Zabini and Zabini
[2013] FMCAfam 298
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZABINI & ZABINI | [2013] FMCAfam 298 |
| FAMILY LAW – Children – parenting orders – best interests of the children – competing residence applications – parental responsibility – equal shared parental responsibility – protected enforced time. FAMILY LAW – Evidence – credibility – weight. |
| Evidence Act 1995 (Cth) Part 3.7 Family Law Act 1975, ss.60B, 60CA, 60CC, 60CD, 61DA, 62G, 65DAA, 67U, 68L, 69ZT Federal Magistrates Court Rules 2001 rr.3.03, 15.09 |
| In the Marriage of Hall (1979) 5 Fam LR 609; FLC 90-713 U v U [2002] HCA 36; (2002) 29 Fam LR 74; FLC 93-112 Zabini & Zabini [2009] FMCAfam 963 Zabini & Zabini [2010] FamCAFC 10 |
| Applicant: | MR ZABINI |
| Respondent: | MS ZABINI |
| File Number: | SYC 4364 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 9-10 November 2010, 22-23 February, 14 – 17 June, 13 July 2011, 18 – 19 April, 22-24 May 2012 |
| Date of Last Submission: | 2 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sansom |
| Solicitors for the Applicant: | Watts McCray |
| Counsel for the Respondent: | Ms Haughton |
| Solicitors for the Respondent: | Rachel Stubbs & Associates |
| Counsel for Independent Children’s Lawyer: | Ms Haughton |
| Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
All previous parenting Orders are discharged.
The Applicant father and the Respondent mother are to have equal shared parental responsibility for the children of the marriage [X] born [in] 2000 and [Y] born [in] 2003.
The children [X] and [Y] are to live with the father.
The children [X] and [Y] are to spend time with the mother as follows:-
(a)The mother’s time with the children is to be suspended for a period of twenty eight (28) days to commence on a date being no later than forty eight (48) hours from the date of these Orders and the mother is to have no contact with the children for the duration of this 28 day period AND THE COURT NOTES that the father will take the children on a holiday for the duration of this 28 day period within Australia.
(b)For a period of two (2) months following the expiration of the 28 day period referred to in Order (4)(a) above, from 9:00 am to 5:00 pm on Saturday and from 9:00 am to 5:00 pm on Sunday each alternate week commencing on the first Saturday following the expiration of the 28 day period.
(c)At the expiration of the period of 2 months referred to in Order (4)(b) above and for a period of 2 months thereafter from 9:00 am on Saturday to 5:00 pm on Sunday each alternate week.
(d)At the expiration of the period of 2 months referred to in Order (4)(c) above and for a period of 2 months thereafter from immediately after school on Friday to the commencement of school the following Monday each alternate week PROVIDED THAT if the Monday is a public holiday then to the commencement of school on the following Tuesday.
(e)At the expiration of the period of 2 months referred to in Order (4)(d) above and thereafter:
(i)From immediately after school on Wednesday until the commencement of school on the following Monday each alternate week PROVIDED THAT if the Monday is a public holiday then to the commencement of school on the following Tuesday;
(ii)For a period of three (3) hours on each of the children’s birthdays and on the mother’s birthday if on a school day and for a period of six (6) hours if on a weekend if such day should fall on a day when the children would not otherwise be spending time with the mother according to these Orders;
(iii)For half of each of the Autumn, Winter and Spring school holidays in each year and failing agreement for the first half of each of the school holiday periods;
(iv)For half of the Christmas/January school holiday periods as agreed between the parties and failing agreement for the first half of the Christmas/January school holiday period commencing in 2014 and each even numbered year thereafter and the second half of the Christmas/January school holiday periods commencing in 2013 and each odd numbered year thereafter.
(v)The time that the children spend with the mother according to these Orders is to recommence after the Christmas/January holiday period on the second complete weekend after the commencement of the new school term in odd numbered years and the first complete weekend after the commencement of the new school term in even numbered years.
(f)From 9:00 am until 7:00 pm on Mother’s Day in each year if the children would not otherwise be spending time with the mother on that day in accordance with these Orders.
(g)During the Christmas holiday period as follows:
(i)From 9:00 am on Christmas Eve until 9:00 am on Christmas Day in 2013 and each alternate year thereafter;
(ii)From 9:00 am on Christmas Day until 7:00 pm on Boxing Day in 2014 and each alternate year thereafter; and
(h)At all such other reasonable times as may be agreed between the parties.
The mother’s time with the children under Order (4) above is to be suspended between the hours of 9:00 am and 7:00 pm on Father’s Day in each year.
For the purposes of Order (4)(3)(iii) above the following will apply:
(a)School holiday periods are defined to commence at 5:00 pm on the last day of the school term and to conclude at 5:00 pm on the Sunday immediately preceding the commencement of the next school term;
(b)Changeover is to occur at 12 noon at the father’s residence on the middle Saturday of the second school holiday period.
In respect of changeover the following arrangements are to occur:
(a)Where the commencement or conclusion of the mother’s time with the children is to occur whilst the children are at school, the mother is to collect the children from their school or schools at the commencement of their time with the mother and return the children to their school or schools at the conclusion of their time with the mother;
(b)In all other circumstances provided for by these order changeover is to occur by agreement and failing agreement the father must deliver the children to the mother’s residence at the commencement of their time with the mother and the father must collect the children from the mother’s residence at the conclusion of their time with the mother.
Each party must inform the other in writing of any change to his or her residence no less than seven (7) days prior to such change occurring and of any change to his or her contact telephone number within seven days of such change occurring.
Both parties are permitted to take the children out of Australia for holidays for a period of up to four (4) weeks at a time PROVIDED THAT they give to the other party:
(a)A copy of the children’s travel itinerary;
(b)A copy of the details of the return airline bookings for each of the children including details of airlines and flight numbers; and
(c)A telephone number upon which the children can be contacted whilst they are out of Australia.
Each party must permit and do all things necessary to facilitate the children making telephone calls to and receiving telephone calls from the other party whilst the children are in the care of the other party according to these Orders.
Each party must ensure that the children have privacy during telephone conversations with the other party and must not place the telephone on loudspeaker.
Each party must do all acts and things necessary to continue to cause the children and themselves to attend family therapy with Ms B psychologist and meet half the costs of the family therapy.
In addition to Order 11 above, Ms B is appointed to facilitate and supervise the implementation of these Orders and in particular but not limited to Orders (4)(a) to (4)(d) inclusive and the parties shall:
(a)Be granted leave to provide Ms B with a copy of these Orders and the Court Expert Reports of Dr R of 16 February 2011 and 16 April 2012;
(b)Each meet half of the costs associated with Ms B’s appointment in accordance with Order (13) above; and
(c)Cause themselves or either of them with or without the children or cause the children without the parents to attend upon Ms B from time to time as they may be determined by Ms B for this purpose.
Each party must notify the other as soon as is reasonably practicable of any accident or emergency involving either or both of the children which involves medical treatment or hospitalisation whilst the children are in their care in accordance with these Orders.
The parties are restrained from changing the children’s usual place of residence to any place outside the Sydney Metropolitan area.
Both parties are to ensure that the children attend all extracurricular activities in which they are currently enrolled including training, games and presentations whilst the children are in their care according to these Orders and neither party is to enrol the children or either of them in any further extracurricular activity without first obtaining the approval of the other party.
The parties are restrained from criticising or denigrating each other in the presence or hearing of the child [X] and [Y] or either of them or from permitting any third person to do so.
The parties are restrained from using any form of physical discipline on either of the children [X] or [Y].
IT IS NOTED that publication of this judgment under the pseudonym Zabini & Zabini is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4364 of 2009
| MR ZABINI |
Applicant
And
| MS ZABINI |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for parenting Orders. The parties’ children are:
a)[X], who was born [in] 2000; and
b)[Y], who was born [in] 2003.
[X] is now 12 years and 6 months old. [Y] is now 10 years old. They live primarily with their mother and spend time with their father.
Counsel for the Applicant father has accurately described these proceedings as having “a long and somewhat chequered history”. The parties’ lawyers initially estimated that the proceedings would take three days to hear, which was perhaps rather optimistic at the time. As it turned out, the evidence took twelve days and the parties’ counsel made written submissions over a further period of three months. The length of time that the proceedings took to hear was not entirely due to the fault of the parties’ legal advisers, as adjournments became necessary for unforeseen reasons, including the hospitalisation of the Federal Magistrate hearing the case on more than one occasion.
There is an application for property orders between the parties which will form the subject of a separate decision.
Background
The Applicant husband was born [in] 1967. The wife was born [in] 1970.
The parties commenced living together on about 24 April 1999 and were married on [date omitted] 1999. They separated on 16 July 2009.
There are two children of the marriage, [X] and [Y], who was born [in] 2003.
The proceedings between the parties commenced when the husband filed an Application for parenting orders on 23 July 2009. The Application was filed on an urgent basis, seeking an order that the mother return the children to the father and, if she failed to return the children, a recovery order under s.67U of the Family Law Act.
The Application was returnable on 28 July 2009 before Kemp FM, who made interim orders by consent, providing that:
a)The children would live primarily with the mother but would live with the father in alternate weeks from the conclusion of school on Sunday to 6:00 pm on Sunday;
b)The mother would return to live in the former matrimonial home at [O], by 31 July 2009;
c)The father would vacate the home by 30 July 2009;
d)The children would continue to attend the [O] School;
e)The father would provide the children with a mobile telephone and charger;
f)The parties would have liberal and flexible telephone communication with the children; and
g)Other ancillary orders.
An order was made for the appointment of an Independent Children’s Lawyer under the provisions of s.68L of the Family Law Act.
The mother filed a Response on 14 August 2009, seeking final and interim parenting orders.
An interim hearing took place before Kemp FM on 31 August 2009. On 15 September 2009 his Honour delivered a decision (Zabini & Zabini[1]), making interim orders providing that:
[1] [2009] FMCAfam 963
a)The parties should have equal shared parental responsibility for the two children;
b)The children should live with the father:
i)Each alternate week from Thursday after the conclusion of school to 6:00 pm on Sunday;
ii)For half of the school holidays;
iii)On days of special significance such as Father’s Day and at Christmas; and
iv)Other times by agreement.
c)The children would otherwise spend time with the mother.
