Zammit & Zammit
[2009] FamCA 265
•7 April 2009
FAMILY COURT OF AUSTRALIA
| ZAMMIT & ZAMMIT | [2009] FamCA 265 |
| FAMILY LAW – CHILDREN – Parenting proceedings – mother seeking to discontinue overnight time with father – father seeking increase in time FAMILY LAW – CHILD ABUSE – Sexual abuse allegations agitated by the mother in the past with State child protection authorities – mother said to believe sexual abuse occurred but no longer occurring – past sexual abuse said not to be a primary factor in mother opposing overnight visits – failure of mother to make any mention of sexual abuse allegations being raised by her contemporaneously with State authorities at any stage of earlier parenting proceedings concluded in 2004, either in any affidavit filed by her or to Court appointed expert or to others – failure of mother to make any mention of earlier allegations in the current parenting proceedings, either in any affidavit filed by her or to the Court appointed expert or to others – mother’s allegations of other abuse of child by father FAMILY LAW – CHILD ABUSE – Analysis of risk of harm to child in his father’s care to determine if any risk or if magnitude of risk unacceptable FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Equal shared parental responsibility – dismissal of proposal for mother to be given sole parental responsibility |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) | |
| HG v R [1999] HCA 2; Palmer v Dolman [2005] NSWCA 631 per Ipp JA at 41 | |
| APPLICANT: | Mr Zammit |
| RESPONDENT: | Ms Zammit |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
| FILE NUMBER: | SYC | 1099 | of | 2007 |
| DATE DELIVERED: | 7 April 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 12, 13, 14 & 27 November 2008 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Hugh Byrne Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Ladopoulos |
| SOLICITOR FOR THE RESPONDENT: | Lexington Law Group |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Gillies |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
Orders
All previous parenting orders are discharged.
The parents are to have equal shared parental responsibility for the children C born … February 1997 and P born … April 1998.
The children are to live with their mother except as otherwise provided in these orders unless otherwise agreed in writing.
The children are to live with their father as follows:
a. during the school term:
(i)every second weekend from after school Friday to the commencement of school Monday, or Tuesday if Monday is a public holiday, the first weekend to occur on the next weekend the children are scheduled to spend time with their father under the existing orders;
(ii)the weekends referred to in (i) will resume on the first weekend following the resumption of the school term when the children have spent the first half of the school holidays with their father and the second weekend when they have spent the second half of the school holidays with their father;
b.during school holidays:
(i)one half of each school holiday period as agreed in writing or failing agreement for the first half in even numbered years and the second half in odd numbered years;
(ii)for this purpose the school holidays are to begin after school on the last day of term, to conclude before school on the first day of term and the mid point is to be midday on the middle day counting the last and first days of term;
c.special occasions:
(i)if Father's day does not fall on a weekend the children would otherwise be spending time with the father pursuant to these orders they are to spend that weekend with him from Friday after school until before school Monday or Tuesday according to order 4 a. hereof in addition to any other time provided by these orders;
(ii)if Mother’s Day does not fall on a weekend the children would otherwise be in her care pursuant to these orders they are to spend that weekend with her and order 4 a. is suspended for that purpose;
(iii)each Greek Orthodox Easter weekend from the conclusion of school Friday to the commencement of school Monday in even numbered years in addition to any other time provided by these orders;
(iv)the children are to be in the care of their mother on the weekend of Greek Orthodox Easter in odd numbered years and if that is a weekend the children would otherwise be in the care of their father pursuant to these orders the order is suspended for that purpose.
For the purpose of facilitating these orders changeover is to be implemented as follows:
(i)the father, or his nominee, is to collect the children from school and return them to school whenever time with him is scheduled to begin or end on a school day;
(ii)if the time with their father is scheduled to begin or end on a day that is not a school day the father or his nominee is to collect them from their mother’s home for the purpose of going into his care and the mother or her nominee is to collect them from their father’s residence for the purpose of returning to her care;
(iii)each is to advise the other of any nominee they elect to collect or return the children.
Each parent is to permit the children to communicate with their other parent by telephone via a landline to their home at times the children request but not less than every third day during school holiday periods.
Neither child is to be provided with a mobile telephone for use in the other parent’s home unless that is agreed in writing and unless there is also agreement about the frequency and purpose of usage.
Each parent is at liberty to
(i)communicate directly with the children’s school teachers or school authorities and to obtain directly from the school any reports, newsletters, publications or notices that are available to all parents; and
(ii)attend any function at school or related to their schooling such as is open to any parent;
(iii)communicate directly with any treating professional as to the children’s health or treatment of any kind.
Each parent is to keep the other informed about all medical or dental consultations [not including minor ailments] undertaken by the children and to advise the other parent of the identity and contact details of the treating professional.
Both parents are restrained, without further order of the court or the written consent of the other parent, from referring either child for assessment or consultation to a counsellor or any like professional for the purpose of obtaining a report in anticipated Court proceedings or that is likely to result in such a report.
Unless it is agreed to the contrary in writing, neither parent is to enrol the children in any activity or make any commitment for the children’s attendance at any time they are scheduled to be in the other parent’s care and each parent is to advise the other of the enrolment or involvement of the children at any sporting or religious or extra-curricular activity and the schedule of their attendance as well as reasonable advance notice of special events which the other parent will be at liberty to attend.
Each parent is restrained and an injunction is granted restraining him/her from denigrating the other parent or any partner of the other to the children or in their presence.
Each parent is to keep the other informed of his/her address and telephone number and maintain a landline telephone service for communication by the children with the other parent.
The parents are to make such arrangements as are necessary as soon as practicable to have the children attend upon the independent children’s lawyer for the purpose of discussing this decision.
