Tripp and Newton
[2010] FMCAfam 63
•5 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRIPP & NEWTON | [2010] FMCAfam 63 |
| FAMILY LAW – Parenting dispute – children estranged from father – extent of mother’s influence – problems with all three report writers – consideration of further hearings. |
| Family Law Act 1975, ss.60CC, 70NDC(2), 70NDC(2)(b), 117 |
| Applicant: | MR TRIPP |
| Respondent: | MS NEWTON |
| File Number: | MLC 7440 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 7 & 18 December 2009 |
| Date of Last Submission: | 18 December 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 5 February 2010 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Ms J. Healey |
| Solicitors for the Respondent: | Lisa Speakman |
ORDERS
The mother have sole parental responsibility for the children.
That the children live with the mother.
That [X] born [in] 1998 and [Y] born [in] 2000 spend time with their father in accordance with their wishes.
That [Z] born [in] 2005 spend time and communicate with the father:
(a)from Saturday 10.00 am to Sunday 6.00 pm in each alternate weekend;
(b)one additional night in the alternate week, to be agreed; and
(c)by telephone twice per week at times to be agreed.
That [Z] spend time with each of her parents on her birthday.
That [Z] spend each of her parent’s birthdays with them.
That time spent at Christmas be as agreed or ordered.
That [Z] spend La Befana (6 January) each year with the father.
That the children do not stay overnight with the father if he has male visitors staying overnight.
That each of the mother and the father consult a psychologist on a regular basis to assist them with the matters identified in this judgment.
That the father will attend school functions and extra-curricular activities for [Y] and [X] only by express invitation from the respective child.
That both parties be restrained by injunction from using physical punishment to discipline the children and from allowing others to do so.
That the father have liberty to apply for an Italian passport for himself and/or the children without the consent of the mother being obtained.
The parties be the subject of a further Family Report to be prepared not earlier than 1 August 2010, such report not to be prepared by
Mr Laidler, Ms Steiner or Mr Halloway.The matter be adjourned for further hearing on a date to be fixed following the preparation of the Family Report referred to in Order 14.
IT IS NOTED that publication of this judgment under the pseudonym Tripp & Newton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7440 of 2008
| MR TRIPP |
Applicant
And
| MS NEWTON |
Respondent
REASONS FOR JUDGMENT
This is a particularly poignant parenting dispute. Although there are a number of issues in dispute, the main difficulty is whether the Court should or should not order the two elder children of the relationship between the parties to spend time with their father.
If the Court does not make such an order, there is a real risk that the father’s relationship with the eldest boy will be sundered, but there is also a risk that if the Court makes such an order, the relationship will be sundered in any event.
For the reasons that follow, I propose to make orders that follow more closely those sought by the mother than those sought by the father.
Some Introductory Facts
The father was born [in] 1971 and is employed full-time as an [occupation omitted]. He was born in Florence and retains Italian citizenship, although he has also been naturalised Australian.
The mother is Australian and was born [in] 1969. She works part-time as a [occupation omitted].
The parties met either in late 1993 or early 1994 in Europe. They eventually married [in] 1996 in Australia but lived, both before and after that date, in Italy, although they did not apparently cohabit before marriage.
The husband’s version of events was that life in Florence was generally very pleasant, although there were some ups and downs. The mother’s perception of that history is vividly different and expressed in the strongest terms. She complains that she was subjected to abuse, predominantly in the form of controlling and intimidating behaviour by the father.
[X] was born [in] 1998 and is, therefore, now 11. [Y] was born [in] 2000 and is nine. [Z] was born [in] 2005 and is four years old.
Separation took place on 22 May 2008 in circumstances involving family violence by the father on [X].
The father’s family, naturally enough, continue to live in Italy and one of the salient features of this case is the father’s very keen desire to ensure that his children grow up with an appropriate understanding of their Italian heritage, and that they be bilingual in Italian.
The father completed a degree at [omitted] in 2005 and obtained first class Honours.
The father has taken the children on five visits to Florence between 2002 and 2007.
The mother complains in the most vivid terms of what she describes and clearly perceives as the controlling behaviour of the father, both when they lived in Italy and when they moved to Australia. She complains of a lack of emotional support throughout the relationship, and most particularly when the children were very young.
She gives details of a serious assault that is said to have taken place in 2002 and which is admitted (although perhaps not as to the same degree) by the father.
