Wold and Kleppir (No 5)

FAMILY COURT OF AUSTRALIA

WOLD & KLEPPIR (NO. 5)

[2009] FamCA 1141

FAMILY LAW – CHILDREN – With whom a child spends time – Amount of time spent with the Father per fortnight – Where the children will benefit from a relationship with both parents – Where the Father’s household less desirable than the Mothers – Increasing time with the Father ordered – Whether there should be time with the Father during school holidays – Children to spend time with the Father while he is on leave only

Family Law Act 1975 (Cth) s 60CC
APPLICANT:	Ms Wold

RESPONDENT:

Mr Kleppir

FILE NUMBER:

BRC

3211

2008

DATE DELIVERED:

27 October 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

14 and 15 October 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Fisher, Solicitor of Neumann & Turnour Lawyers appeared for the Applicant Mother

COUNSEL FOR THE RESPONDENT:

Mr George of Counsel appeared for the Respondent Father

SOLICITOR FOR THE RESPONDENT:

John-Paul Mould Solicitors

Orders

IT IS ORDERED THAT:

The children, J born … September 2000 and L born … May 2002, live with the Mother.
The Mother and Father have equal, joint parental responsibility for the long term and short term care of the welfare of the children.
The Father spend time with the children at all such times as the parties may agree in writing but failing agreement then as follows:
from 9.00 am Saturday to 5.00 pm Sunday, each alternate weekend.
The Father to complete a Triple P parenting course and forward the certificate of completion to the Mother’s legal representative within seven (7) days of receiving same.
The Mother to complete a Triple P parenting course and forward the certificate of completion to the Father’s legal representative within seven (7) days of receiving same.
The father to attend a counsellor on at least a fortnightly basis for individual counselling as to his relationship with the children for a period of six (6) months.
The father to attend an anger management program and forward to the Mother’s legal representative a copy of his certificate evidencing his successful completion of such a program.
Upon the Father completing the Triple P parenting course and the anger management program by no later than 1 August 2010, he spend time with the children on alternate weekends from after school Friday to before school Monday.
From the 1 February 2011 and alternate years thereafter the Father spend time with the children during school holiday periods at times nominated by him but not exceeding four (4) weeks per year, provided he is on leave from his employment or is otherwise available full time to care for the children’s needs.
In the year 2012 and alternate years thereafter, the Father is to spend time with the children during school holiday periods at times nominated by the Mother provided at such times the Father is on annual leave from his employment or is otherwise available to care for the children during such periods nominated by the Mother.
The Father is permitted to telephone the children Monday, Wednesday and Friday evenings between 6.00 pm and 6.30 pm.
The children shall attend R School in 2010 and shall continue to attend this school until the Mother and Father agree in writing to a change of schooling.
These Orders shall be sufficient authority for each parent to obtain, at their cost, all documents or information that relates to the children’s education and healthcare and each parent shall be at liberty to attend at the children’s school or medical facility and to be involved thereat with the children, their teachers or medical practitioners.
Each party shall keep the other informed as to their landline and mobile telephone numbers, of the school being attended by the children and of any health professional consulted by the children.
Changeovers which do not occur at school shall take place at McDonald’s restaurant, G.
Upon the Father spending time with the children pursuant to these Orders from Friday afternoon after school until the commencement of school Monday morning, the Father be responsible for collecting the children from school and returning the children to school.
Each party be at liberty to apply to re-list on forty-eight (48) hours notice to the other party.
The Mother be at liberty to telephone the children when the children are spending time with the Father on weekends between 6.00 pm and 6.30 pm on a Saturday evening and during any school holiday periods on Monday, Wednesday and Friday evenings between 6.00 pm and 6.30 pm.
During any school holiday periods when the children are in the Mother’s care the Father is at liberty to telephone the children on Monday, Wednesday and Friday evenings between 600 pm and 6.30 pm.

