WARRICK & WARRICK

[2013] FamCA 636

FAMILY COURT OF AUSTRALIA

WARRICK & WARRICK	[2013] FamCA 636
FAMILY LAW – PARENTING – Best interests of the child – With whom the child lives – With whom the child spends time – Where Mother seeks orders for the Father’s time with the children to be supervised – Where Father suffering from serious mental and physical health issues – Where Father’s health issues are under control – Where Mother alleges that the Father poses a risk of emotionally and physically harming the children – Where finding made that the Father poses no such risk – Parties to have equal shared parental responsibility for the major long term issues of the children – Children to live with Mother – Father to spend substantial and significant time with the children.
APPLICANT:		Mr Warrick

RESPONDENT:	Ms Warrick
INDEPENDENT CHILDREN’S LAWYER:	Ms Justine Lilley, Solicitor

FILE NUMBER: BRC 10067 of 2011

DATE DELIVERED: 1 August 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 30 July to 31 July 2013 and 1 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan of Counsel appearing for the Applicant Father

SOLICITOR FOR THE APPLICANT: Best Wilson Family Law

COUNSEL FOR THE RESPONDENT:

The Respondent Mother appearing in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Carmody of Counsel appearing for the Independent Children’s Lawyer

Legal Aid Queensland

Orders

IT IS ORDERED:

1. That all previous Orders be discharged.

2. That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long-term issues of the children:

a.B born … 2005;

b.C born … 2007; and

c.D also born … 2007.

1. That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   a.they shall inform the other parent about the decision to be made;

   b.they shall consult with each other on terms that they agree; and

   c.they shall make a genuine effort to come to a joint decision.

2. That notwithstanding the provisions of Order (2) herein:

   a.the Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her; and

   b.the Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.

Exchange of Information

1. That the Mother and Father shall:

   a.keep the other parent informed at all times of their residential address, email address, landline and mobile contact telephone number;

   b.keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children; and

   c.inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.

2. That the parents authorise, by this Order, the schools and/or day care centres attended by the children to give each parent information about the children’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parent’s cost).

3. That during the time the children are with either parent, that parent shall:

a.respect the privacy of the other parent and not question the children about the personal life of the other parent;

b.speak of the other parent respectfully; and

c.not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

Time with the Parents

1. Commencing 9 August 2013, the children are to live with, spend time with and/or communicate with their Mother and Father as agreed between the parents and if they fail to agree then as follows.

   a.that the children shall spend time with their Father during the school term in each alternate week as follows:

   i.in the first week, from Friday 3.00pm to Monday 3.00pm; and

   ii.in the second week, from Monday 3.00pm to Wednesday 8.30am;

   b.that from the commencement of term 1, 2015 and thereafter, the children shall spend time with the Father during the school term in each alternate week from Friday 3.00pm to Friday 8.30am;

   c.Orders (8.a) and (8.b) herein shall be suspended during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before the school term recommences) and to recommence on the weekend after the school term recommences, determined as if the sequence had not been interrupted.

1. That otherwise, the children shall live with the Mother during the school term.

2. That for the purposes of school holiday periods, the children shall spend time/live with their parents for school holiday periods as follows:

a.being the first half of the Autumn, Winter and Spring school holidays in even numbered years with the Father and in odd numbered years with the Mother; and

b.the second half of the Autumn, Winter and Spring school holidays in odd numbered years with the Father and in even numbered years with the Mother;

c.in relation to the 2013 Summer school holidays the children shall spend time with each parent on a week about basis being:

i.in odd numbered years, weeks 1, 3 and 5 with the Mother, and weeks 2, 4 and 6 with the Father with time to commence and conclude at 5.00pm each Friday; and

ii.in even numbered years, weeks 1, 3 and 5 with the Father, and weeks 2, 4 and 6 with the Mother with time to commence and conclude at 5.00pm each Friday;

d.that from the commencement of the 2014 Summer school holidays, the children shall spend time with each parent as follows:

i.being the first half of the Summer school holidays in even numbered years with the Father and in odd numbered years with the Mother; and

ii.the second half of the Summer school holidays in odd numbered years with the Father and in even numbered years with the Mother;

e.unless otherwise provided for in these Orders the school holiday time shall commence:

i.when a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5:00pm on the day calculated to be half of the holidays;

ii.when a parent’s time falls in the second half of the holidays from 5:00pm on the day calculated to represent half of the holidays when contact shall end at 5.00pm on the day before the school term commences; and

iii.school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 5.00pm on the day before the children return to school, and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Father shall retain the additional night.