Much of the mother’s affidavit material is stridently accusatory of the father and its tenor is summed up by paragraphs 34 and 35 of her first affidavit, filed on 25 September 2008:
“Given the violent and abusive dynamic between me and the Applicant, I seek sole parental responsibility for the children, and further seek that they live with me. I say that until such time as the Applicant acknowledges and addresses his controlling and abusive behaviour, the current arrangements for the time the children spend with the Applicant should be maintained …
Should the Applicant take responsibility for his behaviour and address it, I maintain that a shared residence arrangement is contrary to the children’s (sic) interests. “
There was a further incident of violence perpetrated by the father on the mother on New Year’s Eve 2007, and the relationship plainly was not travelling well by that stage. The father in my view had ongoing resentment about the fact that he had been, as he saw it, tricked into moving to Australia, presented with a fait accompli. The mother was concerned by the father’s abusive behaviour, as she saw it.
As I have earlier said, separation took place on 22 May 2008. An intervention order was taken out at that time. Although the parties have different perceptions of it, it seems clear that the father assaulted [X] the previous evening.
According to the father, his relationship with the children proceeded uneventfully until about January 2009. Thereafter, things changed. He blames the mother.
At paragraph 37 of his affidavit filed on 13 March 2009, the father describes the events of the weekend of 23 January 2009 when [Y] was spitting at him, for which he smacked her. It seems clear that she has suffered some sort of injury and bruising as a result of the events of that weekend.
Issues arose as to the amount of times the children were to be permitted to phone their mother while they were in the father’s care. However reasonable or otherwise the father’s proposals were, they gave rise to a friction, particularly with the two elder children.
Just as the mother’s material is strongly accusatory of the father, so too is his of her. At paragraph 61 of the affidavit filed on 13 March 2009, the father said:
“I am very concerned about the children’s behaviour, but I believe they are being manipulated by the wife. If the children were presented with clear and consistent messages from both parents about spending time with both parents then I do not believe their behaviour would have changed.”
That extract is in fact a good summary of the case that the father presented at trial.
The Report of Mr Laidler
The parties were referred to Terry Laidler for the preparation of a family report. He did indeed prepare such a report on 4 December 2008. Mr Laidler was the subject of vivid criticism by the mother. This is not the only report-writer that the mother has taken exception to. In my opinion, Mr Laidler’s responses to the criticism made of him by the mother were measured and sensible, and I thought his report was in the main a very sensibly written and helpful one. It is a measure of the mother’s anxiety and the rather intense nature of her personality that she should be so sensitive to the possibility of any outcome she feels may be antipathetic to her position.
By March 2009, the Court ordered the children be the subject of counselling, and the time spent by [X] and [Y] was readjusted and in effect reduced.
Notwithstanding those orders, the children did not spend time with the father as indicated, and contravention applications were brought. In the ultimate, I dismissed the contravention applications because I felt that the mother had a reasonable excuse for the non-attendance of the children. I ordered on 6 August 2009 that [X] and [Y] spend time with and communicate with the father in accordance with their wishes. I also reserved the costs of the contravention applications to trial.
The Reports of Ms M
As I have already indicated, the children were referred to counselling with Ms M, who is a qualified psychologist. She has produced two reports, which speak for themselves. There is no doubt in my mind that Ms M, who gave evidence and was cross-examined by Mr Tripp, has, albeit unintentionally, adopted from an early stage a highly partisan position in favour of the mother. Her reports show a pronounced favour of the mother and do not in my view conceal distaste for the father. This is particularly illustrated by the clearly utterly unfounded insinuations of sexual impropriety or misconduct on the part of the father that Ms M felt appropriate to include in her report.
Nonetheless, Ms M’s report cannot be wholly dismissed. She is after all a qualified psychiatrist and indeed Mr Holland, who effectively dismissed her report out of hand when he gave evidence, nonetheless accepted her qualifications.
The reality is that Ms M has been seeing the children for quite some time and is continuing to do so. Although, as I say, I am not able to accept that Ms M is wholly impartial, I have no reason whatever to doubt the truth of her observations of the children. Most particularly, I accept her evidence that [X] is self-harming when any prospect of seeing his father is raised. It seems from the evidence as a whole that [X] may even have reached the point of suicidal ideation at the prospects of seeing his father.
Ms M was of the clear view that the elder two children should not be compelled to see their father, but should do so in accordance with their wishes.
Report of Mr Holland
Mr Holland prepared a family report pursuant to the Court’s orders. Mr Holland is a social worker, but nonetheless a person with very considerable experience in this field. He, as I have said, dismissed
Ms M’s report out of hand. I found this somewhat surprising, given that he accepted the force of her qualifications.Putting the matter admittedly rather broadly, Mr Holland said that his approach was more global and systematic. He felt that while it was not appropriate to force [X] to see his father, it should be made clear by his mother that in the event that he did not spend time with his father, he would not be having an awful lot of fun.