IT IS FURTHER ORDERED THAT:

The Mother’s Contempt Application filed 11 March 2009 be adjourned to
9.30 am on 5 March 2010 at the Brisbane Registry of the Family Court
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 under the pseudonym Wold & Kleppir is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3211 of 2008

MS WOLD

Applicant

And

MR KLEPPIR

Respondent

REASONS FOR JUDGMENT

The parties to this litigation are the natural parents of two children J, born in September 2000, and L, born in May 2002. I am asked to determine what arrangements should be made in relation to the father spending time with his children, together with certain other matters. To their great credit, the parties have managed to narrow the scope of the dispute to but a few remaining issues.
The father was born in 1973 and the mother in 1974. Their relationship commenced in 2000, and separation occurred in November 2007. At all material times the parties lived in the Brisbane area, and continue to do so, although the mother is intending to relocate to the U district in the near future.
The mother is, and at all times has been, the primary carer of the two children. At the present time, the father spends time with the children five nights out of 14, being Friday afternoon until Monday morning on alternate weekends, and in addition, each Wednesday evening.
There has been quite extensive litigation in this matter, with the matter being heard over a total of 12 sitting days. The father has engaged a significant number of legal representatives. Matters in dispute over this period have included the question of the validity of the marriage, issues of property settlement and costs, together with a number of applications for adjournment always at the father’s behest.

Litigation history

A consent order was made in May 2008 by Jarrett FM for the children to live with the mother, and for the children to spend time with the father each alternate weekend from Friday afternoon to before school Monday. There was further provision for equal share parental responsibility. Telephone communication was each day, between 8.00 am and 8.30 am and 6.00 pm and 6.30 pm. There were a series of other orders, which is not necessary to refer to at this point in time.
As noted above, the father contested the validity of the marriage. For reasons given on 6 February 2009, I made a declaration that the parties were validly married and had been validly married since September 2002.
On 14 October 2009, at the commencement of the adjourned hearing of this matter, I was informed that the parties had resolved issues of property settlement. Those orders provided for the former matrimonial home to be sold, and after pay out of the mortgage debt as at the date of separation, the mother was to receive 60 per cent of the equity, and the father the balance. There was further provision for the father to pay the mother the sum of $45,000 by way of costs orders primarily relating to the mother’s costs in contesting the father’s application for a decree of nullity.

Orders sought – Applicant mother

In summary form, the mother seeks that the children live with her, that there be an order for equal, joint parental responsibility, that the children spend time with the father from 9.00 am Saturday until 5.00 pm Sunday on each alternate weekend, from now up until 1 August 2010, at which time the weekend time would revert to after school Friday to before school Monday, each alternate weekend, as it has been since the order of Jarrett FM in May 2008.
The parties are agreed that the children should attend R School in 2010, which is in proximity to the U property, where the mother intends to reside in the near future.
Both parties are in agreement that they should attend a PPP parenting course. The mother further proposes that the father enrol to attend a counsellor for individual counselling in relation to the children, and in relation to anger management, and upon completion of the counselling, the father provide to the mother a copy of the certificates evidencing satisfactory completion of such counselling.
The mother opposes the father having any school holiday time with the children, but proposes that during school holiday periods the father’s weekend arrangements continue.

Orders sought – Respondent father

The father proposes that the children live with the mother and the parents have equal, joint parental responsibility. The father’s proposals for time with the children provide that his weekend time be limited from 9.00 am Saturday until

5.00 pm Sunday, until he produces certificates that he has attended a PPP parenting course, and attended a counsellor for individual counselling in relation to the children and in relation to anger management.
Once the father has obtained such certificates, he proposes that from that period until 1 August 2010, he have the children from after school on Friday until before school on Monday, each alternate weekend. The father proposes that he collect the children from school and return them to school.
The father proposes that from 1 August 2010, he have the children from after school on Thursday until before school on Monday, in each alternate week. The parties were in agreement that the Wednesday evening times that have taken place to date are too disruptive for all concerned.
A summary then of the father’s position, is that he currently has the children five nights out of 14. He proposes that time reduce to one night out of 14 until he obtains his certificates about anger management and PPP parenting course, thereafter, up until 1 August, he would have three nights out of 14, then it would be four nights out of 14, being from Thursday evening until Monday morning. In addition, he seeks half of school holidays.
The parties are in agreement on the issue of telephone communication between the father and the children. By paragraph 9, the father seeks that he has one half of the school holiday periods, being the second half in odd-numbered years and the first half in even-numbered years. The mother opposes the father spending time with the children during school holiday periods, other than for his normal, alternate weekend time.