1. That the children shall spend time with their parents on special occasions as follows:

   a.for Christmas Day as follows:

   i.from 5.00pm Christmas Eve until 2.00pm Christmas Day in even numbered years with their Father, and in odd numbered years with their Mother; and

   ii.from 2.00pm Christmas Day until 5.00pm Boxing Day in odd numbered years with their Father, and in even numbered years with their Mother;

   b.for Easter:

   i.in odd numbered years, from 9.00am on Good Friday until 5.00pm Easter Monday with the Father; and

   ii.in even numbered years, from 9.00am on Good Friday until 5.00pm Easter Monday with the Mother; 

   c.on the birthday of each child (with the parent they are not living with on the day) (including every child):

   i.if a school day, from after school until 6:30pm;

   ii.if a non-school day, from 1:00pm until 6:30pm; and

   iii.with that parent to be responsible to collect and return the children;

   d.with their Father on the Father’s birthday (including every child):

   i.if a school day, from after school until 6:30pm;

   ii.if a non-school day, from 9am until 6:30pm; and

   iii.with the Father to be responsible to collect and return the children;

   e.with their Mother on the Mother’s birthday (including every child):

   i.if a school day, from after school until 6:30pm;

   ii.if a non-school day, from 9am until 6:30pm; and

   iii.with the Mother to be responsible to collect and return the children;

   f.with their Father on Father’s Day (if a non-contact weekend) from 9.00am until 5.00pm with the Father to be responsible to collect and return the children; and

   g.with their Mother on Mother’s Day (if a non-contact weekend) from 9.00am until 5.00pm with the Mother to be responsible to collect and return the children.

2. That the children shall communicate with their parents on the telephone at such times as a child reasonably requests but otherwise between the hours of 5.00pm and 7.30pm on any day and in relation to such communication each parent shall:

   a.ensure that the children are available to receive the telephone call;

   b.arrange for the children to telephone the other parent on the following night if, for any unforeseen circumstance, the children miss the telephone call from that parent; and

   c.ensure that the children have privacy during the conversation.

Collection and Delivery

1. That except as otherwise ordered, the Father and Mother (and/or their nominee) shall collect the children from and return them to school during times that they have the children.

2. Unless otherwise agreed, and if the children are not attending school, changeover shall occur at the E Town Children’s Contact Centre and the parents will meet the payment of all costs of the Contact Centre on an equal basis.

1. That each parent shall deliver and return the children’s clothing, school supplies and belongings and the children’s clothing shall be returned in a clean condition.

Future Dispute Resolution

1. That the process to be used for resolving future disputes about the children or the terms or operation of this Order shall be as follows:

   a.the parents shall consult with a Family Relationship Centre to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangements for the child;

   b.they shall pay the costs associated with their attendance at the Family Relationship Centre equally;

   c.in the event that they are unable to for any reason to have an appointment with the Family Relationship Centre and cannot agree on an alternate Family Dispute Resolution practitioner, the Father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;

   d.the Mother shall choose one of the listed practitioners within seven (7) days of receipt of the list; and

   e.if the Mother fails to choose then the Father may choose.

2. That unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the children, each party is to take the steps referred to in the preceding Order.

IT IS FURTHER ORDERED:

1. That the Father contact by telephone the Paternal Grandmother and/or other responsible adult twice during times he spends with the children in accordance with this Order, to assure the said person or otherwise to inform him/her of his health. 

1. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

   IT IS NOTED that publication of this judgment by this Court under the pseudonym Warrick & Warrick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10067 of 2011

Mr Warrick

Applicant

And

Ms Warrick

Respondent

REASONS FOR JUDGMENT

1. This is an application on behalf of Mr Warrick for certain parenting orders in relation to three children born of his marriage to the respondent Ms Warrick.

2. As is my want, I endeavour to give judgments very quickly.  In most cases, I do not believe that it is to the benefit of the parties or to myself that I wait and delay and sit down and craft a finely tuned judgment with numerous references to authorities, counter-pages back and forth, and this takes some six months for it to be delivered.  I do not believe in that and, as a result thereof, my judgments have never been renowned as being things of beauty, but I would sincerely hope that at least I am able to explain to the parties why I have come to a certain conclusion and I think they deserve to have that conclusion as speedily as possible.

3. Consequently, as I have said, this is not a thing of beauty but I hope it gets to the root of the matter and that the orders that I will be making are recognised by the parties notwithstanding that one or the other will not agree with them.

4. I indicate that I must first of all say that the first matter that I refer to is the birth of the paternal grandmother.  That is the father’s mother obviously;   Ms F Warrick, who was born in 1942.  I say that because she does loom large in this case.  The mother, Ms Warrick, was born in 1968; the father, Mr Warrick, was born in 1969.  They commenced cohabitation in 1992 and were married in 1993 in that year. 

5. In 1993, the father was diagnosed as having myeloid leukaemia and thereafter his health has been one disaster after another, if I could possibly say that.  The mother has emphasised this tremendously and I refer to Dr G’s report of 16 January 2013 which sets out that Mr Warrick, the applicant, has suffered from at least seven diseases, one of which is mental – that is, a bipolar disorder which was diagnosed, some little time after myeloid leukaemia was diagnosed.  He has had bone marrow transplants, he has had chronic graft- versus-host-disease.  He suffers from legal blindness in one eye.  He has diabetes, he has gout and bipolar disassociate disorder.  He is not a well man, but he appears before me as being reasonably robust, looks well, and presents well.

6. The parties allegedly separated in 1995 for a few months and it does not appear as though the marriage was one of great happiness notwithstanding the fact that the father, believed that he was better than what the mother believed.  He, at the final separation, endeavoured to reconcile; although the mother was not particularly interested in it, although they did reconcile once in 2009 after a period of approximately 12 months.

7. The treatments that the father had received appear to have caused him to become sterile and as a result thereof, B, who was born in 2005, and C and D who were born in 2007, came about by in-vitro fertilisation.  The mother indicates that this was not an easy procedure and I can appreciate that, having had some evidence put before me over my 37 years on this bench on previous occasions.

8. The bipolar disorder looms large in the mother’s case and I refer to the various medical practitioners who have considered such a disorder.  I refer to Dr H and the letters which have been quite properly set out in the independent children’s lawyer’s amended case information document filed 25 July 2013;  very well done.  And I am relying upon that to a great extent.

9. I refer to Ms L, a psychologist, who has been assistance to the father since 2011.  I refer to Dr I, a psychiatrist.  I refer to Dr G, a haematologist and oncologist.  I refer to Dr J.  Dr J came about as a result of the mother indicating that she was not, at that stage, particularly impressed with Dr I and I understand that Dr J is put before the court as, in fact, a court expert and has been a person of great help to me.

10. Subsequent to separation which took place in or about the months of either June or July 2011, there have been some difficulties with contact.  I make it quiet clear that for a period prior to that when the parties were separated, the father had unsupervised contact with B, in particular;  with the twins – they were very young at that time;  2009, 2010 - he did not have as much albeit he did have some and he was assisted at that time by the paternal grandmother.  He has had some symptoms of florid mania, previously the last of which was about February 2011.  He had a short hospitalisation of about four days during the breakup of his marriage in June/July 2011 and perhaps that can be understandable. 