Mr Holland said that it was inappropriate that a child of [X]’s age in effect be put in the position where he was determining the nature of his relationship with his father, and it was up to the parents to take control of this issue.
Nonetheless, Mr Holland did not recommend shared care, and did recommend that the father seek individual counselling to assist him with anger management and relationships issues.
One aspect of Mr Holland’s report that did strike me as being of considerable assistance is at paragraphs 56 and following. Having said, in paragraph 55, that he had no concerns that Mr Tripp posed a risk to the children in the current circumstances, Mr Holland went on to say:
“56: However, the impact of Mr Tripp’s past behaviour continues to resonate in the narrative and experience of Ms Newton, and has become the lens through which she perceives all of
Mr Tripp’s actions and behaviour. As the children have struggled to adapt to the parental separation their complaints about their father and his living circumstances have increased. Mr Tripp’s lack of experience in managing the dynamics of the children’s differing needs in this difficult context was apparent in the observation, and Ms Newton observation that he is less skilled with the older children rings true.57: As the atmosphere of complaint has increased, Ms Newton appears to have found it increasingly difficult to separate out her own experience of Mr Tripp from that of the children’s whose ongoing complaints reinforce her view of him. It would be a simplistic and inaccurate analysis to view this as a deliberate attempt on Ms Newton part to influence the children against Mr Tripp.
58: Rather, it is a complex and unconscious and circular dynamic between Ms Newton and the children that emerges over time and has the capacity to become entrenched. [X], as the oldest child is more sensitised to the dynamic and more attuned to his mother’s distress and her experience of the past relationship. He also has one direct experience of his father’s reactive behaviour and blames his father for the separation. This “psychological splitting” result’s (sic) in the child seeing one parent as bad and the other as good, and provides a simple if somewhat dysfunctional way for [X] to cope with the complexity of his parents’ separation.”
More Recent Events
I do not propose to traverse all the evidence before me, both in affidavits and in oral evidence. The parties have not been shy in their narratives. Nonetheless, there are some aspects of the evidence that need to be addressed. It is quite apparent that the father’s position is that he, as the father of the children, is entitled to have a relationship with them, whether they wish to or not. In one sense, that is not an unreasonable position, because in large part it reflects the law.
Nonetheless, the father’s lack of insight as to his children’s position is of concern. By way of example, and one example in my view is enough, the father insisted upon recently attending [X]’s cricket game, even though he knew he was not supposed to do so. He took [Z] with him and sat down some distance away. This deeply distressed [X], who rang the father up and abused him. The father, during this conversation, used the phrase, “I’m the father,” in an endeavour to impose his authority, but this response fails to appreciate that, at least at the moment, [X] is so disillusioned with him that not only is he actively contemplating and/or inflicting self-harm when there is any prospect of seeing his father, but he is rejecting actively his Italian heritage and refusing to learn the language.
Although, in the main, I prefer the report of Ms M to that of
Mr Holland, the extract I have set out above in Mr Holland’s report does, in my view, encompass the dynamic between the two parents and the child very well.Ms Newton is unquestionably sincere when she says she makes every effort to make the children go and see the father. It was the force of those assertions that led me to dismiss the contravention applications.
Nonetheless, Ms Newton lacks sufficient insight to see that her response to the father may well be picked up on by [X], and give rise to the problems that presently obtain. In saying this, I would not wish to be seen to be overly critical of either of the two main parties. They both plainly are perfectly decent people. Rather, their different perceptions of their past relationship and the way it panned out for both of them lead them to these very negative views of one another.
The Proposals of the Parties
The father made it quite clear in his submissions that he seeks the regime set out in his originating application. This is effectively a shared care regime with the children spending half their time with him and half the time with their mother.
The mother’s position, by way of contrast, is that the two elder children should spend time with the father only in accordance with their wishes and if they do spend time, it should be each alternate weekend from 10.00 am Saturday until Sunday at 6.00 pm.
[Z], who has been seeing her father without any difficulty, should, on the mother’s case, spend time with the father but no more than two nights at a time away from her siblings and no more than three nights a fortnight from her mother.
I note that Mr Holland did not recommend that time in school holidays be increased until things settled down, and that was the mother’s position also.