The father appealed against this decision. On 2 February 2010 Warnick J, sitting as the Full Court of the Family Court of Australia, allowed the appeal and set aside Order 2(a) made on 15 September 2009, save for its continued operation as an interlocutory order pending resolution of the application for interim orders.[2] His Honour remitted the Application to the Federal Magistrates Court for rehearing.
[2] Zabini & Zabini [2010] FamCAFC 10
Order 2(a) was the order that provided that the children should live with the father each alternate week from Thursday from the conclusion of school to 6:00 pm Sunday.
On 22 February 2010 the husband filed an Amended Application in which he sought orders for settlement of property between the parties as well as parenting orders.
When the proceedings came back for mention before Kemp FM, his Honour made orders:
a)transferring the matter to my docket;
b)directing the wife to file and serve an Amended Response within 7 days; and
c)referring the parties to a Conciliation Conference before a Registrar.
The Conciliation Conference took place on 6 May 2010 but the property matter did not settle.
The proceedings came before me for mention that same day. The solicitors for the parties told the Court that, notwithstanding the success of the appeal on interim children’s issues, they had agreed that the matter should go directly to a final hearing. A Family Report was ordered under the provisions of s.62G of the Family Law Act and the proceedings were listed for hearing for three days, from 9 to 11 November 2010.
The Family Report, prepared by Mr L, a Regulation 7 Family Consultant, was released on 12 October 2010.
Evidence
The hearing commenced on 9 November 2010. The Applicant husband was cross-examined by Ms Haughton of counsel, for the Respondent wife.
On 10 November 2010 the oral evidence of Ms T, a witness for the Applicant, was interposed.
Orders were made by consent that Dr R be appointed as a single Court Expert witness under the provisions of Division 15.2 of the Federal Magistrates Court Rules 2001 to prepare a report.
The parties also entered into Interim Consent Orders varying the earlier Orders, providing that:
a)The children would live with their father:
i)During school term on each alternate week from Wednesday afternoon after school to Monday morning before school;
ii)On any other day during the school term when the mother was required to work for a 24 hour period;
iii)For the second half of all school holidays;
iv)From 9:00 am on Christmas Eve until 9:00 am on Christmas Day;
v)At other times as agreed between the parties;
b)The children would live with their mother at all other times;
c)The children would live with their maternal grandparents during their time with their mother during the school holidays;
d)Changeovers would occur at school during the school term and at the front gate of the maternal grandparents’ home during the school holidays;
e)The mother was restrained from consuming alcohol at any time when the children were in her care or for 24 hours prior to the commencement of the time.
The proceedings were adjourned to 22 and 23 February 2011 but no evidence was taken on those days.
The hearing proceeded on 14 June 2011. The Applicant’s cross-examination by Ms Haughton of counsel continued throughout the day and into Wednesday 15 June. Counsel for the Independent Children’s lawyer, Ms Clifford, cross-examined the Applicant until Thursday 16 June.
Mr Z, the children’s paternal grandfather, was cross-examined on 16 and 17 June.
The Respondent wife was cross-examined for the rest of Friday 17 June. On that day, further interim Orders were made by consent, varying the earlier interim parenting Orders by providing that:
· Order 1 of the Interim parenting orders dated 11 November 2010 concerning time that the children [X] born [in] 2000 and [Y] born [in] 2003 shall spend with the father is hereby suspended.
· That until the commencement of Term 3, 2011 the children shall spend time with the father as follows:
a) on Wednesday 22 June 2011, commencing from after school until 5:00 pm with the father to return [X] and [Y] to the mother’s home at the conclusion of such time.
b) from after school on Friday after 24 June 2011 to Monday morning 27 June 2011 before school; and
c) for the second half of all school holidays commencing from 6:00 pm Sunday 10 July 2011; and
d) at other times as agreed by the parties.
· That all other orders concerning telephone communication between the children and the parents be suspended and in lieu thereof the children shall be permitted to make telephone calls to the mother when they are spending time with the father and the children shall be permitted to make telephone calls to the father when they are spending time with the mother at any reasonable time.
The matter was adjourned to 13 July 2011 to continue to 15 July.
On 13 July the mother’s cross-examination by Mr Sansom of counsel continued throughout the entire day and was adjourned part-heard until the following morning. Regrettably the matter was not able to proceed during to the sudden illness and hospitalisation of the Federal Magistrate.
The Respondent’s cross-examination resumed on the next hearing day, 18 April 2012. The Respondent was cross-examined by counsel for the Independent Children’s Lawyer on 18 and 19 April.
The Respondent’s father Mr O, the children’s maternal grandfather, gave oral evidence on 19 April and was cross-examined by counsel for the Applicant and counsel for the Independent Children’s lawyer.
The proceedings were further adjourned and resumed on 22 May 2012. The Applicant was subjected to further cross-examination about events that had transpired since the previous hearing.
The Court Expert, Dr R gave oral evidence and was cross-examined on 23 May.
Later that same day, Mr D, the Applicant’s brother, gave evidence and was cross-examined.
On 24 May 2012 the Respondent underwent further cross-examination, as did Dr R. The evidence then concluded and directions were made for counsel for the parties to prepare written submissions.
The Family Report of 12 October 2010
The parties attended on Mr L, a psychologist by profession and a Regulation 7 Family Consultant, for the purpose of the preparation of a Family Report. Mr L interviewed the following:
·Both parents
·Both children
·The maternal grandparents
·The paternal grandfather.
Mr L completed his Report on 9 October 2010 and the Report was released on 12 October.
In his Report, Mr L noted that both children responded to their parents “positively and enthusiastically”.[3] He went to state that:
[3] Family Report 12.10.2010 page 11 at paragraph [26]
It was clear that [Y] and [X] have close relationship with
Mr Zabini and Ms Zabini, and that their maternal grandparents and paternal grandfather are important figures for them.[4]
[4] Ibid
Mr L noted that the children indicated that they have a preference to live with their mother and suggested:
…an arrangement whereby the children live with Ms Zabini and spend substantial time with Mr Zabini…Five or six evenings per fortnight may be appropriate given the quality of Mr Zabini’s relationship with the boys[5].
[5] Ibid page 16 at [41]
The Family Consultant’s recommendation was:
It is recommended that [X] and [Y] spend six days per fortnight time with their father.[6]
[6] Ibid
The Court Expert Reports
Dr R interviewed the parties and the children on two separate occasions for the purpose of preparing Expert Reports.
He interviewed the parents, the children and the mother’s then friend Mr M[7] on 1 February 2011. By this stage, it was apparent that the relationship between [X] and his father had deteriorated. Dr R noted that the father expressed some concern about his relationship with [X], commenting that the relationship had changed since the parties had been to court the previous November and the child now swore at him and abused him.
[7] This is a reference to one Mr M, with whom the mother was in a relationship for a time after separation
In his Report of 12 February 2011, released to the parties on 16 February, Dr R expressed the view that the children had “a close loving relationship with their father” and said that:
They both appeared to have a strong connection with him. I formed the view that he was a capable parent and that he had a great deal to offer the children.[8]
[8] Report of Dr R 16.2.2011 page 14
Dr R said of the mother:
I formed the view that the mother had a close loving relationship with (the children). I believe that the mother has been providing well for the children and that she is dedicated to them. I do believe that she supports the children’s relationship with the father. The children have been developing well in her care.[9]
[9] Ibid page 15
However, the doctor noted that following the breakdown of her marriage the mother had “developed significant alcohol problems with blackouts and excessive amounts of alcohol resulting in intoxication”[10]. He described that situation as “clearly a major concern”.[11]
[10] Ibid
[11] Ibid
Dr R made the following recommendations (summarised):
a)Ultimately, a shared parenting arrangement;
b)That the parents both have individual separate counselling to deal with their issues – drug and alcohol for the mother, trauma and grief from the loss of the marriage for the father;
c)That neither parent denigrates the other in front of the children;
d)That the mother be “very cautious about reintroducing alcohol or prescription drugs, such as benzodiazepines into her life”;
e)If a shared parenting arrangement should prove not to be possible then the father should be the primary carer and the mother should have “substantial contact”;
f)If the mother were to relapse into alcohol use at times of stress then arrangements may need to be made for the care of the children during that relapse;
g)That both parents take part in post separation counselling and positive parenting courses; and
h)If the father were to be unwilling to undertake grief work with regard to the loss of the marriage then it may be necessary for the contact of three days per fortnight to continue.[12]
[12] Report of Dr R 16.2.2011 pages 19 & 20
Dr R interviewed the parents and the children again on 3 April 2012 for the purpose of preparing an updated Report.
Dr R noted the mother’s advice that her relationship with Mr M had recently ended. The mother also told him that despite the order that the children should spend five days a fortnight with their father, [X] had not had contact with his father for four months but [Y] was still attending contact regularly.
Sadly, [Y] told Dr R that he wished that the court case could all be finished.[13] He said that the current arrangement was “OK” and “Good” for him and nothing bad had happened to him. He was reported to have said that “the only bad things happened with [X]”.[14]
[13] Report of Dr R 16.4.2012 at page 6
[14] Ibid
[X] told Dr R that his father was mean to him, not patient, not fun and after a bad day was angry. He said he felt angry with his father. Whilst he said that his father could not change in two years he then added:
“Everyone is capable.”[15]
[15] Ibid at page 7
Dr R noted that the father had undergone grief counselling and psychological treatment since he had seen him previously.
