago. It is well established that the court should not lightly entertain a rehearing of issues recently considered and determined by orders, whether by consent or made by the Court on a contested hearing. In Hayman and Hayman (1976) FLC 90-140 at 75,679-69,770, the majority of the Full Court (Murray and Lusink JJ) held:
Whilst it is true that custody is never final, it is not open to an unsuccessful part to return to Court repeatedly in the hope of obtaining a favourable order. It may be that circumstances have altered to such a degree that a tribunal can be convinced that it is essential in the interests of the child that questions relating to custodial arrangements be re-litigated. However, it is accepted that there must be very real issues to be decided, issues which have arisen since the last hearing which have not been previously traversed.
See also per Marshall SJ in Houston and Sedorkin (1979) FLC 90-699 at 78,727; and per Nygh J (with whom Barblett and Fogarty JJ agreed) in Newling and Newling (1987) FLC 91-856 at 76,467, where his Honour said:
Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children, it is, in my view, not appropriate to speak of cause of action estoppel. What this rule really illustrates is that it is, generally speaking, not in the interests of the child to have repeated applications concerning its custody and access before the Court. There must, in other words, be an end to litigation.
At the same time, as against that, one must balance the other consideration, and that is, that the circumstances of children, generally speaking, are likely to change as those children grow up, and the psychological and physical needs change from time to time.
More recently the Full Court held in Gaul and Gaul [2000] Fam CA 12 at pars 29-31:
29. Those paragraphs from the majority decision in CJD v. VDJ, and the remarks in Rice and Asplund, serve as a reminder, if any was needed, of the extent to which prolonged or endless litigation can itself be harmful to children's interests and welfare. Recognition of this was central to the judgment in Rice and Asplund. The tests stipulated therein of changed or significantly changed circumstances, or new factors arising, have the advantage of being readily understood by parties to litigation, and being appreciated by them as expressing sound commonsense.
30. It is no more than a recognition of the harm capable of being caused to the interests of children by re-litigating essentially the same issue at the behest of disappointed parties that results in this Court usually requiring that circumstances have significantly changed since the matter was last litigated or settled. The Family Court is particularly a jurisdiction in which parties will be deeply affected by disappointing outcomes for years.
31. However, these tests are not an end in themselves, but are a means to a goal. For example, there will be cases where the fact that there has been no change in a situation the Court has previously judged as unsatisfactory but hoped or found would alter over time, may itself require that in the best interests of a child or children the Court re-consider the residence or contact orders with respect to that child or children. An example is where one parent has continued unfairly to accuse the other of abuse of a child, and to damage that other's relationship with a child, despite a finding by this Court that no such abuse has occurred. Likewise, there may be cases where a later assessment of the effect on a child or children of agreed or imposed orders strongly suggests that these agreed or ordered circumstances are adversely impacting on a child or children. These two (2) varieties of case last-mentioned are ones where, although no significant or substantial change has been shown, the circumstances existing at the time of the application, whether they are changed or not, require the Court to consider again how the welfare and interests of the children would best be served.
The parties did not adduce evidence to justify reconsidering the issues resolved by the agreement in the notations to the 2007 orders.

ISSUE 2:THE ISSUE OF PSYCHIATRIC EXAMINATION(S)

