Tollbridge and Tollbridge

[2008] FamCA 408

FAMILY COURT OF AUSTRALIA

TOLLBRIDGE & TOLLBRIDGE [2008 ] FamCA 408

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT: Mrs Tollbridge

RESPONDENT: Mr Tollbridge

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: NCF 250 of 2006

DATE DELIVERED: 12 May 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Mullane J

HEARING DATE: 12 May 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Seaton as Agent for Higgins & Dix Lawyers & Conveyancers

SOLICITOR FOR THE RESPONDENT: Mr Hannaway of Hannaway Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Carty of Legal Aid Commission of NSW

Orders

1. Pending further order the parents are restrained from discussing with either child or in the presence or hearing of either child the other parent or events in the other parent’s home or proceedings between the parents.

2. The parents must contact Interrelate within 7 days and implement the recommendation of Mr C in paragraph 73 of his Family Report of 12 December 2007.

3. By consent and pending further order the parties are to use a communication book to communicate about the children, the father is to supply a book, and the parties are to ensure the children take the book with them each time they move from one household to the other.

4. Pending further order the children’s telephone contact with the father is to occur each Tuesday and Thursday and is to be implemented by the father telephoning the mother’s household between 7pm and 7.30pm and the mother ensuring the girls are available to accept the call.

5. Pending further order the time the children spend with the father in school terms is to comprise:

   5.1      each second weekend from end of school Friday to 8.45am Monday;  and

   5.2      each week from end of school Wednesday to 8.45am on Thursday.

6. Pending further order each occasion the children spend with the father in school terms is to be implemented by the father collecting the children from their school at the start of the period and delivering them to their school at the end of the period.

7. The father must within 14 days arrange and attend interviews with the school teachers of each of the children.

8. Pending further order for the personal protection of each of the parents the mother is restrained from approaching the father at any extra curricular activity of the children that he attends.

9. By consent and pending further order the father must ensure that the children attend any extra curricular commitments for soccer, dancing, piano lessons and swimming lessons that occur in the time the children spend with him.

10. Pending further order when the children are spending time with the father in school vacations the father must ensure they telephone the mother at 7pm each Tuesday and Thursday.

11. The father has permission for Dr A to be cross-examined by phone.

12. The parties are to notify the Judge’s Associate by 13 May 2008 of any unsuitable dates in 31 July and 1, 6, 7 and 8 August 2008.  

13. The mother has permission to issue a subpoena to Dr. H for production of the father’s medical records.

14. The father has permission to issue subpoena for production of records to NSW Ambulance service regarding the attendance at the family home at L in December 2005.

IT IS NOTED that publication of this judgment under the pseudonym Tollbridge & Tollbridge is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 250 of 2006

Mrs Tollbridge

Applicant

And

Mr Tollbridge

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is a hearing of an application to vary interim orders made on 5 May 2006 for the parties’ daughters to spend time with their father.  The orders provide for periods of school vacations to be spent with the father and also for weekend time in school vacations from end of school Friday to 3 pm Sunday and each Wednesday from after school to 5 pm.  There is provision that every couple of days the children have telephone communication with the father at 7 pm. 

EVIDENCE

1. The affidavit material that I have read and other documents comprises the mother's application in a case filed on 17 March, the father’s response filed on 1 May, the mother’s affidavit of 20 December 2007, her affidavit of 13 March 2008, another affidavit of hers on 8 May and the father’s affidavit of 26 April. 

BACKGROUND

1. There is no doubt reading those documents that the parents have an appalling relationship. It seems that it is a fairly entrenched situation, not a recent development.

2. There is a pattern in the mother’s material of her entertaining complaints by the children about their father and it is noteworthy that there is no occasion in that material that she has ever dissented from any negative statement the children have made about their father.  Apparently, by her conduct she has encouraged them to make such statements and has never expressed any dissent from any negative view they have of him. 

3. The parents do not have any reasonable level of communication and on occasions when the father seeks to implement telephone contact it appears that the telephone call that is intended for the children can develop into an argument or other ugly behaviour between the parents. 

4. The mother’s application seeks to reduce the time the children spend with their father as a result of the parents’ misbehaviour, although I presume she perceives that it is a one-sided thing and that it is the father’s misbehaviour and that she is not misbehaving.  She seeks to reduce the children’s time with their father to every second week from 9 am Saturday to 5 pm Sunday and eliminate all of the midweek occasions in school terms.  She also seeks to discontinue the school holiday times that the children spend with their father. 

5. It seems from the material and on the submissions that have been made by the children’s representative that the mother’s case is misconceived because a glaring problem that appears from the documents is not the children’s time with their father but the pattern of behaviour that permits the children to come home and make negative statements about their father for their mother’s consumption. That clearly would undermine any sort of arrangement for children to see a parent. The larger underlying problem is, of course, the relationship between the parents. 