The doctor stated that he had formed the view that [Y] had a close and loving relationship with his father. However, whilst he believed that [X] did have a strong bond with his father:
However, there is a lot of emotional hurt in the child as well as empowerment. I think he is missing his father and that this is hurting him a great deal. He feels responsible for his mother and I believe that he is caught in a loyalty bind and doesn’t want to leave his mother to be with his father.[16]
[16] Ibid at page 11
Disturbingly, Dr R had this to say about a possible outcome:
Should the children remain largely with the mother where [Y] is attending contact on a regular basis but [X] has refused to attend, it’s likely that eventually the relationship between the father and [Y] will become diminished and could also break down. There is great concern that fact that [X] has not been attending and spending time with his father. The longer this time passes the more difficult it becomes for that relationship the more inappropriately empowered [X] remains; there needs to be some opportunity for repair.[17]
[17] Report of Dr R 16.4.2012 page 11
Dr R made these recommendations (summarised):
a)The children should spend five days a fortnight with their father and nine days a fortnight with their mother;
b)In order to re-establish the relationship that [X] and the father both want they should have some “protected enforced time” together, by going away on a holiday for perhaps four weeks with [Y] where they have no contact with the mother in any way, then there should be a regular fortnightly split of five to nine days and half the school holidays;
c)That individual respective counselling should continue;
d)The mother and father should not use any alcohol or drugs, particularly the mother;
e)Therapy with Ms B should continue “and the decider should not be [X]”.[18]
[18] Ibid pages 13-14.
Dr R set out in paragraphs 5 and 6 of his recommendations on page 14 of his Report why he felt that there was a need for protected enforced time between [X] and [Y] was necessary to re-establish [X]’s relationship with his father. These two paragraphs are at the core of the recommendations and, for that reason, are set out in full:
5. In order to ensure that [X] attends contact with the father, I don’t believe that a transition plan or therapy between the two of them is likely to determine success. I believe that some time and privacy, and lack of ability (for) the child to run back to the mother will be necessary. This will require some coordination between the parents who need to become empowered parents. The mother and father need to be able to skilfully cooperate with each other to ensure that this happens as [X] will not relinquish his powerful position at first voluntarily. It’s important that eventually the children resume a plan to restore the balance where the two of them are attending contact together so that there is no difference between them. I believe that parentification is still an issue that [X] is struggling with and that the mother’s been distracted. Therefore, it’s important for the parents to take strong measures to now place themselves back in a position of power and authority for the children’s welfare.
6. In essence, I believe that both parents are well intentioned and I believe that both parents have made some significant progress in their emotional and psychological issues over the past 12 months. The challenge however is that [X] still remains parentified. He appears to have less separation anxiety but he is still I believe, overly concerned about the mother’s wellbeing. There may have also been some concern about the mother’s relationship with
Mr M and the potential instability (of) that relationship. If [X] runs home the mother would need to return the child or leave him there for perhaps four weeks. Another consideration may need to be that the father move further away from the mother to prevent [X] leaving. The long term risk of [X] not seeing the father is that the relationship with [Y] will break down and that the father will be alienated from both children which would be very damaging for these children. Should these interventions be unsuccessful I would recommend that the children reside exclusively with the father for a period of three months with no contact with the mother and then introduce contact gradually.[19]
[19] Report of Dr R 16.4.2012 page 14
In his oral evidence on 23 and 24 May 2012, Dr R said that he was still of the view that the situation could be managed. He spoke of establishing an arrangement where both boys would spend nine nights each fortnight in their mother’s care and five nights in their father’s care. This should probably be block time because of the difficulties in [X]’s separating from his mother.
Dr R said that there had been a deterioration in [X]’s relationships with both parents. He said that he was also concerned about [Y].
The doctor said that there had been a shift and [X] has become empowered. He makes all the decisions and the parents react. There is a danger that this will affect his relationships in the future.
If [X] loses his relationship with his father he could become resentful towards his mother. He is very confused but he criticises his father for not paying enough attention to him. All three of them, the mother, the father and [X] are at a loss to find a solution to the problem.
Dr R said that both of the boys should travel together.
The doctor was asked by counsel for the Independent Children’s Lawyer for his suggestions for a reconnection between [X] and his father. He said that the cause of the child’s reluctance to spend time with his father initially started with separation anxiety. He was reluctant to leave his mother because he saw her as unwell. He is now used to deciding what happens in his life. He and the father need some “protected enforced time together”.
Dr R said that the parents rely too much on what [X] says and does rather than taking a step back and putting the children into a situation where they can be children.
The father has withdrawn from [X]. The mother listens to the child’s every word.
The doctor said that he had come to the conclusion that there probably needed to be a longer block period of time for [X] and his father. There would need to be rigid and enforced parameters set by the Court. He was of the view that the protected enforced time between the father and [X] should be for four weeks.
In the long term, if shared parenting were not possible, then the boys should be put into the primary care of their mother. Dr R departed from that view on the second day of his cross-examination, conceding that if the Court were to make certain findings about the mother as put to him by Dr Sansom, then the Court should consider a change of primary care for the boys.
It should be put to the children that they are not in charge of the parents or of their own lives. The risks are high for these children if the current arrangements continue. There is a risk that the two boys would lose their relationship with their father. He said that the current arrangement of [X] not seeing his father is a doomed one.
Counsel for the father put to Dr R that the father had proposed a three week block of time with him but the mother had not responded. Dr R said that it would be “a shame” if the mother did not accept that proposal.
Further, it was put to him that if the Court were to make an order that both children were to spend a block period of time with the father and were told of this by the mother, [X] would be resistant. Dr R suggested that Ms B might be appropriate. He said it would need to be managed in a way that supported [X] but too much preparation would enable [X] to become empowered.
In answer to cross-examination by counsel for the mother, Dr R said that clearly [X] loves his father, which was why it did not make a lot of sense that he did not want to spend time with him. He reiterated that [X] was a very empowered child who was controlling the family. It is important that [X] should not be given an opportunity to exercise his power by subverting what the adults have decided for him.
Orders Sought
The orders sought by the Independent Children’s Lawyer are contained in a Minute attached to the submissions of the Independent Children’s Lawyer.
They are as follows:
1. That all previous parenting orders regarding the children [X] born [in] 2000 and [Y] born [in] 2003 (herein after referred to as “the children”) be and are hereby discharged.
2. The parties shall have equal shared parental responsibility for the children.
3. That the children shall live with the father as follows:
a) From the date of these orders for a period of twenty eight consecutive days during which period the mother’s time with the children shall be suspended; and
b) During that period in Order 3a) the father shall be permitted to spend at least 21 days of that period at any other holiday location within Australia; and
c) After the conclusion of the period referred to in Order 3a) of these orders the children shall live with the father at all times unless they are spending time with the mother as referred to in these orders.
4. That for the purpose of implementing Order 3a) of these orders the mother and father shall:-
a) make appropriate arrangements with the assistance of
Ms B Psychologist for the mother to deliver [X] and [Y] to the father at the father’s residence at the commencement of Order 3a) unless otherwise agreed.[20]
[20] Sic – the Minute does not include a proposed Order 4 b)
5. That for the purpose of implementing these orders the parties shall be required to do the following:
a) The father shall continue to liaise with Ms B, Psychologist, should he require assistance with parenting issues, during that period and subsequent to that period in Order 3 of these orders, including participating in family therapy with [X] and [Y] during the period referred to in Order 3a) of these orders; and
b) The mother shall attend any family therapy sessions with Ms B and the father during the above period when requested to do so by Ms B;
c) The father shall pay all fees for himself and the children when attending family therapy with Ms B and where the mother and father attend any joint sessions of family therapy the parties shall each pay one half of the fees for
Ms B.
6. The children shall spend time with the mother as follows:
a) For a period of two calendar months commencing on the first weekend after the conclusion of the twenty eight day period referred to in Order 3 of these Orders on each weekend from Saturday at 10am to Saturday at 2pm; and then
b) For a period of two calendar months commencing on the first weekend after the period referred to in Order 6a) of these orders on each weekend from Saturday 9am until Saturday at 5pm; and then
c) For a period of two calendar months after the period referred to in Order 6b) of these orders on each alternate weekend from Saturday 9am until Sunday 4pm
d) For a period of two calendar months after the period referred to in Order 6d) of these orders on each alternate weekend from after school Friday until Sunday 4pm;
e) For a period of two calendar months after the period referred to in Order 6c) of these orders on each alternate weekend from after school Friday until before school Monday;
f) Thereafter, upon the conclusion of the period referred to in Order 6e) from after school Wednesday until before school Monday;
g) After the completion of the period referred to in Order 6e) for the first half of all school holidays at the end of Terms 1, 2 and 3 of each school year commencing from the school holidays 10:00am on the first Saturday of the school holidays until 5:00pm the Second Saturday of the school holidays;
h) For two consecutive weeks (14) days in the Christmas/new Year school ho9lidays commencing at 10:00 am on Christmas Eve and ceasing at 5:00pm commencing Christmas Eve 2013 and each even numbered year[21] thereafter.
[21] sic
i) For three consecutive weeks (14) days commencing 10:00 am on 26 December 2014 and each alternate year thereafter.
j) From 9:00am to 5:0opm on Mother’s Day where the children are not otherwise with the mother on that day.
k) At any additional times as agreed between the parties.
7. For the purposes of Order 3a) above:
a) The father is hereby restrained from permitting the children to make any telephone calls to the mother for the duration of that period in Order 3a) of these orders, and shall ensure that the children do not retain any mobiles in their custody for their private use during this period; and
b) the mother is hereby restrained from making any telephone calls to the children or to the father or tot the children’s schools during (the) period in Order 3a) of these orders; and
8. On commencement of arrangements pursuant to Order 6 of these orders the mother shall collect and deliver the children:
a) on school days from and to their school at the commencement of and end of her time with the children;
b) on non-school days from the father’s residence at the commencement of her time with the children;
c) the father shall collect the children from the mother at her residence on non-school days at the end of her time with the children.
9. The father shall advise and continue to advise the mother of the details of all soccer events and other extra curricular events in which the children may participate including but not limited to the children’s musical activities or sporting activities that the children must attend.
10. The mother shall have telephone communication with the children as follows, save as otherwise specified in Order 3 and 7 of these orders:
a) On Wednesday of each week at any time between 6:00 pm and 7:00 pm on the mother to telephone the children on the father’s mobile or a mobile contact number or landline number provided for that purpose and the father or his nominee shall make the children available to speak to the mother and shall ensure that the father’s telephone contact numbers are turned on at that time.
b) On the children’s birthdays when their birthdays do not fall on a weekend the children are spending time with the mother, the mother may telephone the children between the hours of 8:00 am and 8:00pm and the father shall ensure that his mobile phone number and any relevant contact telephone numbers are switched on and the children are available to take the mother’s call at any time during that period.
