WELTER & KATZ

[2018] FCCA 2742

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELTER & KATZ [2018] FCCA 2742

Catchwords:
FAMILY LAW – Father seeks equal shared care – father refuses to talk to mother – father uses children as messengers – father is inflexible and lacks insight – Residence of father needs to change to accommodate holiday periods.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Re F: Litigants in Persons Guidelines (2001) 161 FLC 189

McCall v Clark (2009) FLC 93-405

Mazorski v Albright (2007) 37 FAM LR 518

Applicant: MR WELTER

Respondent: MS KATZ

File Number: MLC 2221 of 2017

Judgment of: Judge Curtain

Hearing dates: 18,19 & 20 June 2018

Date of Last Submission: 20 June 2018

Delivered at: Melbourne

Delivered on: 27 September 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Ms Teicher

Solicitors for the Respondent: Inner Melbourne Community Legal Inc

Counsel for the Independent Children's Lawyer: Ms Glaister

Solicitors for the Independent Children's Lawyer: Perry Weston Lawyers

ORDERS

1. That all prior parenting orders be discharged.

2. That the mother and father have equal shared parental responsibility for the children, [X] born 2005 and [Y] born 2007 (“the children”), but the mother be permitted to make the final decision about the children’s care should the parents not be able to reach a joint decision.

3. That the children live with the mother.

4. That the children spend time and communicate with the father (only during all school terms if Order 5 below operates, otherwise this Order shall continue to apply through school holidays save for 4(b)) as follows:

   (a)Each alternate weekend from the conclusion of school on Friday (or 3.30pm if no school) until Sunday at 5.00pm;

   (b)Each alternate Wednesday from conclusion of school to commencement of school Thursday;

   (c)Telephone contact each alternate Wednesday between 6.30pm and 7.00pm; and

   (d)As otherwise agreed between the parents.

5. That upon the father providing evidence to the mother of appropriate sleeping arrangements for the children including a separate bed and bedroom for [X], the children shall spend half of all school holiday periods with the father as agreed and failing agreement for the first half thereof commencing after school on the last day of school until the middle Saturday at 5.00pm, inclusive of the orders in 4 above.

6. That the parents shall undertake to completion a parenting teenagers course as recommended by the Independent Children’s Lawyer.

7. That the parents keep the other informed at all times of any significant medical injury or illness affecting the children when in the care of each of them including providing the other parent with details of any treatment administered.

8. That each parent be restrained by injunction from:

   (a)Insulting, belittling, abusing or otherwise denigrating the other parent or a member of their immediately household in the presence or hearing of the children;

   (b)Discussing any parenting matter or disputes in the presence or hearing of the children; and

   (c)Using the children as message carriers between each parent.

9. That both parents are hereby entitled to:

   (a)Attend all school events that parents are usually invited to attend;

   (b)Obtain from any school that the children attend all information, newsletters and other like correspondence usually provided to parents; and

   (c)Contact and communicate with the children’s doctors and allied health professionals regarding the children’s health, treatment and development and comply with all treatment strategies as recommended by treating health professionals.

10. That the parents keep the other informed at all times of their current residential address and contact telephone number, and notify the other within 48 hours of any change to same.

11. That the parents shall communicate with each other, through a telephone application, texting or e-mail only in relation to matters that are relevant to the children’s welfare.

12. That the Order providing the appointment of the Independent Children’s Lawyer be discharged after compliance with Order 5 above.

13. That the father’s Application and mother’s Response be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2221 of 2017

MR WELTER

Applicant

And

MS KATZ

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant father was born in (country omitted) and arrived in Australia in 1994 when he was aged 35 or 36 years. The Respondent mother was also born in (country omitted) and came to live here when she was aged 31 years.

2. Their country of origin appears to be a different society both socially, economically and culturally to Australia. The social and cultural values of the father’s country of origin appear to be a significant factor in forming his views.

Background

1. The father was born on 1958 and is aged 60 years. He suffered an industrial accident in 2006, and is unlikely to work for reward again. He is in receipt of the Centrelink Disability Benefit.

2. The mother was born on, 1972 and is aged 46 years. She works part-time as a (occupation omitted). They were married on 2003 and separated on 30 December, 2015 when the mother left the former matrimonial home with the two children of the marriage, [X] born on 2005 who is now aged 13 years and [Y] who was born on 2007 and is currently aged 11 years.

3. On the day of separation the mother applied for an Intervention Order which was subsequently made on 25 January, 2016 and had the effect of excluding the father from the former matrimonial home and the mother then returned to live there with the children. This Intervention Order was an ongoing irritation for the father who often referred to it when giving evidence. It appears he has never forgiven her for applying for this Order or the allegations she made in the Application.

The evidence

1. The parties relied on the following documents:

A. Applicant father’s material:

a)Initiating Application filed on 8 March 2017;

b)Three Affidavits of the father;

i)sworn on 3 March 2017 and filed on 8 March 2017;

ii)sworn on 9 November 2017 and filed on 9 November 2017; and

iii)sworn on 11 May 2018 and filed on 11 May 2018.