Current arrangements

Notwithstanding the orders of Jarrett FM, at the present time the children spend time with the father, not only on alternate weekends, but overnight on each Wednesday. This is in excess of any requirements provided for in court orders. That of itself, to my mind, is a persuasive argument countering any suggestion the father makes that the mother has alienated or brainwashed the children against him, or that she in some way wishes to frustrate the development of a relationship between the father and his children.
At paragraph 50 of the most recent family report of Mr N, the father acknowledges the Wednesday nights have proved too disruptive, and as I have noted, he proposes to have the children for a total of only four nights out of 14.

Issues in dispute

The parties originally were in dispute on a wide range of issues. The father, for example, had sought equal time of week about with the children. By the time of the hearing, there had been a good deal of compromise and the issues and contention were limited to:
·Whether the father should spend time with the children for half of school holidays, as sought by him but opposed by the mother;
·Whether weekend time be limited from Saturday morning until Sunday afternoon until 1 August 2010, as proposed by the mother, or only until the father has completed the PPP parenting program and has had individual counselling in relation to the children and issue of anger management;
·Whether after 1 August 2010, the father’s time on alternate weekends should extend from Thursday afternoon to before school, Monday, on each alternate week;
·Whether the mother should be required to disclose her residential address in U, when it is known;
·In addition, although no order had ever previously been sought, nor had there been any evidence on the subject, counsel for the father sought a special order that the father have the children each year in the Muslim calendar, for the moveable feast of Eid ul-Fitr, the Muslim festival celebrating the end of Ramadan, the month of fasting. The mother, through her legal representative, responded that she would agree to that, provided she could have Christmas with the children each year. This offer was not taken up, and further discussions simply petered out. I am not prepared to make a special order for a religious event to cater for the Muslim or Christian calendars. The evidence would indicate the father has only a tenuous connection with the practice of the Muslim faith, as is the mother’s position with the Christian faith. An order in these terms was not previously sought in the father’s response or amended response documents. The matter was not pressed when the mother did not give unequivocal approval to the proposal.
It is to be hoped that in the fullness of time the parties may agree to cooperate on such matters, and to that end, I propose to build in a degree of flexibility in the orders to allow that to occur.

Law to be applied

The factors that I am required to take into account are set out in section 60CC. The considerations in that section are broken into primary considerations, and the other considerations set out in subparagraph (3).
Reference was also made to the terms of section 65DAA as follows:
“65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.”
Counsel for the father conceded it was not practicable to consider a shared care arrangement. Presumably, this reflects, in part, the fact that the father works full-time, and the parties will in the future be living a considerable distance apart. However, counsel for the father pressed for an order that provided for substantial and significant time, as that is defined in section 65DAA, leading up to the proposal for four nights out of 14, from Thursday afternoon after school until Monday morning, together with half of school holidays.
The principle basis for the mother opposing substantial and significant time, relates to her fear of the father, arising from previous domestic violence incidents, as well as the matters set out in the various reports before the court.

