Waterford & Waterford

Case [2013] FamCA 33

FAMILY COURT OF AUSTRALIA

WATERFORD & WATERFORD [2013] FamCA 33

FAMILY LAW – CHILDREN – BEST INTERESTS – Common ground that children live with father – Question as to children’s best interests in spending time with and or communicating with mother – Meaningful relationship children and mother – Long history of mother and children spending supervised time at a contact centre – Evidence accepted that such now not continue as not in children’s best interests – Evidence accepted that unsupervised time with mother on alternate weekends holidays and special days not in children’s best interests – Mother not seeking telephone communication – Orders as submitted by father as added to and modified by independent children’s lawyer determined to be in children’s best interests – Such orders pronounced with stylistic but not substantive changes
Family Law Act 1975 (Cth) s. 4, 60CC, 60DA, 61D, 61DA(1), (2) and (4), 61C(1) and (3)
G & C [2006] FamCA 994
Mazorski & Albright [2007] 37 FamLR 518
McCall & Clark (2009) FLC 93-405
APPLICANT: Ms Waterford
RESPONDENT: Mr Waterford
FILE NUMBER: BRC 11623 of 2010
DATE DELIVERED: 31 January 2013
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: O'Reilly J
HEARING DATE: 19 and 20 November 2012

REPRESENTATION

THE APPLICANT: In person
COUNSEL FOR THE RESPONDENT: Mr Linklater-Steele
SOLICITOR FOR THE RESPONDENT: DA Family Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Pendergast
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Chan
Legal Aid Queensland

Orders

IT IS ORDERED
Parental responsibility

  1. The father have sole parental responsibility for the children O born … January 2004 and L born … February 2005 and keep the mother informed as to any decisions he makes concerning them which relate to:

    a.      education

    b.      medical and allied health and

    c.      any other matter affecting the children’s long-term care welfare and development.

Living arrangements – children to live with the father

  1. The children live with the father.

The children and the mother

  1. In the event that either of the children should express a desire to contact the mother or spend time with the mother, and/or the mother and B born … April 2008, the father must use his best endeavours to facilitate such.

  2. The mother may send to the children, via a PO Box address nominated by the father to her (which he must nominate to her in writing within 7 days of the date of these orders) cards letters and gifts:

    a.on 1 occasion in each calendar month

    b.on each of the children’s birthdays and

    c.at Christmas.

  3. The father must collect such cards letters and gifts, give them to the children, encourage them to open and read any cards and letters and ensure that any gifts including any photographs are kept by the children.

Information

  1. The father must send to the mother letters keeping her informed as to the children’s education health welfare and development and any other significant events in their lives within 7 days from the date of these orders and subsequently at least once in each…

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AGLC
Waterford & Waterford [2013] FamCA 33
Case
[2013] FamCA 33
Decision Date

CaseChat Overview and Summary

This case concerned parenting orders for two children, O and L, born in 2004 and 2005 respectively. The dispute centred on the children's best interests regarding spending time with and communicating with their mother, given a long history of supervised contact at a contact centre. The father sought orders for sole parental responsibility and that the children live with him, with specific provisions for the mother's contact and information sharing.

The court was required to determine the meaning of "meaningful relationship" in the context of the children's best interests and to assess whether unsupervised time, or even supervised time, with the mother was appropriate. The court also had to consider the mother's capacity to manage the children's behavioural, special educational, and medical needs, particularly in light of evidence suggesting she struggled to divide her attention between the subject children and her younger child, B.

O'Reilly J accepted evidence that continued supervised contact at a contact centre was not in the children's best interests, nor was unsupervised time with the mother on alternate weekends, holidays, and special days. The court found that the mother's ability to manage the children's daily needs was untested, and she herself acknowledged difficulty in applying parenting strategies learned from courses to O and L, unlike with her younger child B. The court ultimately determined that orders as submitted by the father, with modifications proposed by the independent children's lawyer, were in the children's best interests.

The court ordered that the father have sole parental responsibility for O and L, and that the children live with the father. The orders also detailed provisions for the mother to send cards, letters, and gifts monthly, on birthdays, and at Christmas, with the father to facilitate the children receiving them. The father was ordered to keep the mother informed about the children's education, health, welfare, development, and any significant events, including medical emergencies, and to provide photographs. The mother was authorised to obtain information from medical practitioners and schools at her expense. The parties were also ordered not to denigrate each other in the presence of the children. All prior parenting orders were discharged, and all other applications concerning the children were dismissed.

Orders

Orders of the court

IT IS ORDERED

Parental responsibility

1.

The father have sole parental responsibility for the children O born … January 2004 and L born … February 2005 and keep the mother informed as to any decisions he makes concerning them which relate to:

a. education

b. medical and allied health and

c. any other matter affecting the children’s long-term care welfare and development.

Living arrangements – children to live with the father

2.

The children live with the father.