B. Respondent mother’s material:

a)Outline of Case filed on 13 June 2018;

b)Response filed 28 April 2017;

c)Notice of Risk filed 28 April 2017;

d)Affidavit of the mother sworn and filed on     28 April 2018;

e)Further Affidavit of the mother sworn and filed on 24 November 2017;

f)A third Affidavit of the mother sworn and filed on 30 April 2017;

g)Family Report dated 19 October 2017; and

h)Updated Family Report dated 17 May 2018.

C. Independent Children’s Lawyer’s material:

a)Outline of Case filed on 13 June 2018;

b)Family Report dated 19 October 2017; and

c)Updated Family Report dated 17 May 2018.

Procedural background

1. The Applicant commenced proceedings by filing his Application on 8 March, 2017 which was first heard on 3 May, 2017 when the following orders were made:

   “1.  All extant applications be adjourned to this Court on 13 July 2017 at 9.30am for Directions.

   8.   Pursuant to s.68L(2) of the Family Law Act 1975 the children, [X] born 2005 and [Y] born 2007 (“the children”) be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such:

   a.forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service;

   b.within forty eight (48) hours of notification of such appointment the lawyers for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon;

   c.the Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines’ as published on the Family Law Courts website: ( and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and

   d.the Independent Children’s Lawyer do prepare a Minute of the Orders reflecting his/ her preliminary view of what Orders he/ she will recommend be made as final Orders at the Final Hearing.

   9.   Pursuant to s.11F of the Family Law Act 1975 (Cth), the parents and the children attend upon a Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry (“the Family Consultant”) for the purposes of a Child Inclusive Conference/ Conference at Level 5, Commonwealth Law Courts, 305 William Street, Melbourne on 29 May 2017 and:

   a.the mother and the children to attend at 9:15am; and

   b.the  father to attend at 10am.

   10.    Pursuant to Order 3 above the Family Consultant shall provide a written memorandum to the Court and to the parties with such written memorandum to be released no later than seven (7) days after the interviews.

   11.    The written memorandum to deal with the following matters:

   a.any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those views;

   b.the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth); and

   c.any other matters that the Family Consultant considers important to the welfare or best interests of the children.

   12.    The parents comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

   13.    The Family Consultant be granted leave to inspect all subpoenaed material released in these proceedings.

   14.    The children live with the mother.

   15.    The children spend time with the father each Sunday from 11.00am to 5.00pm and any other time agreed to by the parties in writing.

   16.All changeovers will occur at Suburb A Police Station.

   17.The father attend and complete, as soon as practicable, a post-separation parenting course.

   18.The parties are to notify each other, as soon as practicable, of any injury, accident or medical emergency suffered by the children whilst in their care.

   19.The parties not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the children.

   20.The parties encourage and not undermine each child’s relationship with the other party.”

2. On 13 July, 2017 procedural orders were made for a trial. On 11 December, 2017 the Court made the following orders:

   “1.Order 9 of the Orders made 3 May 2017 be varied to add the words “save that during school holiday periods, the mother be permitted to cancel the father’s Saturday and/or Sunday time by providing him with 14 days written notice of her intention to spend holiday time with the children such time shall not be cancelled for more than 1 Saturday and/or Sunday in each term holiday period and for up to 3 periods during the long summer holidays.

   2.Order 10 of the orders made 3/5/17 be varied to provide changeovers to occur at the (shop) in Suburb A.

   3.Order 9 of the Orders made 3/5/17 be varied so that the father spends time with the children [X] born 2005 and [Y] born 2007 from 11 am to 5 pm each alternate Sunday commencing 17/12/17 and from 11 am to 5 pm each alternate Saturday commencing 23/12/17.

   4.All extant applications be adjourned to 6 February 2018 at 10.00am for 2 day Final Hearing.

   AND THE COURT NOTES THAT:

   A.The father has been asked to attend in person upon Victoria Legal Aid at 570 Bourke Street, Melbourne to seek a reinstatement of his current grant of legal assistance and the Court requests that VLA consider such application.”

3. On 6 February 2018, an order was made for an Updated Family Report as the father chose not to attend the interview for the original report and a further trial date was set down for 18 June, 2018. The trial ran for three days although it was only set down for two. At the time of the trial the children were spending time with the father each alternate Sunday from 11.00am to 5.00pm and each alternate Saturday on the other weekend, for the same hours.

The applicant’s evidence

1. The father was assessed by the Family Consultant in the Updated Family Report as being “inflexible”. That was certainly my experience. He had a clear negative view of the mother which did not appear to waiver throughout the trial.

2. He appeared very annoyed that she obtained an Intervention Order that removed him from the home. He was further annoyed by the allegations contained therein and in particular, some suggestion that the father may injure the mother.