Family reports

Two reports have been prepared, together with an assessment carried out by Ms T. The reports were prepared by Mr M, dated 16 September 2008, and an undated family report recently prepared by Mr N. The assessment of Ms T was 25 September 2008. Mr M and Ms T were not required for cross-examination. Mr N was to give evidence by telephone link, but at the time arranged he was unable to be contacted. The respective legal representatives agreed to waive the right to cross-examine and proceeded on the evidence then before the court.
I turn at this point in time to consider the report of Mr N. In particular, the terms of the following paragraphs 10, 24, 39, 43, 50, 58, dealing with J’s wishes, 66 and 67, dealing with L’s wishes, 78, 85, which is the summary, 86, which rules out any proposal for shared care, and 93, which sets out the various recommendations made to the report writer:
“10.There seems to be some agreement that the children have witnessed domestic violence in their relationship, but neither accepts much responsibility for this. The children perceive that the father was the perpetrator.
24.She reports that she has obtained counselling for the children to help them deal with the emotional difficulties they have experienced as a result of the domestic violence. She said both children have attended counselling sessions, although [J] attends more frequently than [L] as he appears to have a greater need for help than his sister. She believes they are benefiting from counselling and [J] will continue to attend. When asked by the writer if the counsellor could provide a report of their progress, she stated that she had specifically requested that the counselling be independent of the Court process as she felt it is beneficial for the children to feel they can say whatever they like to the counsellor without it being reported.
39.He also denies there are any significant cultural or religious issues to be overcome as he does not perceive himself as a strong or devout follower of the Muslim religion or of Lebanese customs. In fact, he maintains that the mother was more interested in the Muslim religion than he had been and had adopted more of the religion’s customs than he had when they were together. He believes the children would have been confused by the mother’s eventual rejection of the religion following separation.
43.He does acknowledge some difficulties in his relationship with [J]. He said that [J] has often been very critical of him as he often compares him unfavourably with his mother when he is spending time with him. For example, [J] has at times called him “useless” and told him his cooking is not as good as his mother’s. He indicated he found it stressful to be “under the microscope” of the children as he felt they were encouraged by the mother to report back to her about his activities and any criticism they may have when they are with him. However, he added that he had learnt “not to take these things personally” as the children’s critical comments were “[the mother] talking”. He also felt that this situation had improved recently and his relationship with the children was improving.
50.In regard to his perceptions of current parenting arrangements, he indicated he was reasonably satisfied with five nights per fortnight and, as noted earlier, he feels that interactions between him and the mother and the children are improving recently. However, he felt that having the children on Wednesday nights tends to “break up the cycle” (ie he considers that the one night is disruptive, as the children as just beginning to settle in to his place, when the have to leave again) and he wondiered if a block of time, say, for 5 nights in a row, may be a better arrangement.
58.When discussing his visits to his father, he said he would like to spend less time with him and indicated that he was often unhappy there. When questioned about this, he described an incident which occurred when he was on a fishing boat with his father and he said his father had “kicked me 5 times” and “he gets into a rage”. He stated his father “scares” him sometimes.
66.She complained that her father “hit me very hard with a belt” and she was emphatic that this had occurred. She added that “he doesn’t call me [L].”
67.She remembers being very scared “when Dad threw Mum out the door” and she complained that “his house is not very clean”.
78.During the observed play period, the relationship between the father and [L] appeared to be quite good but [J] seemed uncertain how to relate to this father, and he vacillated between avoidance to being reasonably relaxed to be in close proximity to him. There definitely appeared to be some difficulties in this relationship. The father displayed a capacity to manage this difficult situation with some sensitivity and in a fairly relaxed and calm manner.
85.Regarding appropriate parenting arrangements at this point, both children have indicated quite clearly in interviews with the writer that whilst they would like to continue seeing their father, they would like to spend less time with him than what they currently do. They both seemed happy with alternate weekends. It is possible that the children were influenced to some degree by their mother in regard to what they said to the writer, but the impression gained was that there are some genuine problems to address in their relationship with their father. In my opinion, some weight should be placed on the children’s views and wishes in this matter.
86.The mother appears to be providing the children with a high level of care and she was observed to have a positive and very close relationship with them. It would be in the best interests of the children, in my opinion, to continue to live with her. Shared parenting is unlikely to be successful at this point because of current difficulties in the children’s relationship with the father and, despite some recent improvements, the history of communication difficulties between the parents.
93.The parents participate in counselling directed at facilitating communication between them regarding parenting issues and sharing parental responsibilities, particularly in regard to the children’s schooling and the mother’s plans to move to [U]. It would be desirable for the father to be actively involved in the children’s education if possible. A professional counsellor with appropriate qualifications may be found by contacting the Family Relationships Advice Line (ph 1800 050 321).”