11. It has been emphasised by Dr I who has been treating this gentleman for a considerable period and sees him about once a month.  And he has indicated to me in his evidence contained in his affidavit and also by phone, that he is not concerned about the medical health of Mr Warrick because, as I opine and as he says, he has strictly complied with the medical regime imposed upon him by the doctor as a result of his mental illness and he appears both, according to Dr I and Dr J, to have insight into his condition and it appears to me to be quite clear that he would, if in fact he was starting to move into some form of hypo/hyper-mania type disability, that he would be able to reasonably and quickly approach a medical expert in the field.

12. I note Dr K who is the Father’s general practitioner and who came into this case somewhat late in the piece, and I refer to exhibit 3 which he created in order to enable the father to take advantage of a total and permanent disability insurance.  He indicates that he has been treating the father for at least 18 months.  Not only has he been treating him on a medical basis, a professional basis, but he has seen him on other occasions because his children attend the same kindergarten as C and D attend.  And he obviously does have some personal knowledge of the parties and he is of the opinion that the father is doing well and he himself has insight – that is the father has insight – into his condition, and he has no concerns whatsoever.  He sees him on about a fortnightly basis. 

13. So we have Dr I who sees this gentleman on a monthly basis, we have Dr K who sees him on a fortnightly basis, and I have referred to Ms L, who has seen him on five occasions this year.  She was cross-examined by the mother and I have commented to the mother that you have got to be careful in cross-examination, that sometimes it can do great damage to your case and you should not ask questions unless you know the answers.  On two occasions, I am afraid that she got the answers she really did not want.  They were from both Dr J and Dr I insofar as insight is concerned.  And Ms L also was of the view and in fact she expressed to me, notwithstanding the fact she was not here - she was giving evidence by phone – she was quiet surprised that anything was suggested that the father was other than doing his very best in complying with her requirements and obviously from Dr I and Dr K, he has been complying with their requirements. 

1. So what do I have to say?  I have to say this.  Notwithstanding he suffers those matters which are set out – those disabilities which are set out in Dr G’s report which is exhibit 2– that he is managing remarkably well.  The big concern for the mother is, I understand, basically comes about as this.  He is unable to work as he has been found to do - he is totally disabled for work.  He is in receipt of a pension or of a payment under an insurance policy of some $5,000 per calendar month.  He also has received a lump sum of $750,000.  That if he cannot work at anything, how can he possibly look after three, young, vigorous, busy children?  That was put to Dr J and he said, “We have people who are on disability pensions and that does not cause them to be unable to parent their children.”   Dr I said the same thing.  Mr M, the psychologist who gave a report which is attached to his affidavit of last year – 13 August 2012, he was of the same view, that there is nothing for him in Mr Warrick’s condition that would preclude him from having unsupervised contact with the kiddies. 

2. Dr J said that there is nothing insofar as his specialty is considered –psychiatry – would preclude the father from having unsupervised contact.  He does mention in part of his report that some supervision may be required.  It is not, as he said, “It is not my view.”  Dr I said he can see no psychiatric reason why the father cannot have unsupervised contact.

3. Why then are we in court?  Because the mother does not oppose contact, as I understand.  It is a question of the amount, the quantum of such contact and whether in fact it should be supervised or not.  He has been having contact in accordance with the order of Principal Registrar Filippello of 13 December 2011.  

4. This matter seems to have been engendered by, rightly or wrongly, the mother’s view in relation to the question of property settlement.  She appears to be particularly bitter about that.  Her concerns about the adequacy or inadequacy of the property settlement appears one after another in her affidavits.  I do not wish to go into it other than to say that there were two orders for property settlement.  One was a consent.  She subsequently sought an order for review.  I think the order was made by myself.  The Mother sought an order to review and when the matter came on before Forrest J on the review, she once again consented to an order which was slightly different to the original one.  Since then, she has found, as I read the material and, in particular, what she has said to Mr M, she has found difficulty financially.  She is working as fulltime as she can.  She works, as I understand, for a limited time during some days of the week and makes up for it in other periods because she has the children to look after and she has to take them to and from school;  she drops them off at school at about 9 o’clock and picks them up about 3.00 pm in the afternoon.  That  is when they are not being looked after by the father. 