3. Under cross-examination of Counsel for the mother, the father said he had nothing to do with the mother because of the Intervention Order and other things that ensued thereafter. He went on to say that whatever communication that takes place between him and the mother is through the children. When pressed he confirmed that… “I have nothing to do with her”. He went on to say… “I don’t have any problem with my children. The people who have caused problems are herself, the mother of the children, and the lawyers who are assisting her”.

4. He presented as an unsophisticated, simple gentleman with little insight into the emotional needs of his children.

5. I note at page 6 of the Independent Children’s Lawyer’s Outline of Case filed 13 June, 2018 the father is described as having a limited understanding of the Court process and further… “the father is extremely inflexible and rigid in his thinking. He appears to lack real insight into the children’s strong relationship with their mother”.

The respondent’s evidence

1. The mother gave evidence in a clear and unambiguous way. She appeared to be child focused and was generally quiet and reserved.

2. Both parents required an interpreter which also added to the length of the trial and where their evidence came into conflict, I preferred the evidence of the mother.

3. It should be noted that the father appeared in person and where possible I assisted him pursuant to the principles in Re F: Litigants in Persons Guidelines (2001) 161 FLC 189.

Family Reports

1. There were two family reports prepared by Family Consultant M dated 19 October, 2017 and 17 May, 2018. As I indicated earlier the father did not attend the interview for the first report. He told the Court that he was unavailable as he was attempting to find a lawyer. I found the evidence of the Family Consultant through the cross-examination and in the reports particularly helpful. I will refer to it from time to time subsequently in this judgment.

Relevant Legal Principles

1. Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the children is met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. Section 60B(2) of the Act sets out the principles underlying those objects They are that (except when it is or would be contrary to a child’s best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   d)parents should agree about the future parenting of their children; and

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests.

Section 60CC factors

1. The two primary considerations are set out in s.60CC(2) and s.60CC(2A) of the Act. They are:

(a) the benefit to the child of having a meaningful relationship with both of   the child's parents;

1. In the case of McCall & Clark (2009) FLC 93-405 the Full Court considered this sub-section. At paragraph 109 the Court said:

   “The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.

2. It then went on to discuss in paragraph 115 the decision of Mazorski & Albright (2007) 37 Fam LR 518, where the Honourable Justice Brown said the following:

   “…I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one.”

3. At paragraph 170, the Full Court said as follows:

   “Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage of a child [sic].”

4. It then went on to say that there are three possible interpretations of section 60CC(2)(a) and concluded that it preferred the interpretation that was called the ‘prospective approach’ but also said that depending on the factual circumstances, the ‘present relationship approach’ may be relevant.

5. The ‘present relationship approach’ was defined by the Court in paragraph 118 as follows:

   “(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”).

6. The prospective approach, which I prefer, was set out at paragraph 118 as follows:

   “(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).

7. Currently, the children have a meaningful relationship with both parents. It is clear from both Family Reports that the Family Consultant assessed the parents as having a meaningful relationship with the children, which is also my view of the evidence.

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

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

1. There is a definition of family violence in section 4AB of the Family Law Act 1975. Both children complain of their parents arguing from time to time prior to separation. As noted earlier the mother obtained an Intervention Order soon after separation, which I will deal with further below when addressing s.60CC(3)(k).

Additional considerations are:

1. As to sub-section 60CC(3) of the Act:

(a)  any views expressed by the child and any factors (such as the                   child's maturity or level of understanding) that the court thinks are       relevant to the weight it should give to the child's views;

[X]

1. In the first report when the children were interviewed on 13 October, 2017. [X] presented to the report writer as wanting to live alternate weeks with each parent. She said that her father planned to move into a three bedroom home and was confident that she would be able to travel by public transport from her father’s home to her school.

2. However I note at paragraph 38 on page 13 of the first report, the author says as follows:

   “Whilst [X] at 12 years of age believed she had sufficient life experience to know what was in her own best interest, the writer believed she had a somewhat simplistic understanding of the parental situation and consequently her wishes have been balanced by the writer with the reality of the parent’s current situations.”

3. The second interview occurred about a month before trial on 9 May, 2018 and the reporter says at page 12, paragraph 33 the following:

   “The children were observed spending individual time with their father.  [X] impressed as a taller and more confident adolescent than the then 12 year old young woman first interviewed in October 2017.  She was comfortable and confident in her father’s presence.   Mr Welter spoke to [X] in (language omitted) and [X] answered in a frank and direct manner in English to her father.   [X] stated she continued to want to spend more time with her father.  Her response impressed the writer as a true indication of her wish in this matter, with no obvious sign that Mr Welter being present had influenced her response.   Throughout the interview [X] was quick to make her wishes known and confident to challenge her father when he attempted to influence her decisions. Mr Welter and [X] were observed engaged in a conversation about where she and her brother would sleep should they commence spending overnight time in his care.  [X] responded to her father that she did not wish to sleep in his room, he had offered that he and [Y] would sleep together in the living room area.  [X] said she preferred to sleep in the living room area once Mr Welter had organised reasonable sleeping arrangements for her.  [X] and her father then discussed the arrangements for a bed time, with [X] arguing about Mr Welter’s statement that she would be asleep by 10 pm.  After some arguing of opinions between [X] and her father, [X] turned to the writer and in English said that bedtime would not matter as her father would be asleep before she finally settled for the night.  [X] reported she and [Y] had stopped (sports) last year and that she continued to enjoy her (hobby).   She stated her father took her to her (hobby) classes when she spent time with him on the weekend.”