Ms B on behalf of Ms T, in her assessment report noted, commencing in the final paragraph on page 4:
“In relation to these two children, it appears that [J], who, given his age is likely to have been exposed to more violence than his sister, has an outwardly less robust personality than his sister and is, therefore, internalised his fear and anger towards his father. He has already been bullied at school, and he is, unless the violence ceases and he has some professional intervention, at risk of continuing to be an ongoing victim of abuse, or react and model his behaviours upon his father’s violent behaviours. It is also important that [the father] take care in his behaviours towards the children, to disabuse [J] of his perception that [L] is his favourite child. If this does not occur, [J’s] low self-esteem and self-confidence will continue to negatively impact upon his emotional development.
[L], however, has also been emotionally damaged and distressed by the parental conflict and, in particular, witnessing her father’s violence towards her mother. Whilst she did not mention her experience of having been taken away by her father without her mother’s permission, I think it likely that this experience, despite her love for her father, would have been a traumatic and deleterious experience for her. If this reoccurs, [L’s] trust in her father will cumulatively be eroded, and this will have implications for her ongoing emotional needs.
Parents Understanding of the Children’s Needs
It is noted that in the event that [the father] is successful in his application to the court, he is, with the children, intending on moving in with his parents. Given that there is dispute as to the nature of the children’s relationships with the paternal grandparents, I think it is important that before any final decision in this matter, that the paternal grandparents be included in any future report. Given my understanding that the paternal grandparents are Lebanese practising Muslims, there could potential religious or cultural issues that require addressing. “
Page 7 of the report, under the heading Summary, it is noted:
“Whilst I think both parents have at times embroiled the children in this dispute post-separation, I think a significant obstacle to any agreement is [the father’s] lack of insight into the dynamics of violent behaviour and the impact that such behaviours have upon the children.”
It would be my general assessment that Ms T’s observations and recommendations are in similar terms to the observations recorded by Mr N. I note that the adjourned date for trial, namely 14 October, was set as early as 26 March 2009. An updated family report was foreshadowed. At the time Mr N prepared his updated family report the paternal grandparents were once again out of the country and were unable to be interviewed. I am not sure what I am able to make of that, other than to record it is unfortunate that their relationship and reaction to the children has not been properly assessed.
In the final paragraph of Ms T’s report she recommends the father attend an anger management course or professional counselling. Twelve months later, at the time of the hearing, the father had still not attended such a course but was prepared to consent to orders that he do so in the future.
Mr M conducted interviews in June last year for the report dated 16 September 2008. He refers to the father taking the children from the mother’s care on one occasion without her agreement, and on a subsequent occasion taking L. It is referred to in paragraph 25 of the report. At paragraph 32, under the heading “Parents’ Relationship”, Mr M notes:
“He did insist that she become Muslim. Of this [the father] recalls his directive that, “If you want to be a part of my family, I am happy for that, but we’re Muslim. We don’t believe in drinking or gambling. And she accepted that and she turned Muslim.” In stark contrast, [the mother] claims that he smoked marijuana and drank with his friends. He denies this and says, “I never drank alcohol at all.””

Credibility

There are a wide range of issues where the evidence is in stark conflict. I start with the example of alcohol. I note Mr M’s observation at paragraph 28 of this report:
“The history accounted by both is so broadly discrepant that it is difficult to glean even common threads”.
In her affidavit of 19 September 2008, at paragraph 113, the mother says that:
“Throughout the relationship with [the father] he drank alcohol and smoked marijuana on a weekly basis.”
In the father’s affidavit of 25 September 2008, at paragraph 4.1, he deposes:
“It’s very offensive for me to have [the mother] accuse me of being an abuser of alcohol and cannabis, as she has. I deny absolutely that I have been a user of alcohol or cannabis in the manner she has alleged, or at all.”
In the course of cross-examination it was drawn to the father’s attention that there were 31 entries in relatively recent times from his bank statements, indicating transactions at hotels or clubs. The father’s explanation was that he attends such venues in a work related capacity, to entertain customers of his employer, but he himself does not partake of any strong drink. His explanation was that he was reimbursed by his employer for such expenditure, but there were no records. In effect, it was taken out of petty cash. I find the father’s explanation on this aspect singularly unconvincing.
I note in paragraph 6.1 subparagraph (a) of his trial affidavit, of 25 September 2008, he makes reference to unauthorised withdrawals from his NAB account prior to settlement. This includes similar type entries for hotels and clubs, similar venues, similar hotels. There is quite a significant number of entries. I find the father’s explanation that he attends these venues as part of his work related duties, again, unlikely and unconvincing. I am prepared to find, on balance, the father does drink alcohol, and has partaken of cannabis, although there is no documentary evidence of that. Consumption of alcohol is a perfectly legal activity. The only significance of the finding is it impacts generally on the father’s credibility.
A perusal of the decision delivered on 6 February this year by myself, on the validity of marriage issue, reveals I rejected the respondent’s claims that the ceremony at his home in September 2002 was a conversion ceremony, rather than a wedding ceremony. The terms of my reasons for judgment speak for themselves, but the evidence put forward by the father that it was not a marriage ceremony was fatuous in the extreme.
It is possible for a litigant to have evidence not be accepted on one issue but to be believed on other issues. In the instant case, I find it likely that the respondent has been less than credible on a wide range of fronts. I find he did go fishing on 16 July 2008 and days thereafter, a day he claims he was at home suffering a medical condition, a day when he should have been in court. The credit card entry for that date has the notation “Central Queensland” and a sum of about $390. In January 2009, when in the course of cross-examination, he had no knowledge what that entry related to.
On the morning of 14 October, again, he had no recollection. At that point in time, I pointed out that I would consider subpoenaing the credit card records to ascertain at what business the transaction was made. Shortly thereafter, the father remembered it was a service station near Gympie. How he had the sudden power of recall was never satisfactorily explained. He agreed that it was at that service station in Gympie where he and his brother regularly fill the boat up with fuel and it normally takes in excess of $400 worth of fuel.
There was a dispute between the parties as to the father’s claim that he had recently advanced considerable sums of money to the mother. He claims he had given her $1500. She conceded $220 and said that he had asked for a receipt. The respondent could not produce any paper record of withdrawing moneys and paying same to the mother. He says there is no paper record because he borrowed cash from a friend to do so. It is but one further example of the father always having some explanation of friends who are never put forward as witnesses but being the source of funds or justification for certain conduct. I reject his evidence. I find it would be unusual he had asked the applicant for a receipt on one occasion but not on the other occasions, when far greater sums of money were involved.
A CD was played in court of the father speaking in a loud voice at the time there was an incident at the home prior to separation to which the police were called. The mother had recorded that on her mobile phone and subsequently had it transferred to CD. The evidence of the CD is inconsistent with the father’s denials of domestic violence or of abuse and aggressive behaviour towards the applicant in the presence of the children.
In summary I find I can place little reliance on the evidence of the respondent. I do not find it necessary to detail at length other instances where I was satisfied he lacked credibility. I am conscious the applicant has convictions for offences of dishonesty. However, in the context of the evidence in this case, I found her evidence consistent and convincing. I turn to consider the individual issues in dispute.