5. The order of Principal Registrar Filippello dated 13 December 2011, was an order for supervised contact partially.  She ordered that the father have contact with the children for periods over the weekend and until Mondays, and starting on Mondays until a couple of days later, but that the paternal grandmother to whom I have already referred, should in fact be present between the hours – correct me if I am wrong again – 8.00 am and 6.00 pm in the evenings.  This perhaps is something which the mother once again has latched on to.  And that is that she says that because the drugs that he is taking – Seroquel, could quite easily cause him to be drowsy and unable to get up and look after the children.  And, by inference, I assume she is saying that is one of the reasons why Principal Registrar Filippello, shortly after separation and before the parties had hopefully settled down, which they have not, might have been concerned about and that is why she had the paternal grandmother there. 

6. I must say, and I have mentioned this to the mother, it is nothing that I have hidden from her, that I am quite amazed that she is insisting that if any contact takes place with the father – I emphasise this as far back as September of 2011 – she was of the belief that the contact the father should have with B overnight on a Friday, and the twins from 9.00 am or 10.00 am in the morning until 6.00 pm at night, being supervised all together, and that that should go on until they are 18.  She still is of the opinion that supervision should go on until they are 18. 

7. The paternal grandmother is now almost 71, and that would mean that she would have to be supervising for another 15 years.  It is ridiculous, I am sorry, with respect to Ms Warrick, it just cannot happen.  She cannot recognise, she must be able to recognise, that a 14, 15, 16 year old girl – I am referring to C – she is put into the position of having to be supervised by her paternal grandmother.  She would not be particularly happy at all. I think that, with respect, it is ridiculous.  But she says that the evidence is there and that I should ensure that the paternal grandmother, and she only refers to them, there is no one else that appears to be available, notwithstanding the fact that she has a brother and sisters, that the father has a sister who has two children, aged approximately 15 and 11.  The paternal grandmother, who has been doing a good job in the last, well, two years, is the one that she says that should do it. 

8. But I am staggered that, at paragraph 30 of the report of Mr M (supra), she concedes that this is right.  She says,

   [Ms F Warrick] states that –

   Ms F Warrick, she calls herself Ms –

   is incapable to care/ supervise the children.

   This was in August last year.  She stated:

   She’s [Ms F Warrick] there like a duck.  Paddling away.  She’s madly doing this to keep them in the workforce.  Perfect mother.  Perfect grandmother.  I don’t want my children being there. I have grave concerns.

   She said that only some 12 months ago.  And yet she now insists that the – practically – the paternal grandmother is the only person who could adequately supervise the children and protect the children from what she alleges the father is incapable of doing, that is, incapable of adequately looking after them. 

9. She has a fear that their father, shows signs of temper, and that he yells at the children.  There is no evidence before me to show that the children have either emotionally or physically been harmed by the father.  That has been referred to by Dr I and, as well, Mr M.  She refers to one incident which took place either on 8 or 9 July of last month, in which the father threw a plate at – or threw a plate, we do not know whether it was at, and it did not crack any skulls, threw a plate in the presence of the grandmother because he was upset that the grandmother had said something which he did not believe she should have.  She says that C, the girl, the next day said she was very upset, terrified. 

10. The paternal grandmother, who was not cross-examined to any great extent in relation to this incident, indicated yes, it took place, yes, the father was remorseful, and it did not appear to her that the children in any way were upset.  The children were there, she concedes that.  It was a silly thing to do.  It showed lack of control on the part of the father.  He concedes that.  He said he lost his temper, and he should not have done it.  What else has he done?  He has smacked C – this is accepting what the mother says, which has not been accepted by the father, he smacked C on the bottom once for whinging.  That was what, two years ago.  He has spelt out somehow or other words like “slut” or something of that nature.  These are things which are generally comparably of a minor manner.  They are things that perhaps should not have happened, but they are minor.  There is no evidence that – I asked the mother specifically this, where is the evidence that the children have been physically abused?  She was unable to say anything other than C being slapped on the bottom. 