The father seeks orders for the parties to be psychiatrically examined. There is no evidence that the father has or may have a mental illness or personality disorder. It was submitted for the father that his reason for proposing that both of them be examined, rather than just the mother, is fairness or balance. Not only does the evidence not provide a basis for such an order, but the mother opposes an order for psychiatric examination of either of them.
There are 2 matters of evidence that the father relies upon as supporting an order for psychiatric examination of the mother. The first is an opinion of a medical practitioner in August 2004 that the mother was suffering a “paranoid personality disorder”. The second is an allegation the mother made to Dr R in 2006 and subsequently that she had contracted genital herpes from the husband.
With regard to the second matter it was submitted that the allegation is an instance of paranoia because:
·the disease was self identified;
·she has not provided any pathology evidence to support the allegation; and
·she has never sought to have the father to undertake any testing.
There is no evidence before the Court to establish whether the mother did or didn’t contract genital herpes. There is no evidence as to it being diagnosed except that the mother gave that opinion. There is no evidence of any pathology or other test results on the question. The evidence does not establish that she did not contract the disease, or that if she did, she could not have contracted it from the father. The evidence does not establish that the allegation that she contracted the disease from the father is false. The evidence does not establish that the wife embraced a false belief unreasonably.
Counsel for the father also argued that the failure of the mother to substantiate the allegation by pathology or other evidence and to repeat it when the father repeatedly denied it, is an indication that the allegation was false. However, the Court does not accept that in the circumstances there was any onus on either party to prove or disprove the allegation. It was one person’s word against the other’s and only one of many issues between the parties.
The evidence of the allegation by the mother and her subsequent acts or omissions are open to many explanations and are not accepted to be evidence of paranoia.
The main ground for the father’s proposal is the diagnosis by Dr V in August 2004 that the mother is suffering from a paranoid personality disorder. Dr V gave evidence in the proceedings but did not give evidence of any diagnosis. He did not see the mother as a patient. The mother and Dr V shared a workplace. Dr V has never been a psychiatrist and there is no evidence he has done any specialist training in that area. He completed his qualifications as a general practitioner in 1986 and specialist training in 1992. It appears he has worked in that specialty since then.
The mother and Dr V had considerable conflict from May 2004 onwards by way of email correspondence and other incidents as Exhibit F2 shows. The first evidence of this is an email from him of 12 May 2004 telling her she had not made an application for leave for a conference she attended that week and in future should do so 2 weeks in advance. There is a record of him being advised by a staff member 6 days later that the mother had lodged the application for conference leave in January and it was approved. There is no record of him acknowledging that to her.
She complained in May of him changing the roster to roster her to be working after hours that week without consulting her about the proposal. She told him “I don’t like being ordered about”. His response was to send a copy to the manager, saying “I think it entirely inappropriate for an employee to send such an email to the head of the Department. What do you think?” He did not deny the conduct she alleged. Nor did he respond to her email.
On 27 May he accused her of behaviour and comments that were “aggressive, intimidating and unprofessional” at a meeting on 24 May. She responded the next day. She didn’t deny his complaints, but raised a series of complaints relating to the same meeting, including changing the meeting time without consulting her as one of the 3 attendees, not greeting her politely when she arrived, and not concluding the meeting professionally, but instead ignoring her and conducting personal discussion with the other person.
The problems continued and by 26 August 2004 she had raised a series of grievances about Dr V’s behaviour through her union and they had been raised with her employer. Her complaints were under the following headings:
·Discrimination on the basis of parental status/part time status;
·Discrimination on the basis of sex;
·Lack of recognition of her contributions to the workplace;
·Lack of recognition of her expertise; and
·Management communication problems/lack of collegiate manner.
It is in his response that Dr V says that he has diagnosed the mother as suffering a paranoid personality disorder. However, in his response other matters are noted:
·    He does not deny many of the detailed poor behaviour she complains of, sometimes instead of answering her detailed complaint he raises a complaint or complaints about her, and other responses are superficial;
·    He admits that he made a decision that she, although only a part time employee working 7 tenths of full time hours, would be rostered for after hours work for one third of the after hours and weekend roster; and he did this without notice to, or consultation with, her;
·    His answer verifies her complaint of “lack of recognition of my expertise,” even though he does not address the specific detail she raises. He said he has not seen her CV. At the time he had been in his professional position for 5 months. He said “I understand that she failed her […] examinations, however.” He made no mention of the fact that she failed only one part of the exams, no mention of her diploma, no mention off where she trained, no mention of where she worked, and no mention of the fact that she had been in her professional position for more than 7 years, apart from a year of maternity leave;
·    In respect of the considerable detail of 11 matters under the heading “Management Communication Problems/Lack of Collegiate Manner”, Dr V acknowledges it is a problem but does not really address any of the 11 matters. He says the problem is because of the mother’s personality.
Dr V then concludes his response:
The problems [the mother] is experiencing with me (and vice versa) is really a reflection of her personality. I am a qualified medical practitioner and it is my view that [the mother] suffers from a "paranoid personality disorder". I think it would be valuable to have this confirmed (or refuted) by an independent medical practitioner (probably a psychiatrist). [The mother] has most of the features of this condition:
a)        Paranoia: she believes others are always trying to harm her
b)       Messiah complex: she believes she is always right, but that others do not recognise it. She has "delusions of grandeur" and overstates her own expertise and importance
c)        Egocentricity: she sees everything that happens as being directly pointed towards her. A management decision by the Director is directly "targeted" at her, when it is not.
d)       Inability to communicate with others: this grievance process is an outcome of this feature of her personality.
e)        History of poor relationships. [The mother] has a long history of "problems" at work with other staff members, not only at [her current workplace], but in her previous position in […]. It is always a problem with the "other" person. [The mother] also has a history of inter-relationship problems in her private life.
f)        Lack of insight into the problem or her contribution to it.
In conclusion, [the mother] has, in my opinion, a "paranoid personality disorder". Unfortunately, this disorder does not respond to either counselling or medication. Consequently, I think the counselling process is very likely to fail.
On the evidence the Court is not persuaded that Dr V’s opinion is sufficient basis for an order for the mother to undergo a psychiatric examination. One reason is that the husband, who has had much more extensive experience of the mother does not give evidence of behaviour such as that Dr V attributes to the mother, nor does he offer any other medical evidence to support such a diagnosis. And Dr R, who has seen the parties and the children over a long period and prepared 3 reports for the Court, raises no suggestion of the mother suffering a personality disorder. Another reason is that the evidence establishes that Dr V has a history of conflict with the mother and does not raise his diagnosis from an objective position, nor does he appear to have ever practised in an area where he has used any training he received in psychiatry. Another reason is that some of the mother’s complaints about Dr V that he dismisses out of hand are shown, on the available evidence, to have substance. Another reason is that the primary purpose of the document in which Dr V states the diagnosis is to respond to serious allegations against him raised by the mother, but he does not appear to have given careful consideration to many of them. That does not suggest he has exercised care in volunteering the diagnosis.
The Court is not satisfied that there is a reasonable basis for the order sought.