11. The father shall, save as specified in Order 7 of these orders, permit the children to telephone the mother at any reasonable time, and no later than 8:00 pm on any day the mother is not spending time with the children.
12. The children shall, save as specified in Orders 4 and 5 of these orders, be permitted to make telephone calls to the father when they are spending time with the mother at any reasonable time and no later than 8:00 pm, other.[22]
13. In the event that either child is admitted to hospital suffering illness or injury the parent having care of the child at that time shall immediately advise the other parent and provide the other parent with the details necessary for him/her (to) make contact with the treating medical team.
14. The mother is permitted, upon the expiration of Order 6a) of these orders to contact the children’s schools and to provide the schools with her contact details so that she can obtain reports, photographs, copies of any correspondence or newsletters or other written material produced by the school which would normally be distributed to the parents or which relate to the children and their school activities.
15. Upon the expiry of the period referred to in Order 6a) of these orders the mother shall be permitted to attend all events involving (the) children including:
a) sporting fixtures;
b) extra curricular activities that allow for parental attendance;
c) school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, and social functions;
[22] sic
And the parent who has the children in their care on the day of such activity referred to in Order 16 of these orders will be responsible for their day to day care at such event and the children’s transportation to and from that event.
16. That the parents shall communicate all arrangements for the children in writing, including SMS and email and shall, where possible, ensure that communication is limited to arrangements for the children.
17. That neither party shall discuss these court proceedings with the children directly, or with other third parties (including family members) in the presence or hearing of the children, and where other persons discuss these proceedings in the hearing or presence of the children, the party who has the care of the children on any such occasion shall immediately remove the children from that location where such discussion may be taking place.
18. That each parent is hereby restrained from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party shall do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children and shall immediately remove the children from the vicinity where any person is making such remarks.
19. That each parent shall advise the other parent and keep the other parent advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and shall advise the other parent of any changes to these details prior to any such change and no later than 24 hours of such changes occurring by email, SMS or in writing.
20. That each parent is hereby restrained from physically disciplining the children and shall not permit any other person to physically discipline the children.
21. That the mother shall not drink alcohol whilst the children are in her care.
22. The mother and father are hereby restrained from taking the children to any domestic violence counsellor, family therapist, social worker, family support service or any organisation or person/s providing therapy or counselling for adults or children or to any of the mother’s or father’s treating psychologists or psychiatrists or to any counsellor on whom they may attend from time to time, other than Ms B, psychologist or to any psychologist/s or therapists to whom the parents and children may be referred by Ms B.
23. That within seven days of the date of these orders the Independent Children’s Lawyer shall provide a sealed copy of these orders to the Principal, [O] School and the father shall provide a sealed copy of any final parenting orders to the Principal of any High School which [X] may attend in 2013.
The parenting orders sought by the father are contained within the Submissions of the Applicant Husband under the heading Parenting Orders now sought by the Husband.
Counsel for the father makes it clear that the orders now sought by the father have been amended following the evidence of Dr R. The Court was referred to the decision of the High Court of U v U[23], where it was said that:
There will however also be cases, and not a few of them we suspect, in which it will be simply not possible for a Judge to adopt exclusively or perhaps even substantially, a proposal by a party. In such a case the final order will evolve out of the evidence as it emerges, and submissions as they are developed. Indeed almost in terms the Appellant herself acknowledges this to be so…[24]
[23] [2002] HCA 36; (2002) 29 Fam LR 74; FLC 93-112
[24] (2002) 29 Fam LR 74 at [70] per Gummow and Callinan JJ
Accordingly, the father now seeks orders in these terms:
1. That the parties have equal shared parental responsibility for the children [X] born [in] 2000 and [Y] born [in] 2003 (“the children”).
2. That the children live with the Father.
3. That the children spend time with the Mother as follows:-
3.1 That the Mother’s time with the children shall be suspended for a period of 28 days, such period to commence on a date being no later than 48 hours from the date of these orders, and the Mother shall have no contact with the children over this 28 day period.
3.1.1 The Court NOTES that the Father will take the children on a holiday for the duration of this 28 day period, within Australia.
3.2 For a period of 2 calendar months following the expiration of the 28 day period pursuant to paragraph 3.1 herein, from 9am to 5pm Saturday and 9am to 5pm Sunday every alternate week, such time to commence the first Saturday following the expiration of the 28 day period.
3.3 At the expiration of the period of 2 calendar months referred to in paragraph 3.2 herein, and for a period of 2 calendar months thereafter, from 9am Saturday to 5pm Sunday every alternate week.
3.4 At the expiration of 2 calendar months referred to in paragraph 3.3 herein, and for a period of 2 calendar months thereafter, from after school Friday to before school the following Monday in every alternate week.
3.5 At the expiration of the period of 2 calendar months referred to in paragraph 3.4 herein, and thereafter:-
3.5.1 From after school Wednesday until before school the following Monday in every alternate week.
3.5.2. For one half of each school holiday period as agreed between the parties and failing agreement for the first half of each school holiday period.
3.5.3 For one half of the Christmas holiday period as agreed between the parties and failing agreement:
3.5.3.1 For the first half of the Christmas holiday period which commences in an even numbered year and the second half of the Christmas holiday period which commences in an odd numbered year.
3.5.4 That the time the children spend with the Mother pursuant to these orders shall recommence after the Christmas holiday period on the second complete weekend after the commencement of the new school term in the odd numbered years and the first complete weekend after the commencement of the new school term in the even numbered years.
3.6 From 9am until 7pm on Mother’s Day in each year if the children would not otherwise be spending time with the Mother pursuant to these orders on such day.
3.7 During Christmas holiday period as follows:-
3.7.1 From 9am Christmas Eve until 9am Christmas Day in the year 2013 and each alternate year thereafter;
3.7.2 From 9am Christmas Day until 7pm Boxing Day in the year 2012 and each alternate year thereafter.
3.8 At all such reasonable times as may be agreed between the parties.
4. That the Mother’s time with the children pursuant to order 3 above shall be suspended from 9am until 7pm on Father’s Day.
5. That for the purposes of order 3.5.2 the following will apply:-
5.1 School holiday periods are defined to commence at 5pm on the last day of the relevant school term for New South Wales and to conclude at 5pm on the Sunday immediately preceding the commencement of the next school term for New South Wales.
5.2 Changeover is to occur at 12 noon at the Father’s residence on the mid-point day between the first and last day of the defined school holiday period.
5.3 In the event that there are two consecutive “mid-point days”, then changeover is to occur at 12 noon at the Father’s residence on the first of those two “mid-point days”.
6. That, in respect of changeover, the following shall occur:-
6.1 Where the commencement or conclusion of the Mother’s time with the children is to occur whilst the children are at school in accordance with these orders, the Mother shall collect the children from their school or schools as they may attend from time to time at the commencement of the children’s time with the Mother, and the Mother shall return the children to their school or such school as they attend from time to time at the conclusion of their time with the Mother.
6.2 In all other circumstances provided by these orders, changeover is to occur by agreement and failing agreement, the Father shall deliver the children to the Mother’s residence at the commencement of the children’s time with the Mother, and the Father shall collect the children from the Mother’s residence at the conclusion of their time with the Mother.
7. That each party inform the other, in writing, of any change to his or her residential address not less than 7 days prior to such change occurring and of any change to his or her contact telephone within 7 days of such change occurring.
8. That both parties be permitted to take the children out of Australia on holidays for no more than a period of 4 weeks provided that:-
8.1 They give the other parent:-
8.1.1 A copy of the travel itinerary for the children.
8.1.2 A copy of the return airline ticket for the children.
8.1.3 A telephone number on which the children can be contacted whilst away from Australia.
9. That each parent shall permit, not prevent or interfere with, and do all things necessary to facilitate the children making telephone calls to and receiving calls from the other parent whilst in the care of the other parent, subject to paragraph 3.1 herein.
10. That both parties ensure the children have piracy during telephone conversations with the other parent and ensure the telephone is not placed on loud speaker.
11. That each party do all acts and things necessary so as to continue to cause the children and themselves to attend family therapy with Ms B (“Ms B”), and that they shall each meet half the costs of the family therapy.
12. That Ms B, in addition to order 11, be appointed to facilitate and supervise the implementation of these parenting orders (and in particular, but not limited to, paragraphs 3.1 to 3.4 herein), and that the parties shall:-
12.1 Be granted leave to provide Ms B with a copy of these orders, and the family reports of Dr R dated 16 April 2012 and 16 February 2011.
12.2 Each meet half the costs associated with Ms B’s appointment in accordance with paragraph 12 herein; and
12.3 Cause themselves or either of them with or without the children, or cause the children or either of them without the parents, to attend upon Ms B from time to time as may be determined by Ms B, for this purpose.
13. That each party notify the other as soon as reasonably practicable of any accident or emergency involving the children which involves medical treatment or hospitalisation whilst the children are in their respective care.
14. That the parties be restrained from changing the children’s usual place of residence to any place outside the Sydney Metropolitan area.
15. That both parties ensure the children attend all extracurricular activities in which they are currently enrolled, including training, games and presentations whilst the children are in their respective care and neither party shall enrol the children in any further extracurricular activity without first obtaining the approval of the other parent.
16. That both parties be restrained from physically disciplining the children.
Counsel for the mother did not provide a minute of proposed orders with her submissions, although it is clear that the mother opposes the orders suggested by counsel for the Independent Children’s Lawyer and counsel for the father. However, it is strongly submitted by counsel for the mother that putting [X] in his father’s care would be “a recipe for disaster for not only [X], but also his father”[25]. Further, counsel for the mother has submitted that:
… if the court were to place the children in the primary care of the husband, he will not be able to cope with the care of the children and given the attitude [X] has towards his father, it is submitted that it is almost inevitable that there will be further proceedings.[26]
[25] Wife’s Parenting Submissions page 41 at paragraph 16
[26] Wife’s Parenting Submissions page 60 at paragraph (l) 1.