[Y]

1. In the first report at page 16, [Y] says he wished to spend more time with his father. He initially proposed he would live with his father in the school week and did not understand the difficulties geographically of getting to school regularly on time. After this was explained to this young boy, the writer reports he was less confident about living with the father.

2. In the second report his wish was to stay with his father for the day until he returned to his mother’s care that afternoon and at page 14, paragraph 40 the author says as follows:

   “[Y] identified his wish was to spend more time with his father.  He had no concerns about spending overnight time in his father’s care.  The writer asked [Y] how he would manage arguments with his sister when he did not have his own bedroom at his father’s house to retreat to.  [Y] said when at his father’s home he would remove himself from arguments with his sister.”

3. At paragraph 41 of the other report the author said the following:

   “The children impressed as having a strong relationship with their father and their wish to spend increased time in his care the writer believed was a true indication of their feelings.  The writer assessed the children to be too young to understand the impact of the parental conflict on their mother and father’s capacity to engage in an effective parental relationship with each other.”

4. The author went onto say as follows:

   “Whilst it is important the children’s wishes to spend more time with their father should be accommodated in any following recommendations, the writer assessed the impact of the ongoing parental conflict is require to temper the following recommendations in relation to the amount of time the children are able to successfully spend with their father.”

5. Whilst the father often gave evidence that the wishes of the children should be followed, I am not going to adopt them blindly. The Family Consultant was clear that whilst they should not be ignored, the children are still young and their wishes should be tempered. I will give their wishes some weight in terms of providing more time with the father.

(b)  the nature of the relationship of the child with:

(i)  each of the child's parents;

1. The children’s relationship with their mother is close, warm and unremarkable. They clearly enjoy living with her and love her dearly.

2. In relation to the father, the second report said at paragraph 44:

   “The writer assessed the children’s relationship with their father was strong and that he provided them with a second influential and enjoyable parental relationship.  When observed together Mr Welter and the children interacted in a relaxed and engaged manner.”

3. The author then goes onto say:

   “Both [X]’s parent’s impressed in their ability to accommodate her developmental characteristics, whilst placing appropriate limitations on her behaviours when required.”

(ii)  other persons (including any grandparent or other relative of the child);

1. No evidence was led on this topic to enable the Court to comment in relation to same.

(c)  the extent to which each of the child's parents has taken, or failed             to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

  (iii)  to communicate with the child;

1. The evidence suggests that each of the child’s parents have taken every opportunity of being involved with their children including decision making, spending time with them and communicating with them, although for the first six months after separation the children did not spend time with the father due to his accommodation difficulties and the very poor relationship between the parents.

(ca)  the extent to which each of the child's parents has fulfilled, or                  failed to fulfil, the parent's obligations to maintain the child;

1. This is not an issue in this case. The father has a very humble income by way of a disability payment and pays $8.05 per week Child Support to the mother whilst the mother appears to be earn some income from part-time employment and otherwise relies on Government benefits to support the children. It appears to me that both parents are using the best of their available resources to support and maintain their children.

(d)  the likely effect of any changes in the child's circumstances,   including the likely effect on the child of any separation from:

(i)  either of his or her parents;

1. It would be very upsetting for these children to spend significant time away from their respective parents given the assessment of the Family Consultant and my interpretation of the evidence that both children love their parents dearly and seek a close, loving and ongoing relationship.

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

2. No evidence was lead on this topic and therefore I cannot comment further on it.

(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. The mother lives in Suburb A and the father in Suburb B. It makes collection from school on weekend a challenge but otherwise with good planning they will overcome this. It would be too onerous for the children if was equal shared care.

(f)  the capacity of:

(i)  each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);

1. No significant evidence led.

   to provide for the needs of the child, including emotional and intellectual needs;

2. In the updated report the Family Consultant said the following at paragraph 25:

   “Given the difficulty Ms Katz reported encouraging the children to attend the assessment the writer asked Mr Welter (whether) he supported Ms Katz’s attempts to place reasonable boundaries on the children’s behaviour toward their mother.  Mr Welter reported he had not spoken to the children about the manner in which they interacted with their mother.  Mr Welter said he was aware the children fought with each other and he disciplined then about not behaving badly toward each other.  He impressed as not having thought about the importance for the children that he and Ms Katz were able to provide [X] and [Y] with the same parental boundaries for their sibling interaction and response to each other their parents.”