Parental Responsibility – Section 61DA
The mother sought sole parental responsibility and the father sought shared parental responsibility. This is a case in which, on any view, it is clear that there has been family violence and, accordingly, the presumption does not apply (s.61DA(2)). Nonetheless, that is not the end of the controversy. The Court is required to consider whether it is appropriate in any event.
The mother points most particularly to the father’s unreasonable failure to permit [X] to be enrolled at [S] College, where it seems clear he has the real possibility of a bursary, although it is not yet known how much that might amount to.
It should be noted that, so far as financial matters go, despite earning in excess of $90,000 per annum, the father is not prepared to pay one cent more than the $577 per fortnight that he is required to pay by way of child support. This will continue to be the case when, it seems likely from what he told me, his salary increases in the future. His attitude was simply that the Child Support Agency is the proper statutory authority that determines how much he should pay, and that is all he will pay.
While the father stands, so to speak, correctly on the law in this regard, his meanness of spirit is unfortunate.
The father is only prepared to allow [X] to attend [S] College (and similarly [M] College) if the mother paid every last penny in costs herself, provided that [X] continues to study Italian, preferably at the school, but if not, extracurricularly.
In the circumstances of this case, where the father clearly regards participation by him in decision-making about the children’s future as being effectively a right of veto rather than a positive construct, it is in my view quite clear that, unusual as it may be, the mother should have sole parental responsibility for long-term decisions about the children’s’ education and welfare.
While the father’s position seems entirely reasonable to him, it does not seem so to me.
It is very understandable that the father wants the children to have the benefit of their Italian heritage, and the prospect of bilinguality. I would myself regard these as desirable attributes. Nonetheless, the father’s dog-in-the-manger attitude towards [X]’s education at
[S] College suggests that he puts his own parsimony ahead of [X]’s best interests. I accept, of course, that minds might legitimately differ as to whether or not state education or private education is superior. I do not criticise Mr Tripp for adopting the position that state education would be perfectly satisfactory and, indeed, good for the children. Rather, it is the attitude towards the prospects of a private education, and the unreasoning and unfortunately somewhat miserly nature of that reasoning, that concerns me.
The father blames the mother for all his woes with the children, and lacks sufficient insight to realise that he may himself have significantly contributed.
The parties will not in my view be able to agree, certainly in anything like the near future, with one another about any significant issue of difference between them, and litigation will be inevitable.
In the particular circumstances of this case, the presumption being rebutted by the family violence, I think that equal shared parental responsibility is inappropriate.
Equal Time with Each Parent
This is the father’s proposal, but of course not the mother’s. In my view, equal shared time is totally inappropriate in this case. This is partly for the reasons set out by Mr Laidler in his report, which in this regard struck me as being entirely accurate (see paragraph 9.5 of
Mr Laidler’s report).None of the experts suggested that equal shared care was appropriate, and I will not order it.
Substantial and Significant Time
This brings us to the heart of the dispute. The father’s case was that the children are only unwilling to see him because they are manipulated by the mother, and if the mother is compelled through Court order to make them available, things will rapidly settle down. In broad outline,
Mr Holland might be said to support that view, albeit that he in fact denied it. To my mind, there is little difference between forcing a child to see his father and telling him he need not see his father, but will suffer penalties if he fails to do so.The obvious risk is that if [X] is not ordered to see his father, he will simply choose not to do so. He is likely to become alienated from his father and his Italian heritage as a result. None of this can be said to be in [X]’s best interests.
Further, I am confronted by evidence that [X] is self-harming, and possibly even suicidal, as a result of the prospect of seeing his father. I accept that it is beyond his mother’s power to make him see his father. These difficulties have certainly been contributed to by the father’s inappropriate conduct in the past, both in terms of family violence and, for example, his misguided endeavours to have the police attend to enforce Court orders, and his unfortunate attendance at cricket.
Whatever the ultimate outcome may be in terms of [X]’s development, in my view it simply cannot be appropriate to compel him to see his father at this time, when to do so is likely to be very damaging to him. I will therefore order that [X] spend time with his father in accordance with his wishes.
Going from the eldest to the youngest, [Z] has spent time with her father generally without difficulty. She has on one or two occasions according to the father become distressed while in his care, but settled upon speaking to her mother. The mother put the total number of occasions as rather higher.
In my view, it would be preferable for [Z] to spend each alternate weekend from Saturday to Sunday evening with her father. She is not yet five, and for her to be away from her siblings for three nights every other weekend strikes me as being too long to be in her best interests.