The mother set out the final parenting orders that she sought in her Amended Response filed on 18 March 2010.
Those proposed orders are:
20. That the child(ren) of the relationship namely [X] born [in] 2000 and [Y] born [in] 2003 live with the mother.
21. That the parties have shared parental responsibility for long term care, welfare and development of the children.
22. That each party be solely responsible for the day to day welfare and development of the child(ren) whilst the child is (sic)[27] in each party’s care.
[27] Children are?
23. That the child(ren) spend time with the father as follows:
a. Each alternate weekend from after school on Friday until 4:00pm Sunday, unless the father is travelling for work and therefore such time will end at 12:00 noon on Sunday.
b. On Father’s Day from 9:00 am on Father’s Day until 4:00pm unless the children are otherwise spending time with him.
c. One week during each NSW School Holiday period provided that the father gives the mother at least one months notice of which week he proposes to have the children, as agreed between the parties and failing agreement in the first week of school holidays in even numbered years and the second week of school holidays in odd number (sic) years.
d. For one half of each Easter period, being from Good Friday until Easter Sunday in odd numbered years and from Easter Saturday until Easter Monday in even numbered years unless otherwise agreed between the parties.
e. During the Christmas period being Christmas Eve until Boxing Day as agreed between the parties and subject to family gatherings that may be scheduled during that time.
f. At any time by telephone.
g. At other times as agreed between the parties in writing.
24. That the father’s time with the children shall be suspended on Mother’s Day each year from 9:00am until 4:00pm on Mother’s Day should the children be spending time with the father.
25. That for the purpose of the father spending time withy the children the parties shall meet at a midway point between their residences as agreed and failing agreement at the McDonald Family Restaurant [address omitted].
26. That the parties are hereby restrained from physically chastising the children or allowing any third party to do so.
27. That the father have liberal and flexible telephone contact with the child[28] whilst in the care of the mother, provided however, that the mother shall also have liberal and flexible telephone contact with the child[29] whilst in the father’s care.
[28] sic
[29] sic
28. That neither party shall remove the children from the State of New South Wales or the Commonwealth of Australia with[30] the prior written consent of the other parent or an Order of the Court provided such consent shall not be reasonably withheld in the event that either party wishes to take the children on interstate holidays, provided that the party wishing to take the children on the interstate or international holiday provides the other parent with an itinerary in respect of the same, including details of flights as applicable, accommodation at which the children will be staying whilst interstate and telephone details at which the children can be contacted.
[30] Sic – presumably “without”
29. For the purpose of Order (2)8 above, each party notify the other if they intend to take the children interstate or overseas by giving at least 4 weeks notice to the other party.
30. That whilst the child(ren) are in their respective care, the parties shall advise each other as soon as reasonably practicable of any major medical issues involving the child(ren) and each party shall keep the other properly informed of any required medical treatment or medication required in relation to the child(ren) and the parties shall ensure the proper administration of such medications and treatments is performed by them.
31. That the father be at liberty to contact the child(ren)’s school from time to time, organisations pertaining to sports the child participates in from time to time, and health organisations or professionals the child is associated with for the purposes of obtaining copies of reports, notices or other such communications regarding the child(ren) or events in which the child is (children are) to be involved.
32. That the mother provide to the father details of all specialists appointments, at least seven days prior to the appointment and provide all consents necessary for the father to attend the appointment and discuss the child’s medical condition with a relevant Medical Practitioner or Specialist.
33. That each party take the child(ren) or ensure that the child attends (children attend) their sports training sessions, weekend games and all social activities in which the child is (children are) enrolled during the period that the child is (children are) in their respective care.
34. That the parties shall keep each other advised in writing of their current residential address and current phone numbers.
35. That neither party denigrate the other in the presence of the child(ren) and shall use their best endeavours that no other person does.
36. That neither party discusses these proceeds[31] with the children or in their presence and hearing and shall remove them from the presence or hearing of any third person who does so.
37. That the father undertakes a parenting after separation course aimed at providing him with alternative disciplining methods and shall object[32] any reasonable direction from the course provided to complete the course satisfactorily.
38. (not relevant).
[31] Sic – presumably “proceedings”
[32] Sic – presumably “subject himself to”
Submissions
As directed, the parties filed written submissions. The submissions of the Independent Children’s Lawyer, unsurprisingly, dealt only with parenting issues, but the submissions of from counsel for the husband and the wife dealt with both parenting and property issues.
This decision deals solely with the parenting issues, which took up the major part of the evidence. A decision on the property issues between the parties will be delivered in the near future.
Submissions of the Independent Children’s Lawyer
The submissions of the Independent Children’s Lawyer were filed on 11 July 2012. In those submissions, the Independent Children’s Lawyer set out a number of relevant findings based on the evidence. Those findings, in summary, are that:
a)As of 12 October 2010, according to the Family Report of that date by Mr L, the children were stable children who had a substantial relationship with both parents;
b)The mother believed at that time that the children had a close relationship with their father and he loved them;
c)At that time the children benefited from having the relationship with each parent maintained;
d)From at least January 2011 the elder boy, [X], was unable to maintain a close relationship with his father;
e)The absence of that formerly close relationship with his father has caused [X] distress and emotional harm and if “left unremedied will continue to cause him significant emotional harm in the future;[33]
f)The ongoing absence of a close relationship between [X] and his father is a risk factor for the ongoing relationship between [X] and his mother during his adolescence;
g)There is a significant risk that the close relationship between [Y] and his father may follow the same path as that of [X] and his father;
h)It remains in the children’s best interests that they have regular contact with each of their parents to maintain their close relationship with each parent;
i)On the evidence the father is capable of and willing to care for the children appropriately and he recognises that he and the children will continue to require professional assistance in restoring his relationship with [X];
j)“On the evidence the Court cannot be satisfied that the Mother has demonstrated that she is capable of supporting and facilitating the children’s ongoing relationship with the Father”.[34]
[33] Submissions of the Independent Children’s Lawyer (ICL) 11.7.2012 at page 3, citing the first Expert Report of Dr R at page 9 and Dr R’s oral evidence on 23 May 2012
[34] Citing the mother’s evidence in cross-examination by counsel for the ICL on 24 May 2012
Should the Court makes finding in accordance with those set out in the above paragraph, the Independent Children’s Lawyer submits that the parenting arrangements most likely to be effective in restoring the important parent-child relationships are those that would provide for:
·A “protected” block of time between the two children and their father;
·A change in their primary care
·The provision of ongoing support and assistance for the children, the father and the mother from Ms B, the psychologist.
If, however, the Court were not to make a finding of satisfaction that the mother has demonstrated that she is capable of supporting and facilitating the children’s ongoing relationship with their father, it is submitted that the Court should still make orders that would provide for:
·A “protected” block of time with their father
·The children should live primarily with their mother
·The provision of ongoing support and assistance for the children, the father and the mother, from Ms B.
The basis for this submission comes from the recommendations of
Dr R in his later Report, released on 16 April 2012.
It was submitted that none of the alternatives available in this matter are ideal and each of them contains significant risks for both children. However, the Independent Children’s Lawyer cites the incident that occurred early in the morning on 5 May 2012 when [X] called his father to pick him up from his mother’s home and then went back to his mother’s home as illustrative of the escalating severity of the problems for [X] under the current circumstances. The submission goes at paragraph 10:
On any view of the evidence, by the conclusion of that chaotic event, [X] was in tears walking the streets after 4am, having been authorised to make all the adult decisions for both households. At eleven years of age and applying that level of maturity, [X] had decided to leave his Mother’s care in the early hours of the morning and go into his Father’s care. So that is what occurred. He then decided it was appropriate in the early hours of that morning to then return to his Mother’s care. So that is what happened. The father’s involvement of the Police meant that [X] was interviewed upon his return home and it was [X] who was left in the impossible position of having to explain his behaviour to a police officer. On his mother’s evidence. [X] was not able to tell the truth in that situation. As neither of his parents seemed able to understand his behaviour and assist him that morning, it is not surprising that [X] was not able to do so on his own.[35]
[35] Submissions of the ICL pages 4 & 5 paragraph 10
It is also submitted by the Independent Children’s Lawyer that the orders sought are proposed on the basis that the Court finds that there is no risk of abuse or physical harm to the children in the Father’s care.
The Independent Children’s Lawyer justifies the proposal to change the children’s primary care to the father by submitting that:
…on balance, the change in living arrangements proposed by the Independent Children’s Lawyer is warranted in this matter given the significant, lengthy and ongoing deterioration in the children’s formerly close relation with the Father while in the care of the Mother. It is submitted that the Mother presented as a caring and loving mother but one who was overwhelmed in her circumstances. Unfortunately, she remained unable to display the ability to manage her own distress and fears sufficiently so as to assist [X] with his fears, thus leaving [X] with no choice but to assume the responsibility for both of them for which he is, understandably, ill-equipped.[36]
[36] Ibid page 5 paragraph 12
The Independent Children’s Lawyer submits that the orders sought will be in the children’s best interests, noting the evidence in these proceedings and in particular the evidence of Dr R.
The Submissions of the Independent Children’s Lawyer refer the Court to the provisions of sections 60B, 60CA, and 60CC of the Family Law Act, all of which I have read.
The Independent Children’s Lawyer also stated in her submissions that she noted the submissions on behalf of the Father in relation to the parties, their witnesses and issues of credit found on page 6 paragraph 12 (and following) of the submissions.
Submissions of the Applicant Husband
The submissions of the Applicant Husband were filed on 14 June 2012. After giving a history of the litigation and setting the orders sought, counsel for the Father makes detailed submissions about the parties, their witnesses and the issue of credit.
He referred the Court to the provisions of s.69ZT of the Family Law Act, which provides that certain provisions of the Evidence Act 1995 do not apply to child-related proceedings. Mr Sansom noted that the proceedings before the Court related to both parenting and property issues. Division 12A of Part VII of the Family Law Act applies to the parenting issues.
It was contended that the Court would either apply the relevant provision of the Evidence Act (in accordance with s.69ZT(3) or find, in the event that the provisions of Part 3.7 of the Evidence Act are said not to apply that in any event the credibility of a witness is an important matter that needs to be considered.