IT IS NOTED that publication of this judgment under the pseudonym Zammit & Zammit is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1099 of 2007
| MR ZAMMIT |
Applicant
And
| MS ZAMMIT |
Respondent
REASONS FOR JUDGMENT
[To assisting editing for anonymity and ease of reference the parents will be referred to at times as ‘father’ and ‘mother’ and the children by their first initial]
Proceedings
It is agreed the parties’ two children – C (12) and P (almost 11) - will continue to live with their mother. But there is no agreement about whether the parents will have equal shared parental responsibility for decisions about their upbringing or what time they will spend with their father in the future. There are also some ancillary issues related to other arrangements in dispute.
Parties
The mother, Ms Zammit (44), is a teacher by occupation. The father, Mr Zammit (43), operates a distribution business. They married in August 1992. C was born in February 1997 and P in April 1998. They separated in November 2001. At that time the father withdrew from the family home at T and the mother has remained living there with the children. In October 2003 they were divorced. In January 2006 the father married his present wife, Ms A, who has two children, a son (11) and a daughter (9). The family lives in the home they acquired at E and the father operates his business from there. The mother has not re-partnered.
Orders sought
The father instituted these proceedings in the Federal Magistrates Court in February 2007 by filing interim and final applications which were later transferred to this Court. The orders he seeks now are to be found in his amended application filed 20 December 2007. The particulars are set out in a later schedule to these Reasons and not replicated here; suffice to say they propose equal shared parental responsibility, during school terms the children would be in his care from after school Wednesday to before school Tuesday every fortnight, they would be with him for half of the school holidays, and there would be further time on certain special occasions. His proposals also address matters of timing and changeover arrangements and he puts forward a suite of arrangements about parental responsibilities of one kind or another along with certain restraints on the actions of both parents, including orders about the children’s passports and their travel out of Australia.
The orders the mother seeks are to be found in exhibit 1 tendered by her counsel at the outset of the hearing and the particulars are also set out in the later schedule. At the time she proposed equal shared parental responsibility but after the independent children’s lawyer submitted in closing address that she be given sole parental responsibility – for reasons to be noted later – she aligned herself with that position. She opposes the children spending overnight time with their father, for reasons largely related to what they tell her they want, so they would see him during school terms every second weekend for the day on both Saturday and Sunday, during half of the school holidays for the day only, and on various special occasions during certain times of the day. Like the father, she puts forward a raft of orders about parental responsibilities and restraints; she opposes the children travelling outside Australia.
As just mentioned, the ICL proposes that the mother be given sole parental responsibility but have obligations to consult with the father on certain matters. The children’s time with their father during school terms would be every second weekend from after school Friday to before school Monday or Tuesday if Monday is a public holiday, although the weekend could be extended beyond that without reaching the limits proposed by the father, for one half of the school holidays and on certain special occasions. There is also support for various other orders sought by the father. Again, the detail is set out in the later schedule.
Approach
Being parenting orders, the outcome will be contingent on the assessment of the children’s best interests which is the paramount consideration [s 60CA]. The Act specifies various factors to be taken into account in that assessment, described as ‘primary considerations’ and ‘additional considerations’ [s 60CC (2)(3)(4)]. Informing that process are certain objects and underlying principles. The former are about ensuring children’s best interests are met: by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests, by protecting children from exposure to physical or psychological harm, by ensuring they receive adequate and proper parenting to help them achieve their potential, and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s 60B(1)]. The latter, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents, a right to spend time on a regular basis and communicate regularly with both parents and significant others, a right to enjoy their culture, and that parents jointly share parental duties and responsibilities and should agree about future parenting [s 60B(2)]. Those assessments will be made after the more material facts have been discussed.
Evidence
Apart from the parents’ evidence and the tender of a number of documents, there is evidence from the father’s present wife, Ms A, and also from the mother’s mother, the maternal grandmother. There is a report from a Family Consultant, Ms G, who was not required for cross-examination. Dr W, child and family psychiatrist, was appointed an expert to report to the court and in November 2007 he produced a report which he elaborated in further evidence at the hearing. It will be necessary to say something about the approach to his evidence shortly.
Earlier court proceedings
This is not the first round of litigation about the children’s arrangements. The mother instituted court proceedings on 23 May 2002 and there was a later interim hearing which resulted in orders about the children’s contact with their father [amongst other things] and still later there were contravention proceedings which resulted in a finding of breach by the mother and an order for compensatory contact to the father. The matter came before Le Poer Trench J for final hearing in late March 2004 and the judgment delivered 24 March is read in these proceedings.
At that hearing the mother was self-represented, the father was represented by counsel and the ICL appeared through counsel. The course the matter took, including negotiations throughout the first day when agreement was said to have been reached on some matters, is set out by Le Poer Trench J in his judgment. Generally expressed, the orders provided for the children to live with their mother and have contact with their father alternate weekends from Friday after school until Sunday evening, Wednesdays after school until 6.30pm, half the school holidays, and on certain special occasions; provision was made for telephone contact with each parent; there were various directives to the parents about parental responsibilities; and restraints were imposed on certain behaviour, including restraint on referring either child for assessment or consultation to a counsellor or medical practitioner for the purpose of obtaining a report or using any such information except for the purpose of attending counselling. Since they remain the operative orders, for convenience they are also set out in the later schedule.
The mother’s counsel makes the point here that the orders were not made by consent but, whatever her agreement or the detail of the process that led to the making of them, the mother distances herself from them here. In her affidavit she says she was unrepresented during earlier adjournments in those proceedings and unrepresented at the final hearing which had been set for five days because she could no longer afford legal representation. Nonetheless it seems she did have legal representation until a month or so before the final hearing. In any event, it is clear she was not happy with her legal representation at the interim hearing in March 2003 since in her affidavit here she airs her grievance about her solicitor’s failure to put her case as she saw it and in particular his failure to use material produced on subpoena or to mention the father’s ‘suicidal tendencies and psychological problems’ [paragraph 20]. She is also aggrieved about the outcome of the later contravention proceedings, although that appears to arise from what she regards as unfair comment by the Judicial Registrar rather than her legal representation. Also, she alleges here that at the final hearing the barrister for the father ‘intimidated and belittled’ her by comments outside the courtroom and she ‘caved in under the pressure and agreed to accept their demands’ and, besides, her experiences with Dr R [the psychiatrist appointed as the expert to report to the Court in those proceedings] and with the interim and contravention applications did not give her any confidence that her side of the story would be fairly considered. The upshot from her point of view is that ‘the matter did not go to a full hearing and [the father’s] psychiatric record and his mistreatment of the children and me was never properly considered by the Family Court.’ What the evidence reveals of those matters will be outlined shortly. From the judgment of Le Poer Trench J [paragraph 13] it is apparent that she had been highly critical of the reports produced by Dr R; indeed, during preparation for this hearing she had objected to his reports being received into evidence – they were not - and the decision was taken some time ago not to provide them to Dr W.