3. Further at paragraph 23 the author made the following comments:

   “The writer then asked Mr Welter how he communicated with Ms Katz about the children’s care needs.  He reported he did not talk to Ms Katz about [X] and [Y]’s care.   He explained that following Ms Katz’s reports of family violence, which he believed had not occurred, he no longer trusted her and he did not wish to engage directly with her in a parental relationship.  Mr Welter explained the children ‘arrange their program’ with him and ‘give him their schedule’ so that he can take them to activities when they are in his care and that he tried to ‘do what the children need’ and he tried to meet the children’s requests to ‘do something- such as (hobbies).”

(g)  the maturity, sex, lifestyle and background (including lifestyle,                   culture and traditions) of the child and of either of the child's                 parents, and any other characteristics of the child that the court               thinks are relevant;

1. I note that in the Independent Children’s Lawyer’s Case Outline at page 6, the author said the cultural background of the father appears to be influencing his approach to this dispute. It is true that the father presents less than worldly and it may well be his limited background in life generally has meant that he has somewhat rigid views about the behaviour of the mother which appears to impact on his ability to effectively communicate with her. It is incumbent on the father to reflect on his poor relationship with the mother and for the benefit of the children he should make a real effort to ‘forgive and forget’ and focus on being concerned about working with the mother to promote the welfare of his children, rather than the past behaviour of the mother.

(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

(i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

1. Not relevant.

(i)  the attitude to the child, and to the responsibilities of parenthood,              demonstrated by each of the child's parents;

1. The mother appeared to be child focused and take her responsibilities as a parent very seriously. She appeared to make appropriate arrangements for the care of the children when she was not available and otherwise attempts to promote their welfare.

2. The father had a handicap in relation to his ability to parent effectively for these children. It was addressed in the second report at page 7, paragraph 16 where the report writer says:

   “Mr Welter impressed the writer as being inflexible in his wish to avoid any interaction with Ms Katz as a coparent for the children… his parenting approach was to address all parenting issues directly with the children and they would then relay parental communication/decision making between himself and their mother. Mr Welter had no concerns that such a pattern of parental communication was stressful for the children or that it impacted on the quality of the children’s relationship with either parent.”

3. The author goes on at paragraph 31, page 11 to say in the Updated Family Report as follows:

   “Mr Welter reported he ‘did not trust her [Ms Katz] after her affidavit’.  In particular he said the information she provided in her affidavit material about the parental conflict ‘will harm me and produce the wrong information’.  He further believed it contained comments made by the children that ‘the children had never said’.  Mr Welter reported he would not be willing to directly communicate with Ms Katz about the children’s care arrangements in the future.  He was not concerned for the impact of this lack of parental relationship on the children and he believed that he would be able to effectively care for the children on a half ‘50/50’ basis by making arrangements for their care directly with [X] and [Y].”

4. On day two of the Trial I had the following conversation with the father:

   “HIS HONOUR: And you look upon the intervention order as a great insult to your integrity, don’t you?

   THE INTERPRETER (APPLICANT): Yes, because she depicted me as a killer.

   HIS HONOUR: Yes.

   THE INTERPRETER (APPLICANT): Yes.

   HIS HONOUR: She portrayed you as a nasty man.

   THE INTERPRETER (APPLICANT): Yes, yes.

   HIS HONOUR: Yes.

   HIS HONOUR: And you’re really upset about that, aren’t you?

   THE INTERPRETER (APPLICANT): She would not be happy about what she did to me.

   HIS HONOUR: No. And you’re not happy about what she did to you with the intervention order.

   THE INTERPRETER (APPLICANT): I am not happy.

   HIS HONOUR: No. And that way you just, effectively, ignore her.

   THE INTERPRETER (APPLICANT): After all that has happened to me, your Honour, I just want to live in peace. I have nothing to do with her, and she would probably also want to live in peace.

   HIS HONOUR: But you can’t forgive her, can you?

   THE INTERPRETER (APPLICANT): Your Honour, I believe in – in the Bible, and in the Bible it mentions about forgiveness. Okay. If she apologises I’m happy to forgive her, but otherwise I will treat her according to what - -

   HIS HONOUR: Right.

   THE INTERPRETER (APPLICANT): - - - what the Bible teach me.

   HIS HONOUR: So if she apologises you will forgive her, and if she doesn’t apologise you will never forgive her.

   THE INTERPRETER (APPLICANT): That – that’s correct, your Honour.”

(j)  any family violence involving the child or a member of the child's family;

1. The mother in her Affidavit affirmed 28 April, 2017 at paragraph 11 raised various serious issues of physical and psychological violence being inflicted upon her by the father. She described name-calling, pushing and shoving and abusive swearing that she had to suffer at the hands of the father. However, little of this was tested at trial but these are very serious allegations.