11. Insofar as emotionally abused, she refers to the plate incident and this spelling out incident.  There is no evidence that the children’s welfare has been disadvantaged by this.  In fact, Mr M points out in his report that the children have a warm relationship with their father.  Perhaps B is finding it a bit difficult, but they have a warm relationship.  He commented upon that, as he should have to, it was part of his job to ascertain what the relationship is. 

12. So we have a father who, notwithstanding he is ill, has seven disabilities, each of which are comparatively severe, notwithstanding that he has, some two years ago, had a manic episode which necessitated his being put in hospital for four days.  Notwithstanding that he has, as a result of these injuries or illnesses, now been found incapable of working.  There is no evidence before me that, in fact, he in any way is causing the children any detriment, either emotionally or physically. 

13. If anything, I worry about the mother, because I think the mother is

    
    

    hyper-sensitive, is hyper-careful of the children, is almost obsessive with them.  She must take into consideration and learn that the children have a right – even the politicians recognise that after about 20 years that this Court had recognised it, by amending the Act – she must recognise the children have a right to know their father, so long as all things are equal.  All things in this case, as far as I am concerned are equal.  They are equal.  They have a relationship.  His illnesses are controlled, his illnesses are overlooked – well, overlooked, I mean by doctors and things of that nature.  He complies.  If in fact we had a person with bipolar who was not complying with the drug regime, we would have a very strange person.  I have had them frequently in this Court.  They comply with their drugs, generally they are all right.  They slip off them, they become a mess.  They become manic.  He has not had a manic episode, and that in itself appears to be comparatively minor, although I do not think they look it, in July or August 2011.

14. Why should he have supervised contact?  That is what the mother is saying.  He should have supervised contact because his illnesses, his inability to work, make him incapable of adequately protecting and caring for the children.  She says, the younger ones get up reasonably frequently, they call upon people at night.  And she says, as a result of his medication, Seroquel, he would be unable to do so.  Dr I says, “No”, that was put to him.  He was on 300 milligrams of that drug back in 2011 or earlier.  He is now on 25 milligrams after Jordan of counsel on behalf of the father asked Dr I to have a look at his documents again.  Dr I initially gave evidence that it was 50, but then has said, “No, it’s 25”, and I think he said – correct me once again, if I am wrong – that it is a low dose.  And it does – it helps him.  He does, as I understand on the evidence from him, he does self-medicate on occasions.  But what is self-medication?  He has been ordered to take it.  He has been prescribed, so why shouldn’t he take it?  He has not been affected by drugs. 

15. On the evidence – I can only act on the evidence; I have to look at that, I cannot make suppositions.  I cannot say, I think there might be something more in this than what –  it has got to be facts, there has got to be evidence.  The mother’s case fails because there is not sufficient evidence to support her views.  That is the big problem I have.  I have great sympathy for her.  I think she probably had a bit of a tough trot, but I do think she is being hyper-sensitive, hyper-caring.  You have got to let them go, you have got to give them that right to be able to know their father, and to grow up with him. 

16. It was put to Mr M, and he says quite clearly, I am sorry, I just cannot put my hands on it, but he did say it is very important for children to grow up with the awareness of a father.  It does not do them any good not to have it.  We will end up with emotional cot cases.

17. I must say that, the mother has concerned me.  She is only doing what she thinks is best.  She thinks that the father cannot do it.  The evidence is not there.  The evidence is that he can do it. 

18. What should I do there?  Should I order that it be partially supervised by the paternal grandmother?  My order is going to be couched in a way that the paternal grandmother, whilst she does not have to be there as from this Friday week – I make that clear.  The order of Principal Registrar Filippello will last until this Friday week – she is to be contactable, if I can put it that way.  I am sure she will be there, I am not stopping her being there.  But I am sure she will turn up when the kiddies are there. 