Dr W’s evidence
Along the same vein, the mother is also highly critical of Dr W’s report in these proceedings and she sets out her views in her affidavit:
(a)She does not believe he accurately conveyed all comments made by her and the children.
(b)She is alarmed he failed to take proper note of the subpoenaed material especially the medical notes of Dr N, the psychiatrist who treated the father prior to the separation, and there are discrepancies between Dr N’s notes and Dr W’s report which seem to have ‘whitewashed’ the father’s psychiatric history. Had Dr W read the notes it would have been obvious the father was lying to him since there are ‘numerous instances’ where the father has told Dr W one thing and given Dr N a different scenario. As he lied profusely about his past to Dr W, what is to say he has not lied about other matters in his affidavit?
(c)She is perplexed why Dr W would question the children about less weighty issues [phone calls] and ignore issues which should carry great weight [especially concerning abuse] and she is increasingly frustrated by a system which seems very much to be paying lip service to child protection but at the end of the day does little to uphold it.
(d)She is baffled by Dr W’s conclusions which are unsubstantiated and he makes a number of statements without linking them to evidence. Surely, she observes, decisions should be made on concrete evidence and not hypothetical statements.
(e)She is troubled by the fact that Dr W has overridden the children’s wishes despite their ages - they are fast approaching an age where they will be able to decide for themselves and surely their voice should be heard.
(f)She is aware the best interests of the child require consideration of any family violence involving the child or a member of the child’s family. Dr N’s notes prove the father was violent not only to himself but to her and he has also been violent to P [she refers to the notification in May 2007 to the Department of Community Services that the father had burnt P’s hand]. How can this be ignored? She has also read that the presumption of equal shared parental responsibility does not apply in cases of child abuse or family violence.
(g)She concludes by attaching notes from C and P which she believes sum up their true feelings, including a letter C wrote to the ICL.
This criticism followed the release of the report pre-hearing but it is echoed in the submissions of her counsel in closing her case - more particularly related to Dr W’s acceptance that some of the mother’s behaviour could possibly be explained by her being ‘manipulative and deceptive’ and his observation that she had a ‘particularly insular view of things…an incredibly insular view of the world and relationships and children’s natures and just most things social really…she feels convinced that her view is right…it’s not so much a condition as it’s a level of emotional immaturity’. The submissions identify these shortcomings in his oral evidence:
· Dr W could not provide an example of the mother speaking to the children in a leading way (page 27, paragraph 3);
· he gave no example to support the conclusion that the mother was convinced the father was intent on harming the children (page 27, paragraph 3);
· he could not provide an explanation for the fact that C could sleep at other people’s houses without worrying about the mother being lonely (page 26, paragraph 2);
· he could not provide an example of the mother not understanding appropriate/inappropriate behaviours (page 72, paragraph 7);
· he was unable to identify anything to support the view that the mother was not allowing the children autonomy; and
· he was unable to identify anything to support the view that the mother was being overprotective other than about their time with their father.
Taken together, these are strong criticisms but unfounded in my view. Some general observations which I would think uncontroversial can be made first about the nature of psychiatric expertise. Obviously it is not ‘scientific’ expertise in the sense of making precise calculations or performing computations which, if wrong, render the result erroneous or unreliable. It is about the diagnosis, treatment or prevention of mental disturbances or emotional or cognitive dysfunctions of many different kinds. Equally obviously it is a medical discipline founded upon knowledge across several other fields of learning - including but not limited to psychology, neuroscience, social science and pharmacology - and plainly there are many specialty paths within the broader field. In this instance, the sub-specialty is child and family psychiatry. Generally a psychiatrist will gather information from a variety of sources: there will be a history obtained by interview; that will be evaluated against the history revealed from other sources such as documents and/or other persons; and a mental state examination will be undertaken with or without physical examination or investigation to confirm or exclude physical causes. More particularly in Dr W’s field as a child and family psychiatrist asked to report to the Court, the process will involve interviews with significant adults, examination of documents produced from a variety of sources [often both public and private]; observation of interactions between the protagonists; interview of the child/ren [depending on the circumstances]; and observation of interactions between relevant adults and the child/ren. But permissible opinion is not limited to what is directly observed in this process; many issues require the exercise of judgment based on facts being interpreted or inferences being drawn or connections being made between observations in the clinical setting. As with any expert, of course, the process of their reasoning has to be apparent and the facts, including the assumed facts, on which an opinion is based have to be discernible and established to the requisite standard. [See discussion in HG v R [1999] HCA 2 per Gleeson CJ; Makita v Sprowles [2001] NSWCA 305 per Heydon JA; ASIC v Rich & Ors [2005] NSWCA 152 per Spiegleman CJ; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157; Adler v ASIC [2003] NSWCA 131 per Giles JA; Re W and W (abuse allegations; expert evidence) (2001) FLC 93-085; and Harrington-Smithon behalf of the Wongatha People v State of Western Australia (No 7) (2003) 130 FCR 424 per Lindgren J.]