(k)  if a family violence order applies, or has applied, to the child or a             member of the child's family--any relevant inferences that can be           drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

1. The mother applied for an Intervention Order in December 2015 when the parties separated. The children were named in the application and an Interim Intervention Order was made. The Interim Order was varied on two occasions in January, 2016 to exclude the father from the home, and again in April, 2016 to remove the children from the Intervention Order.

2. In August 2016, the father consented without admission to a final Intervention Order, but then appealed to the County Court. The matter was listed at the County Court on 22 August 2016, and the matter was resolved on the basis that a sentence in the application be removed. This did not affect the operation of the Final Intervention Order.

3. The mother applied to have the Final Intervention Order extended on 11 July, 2017. The matter was listed for contest at Melbourne Magistrates’ Court on 22 September, 2017 but the Court could not accommodate it. The matter was re-listed on 15 February 2018 to allow for the family law matter to be finalised.

4. At the further listing of the contest on 15 February, 2018 the father was not represented and was prevented by law from cross-examining the mother. After hearing evidence in chief from the mother, the Magistrate granted her application for extension and the Intervention Order was extended indefinitely. The father has appealed this decision to the County Court.

5. It is clear that the father feels he is a victim of her untrue allegations in the Application for the Intervention Order. It has created a barrier to effective co-parenting.

(l)  whether it would be preferable to make the order that would be             least likely to lead to the institution of further proceedings in   relation to the child;

1. It is clearly preferable that I make orders that are less likely to lead to further proceedings. However given the attitude of the father to the mother, the lawyers, the legal system and the report writer’s recommendations, all I can do it minimise the risk of further ligation. The parents must appreciate that litigation will have a corrosive effect on the emotional wellbeing of these children and should be avoided where possible. It must only be seen as a last resort and prior to considering any litigation, they should consider undertaking counselling or mediation together in an attempt to resolve their differences.

(m) any other fact or circumstance that the court thinks is relevant.

1. There were two significant facts which handicap the father’s case.

2. Firstly, the father was self-represented. He relied on three Affidavits with only the first being prepared by a solicitor. His second Affidavit had 44 annexures, was handwritten with no numbered paragraphs and ran to 17 pages.

3. His third Affidavit was sworn on 11 May 2018 and was also handwritten, ran to 7 pages with 16 paragraphs with 9 pages of annexures.

4. I searched through those two handwritten Affidavits rather like a nineteenth century goldminer digging through tons of rock and soil with a pick and shovel in the search for small nuggets of gold, but few were found. They often contained comments or observations which were unhelpful, irrelevant or offensive. For example, typical (in their literal form) are the following:

   a) “The mother not honest jeales and not think for commen only about herself and her own family but not about her own children”.

   b) “That I worry about my children they live unsafely flalti for their best interests and their mother not care for their safety and their interests.”

   c) “For the interim intervention order on 07/01/2016 in NJC take the matter Ella Crotty from Fitzroy Legal Service, I gave instruction but ignore and do not do for my right and for my interest.”; and

   d) “The Independent Lawyer for the children on 13/07/2017 at about 12.15pm he make with finger action first than he discriminate to me, he said you are silly in front of people… what that he said to me you are silly it is discrimination and he is racist.”

1. I highlight this not to criticise the father but to underlie the difficulty it must be for people from non-common law societies to conduct a case in English which is their second language. Our language can be complex, where its subtleties and rules of its use may be lost on such people.

2. Ultimately, the father could “not see the wood for the trees” as his clear feeling of injustice in relation to the Intervention Order, his dislike of the mother, and his lack of insight into the emotional and psychological needs of the children and his ignorance of the Family Law Act, were barriers to him in assisting the Court.

3. Secondly, the father currently lives in a one bedroom residence which is clearly inappropriate for the children to spend long periods with him overnight.

4. When I asked him about his capacity to obtain a 3 bedroom residence he told me he would “apply to [the] Housing Commission.”

5. I note that at page 15, paragraph 43 of the Update Report the Family Consultant said:

   “The children’s wishes to live with their mother and spend increased time with their father had not changed at the time of this second assessment.  The children remained confident that the limited space at their father’s home would not impact on their enjoyment or wish to have overnight time in his care.  The writer assessed that the living arrangements for the children at their father’s home, which is a one bedroom unit, did not support Mr Welter’s wish that the children spend alternate weeks in his care. The writer believed the children’s privacy, sleeping arrangements and arrangements for study and other day to day activities would be compromised by the limited room.  The writer therefore recommends that the children continue to live with their mother.  However, the writer did not assess that the limitations of the living arrangements for the children when with their father were such that they would be unable to spend any overnight time in their father’s care in the future, although it did limit the amount of time that the writer believed the children could successfully manage with their father.”

Section 61DA

1. In relation to the issue of equal shared parental responsibility, I note the father sought this order in his Application and it was also proposed by the Independent Children’s Lawyer. The mother I note, sought sole parental responsibility.