Issues in Dispute

The first issue is whether the mother is required to disclose her residential address. I do not propose to make such an order. There have been protection orders made in the past under domestic violence legislation. The mother gives a convincing history, of harassing, stalking behaviour on the part of the respondent. The mother says given the behaviour of the respondent in the past, she has concerns about him knowing where she resides. It really does not matter what explanation she gives as to why she does not want him to know. The view that I take is I accept the validity of her concerns. There is no telling reason advanced why the respondent needs to know where she lives. He is able to pick the children up from school or whatever other arrangements for changeover that the parties might make.
The remaining issues primarily relate to the amount of time the father should spend with his children, firstly on a fortnightly basis and then whether there should be school holiday time. It is trite to observe the orders I must make are focussed on the arrangements which best reflect the interests of the children. It is not the arrangement which the mother or father would prefer. It is not, in any sense, to punish a parent for past behaviour or reward a parent for good behaviour. It is a given, both parents love the children and, in turn, the children love their parents. It is a given, that in normal circumstances, children benefit from an ongoing relationship with each of their parents.
In arriving at my decision, I am persuaded by the force of the written submissions and oral submissions by the legal representative for the applicant. I find no basis for disagreeing with or dismissing the submissions made.
The legal representative for the mother, at page 13 of the submissions, sets out the primary considerations pursuant to section 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents, and
b)the need to protect the child from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence.
I accept the children have their primary attachment to their mother. I expect it is likely the father’s household has less appeal than the mother’s household for a number of reasons. I suspect, to some extent, the children are neglected in the father’s household, in the sense that he does not pay the individual attention to them. He is busy entertaining his mates in the shed. The children have to entertain themselves. L makes reference to the state of cleanliness of the premises. As I have noted, the father is more interested in outdoor activities with the children fishing or spending time with his male friends than the finer points of home duties.
I accept the claims by the children of the father being inattentive to them at times, mainly because of the presence of friends presumably visiting at weekends. I accept the children’s claims to the various report writers of the father’s heavy handed attitude to discipline on occasions. I accept the observations and recommendations of the three report writers, albeit the recommendations have varied over time. Mr M proposed, for example, that the arrangements stay as they were in accordance with the orders of Jarrett FM, where the father, in the circumstances, was pressing for equal shared care.
It is clear on the evidence, as contained in the reports and generally, that the mother is far more child-focussed than the father and the statements by the children to the report writers reflect this. I find it is likely that the father does favour L over J and J has a strong sense of this and it impacts on his self-esteem. There is no suggestion that the mother engages in such behaviour. As much as anything, it reflects the lack of insight on the part of the father into good parenting practices. His explanation was, well, that is what happened when he was growing up, that he was less favoured than his sister. I find J is less self-confident and outgoing than his sister, and that is obvious from a number of the observations made.
At paragraph 38 of the submissions, Mr Fisher notes:
“Since separation, the mother has demonstrated a willingness and ability to facilitate and encourage a close and continuing relationship between the children and their father. The mother repeated this evidence in cross-examination on 14 October 2009. The mother frankly advanced her views that she is concerned for the emotional well-being and emotional security of their children while with the father, and points to objective indicators (distress suffered by the children on their return from time spent with their father and also recurring nightmares) to bolster her view.”
I am prepared to find that since separation, the mother has demonstrated a willingness and ability to facilitate and encourage a close and continuing relationship between the children and their father. Certain pieces of evidence would indicate the mother’s generosity of spirit is not reciprocated when the children are in the father’s care. For example, the mother complains, and I accept her evidence on this point, that when the children are in their father’s case, she has difficulty communicating with them by phone.
The mother’s stance was consistent throughout, that she wanted a reduction in time for the short-term but that it depended on the father rebuilding trust with the children and developing greater insight into their needs. In other words, 24 hour parenting. The children are going to go through a stressful period in the future. The mother is changing address, they will be moving to a new neighbourhood and have to establish new friends, there will be a change of school. The father, to his credit, has agreed to the change of schooling. The mother’s proposals are supported by the report writer and that is, on my recollection, at paragraph 85 of the family report. Mr N records at paragraph 85, regarding appropriate parenting arrangements at this point:
“Both children have indicated quite clearly in interviews with the writer that, whilst they would like to continue seeing their father, they would like to spend less time with him than what they currently do. They both seemed happy with alternate weekend. It is possible that the children were influenced to some degree by the mother in regard to what they said to the writer, but the impression gained was that there are some genuine problems to address in their relationship with their father. In my opinion, some weight should be placed on the children’s views and wishes in this matter.”
I record that I intend to place considerable weight on the views and wishes of the children as expressed, particularly to Mr N.
To the mother’s credit, she is conscious that parental conflict has had an adverse impact on the children and she has done something about it. She has arranged for the children to have ongoing counselling. It is a concern the father has not listened to Ms T’s recommendation that he should undertake an anger management program. The father’s credibility issues with this court have been an ongoing concern to me, but I have already laboured that point.
At paragraph 72 of Mr Fisher’s submissions, he records:
“Mere compliance by the father by completing an anger management course or a PPP parenting course or individual counselling will not, in and of itself, improve his relationship with his children. However commendable these measures are (which the father has not deigned to undertake on his own initiative, despite the lengthy litigation history of this case), the children will require time to see a demonstrable improvement in the nature and quality of their relationship with their father before any increase in time spent with him should be contemplated by the court.”
Mr Fisher makes reference, specifically, to section 60CC(4) and (4A), which are as follows:
“60CC How a court determines what is in a child’s best interests
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.”
At paragraph 89 of his submissions, he says:
“The court should find that the father has failed to satisfactorily fulfil his duties as a parent, in that he has:
(1) Exposed his children to family violence; and
(2)Neglected his children when they have been spending time with him.”
I do not want the neglect to be seen as at the higher end of the spectrum. In fact, it is, if anything, at the lower end of the spectrum, but it is there in all sorts of subtle ways.
The parties are agreed that the father’s time be reduced one night in 14 for the immediate future. As I have noted, the mother says until 1 August. It is an arbitrary date, but says it is a period of some 10 months to allow things to settle and for trust to be rebuilt and for the children to be able to settle. The father says his time should only be curtailed until he has completed the PPP parenting course and has had individual counselling for his relationship with the children and anger management issues.
The parties’ proposals as to the father’s counselling appear to be in identical terms. The terms are, effectively, both attend a PPP parenting course and complete that course as soon as possible. The father’s terms are that the father enrol to attend a counsellor for individual counselling in relation to the children and in relation to anger management and that, upon completion of the counselling, the father shall provide to the mother a copy of a certificate evidencing satisfactory completion of such counselling. What has not been clarified is how long it is expected the counselling should continue. Theoretically, it could extend well past August 2010. With what degree of frequency; once a week, once a fortnight, once a month? How does a counsellor assess the issue of satisfactory completion of such counselling? At what stage does the counsellor award the father a pass mark as to issues of anger management?