Turning to the argument here, Dr W identified documents made available to him from various sources including documents from public records; he outlined the process he undertook; he spent time in interview with the parents and also with each of the children; and he observed the parents’ interactions with the children. Contrary to the criticism levelled, he was in a position to give an opinion about the mother’s mental functioning, including her personality and behaviour, and it was permissible for him to do so not only from what he observed directly but also from interpreting documents, making observations, and drawing inferences from the process as it unfolded. As will be noted later, he did not ‘whitewash’ the father’s history; he did not accept at face value what he was told by the father [nor what he was told by the mother]; he did not ‘ignore’ issues such as the mother’s allegations of abuse, indeed he raised with her a significant abuse allegation she had failed to mention; from the whole process he could validly draw conclusions without necessarily being able to give ‘examples’ of something specifically said or done; he did not ‘override’ the children’s wishes despite their ages but rather came to a view about their genesis contrary to the mother’s. His opinions did not overstep the bounds of his professional expertise; he did not become expert turned advocate; and he did not approach his task in a manner contrary to proper professional practice via a transparent and even handed process.
The assessments he made are not incongruent with the weight of other evidence and I am satisfied they can be accepted and his opinions given appropriate weight. Obviously this does not mean a wholesale shift in fact finding responsibility to Dr W and nor does it mean his assessments prevail over the Court’s responsibility to evaluate the children’s best interests. Like any expert, his evidence is but part of the whole, albeit an important part since he had the advantage of seeing the parents and the children in a setting not otherwise available to the Court and he was able to bring to bear from that his field of expertise and accumulated experience.
Further history
As the parents separated over seven years ago and there has since been concluded an earlier round of litigation, it might be thought that the history pre-dating that hearing and even pre-dating the separation is of no real significance to decisions required now. But the mother’s case directly raises issues referable to earlier times and therefore they must be revisited.
Father: psychiatric history, conduct
First, there are the allegations about the father’s mental state and his conduct prior to separation. To summarise, the mother describes him as volatile and having an explosive temper which he attributed to his experiences of abuse as a child; she maintains he was violent towards her followed later by remorse; he often made overt gestures to harm himself and threaten suicide; he often threatened to leave; and he drank alcohol heavily. She did not retaliate in response to his violence but she did once hit him across the face when he was holding C so as to ‘bring him around’. She also says he worked long hours and was not very involved with the children.
It paints a worrying picture of a violent, unpredictable and mentally unstable person, reckless to the safety and feelings of his wife and indifferent to his young children.
The father has a different viewpoint about this time in his life and he discussed with Dr W the acute unhappiness within the marriage. He told Dr W of his troubled upbringing as a child when he had been exposed to family violence and of difficulties in his relationship with his father. In an unhappy marriage he said he felt he had lost his sense of self and his self-esteem. He denied ever trying to harm himself although he said there were times he felt despondent and he had told his wife he wished he were dead. He said he started seeing a psychiatrist, Dr N, in 1995 but this came to an end after a while and in any event he later came to see the cause of his problems differently and he left the marriage. He said he had perhaps exaggerated his responses to Dr N; he had felt trapped in a cycle he was then struggling to understand.
Dr W had Dr N’s file available and it was tendered in evidence [exhibit 9]. The GP’s letter of referral to Dr N cites the father having problems with depression: ‘a long history of this and problems with a dysfunctional family’ …‘he has felt suicidal on many occasions’. It seems the father consulted with Dr N a number of times during 1995 and 1996 and then there was an isolated consultation in September 2000; obviously all related to the time before the birth of their first child except for the last visit in 2000. In any event, Dr N’s report of April 1995 notes the presenting problem as depression. The father described long term difficulties in responding to arguments - despondency, tearfulness, guilt, suicidal thoughts and depression – which had become an increasing problem since his marriage; he had recently become quite suicidal and had been reviewed by a psychiatric registrar at hospital; and he related having mild depression, fitful sleep, mental exhaustion, emotional strain and stress at work but no active suicidal ideation at the time. But rather than depression being the problem Dr N saw the underlying issue as anger and poor emotional control which had been a difficulty dating back to his adolescence and possibly childhood where poor marital relationships and domestic violence had left him with low self-esteem and sensitivity to criticism despite his pretence to the contrary. He thought the father’s vulnerability to this reaction might be related to narcissistic personality traits. In as much as Dr N’s file notes can be interpreted, they seem to indicate fluctuation in the father’s emotional state over time and they also indicate that he saw the mother at some stage although there is no telling what views he formed as a result. By the time of the 2000 consultation the father had turned to thoughts of separation and marital counselling was suggested - but it was to be well over a year before separation occurred.
In his report Dr W gave a summary of what his inspection of the file revealed. In cross-examination he readily agreed he had made no mention of references in the notes to the father having been violent at times, that he had hit his wife, or being suicidal and occasionally hitting himself. No doubt counsel’s cross-examination about these omissions was at least partly directed to highlighting divergence between what was in Dr N’s notes and what the father had told Dr W of the history, thereby rendering the father’s version suspect. But Dr W said his report had been an attempt to give a broad summary of the material and he had noted and taken account of the ‘very bland version’ of the history the father had given and that he had not been prepared to accept all that he had been told; in fact, elsewhere in his report he had called the father’s account a ‘revisionist view’.
To continue the chronology, the separation in early November 2001 was preceded by the mother calling the mental health team at the St George Hospital - she believed the father to be depressed and suicidal – and mental health workers arrived at the home. The father refused to talk to them and he left [exhibit 11]. The mother told the mental health team of his aggression and impatience and that he had smacked P hard after he had smeared faeces. This led to a notification being made to the Department of Community Services. The father later spoke with those who had become involved: he told them he was moving out; he denied being abusive towards the children although he agreed he had smacked them [exhibit 11]; he spoke of becoming withdrawn because of his wife’s constant criticisms and not being able to live up to her expectations; he said he was feeling demoralised about the relationship although he denied being suicidal; he admitted there had been violence but said his wife had also attacked him. The mental health team took no further steps. At the time the children were aged 4½ and 3½ years or thereabouts.
Discussing this period with Dr W, the father said he had not felt like that since the separation, he had not since sought any assistance from mental health professionals, and he was happy and settled in his current marriage.