2. The poor communication between the parents did trouble me as a potential barrier to them effectively undertaking equal shared parental responsibility. However the Family Consultant does address this in her Updated Family Report at paragraph 52 where she says:

   “Given the lack of parental communication the writer is concerned that it is difficult for the parents to have equal shared parental responsibility for the children.  However, the writer assessed Mr Welter and Ms Katz to be committed parents and they both sought to make reasonable decisions for the children.  Their method of communicating these decisions with each other via the children is not considered by the writer to be in the children’s best interest as it places too much responsibility on the children, whilst reducing Mr Welter and Ms Katz’s parental role as the primary decision makers for the children.  It is strongly suggested Mr Welter and Ms Katz attend a parenting teenagers program at different times, so they have similar information to base their parenting of the children on as [X] and [Y] move into their teenage years.”

3. I also note her comments also at paragraph 53, but on balance I take the view that these parties should really make an effort to co-parent as best they can. The father should appreciate that he has got to make an effort to improve his communication with the mother and the mother likewise needs to accommodate that. I will however provide in the Order that should they not agree on any issue, then the mother shall decide ultimately how the matter should be resolved.

Section 65DAA

1. Although I am making an Order for equal shared parental responsibility, equal time in this case is not in the children’s best interests.

2. Equal time with the parents sharing week about care is not appropriate or practical in this case for the following reasons:

   a)The inability of the parents to co-parent effectively because of the father’s negative attitude towards to the mother, their poor communication and his unwillingness to have normal parental dialogue with her;

   b)It is not recommended by the Family Consultant in her Reports for good reasons, see paragraph 43 of the Updated Family Report;

   c)Getting the children promptly every second week to school by the father would be problematic giving the geographical barrier and Melbourne’s current transport problems;

   d)Whilst the children want to see more of their father ultimately they do not want week-about when it is discussed further with them, see paragraphs 36, 37, 45 and 48 of the Family Report dated 19 October 2017; and

   e)The father has inadequate accommodation.

3. It is my assessment that ultimately it is in the best interests of these children to have a significant and substantial time with their father which is detailed in my Orders.

Conclusion

1. Overall, it is my judgement that the parents are committed to their children and both have a strong relationship with them. They enjoy their parental role but seem to want to parent in tandem and not consider co-parenting. I am troubled that these parents appear to be unable to fully cooperate with each other in exercising their respective parental roles.

2. The Family Consultant was cross-examined by Counsel for the Independent Children’s Lawyer on the third day of the Trial when they had the following exchange:

   “MS GLAISTER: Thank you, your Honour.

   In relation to these particular children, they both have a good relationship with both of their parents?---That’s correct.

   They both seem to be doing quite well developmentally in terms of school and other extracurricular interests?---That’s correct.

   They – I suggest that during the course of your interviews with the mother, she indicated to you, even when you prepared the first report in 2017, that she would be prepared to consider allowing the children to go overnight with their father on the condition that he had appropriate accommodation and that he didn’t denigrate her to the children. Do you recall that?---Yes, that’s correct.

   And the father has given evidence to his Honour that he declined to accept overnight time even though it would be an increase in the day periods he was spending with the children because it wasn’t the shared care arrangement that he wanted and it wasn’t what the children would have wanted. Now, I suggest to you that that is not very child focussed. Would you agree with that?---No. Yes – yes – sorry – it’s not child focussed.

   And in fact, these children from when you interviewed them in 2017, would have dearly liked to have spent overnight periods with their father?---Yes, that’s correct.

   And so it would have been their wish, for example, that he perhaps bite the bullet and accept that time even though it’s not exactly what he wanted?---Yes, that’s correct.

   And that points to a difficulty I suggest, that the father has, in being able to focus on what’s in the best interests of the children over and above his dispute with the mother?---Yes. I would agree with that.

   And in fact, I suggest that in his affidavit material, in his interviews with you and in

   his evidence before the court, he has been extremely negative and derogatory with respect to the mother. That would accord with how he was in the interviews with you?---In the interview he showed no evidence he could cooperate in a parental relationship with the children’s mother.

   All right. And can I say that, particularly financially, she seems to be, well, I suppose financially and in a real sense of having time caring for the children, she’s the one with the big burden in making sure these children have a happy life and a roof over their head?---She’s doing the majority of care and the children are happy.

   And were you were aware that the father makes a pretty minimal contribution by way of child support?---I would suspect that’s the case given his financial situation.

   And in those circumstances, it would be fair to say that he doesn’t cut the mother much slack with respect to the burden she’s carrying. Would you agree with me about that? He’s very critical”

   “The other issue I suggest, in relation to what sort of time would be appropriate for the children to spend, firstly, your conclusion is that this is not a case where equal time parenting would be in the children’s best interest?---No. Not at all.

   And why do you form that view?---Because of the lack of cooperation between the parents and that the communication is principally from the children to either parent and that’s not in the children’s best interest, to be involved at that level in the parental relationship or having to deal with the parental conflict. You have suggested, in your recommendations, in the second report, that the parents undertake a course about parenting teenagers?---Yes, I did.”