I appreciate the proposals of the parties are in identical terms and I am reluctant to normally interfere where there is agreement, but, in my view, the whole proposal is far too generalised. If the parties want to go out and tighten it up and agree to their own proposal, they will be at liberty to do that, but, at this point in time, I digress to the issue of school holidays.
The father has not had school holiday time in the past. The father asserts that he has, but apart from a possible period of about four days, I do not accept that he has exercised any such time. If he did exercise such time, as claimed by him, more credit to the mother for making the time available when she was not required to by any court orders. If she made the time available for school holidays and he did not avail himself of such time, it reveals the children are not his number one priority, as they should be. If he did not have any school holiday time, it is strange that he has not sought the same over the last two years by communication through his solicitors or by application to the court or any other means.
The view that I have formed in relation to school holidays is that the father should be on leave at the time. It is likely, I find, that he will not be living with his parents. If he does, it will only be for a period of short duration. I expect the father, like most citizens, has four weeks leave a year. I accept the force that should be a period of time for the father to work on his parenting skills and for trust to be built and for the children to be able to settle. The view that I take is that, from 1 February 2011 and alternate years thereafter, the father have the children at times nominated by him but not exceeding four weeks a year, with the father to ensure that he is on leave or otherwise available. For example, he may be unemployed during such periods.
In 2012 and alternate years thereafter, the father is to have four weeks of holidays with the children at such times as nominated by the mother, providing it accords with the father’s annual leave from his employment at that time.
I turn to the orders. What I propose to do is make the following orders. The children live with the mother. That is by agreement. The parents have equal, joint parental responsibility.
Paragraph 3 is that the children spend time with the father at all such times as the parties may agree in writing, but failing agreement, then as follows:
3.1From 9.00 am Saturday to 5.00 pm Sunday, each alternate weekend.
3.2The father is to complete a PPP parenting course and forward the certificate of completion to the mother’s solicitor within seven days of receiving same. The mother is to do likewise. The father is to attend a counsellor on at least a fortnightly basis for individual counselling as to his relationship with the children for a period of six months.
The father is to attend an anger management program and forward to the mother’s solicitors a copy of his certificate evidencing his successful completion of such a program. In other words, I do not know what a counsellor is going to do on individual sessions for anger management. I recommend the father undergo that counselling. I want a certificate from an accredited course that operates there. Upon the father completing, in terms of paragraph 3.2, but no later than 1 August 2010, he spend time with the children on alternate weekends from after school Friday to before school Monday.
The orders for school holidays will be, as from 1 February 2011, the father to have school holiday time and, as I have set it out, with the children four weeks a year, provided he is on leave from his employment or is otherwise available full time to care for the children’s needs. In the year 2011 and alternate years thereafter, the father is to determine in writing which four weeks period he elects to spend with the children during school holiday periods and, in 2012 and alternate years, the mother is to nominate, provided its school holidays and the father confirms he is on leave; what I am saying is, whether it is going to be the first half, the second half or the middle. I hope the parties will realise it is a swings and roundabouts and they should be respectful of the other’s attitude.
Paragraph 4 of the draft is agreed. The father is permitted to telephone the children Monday, Wednesday and Friday evenings between 6.00 pm and

6.30 pm. Paragraph 5 simply states the children shall attend R School in 2010. I have taken the liberty of adding to that “and shall continue to attend this school until both parents agree in writing to change of schooling.” Paragraph 6 will be the same, paragraph 7 is the same and paragraph 8, I have deleted.
Paragraph 10, changeovers which do not occur at school shall take place at McDonald’s restaurant, G.

RECORDED : NOT TRANSCRIBED

I will make a further order, upon the father exercising contact pursuant to these orders from Friday afternoon, after school, until Monday morning, commencement of school the father is to be responsible for collecting the children from school and returning the children to school. I will give a liberty to apply provision, in view of the fact that the parties are not here and nor are the advocates here.

RECORDED: NOT TRANSCRIBED

The mother is to be at liberty to telephone the children in relation to weekend time between 6.00 pm and 6.30 pm on a Saturday evening and during any school holiday periods on Monday, Wednesday and Friday evenings between

6.00 pm and 6.30 pm. The father is to have the same rights, of course.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate:

Date:27 October 2009

[2009] FamCA 1141

27 October 2009

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