From his investigation Dr W concluded that neither parent suffers from a diagnosable psychiatric disorder. As far as he could tell the father’s psychiatric symptomatology had been confined to a period during this relationship and to some periods during his childhood. While the father had taken a somewhat ‘revisionist view’ to what had occurred at that time, he had been free of symptoms and had not sought any mental health support for the previous six years and Dr W commented that he appears to be happy and coping with some challenges including the children’s mixed feelings about their time with him. As for the mother, he commented that she is probably not coping with the situation as well as the father, but her level of anxiety about the children visiting him did not appear to be substantially higher than it had been at any other time since their separation.
There is no clarity in the mother’s case about what part the father’s history of mental health problems is to play in the decisions now required - at least at no point has it been contended or submitted that his psychiatric history represents a risk of harm by reason of mental instability including the prospect of self-harm. Her case appears to be focussed more on his behaviour which was manifested in anger and abuse towards her [and to P] before separation and his verbal abuse of her afterwards - to which the children were exposed. Nonetheless, the weight of the evidence supports these findings:
· The marriage was unhappy for a long time before its demise in November 2001 and obviously each has their own perspective about where responsibility for that lies. Whatever the merit in that perspective, plainly the father suffered from depression, he did at times have suicidal ideation, which included overt gestures towards self-harm, and he did have underlying problems related to controlling his anger and emotions.
· Unquestionably he physically assaulted his wife at times during arguments and in anger and there can be no doubt his mental state at times would have caused her concern and anxiety. He may well have experienced her as overly critical, he may have felt unable to meet her expectations, and it may be his sense of himself and his self-esteem suffered as a result, but if in fact that was the case then other strategies were always available and it is no excuse or justification for violence or abuse. It is not to condone it to observe nonetheless that there is no evidence of conduct of the sort described being part of a larger pattern of behaviour played out elsewhere or of him having an anti-social temperament in the way he conducted himself more widely.
· There is no indication of any violent conduct towards his former wife in the years since their separation – which is not to say there were not abusive things said by him on occasions when the children’s care was changed over.
· He has not sought or required psychiatric assistance or intervention in the years since their separation.
· Dr W is quite entitled to conclude that despite the father’s ‘revisionist’ view of earlier times he does not have a diagnosable psychiatric disorder and he is also entitled to conclude, as clearly he did, that there is nothing about the father’s personality or temperament or stability that would preclude him from taking responsibility for the children, not only for overnight visits but for the extended block periods which he supported.
P – behaviour/development
Another issue stretching back before separation is P’s behavioural difficulties and some developmental delay. The history to follow is taken from documents produced by the St George Hospital [exhibit 11] and the Department [exhibit 10]:
·8 February 2001: Report of Dr T, neonatologist and paediatrician, who saw P on referral from his GP who thought he might have ADHD. But Dr T referred him on to the Sydney Children’s Hospital since he thought the behaviour might be indicative of an autistic disorder.
·27 June 2001: Report of home visit by social worker, the reported problems for P being delayed language skills, poor social skills, and lack of appropriate eye contact for his age. It was noted that the Diagnostic & Assessment Clinic of the St George Hospital would provide a forum for discussion and confirm the direction the family was taking in their effort to assist P in his general development.
·July 2001: P was seen for speech pathology assessment. He was assessed as having significant receptive and expressive language disorder.
·31 October 2001: Diagnostic & Assessment Clinic, St George Hospital – Assessment unable to be performed but after interview the parents’ fears were able to be allayed with regard to autism. From the parents’ description of his behaviour and what was observed, P does not fit a diagnosis for autism but he does have significant behavioural problems and a marked delay in speech development. Behaviour management discussed and intervention suggested through Learning Links at the preschool, discussion of techniques to address sleep disturbance, suggested attendance at preschool, speech therapy [8 week therapy block later undertaken between November 2001 and February 2002], and referral to early intervention program. Review to occur in April 2002.
Ø[To interpolate, the parties’ separation followed in early November 2001 and other events to be mentioned later followed. While correspondence was being exchanged between solicitors the children’s contact with their father was initially limited to a few hours on Saturdays supervised by the mother at the family home and then from mid-December supervised by the father’s mother. The mother then stopped the contact in early March 2002 and it was not re-instated until 22 June 2002 – this to be elaborated later.]
·7 May 2002: The Diagnostic & Assessment Clinic provided an assessment report. P was noted to have significant difficulties with language, socialisation, a limited repertoire of play and some obsessive traits. He does not satisfy the criteria for a diagnosis of autism; these characteristics are consistent with a diagnosis of atypical autism. Encouraging improvement in behavioural problems since review the previous year. Recommendations made to increase hours at pre-school and referral made to early intervention program, hearing test, speech therapy input noted to be high priority [family awaiting second block of therapy to commence], he was noted to be on the waiting list for occupational therapy assessment, it was noted that his task behaviour was poor, particularly in a structured setting where there are expectations to perform, proposal to visit preschool to observe behaviours more closely. Review to be offered in 12 months.
Ø[Again to interpolate, on 23 May 2002 the first round of Court proceedings began. By that time the children’s supervised contact with their father on Saturdays had been suspended for nearly three months and it did not resume until 22 June although it is not apparent what the arrangement was thereafter. On 11 March 2003 there was an interim hearing which resulted in orders for contact although no copy has been made available and nor is a summary given in the evidence. But there is reference in the judgment of Le Poer Trench J [paragraph 10] to the contact changeovers on weekends working well according to the mother, with the father collecting the children from her after school on Friday. So whenever it started, weekend contact seems to have been taking place before the March 2004 hearing.]
·4 May 2003: There is a report from P’s preschool noting he had progressed well in all areas.
·4 June 2003: There is a report from early intervention service - he had settled well, he follows routines confidently and participates actively in the program and is now able to accept directions. He had initially reacted to requests at times by shouting and being unco-operative but this had diminished, he was generally co-operative and more able to follow directions in a group setting.