Mr Sansom referred to the evidence of various witnesses and to the weight that should be given to their evidence.
Mr Sansom submitted that the father had been extensively cross-examined, as would be expected in a case running over so many days. It was contended that the father generally gave his evidence in a responsive and forthright manner, notwithstanding some “odd quirks” in relation to the way in which he answered a question, “such as for example answering questions to Counsel with the beginning “Madam” and then going on to answer those questions”.[37]
[37] Submissions of the Applicant Husband page 9 paragraph 20
Counsel for the father submitted that in relation to the father’s evidence:
a)he was not at all critical about the mother’s capacity to protect or advance the children’s welfare;
b)he was able to make concessions when they were appropriate, such as his agreement to a question by counsel for the Independent Children’s Lawyer that when he took off his belt to threaten to chastise his then five year old son, although he had no intention of actually doing so, the child would not have been aware of that; and
c)he showed an ability to realise his own shortcomings, which ultimately the mother could not.
It was submitted that the boys’ paternal grandfather, Mr Z, gave straight forward and credible evidence, even though his grasp of English was “far from perfect”. He was unshaken under cross examination by counsel for the mother.
Mr Sansom submitted that the father’s brother, Mr D, whose evidence was within a fairly narrow scope, gave that evidence in a forthright and credible manner.
Ms T, the Finance Director of the father’s employer, gave evidence about the father’s ability to work from home, as long as he was contactable. Her evidence was described as unshaken by cross-examination, even though she was cross-examined “forcefully”.
It was submitted that the mother was a witness who, despite her obvious intelligence, showed herself to be lacking in insight as to her children’s real needs, particularly their emotional needs. Further, it was contended that the mother often used the witness box to answer, not the question asked, but the question she wanted asked. Thus, she often made speeches in order to justify her position.
Counsel for the father submitted that the mother’s evidence about when she made the actual decision to separate from the father showed that she took every opportunity not to answer the question but to justify herself by some additional, uncalled for, denigration of the father.
Further, it was submitted that when the mother, when seeking admission into hospital on 9 August 2010, whilst being interviewed by a Dr F exaggerated her condition as to the serious issue of her plans accompanying her suicidal ideation so as to have the hospital staff take her more seriously.
Again, counsel for the father submitted that the mother admitted that she had lied to officers of the (then) NSW Department of Community Services (DOCS) about the father’s methods of disciplining the children.
Counsel for the father submitted that the evidence of the children’s maternal grandfather, Mr O, was “simply unbelievable. As an example, it was submitted that he was quick to make an allegation in his affidavit that the father had locked the children in a car on his property on a hot day as a punishment, but when challenged on the detail in cross-examination could not explain whether the children were locked in the car or not and gave answers that were “simply not credible”.
Counsel for the father submitted that a critically important time in these proceedings had been reached in the lives of the children:
Under the auspices of his Mother’s parenting [X] is no longer spending time with his Father and [Y] is in recent times becoming resistant to doing so.
The relationships of both parents (the Father now and in the longer term – and the Mother in the longer term) and the children are at real risk. And so too are both children’s long term emotional welfare at risk.[38]
[38] Submissions of the Applicant Husband page 17 at paragraph 71
Importantly, Mr Sansom submitted that whereas at the commencement of his evidence in cross-examination by counsel for the Independent Children’s Lawyer, Dr R was still supporting the recommendations within his second report that there should be a nine versus five split between the parents together with half the school holidays after the period of “enforced protected time”, he changed his position through subsequent cross-examination.
It was submitted that the Transcript of the proceedings on 23 May 2012 gives these exchanges in Mr Sansom’s cross-examination of Dr R:
Can I make this suggestion, Doctor, that whilst you might have all the goodwill in the world, at this stage the mother hasn’t shown, so far as you’re aware, an indication that there has – there is needing to be, as you put it – go back to your – an acceptance that the father is a good enough parent? ---It would appear that’s the case with – well, with [X], anyway.
Until that occurs, there can be, in my suggestion to you, Doctor, little hope for the children having a meaningful relationship wit their mother and their father?---Correct.
…
So when you’re weighing up the competing factors, Doctor, as you sit here now, can I make the suggestion that an arrangement which leads to a 9/5 or thereabouts split of time in favour of the father, preceded by a block holiday – call it that. I keep forgetting your earlier phrase, “protected ---“?---I tried to be a little bit over-inclusive, I think. Yes.
“---time”, which itself follows my client going to Ms B’s offices and taking the children, is, in my suggestion to you, the best way forward for these two little boys?---Well, I think if his Honour is of the view that the mother is not emotionally capable of separating out her need to respond to [X] at a childlike level, or whether she’s – if she is able to respond more at a parental level, then if she’s not capable of that, then I would agree that it would be better, as you suggest. If his Honour is of the view that she is quite capable, then I would follow my original recommendation.[39]
[39] Submissions of the Applicant Husband at page 18 paragraph 74 (citing pages 127-129 of the Transcript 23/5/2012)
Counsel for the father submitted that the mother’s evidence on the following day, 24 May 2012, clearly shows that she does not have such a capacity and her views have not changed. He submitted that she still accepted [X]’s complaint that his father did not comfort him in his distress, notwithstanding that [X] may have been telling her something that was not literally true regarding his father.
Mr Sansom submitted that this exchange in his cross-examination of the mother at page 180 of the Transcript of 24 May 2012 gives a stark illustration of her deficits in this area:
You’re not even willing to give Mr Zabini the benefit of that doubt are you? ---No. To me, to comfort – comforting your son is fundamental – when your son is distressed, you would hug them.
Yes. And Mr Zabini is a man who you say should share with you equal shared parental responsibility, and yet you think that he is capable of not carrying out that fundamental parental requirement of affording your son comfort? ---I hope that he will get the help that he requires and – not just for the grief, but also for the anger and that once the court case is over, there will be some change in that area, otherwise I do have concerns that I have expressed before.[40]
[40] Submissions of the Applicant Husband at page 19 paragraph 77 (citing page 180 of the Transcript of 24/5/2012)
The Submission then addressed the primary considerations under subsection 60CC(2) and the additional considerations under subsection 60CC(3) of the Act.
When considering the matters in paragraph (l) of subsection 60CC(3), Mr Sansom submitted, in what can be considered a summary of the submissions on behalf of the father:
…When one is weighing these competing factors or considerations and given the importance of the maintenance or development of a long term meaningful relationship between the children and both of their parents if orders can’t be made which preclude the institution of further proceedings then in those circumstances (although not desirable) the Court should it is contended err on the side of making orders which will enable the children to have such a meaningful relationship.[41]
[41] Submissions of the Applicant Husband at page 27 paragraph 104
Submissions on behalf of the Mother
The Submissions on behalf of the Respondent wife as to both property and parenting issues were filed on 2 August 2012. Part II of the Submissions is headed “Wife’s Parenting Submissions”.
The Submissions refer the Court to the matters set out in sections 60CA, 60CC, 61DA and 65DAA of the Family Law Act.
Counsel for the mother then addresses each of the considerations in subsections 60(2) and (3) of the Act.
As to the primary considerations in s.60CC(2), Ms Haughton submits that the father has throughout the majority of the proceedings maintained that unless he had the children for 50% of the time he could not have a meaningful relationship with them, yet he had since taken the view that the children do not need to spend at least 50% of the time with their mother in order to maintain their relationship with her.
The submissions consider in some depth the matters in s.60CC(2)(b), the need to protect the children from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
It is conceded that the mother has in the past had “vulnerabilities associated with alcohol abuse”[42]. Reference was made to the mother’s voluntary admission to [omitted] Hospital in August 2010, “with no plan for suicide”, but with a “mental and behaviour disorder due to the use of alcohol” and a “reaction to severe stress”.[43]
[42] Mother’s Parenting Submissions page 26
[43] Ibid
However, it is submitted that, apart from one subsequent incident, the mother has since maintained her sobriety and wellbeing.
Counsel for the mother submitted that Dr R-bell’s opinion that [X] may have concerns about his mother’s vulnerability does not reflect the history of the matter, noting Mr L’s report that on 3 October 2010 [X] said that he was happy to spend additional time with his mother.
Ms Haughton submitted that:
a)There is no evidence that the children have suffered any detrimental effect from the periods when the mother has had personal difficulties;
b)It is uncontroversial that the children are happy and settled in their mother’s care;
c)The father has at times been short tempered with the children;
d)The events that occurred between [X] and his father during the five days from 17 to 22 November 2010 that caused the significant fracture in their relationship.
It is strongly submitted on behalf of the mother that forcing [X] to spend time with his father against his wishes, let alone moving to his full-time care, “will inevitably lead to disaster”.[44] The father has not been able to effect any reconciliation with [X], despite months of counselling by Ms B, and has not even attempted to do so.
[44] Mother’s Parenting Submissions page 28
Counsel for the mother submits that the children should remain in the primary care of their mother. The mother does not support the proposal for the “holiday” for [X] and [Y] with their father, even if [X] were to agree to go, and submits that there is no evidence that this proposal will result in the father changing his attitude to [X].
Further:
It is submitted that as the mother can’t make [X] stay with his father and neither can his father, Dr R’s assessment that there is still “parental control and influence” is somewhat optimistic and does not accord with the reality of the situation.[45]
[45] Mother’s parenting Submissions page 30
Turning to the additional considerations in subsection 60CC(3),
Ms Haughton submitted that [X]’s views should be taken into account, given his age. The child told Mr L when he was interviewed for the Family Report that he was against the father’s proposal for a week about shard care arrangement.
[Y] is younger. He told Mr L that he wanted to spend more time with his father but did not express a preference for a shared care arrangement. He has more recently expressed the mother some resentment at having to continue to attend at his father’s home in the absence of his older brother.
[X] on a number of occasions has expressed strong resistance to attending his father’s home and has frequently run away.