6. The best the Court can do for the children in the circumstances is to try to protect them from further exposure to misbehaviour by the adults or exposure to the conflict between the adults.  

7. Dealing first with the whole of that aspect, it seems, is a more beneficial way than proceeding on the basis that there is something wrong with the children seeing their father.  The first issue is the conversations that I have referred to.  I think in the circumstances the children’s interests require that the parents be restrained from discussing with either child, or in the presence or hearing of either child, the other parent, events in the other parent’s home or proceedings between the parents. 

8. The second aspect is the recommendation in the welfare report by the report writer Mr C that the parents undertake a further program in relation to co-parenting and their relationship and about child-focused communications.  He recommends that be undertaken at one of several organisations in the northern coastal region, and the first he suggested was Interrelate.  The mother has apparently already made contact with Interrelate, but unfortunately the father has made contact with an organisation somewhere else.  So I make an order that the parents must contact Interrelate within seven days and implement the recommendation of Mr C in para.73 of his family report of 12 December 2007. 

9. The children’s representative requested that the parents adopt a communication book for use to communicate about the children, and that has been consented to.  So I make an order by consent the parties must use a communication book to communicate about the children. The father is to supply a book and the parties are to ensure the children take the book with them on each occasion they move from one household to the other. 

10. There is a problem about telephone communication that I referred to earlier.  It is more complex because of the arrangements in the mother’s household.  She does not have a landline.  So to telephone the father’s household involves the use of a mobile phone and if the father telephones it also involves the phone call being received on a mobile phone. 

11. Another issue is the frequency of the telephone contact because the telephone contact, at least in the mother’s household, has been an occasion for further conflict between the parents when the father has spoken to the mother on the telephone or she has answered the phone.  I think in the circumstances that the telephone contact should be reduced to two occasions per week when the children are with the mother, and the father suggested Tuesday and Thursday, if that is the case, at 7 pm.  So the order there will be pending further order, the children’s telephone contact with the father is to occur each Tuesday and Thursday and is to be implemented by the father telephoning the mother’s household between 7 pm and 7.10 pm and the mother ensuring that the girls are available to receive the call. 

12. In relation to the time the children spend with the father, given the parents’ relationship, there is a requirement that if it can be done, the opportunity for the parties to interact in the presence of the children at changeovers should be avoided.  I think the obvious way to do that is for the weekend contact to occur from the end of school on Friday to start of school Monday.  It should be 8.45 am Monday as the mother goes to the school for the first class on a Monday at 9 o’clock.  So if the father delivers the children by 8.45 am that should ensure that the mother is not present.

13. In relation to the midweek arrangement, similarly it is preferable to use the school rather than to rely on the parties being able to restrain themselves if the time the children spend with their father ends by them being delivered to their mother or starts by them being collected from her.  So midweek contact should occur on a Wednesday as it does at the moment, but commence at the end of school Wednesday and conclude at 8.45 am on the Thursday morning. 

14. Both those arrangements for school term periods would be implemented by the father collecting the children from school at the start of the period and returning them to school at the end of the period. 

15. The report writer in the report, which was released in December, recommended that the father arrange an appointment with the children’s teachers so that he could obtain information about their progress at school and any difficulties they are having.  The father has spoken to the teachers, but he has not arranged an appointment.  If he does arrange an appointment the teachers are likely to have the school records for the children, the progress records and also records in relation to their use of the school counsellor, and be able to give him that information.  So I make an order that the father must within 14 days arrange and attend interviews with the schoolteacher of each of the children. 

16. The father has an issue that he when he goes to the children’s soccer the mother approaches him, although he is the subject of an apprehended violence order that restrains him from approaching her.  He sees himself at risk because he was on a bond or a suspended sentence in relation to having sent her a text message in which he referred to her as a “skank”.  So the children’s interests dictate that there should be an order then that the mother is restrained from approaching the father at any extracurricular activity of the children that he attends.  Pending further order, for the personal protection of each of the parents, the mother is restrained from approaching the father at any extracurricular activity of the children that he attends. 

17. There is an order sought, and the father agrees to it, that by consent pending further order the father must ensure the children attend any extracurricular commitments for soccer, dancing, piano lessons or swimming lessons that occur in the time that the children spend with him. 

18. In relation to the children’s contact with the mother during times they spend with the father and school vacations, it was proposed - and it seems to be beneficial to them - that there be an order that pending further order when the children are spending time with the father in school vacations the father must ensure they telephone the mother at 7 pm each Tuesday and Thursday. 

19. I will make an order the mother has permission to issue a subpoena to

    
    

    Dr H for production of the father’s medical records.  There will also be an order that the father has permission to issue a subpoena for production to the New South Wales Ambulance Service regarding attendance at the family home at L in December 2005. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate: 

Date:  13 June 2008