I have given careful thought to whether [Y] should also be ordered to spend the same amount of time with her father. The picture that emerges for me is that since interim orders were made, things have settled down. Nonetheless, I note that Mr Holland said (paragraph 39) “[Y] informed that her mother had been instrumental in encouraging her to continue visiting her father and having discretion over it had made it easier for her”. (Emphasis added).
That extract is consistent with the evidence as a whole and Mr Holland was not cross-examined on it. I will order that [Y] spend time with her father in accordance with her wishes. I think this is in her best interests and further, is more likely to improve her relationship with her father than ordering her to spend time with him.
The father will need to pay careful attention to the clearly expressed views of [Y] that [Z] has been over-preferred in the past, and will need to manage better than he has done thus far the way in which he looks after both children when they are in his care.
The other benefit that is likely to accrue from allowing [X] to make his own mind up is that with his two siblings going away (as I think is more probable than otherwise), it is at least possible that once he gets over his present anger, his natural curiosity and love of his father will find expression and he will desire to go with his other two siblings.
In a sense, the above constitutes the conclusions at which I arrive in a global way, without detailed consideration of each and every matter in s.60CC of the Family Law Act 1975 (“the Act”).
Although I have, as it were, put the conclusions first, I make the following observations in relation to the s.60CC matters.
Section 60CC(2)
It is clearly likely to be beneficial that all children have a meaningful relationship with both of their parents, but in the light of the circumstances presently obtaining, the need to protect [X] from physical, or more particularly, psychological harm, is so great that it must overbear the benefit of seeing his father.
Section 60CC(3)(a)
The views of the children have been expressed, in my view, fairly clearly. I note the respective ages of the children. In [X]’s case, at 11, his views must be given somewhat greater weight.
Section 60CC(3)(b)
I have had regard to the fact that each child is closely bonded as a primary attachment with their mother. Their relationship with their father appears in the case of [Z] to be good, in the case of [Y] to be improving, but unfortunately in relation to [X], the position is as I have described it.
Section 60CC(3)(c)
The willingness and ability of each of the parents to facilitate a close and continuing relationship with the other parent is well described, in my view, in the earlier extract I have set out from Mr Holland’s report. I think the mother would benefit from counselling to move forward. Whether her perception of the relationship with the father is accurate or inaccurate, it is a powerful impediment, not only to her own happiness, but the happiness of her children through their relationship with their father. She would benefit, in my view, from counselling in this regard.
Section 60CC(3)(d)
I think I have already effectively dealt with this issue.
Section 60CC(3)(e)
Once again, the matter is already traversed in the material and in my decision.
Section 60CC(3)(f)
I accept the submission of counsel for the mother that the father lacks insight and is simply not able, at this stage, properly to provide for [X]’s needs.
Section 60CC(3)(g)
The Italian heritage of the children is, of course, important and indeed the mother does, it would seem at least in part, promote this. She has prepared birthday cards in Italian for the children to sign. Nonetheless, the idea that such involvement in their heritage should be, as it were, enforced on the children against their wishes is open to question. I do not think it should be ordered by the Court at this stage.
Section 60CC(3)(i)
I have already dealt with this.
Section 60CC(3)(j)
I have already dealt with this as regards the facts. I accept that the issue of anger management does need to be addressed. Mr Holland’s evidence was that the father needed individual counselling, and I will make an order to that effect.
Section 60CC(3)(k)
This is not relevant.
Section 60CC(3)(l)
I regret to say that I suspect that any orders I make will necessarily involve further litigation. Indeed, given that I propose to adopt
Mr Holland’s recommendation that there be a further report in some six months’ time, some element of further litigation is inevitable.
Section 60CC(3)(m)
There are, in my view, no other relevant matters.
Other Issues
As indicated, I have already said that the mother and the father should both attend further counselling as indicated. The father does need to deal with anger management issues, and does need further assistance in his parenting skills and insight, as recommended by Mr Holland.
Costs
The mother sought the costs of the contravention proceedings and the proceeding generally. I was referred by counsel to s.70NDC(2) in this regard. It is true that the outcome of the contravention proceedings appears to fall within the ambit of s.70NDC(2)(b), and accordingly I have to consider making an order that the person who brought those proceedings pay some or all of the costs of the other party.
In my view, the father should pay the costs of the contravention proceedings, but should not pay the costs of this trial.
The reasons why I consider that the father should pay the costs of the contravention proceedings can be put shortly. While it was always clear that there had been contravention of the orders, the mother’s position was that she had at all times done her best to make the children go to spend time with their father but had been unable to do so and, therefore, had a reasonable excuse. She was entirely successful in that assertion.