·5 June 2003: Report from Diagnostic and Assessment Clinic comprehensively reviewing his progress. P was attending pre-school 3 days a week and the early intervention program 2 days a week. Both centres indicated very significant improvements. A psychometric evaluation at the pre-school had demonstrated excellent improvement in his language and socialisation and his behaviour had been easier to manage. He was also receiving speech therapy; occupational therapy was no longer required. It was thought P would be best suited to mainstream placement for school the following year but additional support would be required for him to cope in that setting. The report concludes with the observation that P had a past history of autistic features and language delay, he was functioning within the average range for performance [non-verbal] skills; however, his verbal skills were significantly delayed. He had made very significant improvements in all areas of development and has integrated well into his preschool. He does not, and has not at any stage, fulfilled DSM-IV criteria for autism. Nonetheless it was felt that when he is stressed or challenged he may show some autistic traits. Given the significant improvements, the prognosis was said to be very good. Noting he would be starting school the next year (2004) he will be assisted with school placement and transition into mainstream, his therapy should continue according to the current intervention and an informal review would be offered in 12 months. This is the last assessment report available in any of the material produced.
In March 2004 the Court proceedings came to an end and the children’s arrangements became the subject of final orders particularised in the schedule. As for the issues before the Court, the only indication comes from the judgment of Le Poer Trench J which was appropriately general in the circumstances. Nonetheless it is apparent at least from the father’s evidence here [paragraph 34 and following] that concerns about P’s behaviour re-surfaced at some point or they had not been allayed completely. To summarise his evidence on the topic:
·The father had established direct communication with the school: he had arranged to receive reports and newsletters and he had attended regular parent/teacher interviews.
·In August 2004 he received a letter from the school principal describing P’s behaviour as hindering his progress and that of other students.
·In November he met with the principal and P’s teacher to address the concerns. While P’s academic performance was excellent, his social behaviour was said to be inappropriate for his age. This had also been observed by the father and he was keen to find a solution so he asked what he could do.
·On 5 February 2005 the school provided a detailed report outlining the issues and requested paediatric assessment of P with a view to creating a program to manage his behaviour. Through research, the father came up with a paediatrician, Dr O.
·He says he wrote to the mother advising her of his intentions to consult Dr O, he gave her the necessary contact details, and he provided her with copies of certain documents. He believes she did meet with Dr O. On 23 March 2005 Dr O reported and the father provided a copy of the report to the mother.
Ø[It is noted that the mother has a different version; she says the notification came late but ultimately she was able to speak with Dr O.]
·The upshot of the intervention was that the school received funding for a special needs teacher to be appointed for P.
·On 21 July 2006 both parents attended a meeting at the school to review P’s progress. They were both informed the school was happy with his progress and it was decided to gradually phase out the special needs assistance.
In February 2007 the current proceedings were instituted and both children obviously became aware of the dispute about their time with their father. Dr W became involved later in the year and P’s development was canvassed in that process:
·The mother gave Dr W an account of P’s early difficulties and intervention such as speech therapy which she described as producing good results: he now gets awards for public speaking, he has received a number of awards over the years, and last year he had received an academic award. She described P as generally a confident child, he gets on well with friends, he has some good friendships, and he is involved in a number of varied activities and interests. She described him as very unsettled when he first started school but this improved after he went into a mixed class. She referred to the father’s engagement of the developmental paediatrician, Dr O, and she was critical of the process around that although she had seen and spoken to him about his findings.
·The father also discussed P’s earlier behaviour along with his motivation in seeking out Dr O and the benefit P had derived from the assistance provided. He described P as being a good student doing really well. He also described him as having a great sense of humour, although he can be a bit immature for his age, he does not demonstrate common sense sometimes, and he needs boundaries for acceptable attitudes and behaviour.
·Dr W drew this from documents he had available:
‘I note the documents obtained under subpoena by [T] Public School. I note that an application was made for a flexible behaviour support in August 2004 (Kindergarten). Target behaviours included aggression to other students, social skills and group work skills. Violent behaviour in the form of hitting, pushing and punching with associated lack of remorse was evident in the classroom as well as the playground and [P] was also noted to be very attention seeking and to often act inappropriately. I understand that funding was provided although the documentation of this does not appear to be in the file.
I note that he underwent a speech pathology review on April 3rd 2005. His receptive language skills fell in the above average range and his overall expressive language skills in the average range. Although a mild lisp was evident, he was judged to have age appropriate language, voice, fluency and pragmatic skills.
A school counsellor report was prepared on June 3rd 2005. It was noted that [P] had undergone two previous similar cognitive assessments which were suggestive of some areas of significant impairment. However on this occasion, [P] performed extremely well, achieving scores consistently across the superior range. This was thought to be due to improvement in language skills assisted through interventions and support by the paediatrician, speech therapist, the Early Intervention Unit, the parents and his school. This appears to have led to a withdrawal of the program. It was also noted that he had improved in regard to social interactions, although he still required reinforcement and consistency, that he seemed more settled and happy at school, and that he was more accepted socially. A further review was conducted in June 2006 demonstrating continuing improvement academically, behaviourally and socially. Indeed it was noted that funding would not be applied for in 2007. His school reports in 2006 were very positive and he was described as an active, happy class member who was always happy to help in his mid-year report. His end of year report was also very positive. His mid year report in 2007 was now describing [P] as an extroverted, enthusiastic student who had achieved excellent results in all key learning areas. Positive comments were made on his attitude and application, the main failing being his enthusiasm.
I note the report of Dr [O], Consultant Developmental Paediatrician, dated March 23rd 2005. I understand that this report was prompted by a referral initiated by [the father], although [the mother] also contributed when she was notified about this rather later in the piece. When this report is placed in relation to the observations at school, it would appear that Dr [O] conducted his assessment at a time when there was quite a bit of change happening for [P] and he was in a transitional stage between extremely disruptive and inappropriate behaviour in the previous year or two and very good behaviour by 2006. Not surprisingly, he made a diagnosis which probably fell between these two states (Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder).’