Counsel for the mother submitted that, having regard to the children’s ages, their wishes would carry some weight. In particular:
…given the age and maturity level of [X], his wishes should be given very significant weight.[46]
[46] Ibid page 33
As to the nature of the relationship of the children with each of their parents and any other persons (see s.60CC(3)(b)), it is submitted that both children have a close and loving relationship with their mother and [Y] has a close and loving relationship with his father. However, [X]’s relationship with his father is at times troubled, and the mother places the blame for this squarely at the feet of the father.
Ms Haughton has on a number of occasions in her submissions taken issue with the evidence and opinions of Dr R. For example:
…perhaps it is unfortunate that Dr R’s recommendation was that the father have the primary care of the children if the parties were unable to co-operate to facilitate a workable care arrangement (his recommendations in paragraph 1 and 5 of his report dated 16 February 2011). It is submitted that at least after that report issued, other than actually going to Ms B, the evidence demonstrates that the husband did not do anything to co-operate with the wife and he rejected both her offers and [X]’s proposal for re-introduction of contact.[47]
[47] Mother’s Parenting Submissions page 34
Again:
It is submitted that Dr R’s possible explanation that the father does not know what to do with [X] would be rejected…many of the complaints that [X] has about the manner in which his father deals with him reflect the wife’s concerns about his conduct to her.[48]
[48] Ibid pages 35-36
Counsel for the mother’s submissions under the heading “the likely changes in effect of any the child’s circumstances, including the likely effect on the child of any separation from:
(i) Either of their parents;
(ii) Or other person with whom they have been living[49]
paint a gloomy picture of the likely outcome of the father’s (and the Independent Children’s Lawyer’s) proposed orders involving [X] living with his father or spending any extended time with him:
It is submitted that [X] is likely to be devastated if he were forced to live with his father on a full time basis.
…[X] is not going to accept living with his father without a great deal of anger and resentment and the prospect of police involvement may be inevitable.
…the problem between [X] and his father is not one the Court can fix given [X]’s age – it is however likely to make it worse if it makes the Orders sought by the husband.
There is ample evidence for the Court to be satisfied that the husband does not have the emotional tools to be able to calm [X] down or to be able to reason with him in a manner that will prevent [X] trying to escape from him in future…
…There is no evidence the husband can point to in order to satisfy that he will be able to cope with [X] in the future if [X] continues to struggle against his father. At least in the past [X] knew he could go to his mother. If he knows he has to live with his father, the Court would, it is submitted, have grave concerns about where he will run to the next time.
[X] is well settled in the care of his mother. It is submitted that withdrawing him from that settled and nurturing environment would be tantamount to a social experiment to see if a forced period with his father (is) going to break him down sufficiently for him to be compliant with his father’s directions. At least he has one parent he can count on at the moment.
It is submitted that (the) major reason for the breakdown in the relationship between the father and [X] is the father’s conduct towards [X] and if his father can’t or won’t take the first step, [X] is only setting himself up for another loss.[50]
[49] S.60CC(3)(d)
[50] Mother’s Parenting Submissions pages 38-40
In my view, with respect, the passages quoted above effectively encapsulate the mother’s case. The relationship between [X] and his father has irretrievably broken down and is beyond the power of the Court to make orders to resolve it. The blame lies with the father, and unless he changes his attitude, there is no hope of reconciliation between [X] and himself.
This pessimistic submission points to a bleak outcome. This is reinforced by the submission about whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings (s.60CC(3)(i)), that:
…if the court were to place the children in the primary care of the husband, he will not be able to cope with the care of the children and given the attitude [X] has towards his father, it is submitted it is almost inevitable that there will be further proceedings.[51]
[51] Ibid page 60
Ms Haughton in her submission addressed the issue of credit, which is reasonable in the circumstances, as the issue of credit has been raised by counsel for the father.
Counsel for the mother submitted that the father has told untruths to
Mr L and Dr R and in his affidavits. Further, the Court should accept the evidence of the mother about the incident on 9 June 2011 where it conflicts with the father’s evidence about that same incident. The change in her evidence “as to the amount of money she received from the sale of her property at the commencement of the relationship was not due to any deliberate error, rather it was due to the passage of time.
It is submitted that the Court would accept in its entirety the evidence of Mr O, the maternal grandfather, as to his observations of the conduct of the father towards both the mother and [X].
The law to be applied in parenting proceedings
Proceedings involving children are situated in Part VII of the Act. The objects of Part VII and the principles underlying those objects are to be found in subsections (1) and (2) of s.60B of the Act. The objects are to ensure that the best interests of children are met, which is made clear in s.60CA, which provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child (or children, in this case) as the paramount consideration.
The Court determines what is in children’s best interests by considering the matters set out in subsections (2) and (3) of s.60CC.
The primary considerations are in subsection (2):
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 subjected to, or exposed to, abuse, neglect or family violence.
Of those two primary considerations, the Court is required by subsection 60CC(2A) to give greater weight to the consideration set out in paragraph (2)(b).
There are additional considerations set out in subsection 60CC(3), from paragraphs (a) through to (m) inclusive. The issue of family violence, which is referred to in paragraph (2)(b), is also referred to in paragraph (3)(j) and (3)(k), which refers to family violence orders either in place or formerly in place.
Some of the additional considerations are very important, such as:
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;
b)The nature of the relationship of the child with:
i)Each of the child’s parents; and
ii)Other persons (including any grandparent or other relative of the child).
As to the former of the above two considerations, section 60CD provides how the views of a child are expressed. Subsection 60CD(2) provides that:
The court may inform itself of views expressed by a child:
(a) by having regard to anything contained in a report given to the court under subsection 62G(2); or
(b) by making an order under section 68L for the child’s best interests in the proceeding to be independently represented by a lawyer; or
(c) subject to the applicable Rules of Court, by such other means as the court thinks appropriate.
In this case, the Court has the benefit of a Family Report under s.62G from Mr L and two Court expert reports from Dr R, ordered under the provisions of Rule 15.09. The Court has also ordered that the children’s interests should be independently represented by a lawyer under s.68L of the Act.
In my view, the views of the child and factors relevant to the weight to be given to those views in paragraph (3)(a) should properly be considered in conjunction with the matters referred to in paragraph (3)(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.
Clearly, the evidence of the Family Consultant and the Court Expert are of importance in assessing the children’s maturity and level of understanding in order to decide the weight to be given to the children’s views.
The relevance of each of the considerations in paragraphs (3)(a) and (b) is immediately obvious in this case, as is the consideration in paragraph (3)(d):
The likely effect of any changes to the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living.
There has been considerable evidence and there have been submissions about the consideration in paragraph (3)(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);
to provide for the needs of the child, including emotional and intellectual needs.
There are some considerations that are not relevant, such as the consideration in paragraph (3)(h), which relates specifically to Aboriginal and Torres Strait Islander children only.
There has been evidence and there have been submissions concerning the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents (see s.60CC(3)(i)).
When making a parenting order, the Court is required by s.61DA(1) to apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility for the child.
This presumption does not apply if there are reasonable grounds to believe that a parent or other person has engaged in;
a)Abuse of the child or another child; or
b)Family violence[52].
[52] S.61DA(2)
Subsection 61DA(4) provides that the presumption my be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his or her parents to have equal shared parental responsibility for the child.
The Court must also consider the matters in s.65DAA where a parenting order is made that provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child.
Under subsection (1), in such a case the Court must consider whether the child spending time with each parent would be:
a)in the child’s best interests; and
b)reasonably practicable; and
c)if so, consider whether to make such an order.
It is important to note that the Court must be satisfied about paragraphs (a) and (b). One or other of them is not sufficient to enliven the consideration in paragraph (c).
If the Court, after the above consideration, does not make an order for the child to spend equal time with both parents, it is required by s.65DAA(2) to undergo the same exercise in considering whether it would be in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each of the child’s parents.
“Substantial and significant time” is defined by s.65DAA(3).
In determining reasonable practicability for the purposes of subsections (1) and (2) the Court must have regard to the matters in s.65DAA(5).
Conclusions
This is a matter where the parties appear to be ad idem that there should be an order that they should have equal shared parental responsibility for the children. That does not mean, of course, that the Court must automatically make such an order, but, unless the Court were to be satisfied that the presumption does not apply because of abuse or family violence, or unless the Court were to find that the presumption is rebutted because it is satisfied that it would not be in children’s best interests, the Court is required by s.61DA(1) to apply the presumption.
There have been allegations by the mother of abusive behaviour by the father, but that matter has not been strongly pressed. It is certainly the case that both the Independent Children’s Lawyer and the father in their submissions and the mother in her Amended Response all seek an order to the effect that neither party should use physical discipline on the children, and I intend to make such an order.
The mother’s position is that the relationship between the father and [X] is virtually irreparable unless he makes some major effort, although the same claim is not made about his relationship with [Y]. No submission is made that the mother should have sole parental responsibility for either child.
I propose to apply the presumption that it is in the best interests of [X] and [Y] for their parents to have equal shared parental responsibility for them and order accordingly.
That being the case, the Court is required to consider the matters set out in s.65DAA of the Act. Neither of the parents nor the Independent Children’s Lawyer seeks an order that the children should spend equal time with each parent, although that was formerly the father’s position. Again, the Court is not bound by the parties’ proposals but may make whatever orders the Court sees fit as being in the best interests of the children (see U v U[53]).
[53] supra
Given the circumstances regarding [X] and the poor communication between the parents, it is difficult to see that equal time would be reasonably practicable, even if it were in the best interests of the children. Whilst the parents do not live prohibitively far away from each other, there are two considerations in s.65DAA(5) which, to my mind, would militate against a finding that an equal time order would be reasonably practicable:
a)the parents’ current and future capacity to implement an arrangement for the children to spend equal time with each of the parents (s.65DAA(5)(b)); and
b)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind (s.65DAA(5)(c)).
Accordingly, I am not satisfied that an order should be made that the children should spend equal time with each parent.
It then follows that the Court must consider the question in subsection 65DAA(2) of the Act, whether it is both in the best interests of the children and reasonably practicable for the children to spend substantial and significant time with each of their parents.
Of course, it would appear that the same obstacles apply in respect of the reasonable practicability of an order for substantial and significant time as were mentioned at [163] above, at least in so far as [X] is concerned. If [Y] were to be considered in isolation, it would appear that the parents would have a capacity to implement an arrangement for him to spend substantial and significant time with each parent and they may well have, although this is more doubtful, a capacity to communicate with each other and resolve difficulties that might arise in implementing such an arrangement.