Notwithstanding that as things now stand, having had the benefit of the more expanded proceedings in the trial, and notwithstanding
Mr Holland’s reservations about the mother’s motivation, in the ultimate it is simply a fact that the father just does not properly appreciate the extent to which his own conduct is the primary driver of the children’s failure to spend time with him.The contravention proceedings undoubtedly cost the mother not insubstantial funds and she is not well off. She works part-time as a [omitted] and the father will never pay her, it would appear, anything more than he is required by the Child Support Agency to pay. The father has a substantial salary, and would seem to me to have every capacity to pay the costs that I am minded to order that he do pay. I note that in respect of his desire to holiday in Italy, it is his parents who will pay the children’s airfares. He can, therefore, have a holiday in Italy, should the Court so permit it, at a reduced expense.
So far as the proceeding as a whole is concerned, I do not think that the father should be ordered to pay costs. The primary focus of s.117 is that each party bear their own costs with trials.
The father’s conduct in the proceeding has not in any way been characterised by improper motive. He has pursued the remedies he has sought because he loves his children, and genuinely believes everything that he himself proposes. The fact that he lacks insight is more in my view a matter for sympathy than criticism. It would also appear that the case has substantial cultural overlay. Much of
Mr Tripp’s perceptions of his role in both the mother’s and the children’s lives seems to me to stem from his ethnicity. Much of the friction between him and the mother seems to be grounded in different perceptions as to appropriate normative behaviour.The father has not been totally unsuccessful. I am making orders that [Y] spend time with him, which was opposed by the mother.
In all the circumstances, it does not seem to me appropriate to order that the father pay the mother’s costs.
I should interpolate and say at this stage that the father did not seek to cross-examine the mother. Owing purely to a singularly crass error on my part, on the second day of hearing (which was several weeks after the first) I muddled myself to a point where I completely misconceived whose evidence had been heard. I was under the utterly erroneous impression that the mother had already given evidence, when she had not in fact done so. When I became aware of this error, I re-listed the matter for telephone mention and asked the father whether he wished to have the mother recalled to cross-examine her. He indicated that he did not wish to do so, and that he was happy for the case to proceed on the evidence as it stood.
In fact, that assertion was consistent with what passed between us on the second day of trial in any event.
In this regard at least, I think that the father’s conduct was appropriate. In it lay an acknowledgement that he was not likely to get the mother to change her evidence one jot by cross-examination. The mother impressed me as a person of intense disposition, evidenced by her demeanour while sitting in Court throughout the trial and in the brief period of time in which she gave evidence. I think that this was an intelligent concession rather than a forensic error on the father’s part.
In all the circumstances, I do not think it appropriate to order that the father pay the costs of the proceedings, save for the costs discretely limited to the contravention applications.
The Passports Issue
I see no reason why the father should not be able to take the children to Italy, provided only that they wish to go. He has taken the children in the past and always returned. Italy is a Hague Convention country. There is no reason supposed that the father’s family does not love these little children, and that they will not benefit from a relationship with the extended family; quite the contrary.
Accordingly, I will order that the father be permitted to apply for and obtain both Australian and Italian passports without the consent of the mother.
Travel by the children to Italy should, however, be limited to their agreement being obtained. The elder two children in particular are old enough to articulate views about any desire to travel, and they should not in my opinion be forced to undertake so great a journey if they really do not wish to do so.
The Prospect of a Further Report
This is a terribly sad and poignant case, even bearing in mind that all parenting disputes have that character. There is no doubt that the father deeply loves his children. It is just terribly unfortunate that he lacks sufficient insight to be able to address the issues that in large part he has created.
In making the orders that I am minded to, which in my opinion are the orders in the best interests of the children, I am conscious that this is not on any view going to be the end of the matter. I think that it is in the children’s best interests that there be a further report in some six months’ time. Unfortunately, since all of the experts called are perceived to be partial by one or other or both of the parties, it will need to be undertaken by a counsellor that the children have not already seen. I will hear from the parties before I refine the orders that I will make in this regard.
I have prepared draft orders which I will give the parties an opportunity to study.
These draft orders leave a number of issues, such as Christmas time, unresolved; likewise, issues associated with the cost of schooling. They are either dependent on the outcome of this primary dispute and/or insufficiently explored to make final orders.
I will give the parties an opportunity to study these Reasons for Judgment and the draft orders and will hear further submissions thereafter.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B. Evans
Date: 5 February 2010
0
0
1