It will be apparent from all this that professional assistance and various interventions were mobilised to address this child’s significant behaviour problems and speech delay. It takes no child-related expertise to appreciate the importance of equipping such professionals with accurate information about the child’s environment if the problems are to be effectively addressed. As a professional educator, the mother could be taken to understand this well. It is therefore puzzling to see no mention anywhere – not in the several reports from the Diagnostic & Assessment Clinic or from the preschool or from the early intervention report - of what the mother was relating to others about matters relevant to P’s behaviour. There are two areas of deficit which will be discussed in turn.
P – physical abuse
First, the mother was propounding that P had been subjected to physical abuse by his father, before and after separation, and on occasions P had suffered injury. Records demonstrate P was taken to hospital for treatment for injuries in July 2003 and October 2004, but they relate to a nose injury from his mother accidentally hitting him at tenpin bowling and slipping on tiles at the pool so they can be put aside as normal childhood accidents and unrelated to his father’s physical abuse. This is a summary of what records reveal the mother to have been alleging – in the first instance starting from separation and leading up to the March 2004 hearing:
·5 November 2001: The St George Hospital file [exhibit 11] records the mother saying the father is ‘rough’ with P, that on one occasion the father had kicked P aside and on another occasion he had hit him hard on his bottom. There is a file note of a later discussion with the father which, while fairly broad ranging, includes his concession that he had smacked the children ‘on bottom or leg’.
·27 November 2001: There is reference [exhibit 11] to mother’s allegation that the children had witnessed physical, emotional, and verbal violence and he had hit her and P but not C. She had spoken to the Department who had not done anything so far. [At some point around this time the mother was referred for counselling to a psychologist, Ms D.]
·29 January 2002: The mother informed Dr H [family GP] the father might have pushed P while P was with his father on 26 January 2002, P had fallen on to concrete as a result and he ended up with a lump on his forehead. [exhibit 10 - letter from Dr H to the mother in response to her request for a letter reviewing his medical notes on her family file]
·21 February 2002: A file note [exhibit 11] records the mother saying P had returned from one contact visit with a lump on his forehead, she had taken this up with the father who told her P had fallen over but C had told her that her father had pushed P over.
·On 25 February 2002 the mother’s counsellor notified the Department of suspected risk of harm based on mother’s report to her that the father was verbally abusive towards her when he comes to take the children; he had reversed the car while the door was still open and she was saying goodbye to the children; P had returned from visiting his father with a lump on his forehead; the father had attributed the lump to P falling over on concrete but C had told her mother her father had pushed P over; P is distressed after visits with his father; and P wakes frequently at night but he does not speak well enough to be able to explain why he is distressed.
·There is a curiosity about this injury P sustained and it as well to mention it now. The mother told Dr H on 29 January the lump was the result of a fall on concrete and that his father might have pushed him. She told her counsellor on 25 February or thereabouts that P had come back from his father’s with a lump on his head from a fall on concrete but, contrary to the father’s account, C said her father had pushed P over. But then the Department’s file contains an assessment report of 14 June 2002 following investigation of notifications made to that point and that unambiguously gives the date 2 March 2002 as the date P returned from his father’s with a lump on his head after being pushed onto concrete by his father. Indeed this incident on 2 March is identified there as the reason the mother gave for cutting off the children’s contact with their father from that date. It hardly seems likely there were two mirror episodes - but it could not be said the event was recycled for some reason and so the duplication remains unexplained.
Ø [It is also as well to mention here the inconsistency between the reason for the mother cutting off contact with the father revealed in the Department’s records and the reason the mother gave in her evidence here [paragraph 17]. In her affidavit she outlined the contact that took place after separation on Saturdays - supervised at the family home by her initially and then from mid-December by the father’s mother – and she describes P as waking at night on Saturdays screaming and sobbing uncontrollably, which got worse each week. As a result, she says, on the advice of her then solicitor she stopped the contact in March 2002. P improved for a while but again started exhibiting the same behaviour when contact resumed on 22 June 2002. The inconsistency was not brought to her attention but there may be an explanation for it.]
·During the Department’s investigation P was seen on 21 March: there was no lump but he was not interviewed due to his young age [almost 4] and speech delay. The father, interviewed on 11 June, denied pushing over P or harming him in any way, he was not aware of any injury on P’s head on 2 March and he offered the opinion that the mother was telling lies to try and hurt him and stop him seeing the children. C [then aged 5] was spoken to by a Department officer on two occasions during home visits on 31 March and 8 May, but she did not confirm the part her mother had attributed to her. This comes from the report, referring to C:
‘She appeared to be happy and was happy to talk about things happening both at home and at school. She demanded the attention from her mother when caseworker spoke to the natural mother. [C] did not disclose any abuse or neglect by her father during the interviews. She expressed that she likes her father and wants to see him despite that she described her father as a nasty person who yelled at her mother on some occasions. In relation to the allegation of physical abuse of s/c [P] caseworker asked her on 31.3.02 regarding a lump on [P’s] head after access with natural father in early March, [C] stated that [P] fell over and hit his head on the concrete at father’s home causing the lump.’
·The allegation was not confirmed by the Department.
·28 December 2002: [mother’s notes, exhibit 5] - ‘While giving [P] a shower that evening, I noticed a long red mark of about 5cm on [P’s] neck. I asked [P] what happened to his neck. He repeatedly answered, “[the father] with a present”. He also added, “Smacked me. Smacked me with a present.” [P] also demonstrated twice how it happened by hitting my neck.’
As for the mother’s failure to mention any of this to those involved in addressing P’s behavioural problems, part of the explanation - for a time at least - might lie in the file note made by her counsellor on 18 March 2002 in the hospital records; namely, following reference to a follow up assessment for P’s ‘autism’ the mother is said to have advised that the father had attended a previous assessment with her and P and she had been unable to discuss the ‘physical abuse and DV at home’. It adds: ‘[the mother] said she will probably discuss this with the person doing the assessment this time. The children have witnessed their father pushing, pulling [the mother], twisting her arm yelling and screaming at her.’ But if the father’s presence had been an inhibiter to this point nothing suggests she brought his conduct towards P to their attention any time later.