The children and the mother

3.

In the event that either of the children should express a desire to contact the mother or spend time with the mother, and/or the mother and B born … April 2008, the father must use his best endeavours to facilitate such.

4.

The mother may send to the children, via a PO Box address nominated by the father to her (which he must nominate to her in writing within 7 days of the date of these orders) cards letters and gifts:

a. on 1 occasion in each calendar month

b. on each of the children’s birthdays and

c. at Christmas.

5.

The father must collect such cards letters and gifts, give them to the children, encourage them to open and read any cards and letters and ensure that any gifts including any photographs are kept by the children.

Information

6.

The father must send to the mother letters keeping her informed as to the children’s education health welfare and development and any other significant events in their lives within 7 days from the date of these orders and subsequently at least once in each calendar month, in the first week of such.

7.

The father must send to the mother from time to time photographs of the children.

8.

The father must keep the mother informed of:

a. any illness or injury occurring to the children or either of them that requires medical attention

b. the names and addresses of any medical practitioners, allied health practitioners including counsellors, clinics or hospitals involved in treating or caring for the children

c. the names and addresses of the school/s the children attend.

9.

In the case of any emergency concerning the children or either of them the father immediately must notify the mother of such and provide her with all information known to him as to the child’s or children’s condition diagnosis and recommended treatment.

10.

The father and the mother must notify each other within 7 days from the date of these orders a mobile telephone number for the purpose of communication in the case of any emergency.

11.

The father must authorise any medical practitioners, allied health practitioners including counsellors, clinics or hospitals involved in treating or caring for the children to provide to the mother at her request and expense information or any prepared reports concerning the children provided that this order is sufficient authorisation to do so.

12.

The father must authorise the children’s school/s to provide to the mother at her request and expense information concerning the children, copies of school reports, school photographs and circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.

Method of communication father to mother

13.

All information concerning the children to be provided by the father to the mother pursuant to these orders be sent by letter by registered post addressed to her at her address last known to the father.

Non denigration

14.

The parties must not denigrate each other or permit other persons to do so in the hearing or presence of the children by, if necessary, removing the children from the hearing or presence of any such persons.

All prior parenting orders discharged

15.

All prior parenting orders concerning the children are discharged.

All applications concerning the children otherwise are dismissed

16.

All applications concerning the children otherwise are dismissed.

Independent children’s lawyer discharged

17.

The independent children’s lawyer is discharged.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Further, Ms N reported, in relation to the mother’s capacity to provide for the children’s emotional needs:132. All the information collated for this report leads to a conclusion that [O] and [L’s] emotional needs would not be met if they were to have unsupervised time with [the mother]. Meeting the behavioural needs, special educational needs and managing their medical needs are likely to prove a considerable challenge to [the mother]. There is concern that [O] and [L] would be unduly stressed by unsupervised visits. (emphasis added) Ms N continued:134. [The mother] presents as managing [B’s] and to be devoted to [B]. It is a concern that the challenge of managing [O] and [L’s] behaviour may impose such stress that it has an adverse impact in her ability to meet [B’s] needs. The observation session for this report and the notes from the Contact Centre about their supervised visits indicate that [the mother] is more focused on [B] and has difficulty dividing her attention amongst the 3 boys. (emphasis added) Earlier in her second report, Ms N said:61. [The mother] insists that as she has proved she can manage [B’s] care, there should not be a question about [L] and [O] staying for weekends at her home. She notes she has a bedroom set up for the boys. She is adamant that she is well able to meet their physical needs. 62. She does not believe she poses any risk of harm to [O] and [L]. She stated that if [O] and [L] felt at risk, they were now old enough to call out for help or to phone 000 and ask for Police assistance. Overall, however, Ms N said, also in her second report:124. [The mother] is untested in her ability to meet [O] and [L’s] daily needs as she has not had them in her sole care. Her time with [O] and [L] has been supervised at a Contact Centre or by relatives (at one point [the maternal grandmother], at another time by the paternal grandparents). (emphasis added) Mr Linklater-Steele of Counsel, for the father, cross examined the mother as to whether she had considered strategies which she would use if the children were in her unsupervised care, if they presented “challenging behaviour”, for example loss of temper and tantrums, in particular concerning O’s behaviour. Whilst the mother agreed readily that she has “not experienced that”, she said equally readily “I would just tell him to calm down, put on soothing music and get him to watch a video or something”, and agreed that it would be “trial and error” with her management of O. I would refer again to the mother’s evidence, previously mentioned, that she has “learned a lot” from her PPP parenting courses and other courses undertaken by her, and that successfully she deals with B with what she has learned, but “I can’t put the information I have learned into practice with [O] and [L]”, at a Contact Centre, for example, the “time out” strategy, and that her view is “It is unfair that I can’t do with [O] and [L] what I do with [B] of what I have learned”.

Ratio Decidendi

Legal Principle Established

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