19. What should I – well, first of all, MRR v GR (2010) 240 CLR 461, indicates that I should consider whether there should be equal parental responsibility. The mother is very much opposed to this. She says she should have the right to make long-term decisions for the childen. We have had it since December 2011, was it not, Mr Jordan, of Principal Registrar Filippello’s order, there has been equal responsibility since then. Now, equal responsibility does not mean that you have got to live in each other’s pockets. Equal responsibility means in the big things, such as, should they go to this school or not, you have got to discuss it. If you cannot discuss it, the order which has been put up by both the Independent Children’s Lawyer and the applicant, are that there should be mediation, resolution, of it, to talk about it.

20. It is great for kiddies to see that their parents - this is not quite, sort of, judicial, but many years ago we had a case in which these parties had a terribly vicious property settlement dispute.  They fought hammer and nails.  Eventually it was resolved, but they consented insofar as the kiddies were concerned.  And when I asked, I said, “How were you able to do that?”  They said, “We love the kiddies more than we hate each other.” 

21. That is what they have got to do in this case.  They have got to love the kiddies, they have got to see that they are being well looked after.  I have no hesitation in saying the father will do it, notwithstanding the fact he is not a well man.  He now is unemployed, he has – as I have said – he seems to be financially sound because of this insurance policy which he had.  And I can see no reason why he should have supervised contact, I will be ordering unsupervised contact. 

22. How long?  It has been put forward by his counsel in his – which was drawn by the instructing solicitor – that it should be increased.  I think that is right, I think it must be increased.  It cannot just start off week and week about, I think that is totally unfair to everybody, the mother, the father, and in particular, the children.  So I will be making orders generally in compliance with the applicant’s draft, which has been put before me.  I have touched upon the equal responsibility.  Insofar as contact is concerned, I consider that it is reasonably practicable, notwithstanding the fact that the parties live some minutes apart by car, in E Town, and that he is moving to another area when he gets the money, and he indicated to his counsel he would try to have a house somewhere close to the mother so there would not be much difficulties there.

23. I suppose, really, I now have to look at the questions of section 60CC.  I have looked at the, as I have said, the case information document of the Independent Children’s Lawyer, and I must say that I think that it has been presented in a particularly good way.  And I refer to their breakdown of the section 60CC factors.  Might I make it quite clear, I am of the view that I do not have to go through each of these section 60CC factors seriatim.  I have to indicate the ones that impress me tremendously. And I must say that, I do not want to be hyper-critical of either of them, but I do think the mother has made the children spending time with the father more difficult than what it should have been.  On the material before me, it appears she has chopped and changed a bit, she has been, bitterly hurt as a result of the financial arrangements between the parties, and the consent order in which she entered into.  And it may be that she has some grounds for it, I do not know enough about it.  It may be that she has some grounds, but she cannot take that out on the children.  She cannot feel that hurt that it transfers to the children. 

24. I have to consider, as was set out in section 60CC, those matters, and I have taken it into consideration.  I sincerely hope that on my reasons already given, that the parties realise why I am making the order that I have.  I believe it is the children’s right to know their father, unless there is something wrong.  There is not.  The Act says the children have the right.  As I said, the politicians, like Venus arising from the foam of life, became aware that this might be a good idea.  And it is.  They have the rights. 

25. Parents do not have rights in my Court, they have duties, and one of the duties is to ensure their children are brought up in manner which will make them, the mother and the father, proud of them.  And that is the only way to do it.  I am not going to go through, I think, because I consider that some subsections of 60CC are denigratory, in a way, of the parent.  I know that I am criticised because I do not make findings of much depth in relation to credit.  That is, whom I believe.  Section 60CC puts you in that position of your having to tip the tin on one or other of the parties.  I consider it is important for parties to leave my Court with their dignity intact.  I consider it is terribly important that they have that dignity intact, because they are going to have contact with each other for the welfare of their children for a considerable period.  And consequently, as I have said, I am going to make the orders as put before me by the applicant, save I am going to add a further order in this form.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 1 August 2013.

Associate: 

Date:  1 August 2013