However, the difficulties appear to be:
a)The fact that Dr R has strongly recommended that the boys should “travel together”, i.e. that there should be similar arrangements for each of them; and
b)The parents are now at issue on the question of which parent should be the primary caregiver.
The father now seeks that the children should live with him, after a period of “protected enforced time” when they would go away on a holiday with him for 28 days, and then spend individual days without overnight time on alternate weekends with their mother for a period of two months, followed by another period of two months where they spend alternate weekends including Saturday night with their mother, expanding then three nights on alternate weekends with her.
This proposal is supported in broad terms, but in a more restrictive form, by the Independent Children’s Lawyer. This latter proposal does not meet the definition of substantial and significant time in subsection 65DAA(3), at least in its initial stages.
The father’s proposal does not meet that requirement either, in my view.
On the other hand, the mother proposes that the children’s primary residence should remain with her. She does not support the proposal for “protected enforced time” even, presumably, in the alternative form proposed by the Independent Children’s Lawyer in paragraph 9 of her submissions. This proposal would not involve a change in the children’s primary care.
The proposals must be considered in the light of the requirement that the Court should regard the children’s best interests as the paramount consideration.
The father and the Independent Children’s Lawyer submit that their proposals have the imprimatur of the Court Expert, Dr R. It is certainly the case that Dr R espoused the concept of the protected enforced time together between the father and the two boys in Recommendation 2 of his second report of 16 April 2012.
However, that recommendation looked at the children living primarily with the mother and spending five days a fortnight with the father. It was only as a result of cross-examination by counsel for the father that Dr R discussed the issue of a change in primary residence. It is, in my view, a conditional opinion and not necessarily endorsement.
The mother opposes these proposals and submits that Dr R’s opinions and recommendations should not necessarily be followed, drawing more on the Family Report prepared by Mr L and released on 12 October 2010.
It is the case that Family Reports, and, for that matter, Court Expert Reports, are not the be-all and end-all of a case. A judge is not bound to accept it and it is the trial judge who decides the matter, not the Family Consultant or Court Expert (In the Marriage of Hall[54]). That said, it is incumbent on the Court, when giving reasons, to include in those reasons why the opinion of the Court Expert is not being followed.
[54] (1979) 5 Fam LR 609; FLC 90-713
In considering what the best interests of the children are, it is the evidence of both parties that there is a benefit to both [X] and [Y] to have a meaningful relationship with both parents. This is supported by the Family Report and the Reports and evidence of Dr R.
It is a matter of concern that the relationship between [X] and his father has become strained so that [X] has not been spending time with his father at all. Whilst the mother submits that there is nothing that the Court can do to resolve that problem, and any enforced time for [X] will be counter-productive, I prefer the view of Dr R that, in effect, it is not too late to take positive steps to deal with that relationship. In deed, Dr R has expressed the view that if steps are not taken to repair [X]’s relationship with his father, the relationship between [Y] and his father will suffer such strain that it, too, may collapse. This would not be in the boys’ best interests and could lead to resentment on their part against the mother.
Dr R considered the current arrangement to be a “doomed one”.
It is a primary consideration, and a most important consideration, that children need to be protected from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The mother has alleged abusive behaviour by the father towards the boys, particularly [X], supported to some extent by her father, Mr O.
However, there is very little evidence that the father poses a physical risk to the children, although he admitted smacking them when they were younger. Dr R opined in his Report of 16 February 2012 that:
I don’t believe that there is any indication that the father is an unacceptable risk to the children.[55]
[55] Report of Dr R 16.4.2012 at page 11
The younger child, [Y], did not show to Dr R that he had any particular preference for one parent over the other when he was interviewed by the doctor on 3 April 2012.
[X], on the other hand, “appeared to be very stressed and in a bind. I believe that he was happy with his mother but that he was tortured at not seeing his father. He is still parentified and the hierarchy of power is inverted”.[56]
[56] Ibid at page 12
Doctor R’s report shows that “Both children are developing normally, emotively and cognitively for their respective ages. They both appear to be progressing reasonably well enough”.[57]
[57] Ibid
[Y] was born [in] 2003, so he was nine years old when he saw Dr R. [X] was born [in] 2000, which means that he was eleven years and seven months old when he saw Dr R.
The children are at a level of maturity where their views should be given some weight. This does not mean that the views of either child will decide this matter. [X] is only twelve years old now. He is a long way from being an adult.
[Y] appears to have a close and loving relationship with each of his parents.
[X], on the other hand, still has a strong bond with his father, in the view of Dr R, and is missing his father, “which is hurting him a great deal”.[58] However:
He feels responsible for his mother and I believe that he is caught in a loyalty bind and doesn’t want to leave his mother to be with his father.
It seems that the child is unwilling to relinquish his position of empowerment within the family and he is able to make decisions himself unilaterally with apparent impunity.[59]
[58] Ibid at page 11
[59] Report of Dr R 16.4.2012 page 11
The children appear to have good relationships with their maternal grandparents and paternal grandfather.
Counsel for the father does not see that the mother has retained a willingness and ability to facilitate and encourage a close and continuing relationship with the father, whilst the father still does. The Independent Children’s Lawyer expresses a similar view, saying that the mother’s automatic and unquestioning belief in [X]’ reports about his father has undermined or compromised her ability and willingness to facilitate a close relationship with his father.
Counsel for the mother submits that the father has not taken sufficient or any steps to fulfil his responsibilities as a parent in participating in making decisions about major long term issues affecting them, spending time with them or communicating with them, especially as far as [X] is concerned.
The father has been criticised for failing to fulfil his obligation to maintain the children, by seeking a reduction in child support and refusing to pay for their dental treatment.
The likely effect on the children of any changes in their circumstances has been described by counsel for the mother as likely to be devastating for [X].
Against this, the father submits that the mother’s proposal is “more of the same”, a situation seen by Dr R as untenable for the children in the long term. As submitted by the Independent Children’s Lawyer, the current arrangement where the children live primarily with their mother does not appear to be of benefit to them and may result in their losing their relationship with their father.
It is conceded that a transition to the primary care of their father would not be easy, especially for [X].
There is no evidence of any great practical difficulty or expense of the children spending time with or communicating with a parent, as neither parent is planning to move away from the general area.
The capacity of the parents to provide for the children’s needs, including their emotional and intellectual needs is a very important issue.
The parties have great difficulty in communicating about matters concerning their children, including which High School [X] should attend.
The mother has suffered anxiety issues and has in the past taken to alcohol as a coping aid. The father, by comparison, has a difficult style of communication and appears at times to be insensitive.
The mother apparently believes everything that [X] says, which has led to Dr R describing the child as “parentified” and “empowered”. The fact is that [X] at a young age is now making his own decisions without the maturity to reflect on them.
The children are boys of a mixed Croatian, on their father’s side, and Dutch, on their mother’s side, heritage. They are twelve years and ten years old.
The parents’ attitude to the children and the responsibilities of parenthood has been very much in question. They are basically good parents. The mother has sought assistance to address her alcohol use. The father has participated in family therapy with Ms B, psychologist.
The father’s relationship with [X] has deteriorated drastically and neither parent seems to be able to find a remedy. The mother blames the father’s attitude. The father has been at a loss to know what to do, but he desperately wishes to find a solution.
I am not satisfied that there are family violence issues that would cause a concern about the children being in the care of either parent. There are no family violence orders.
It would take the wisdom of Solomon to make an order that would be least likely to lead to the institution of further proceedings. There are risks inherent in the three options that seem to be available.
The first option, advocated by the father and the Independent Children’s Lawyer, is for a “protected enclosed time” of four weeks for both boys with the father, with a gradual reintroduction of time with the mother but a change of primary residence from the mother to the father. It is apparent that [X] will react strongly against this option, [Y] probably less so.
The second option, the Independent Children’s Lawyer’s “fallback position”, is for there to be the “protected enclosed time” with the father with no change of primary residence at the conclusion of the time. [X] is likely to react strongly against this proposal, also. [Y] will probably have less of an adverse reaction.
The third option, advocated by the mother, is to change nothing and continue on as before.
The mother’s “no change” option is not in the best interests of the children. The mother’s proposal is to do nothing and she is offering nothing except a continuation of a situation that has been tried and has not worked.
The risk to both children with a continuation of the present arrangement is that [X]’s estrangement from his father will continue and, eventually, it will have a negative effect on [Y]’s relationship with his father. Dr R has made it clear that without a drastic step, such as the protected enclosed time with the father and the two boys, the current arrangement is doomed and the children are at great risk of losing their relationship with their father completely.
I accept the opinion of Dr R that the adults need to take control back from [X] and allow him to be a twelve year old boy with a more normal relationship with each parent. He needs to be made aware that it is the parents who make the decisions in his best interests, rather than have him making decisions that his parents appear to be powerless to contradict. The mother’s acceptance of everything that the child says does not offer hope of an early resolution of [X]’s estrangement from his father.
The fact that the mother has not supported the proposal of Dr R for the boys to have an enforced holiday away with their father in an attempt to repair [X]’ relationship with him and, incidentally, take some pressure off [Y], does not argue well for the proposition that the children should then return to the primary care of their mother.
The likelihood is that, in the face of the mother’s attitude and her inability, as shown by her evidence, to see the benefit to [X] in rebuilding his relationship with his father, let alone taking any steps to support it, any gains would be lost.
There would appear to be more likelihood of the boys maintaining a positive relationship with their mother if they were in the primary care of their father than the reverse. The second option has already been tried and it appears to have failed.
In my view, it is in the best interests of the children to make orders along the lines of those proposed by the father.
The Orders proposed by the father and the Independent Children’s Lawyer in their respective Minutes refer to “calendar months”. Rule 3.03 defines the meaning of the word “month”:
In these Rules and in a judgment, decree, order or any document in a proceeding, unless the context otherwise indicates:
month means a calendar month.
Accordingly, the word “month” has been used throughout these orders.
I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 5 April 2013
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