3. The father then cross-examined the expert and they had the following exchange:

   “HIS HONOUR: Yes, please?--- - - - that the second half of your first question, which was why did I not agree with what you think the children said, and, in my report, and in our interview, I made it very clear that my concern was around the –you and the children’s mother’s ability to work together as parents. And in the end, in the second report, I clearly state that that’s why I went – that’s why I’m saying alternate weeks, one week with mum, one week with dad, will not work.

   THE INTERPRETER (APPLICANT): Where does your concern come from, actually, if we have an agreement that I would drop them at a particular time and collect them at a particular time, why does that seem to be a problem for you?---I think the problem lies in that you don’t see the problem. So that, for me, it is that there’s a whole range of parenting that needs to be done between a mother and father, from, you know, I will use other names because – but, you know, Joe has got a party with Fred on Saturday night. Can you take him? I’m busy. Jane has got an exam on Tuesday, she’s going to need to do these things. It’s the minutiae of arrangements.”

   “My kids – my daughter, for example, is 13 and she is very smart. Very mature. If a change is to be made in certain arrangements, or in certain issues, I should be able to with them without having any issues?---And I think there is our difference in understanding of children and their role in making decisions in their lives. My observation of your daughter is she’s too mature. That she organises you and her mother. And that what she needs is a mother and father who will organise her and I didn’t see that.

   If I show care about my children and her mother shows care about her children, then we should not have any issues. That’s what I just want to say.

   HIS HONOUR: Can I just stop you there? You’ve got one major issue, you won’t talk to her.

   THE INTERPRETER (APPLICANT): The fact that we’re not talking, it doesn’t mean it doesn’t provide peace to our kids.

   HIS HONOUR: Can you comment on the importance of good communication?---For the children, they need to know that they come and stay with you, that their activities are involved, that the way their life will run is agreed between you and their mum, directly, and you two tell them the same things so that they’re not able to negotiate what they want between you two.

   THE INTERPRETER (APPLICANT): Okay. If their needs are met without me having to talk to their mother, then why is that an issue?---Because I don’t think their needs are met unless you talk to their mother. And I think, perhaps, it’s a disagreement that will continue between us.

   THE INTERPRETER (APPLICANT): Okay. If I start to talk to their mother, and that will create problem and that will - - -?---Yes. - - - have more detrimental impact to the – on the kids. And for this reason, I don’t talk to her?---I understand why you don’t talk to their mother. I understand you’re a caring father. I understand the children want to spend time with you but the amount of time that will be good for them when parents don’t talk is less, not more.”

   “THE WITNESS: But also, I think the parental conflict does impact on the children and it’s difficult for their mother, which leads her to not want the interaction. So it’s a mix of both. Yes. I think that the children’s mother does think very much about the children’s needs. The parental conflict has great impact on her and she chooses to reduce it whenever possible.”

   “THE INTERPRETER (APPLICANT): In addition, what was your assessment of the way my kids view me or see me, or to what extent are they happy about me?---They enjoy you. They enjoy spending time with you, they’re relaxed with you, they listen to you. Do you see me as someone who is putting pressure on my kids or someone who hates his kids?---That’s two different issues. I think you love your children very much. I think you put pressure on your children by not interacting with their mother in a reasonable parental relationship.”

4. The expert was then asked about overnight on Wednesday during school terms and she replied as follows:

   “What are your views about that?--- - - - was that the children would benefit from their father actually supporting them in their activities and he was certainly really interested in that. And so that should they actually have – I think it’s important they have an activity on the night, mid-week night they’re with their father. And that be a point of containment but it introduces him and them into that shared life.”

5. This exchange between the expert and the cross-examiners confirms in my mind that the recommendations generally in the report significantly promote the welfare of these children and are in their best interests. I will slightly modify these proposals to better suit the evidence I heard but in my view, the orders I have drafted promote the welfare of these children and to some degree have been based on the Independent Children’s Lawyers recommendations, which I found very helpful.

6. Finally, I would like to address two other issues. Firstly, it should be noted that the mother in order 9 of the orders sought in her Response that she could travel out of Australia with the children to (country omitted) and other places and sought an order to that effect. Whilst I note the importance of her culture and background in this matter, I am informed that the sovereign nation of (country omitted) is not a signatory to the Hague Convention and further, the mother does not have any specific proposal as to when she will leave Australia nor return and the arrangements for the father to maintain some relationship with the children during that period and therefore, it was not in the children’s best interest to make the order the mother sought. Secondly, the father complained about the safety of the mother’s Suburb A accommodation given there were drug dealers etc. in the area. She acknowledged there was a problem and that she was on a… “waiting list”… for another residence. In the meantime, she is properly supervising the children and alert to the problem. The father’s proposal that they stay with him until the mother finds a “safe place” was unrealistic, unworkable and I was satisfied the mother was aware of the problem and being appropriately protective.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Date: 27 September 2018