ISSUE 3: WHETHER THE PROCEEDINGS SHOULD BE ADJOURNED TO BE RESUMED LATER

There are many contingencies open in the next 18 months, such as:
·The location of positions available to the mother if she completes her training in 18 months;
·Whether the mother will complete her training;
·The views of the parents’ when the suspension of the 2007 orders expires as to which high school the boys should attend;
·The boys’ academic performance in the meantime;
·Where the father will be working and living when the suspension ends and where he intends to work and live after that;
·Improvement in the parents’ relationship and parenting; and
·The possibility that the parents reach an agreement about future parenting of the boys when the suspension ends.
The contemplation of the final orders made in 2007 is that the mother would move to Sydney only for the purpose of completing her training; not to pursue a subsequent career. The notations and orders contemplate that then she will return to a location convenient to facilitate the arrangements the orders embody for the boys spending time with the father and the arrangements for implementation.
In the circumstances the proceedings should not bee adjourned. The orders should be final. If later other parenting issues arise, then if the parents, with the benefit of having attended a Parenting After Separation course, are not able to agree, may launch fresh proceedings. But they should be encouraged to believe that they will be able to agree and will not need to come to the court yet again to have it decide parenting issues about their sons.

ISSUE 4:PARENTING AFTER SEPARATION COURSE

The parents have been separated for nearly 3.5 years. Yet their relationship as parents is marred by conflict and is dysfunctional. Their children have been exposed to this conflict. The parents’ relationship is a curse on their children and themselves. The parents are both intelligent and well educated people, but neither appears to have sought out professional help by way of such a course to assist them to better manage the relationship, end the conflict and protect their sons.
When asked in the courtroom both parents said they were willing to attend such a course. They should be ordered to do so.

_______________________
The Hon Justice Mullane

6 February 2008

[2008] FamCA 73

6 February 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Remedies

Procedural Fairness