There is another development preceding the March 2004 hearing and that is reflected in the report by a psychologist, Ms V. The report must be addressed because the mother raises it specifically in her affidavit filed in these proceedings [paragraph 33] and she obviously sees it as important to her case since she complains it has not been taken into account by the Family Court. She notes it to be annexed to her affidavit but it seems to have been omitted by oversight; it can be found on the Department’s file [exhibit 10].
It transpires the mother took the children to see Ms V in August 2003. She says in her affidavit that she did so at the urging of her general medical practitioner, Dr H, but the veracity of that is questionable since the report is addressed to the mother’s solicitors and Dr H is nowhere mentioned.
Dated 3 September 2003, Ms V opens her report by saying she met with the children following a referral from their mother ‘who is becoming increasingly concerned about their behaviour and emotional well-being.’ She had met with the mother on her own on 23 August 2003 to collect relevant background information and she met with both the children on 30 August 2003. As her record of the background goes on to demonstrate, the mother presented her with a troubling picture of her husband and his behaviour in their marriage. The report turns to the children and this is said of P:
‘[P] has a history of linguistic difficulties and autistic behaviours which have reportedly remarkably improved since [the father] left the house. However, [P] decompensates significantly leading up to and following access visits with his father. In addition to an exacerbation in autistic behaviours, [P’s] sleep becomes very disturbed during these times and he is difficult to settle of a night time.’
Of course by this time the father had been gone from the house for nearly two years and in the intervening period P had received assistance and support with his behaviour and speech delay from various quarters referred to earlier since 2001. The report makes no mention of these interventions or contemplates that P’s remarkable improvement might have something to do with them. As for exacerbation in P’s ‘autistic’ behaviours and disturbed sleep, neither is reflected in the comprehensive report from Diagnostic & Assessment issued just a couple of months earlier in June and nor is there any reference the latter report to any deterioration in P’s behaviour [to the contrary] much less any deterioration being linked to P’s contact with his father.
As for C, Ms V reports this:
‘With the increase in [the father’s] access rights, [C] has become emotionally labile and very clingy to her mother. [The mother] describes her as “teary at the drop of a hat” and her teacher has noticed that she is considerably quieter and less outgoing at school than usual.’
What increase in ‘access rights’ means is not apparent but possibly it is a reference to the outcome of the interim hearing some months earlier in March. This information was provided by the mother:
‘[The mother] states that both [C] and [P] refuse to go with their father when he collects them for access visits. Although the children openly refuse in front of [the father], he apparently ignores their pleas and insists that they come. During these times, [the father] is very abusive towards [the mother], blaming her for the children’s decision and yelling at her to “force” them to go with him.
Both children deteriorate in their behavioural and emotional well-being in anticipation of access visits and take time to settle when they return home to [the mother].’
The report goes on to outline her one session with the children whom she saw together while their mother waited downstairs in the foyer. This meeting, she says, was primarily around engagement; she had them play games and draw pictures. When she asked each of them to draw a picture of the family, C immediately replied that she would draw a picture of ‘Mummy, [C] and [P]’. She was asked to talk about her completed drawing and say where her father was. She replied she was having a ‘good time in the garden’ with her family and her father was not included because he did not live with them. Her only dislike when asked about things she liked and disliked was ‘dad forcing me to go his place’. [It might be observed here that if this is a reflection of C’s feelings about her father it was a reversal of the feelings she expressed to the Department caseworker in 2002.] As for P, he refused to draw a picture of his family and chose instead to draw many pictures of his ‘barbies’. C tried hard to persuade him to draw a picture of ‘Mummy, [C] and [P]’ but this only increased his distress and his focus on drawing many more pictures of his different barbie dolls. Ms V notes: ‘It is notable that when [C] repeatedly asked him to draw a picture of his family, each time her request clearly omitted their father.’ When P was asked some of the things he liked and disliked, he replied ‘barbies’ to the first question and ‘dad’ to the second. Both children, she said, on several occasions expressed their aversion to being forced to go with their father on access visits.
Ms V concluded her report by referring to the children’s clearly expressed strong preference not to have contact with their father and her view that their attachment to their father appears to be very poor and in fact traumatic. Both children, she said, became visibly distressed when discussing their father even in a relatively benign context. Presumably echoing what she had been told by the mother, she expressed concern that a significant part of their father’s psychiatric history has not been considered when access arrangements had been made formally because such information may be very important to understanding the relationship between the children and their father. In her opinion a full independent assessment by a family court appointed psychologist was necessary to assess the family situation, the children’s emotional well being, and each parent-child relationship. She recommended a full assessment by a Court appointed psychologist.
Ms V seems not to have been made aware that the Court had already appointed an expert and Dr R had not only produced one but two reports by the time she was engaged to see the children. Indeed his second report came after the mother had been given the opportunity to canvas her views about shortcomings in his first report.
That the purpose of this exercise was evidence gathering can be inferred from the report being addressed to the mother’s solicitors, if nothing else. It is the sort of exercise that the Rules of Court are designed to discourage and any right thinking person can see it would be of little value to any assessment of the children’s best interests. Against an obvious history of ongoing parental conflict it is based on a version given by one parent, the other parent was not seen, the children had been brought to the interview session by one parent who waited downstairs, and in their one joint session for some unspecified duration the children were asked to draw their family and about their likes and dislikes. Amongst other things, the report reflects no recognition of the possibility of a history or a view contrary to the mother’s; there is no acknowledgement that the very version of the history she gave indicates children caught up in the dynamics of parental conflict; there is no word of appreciation of the possible complexities for children expressing views in the scenario described; and there is no recognition of the impact of the young age of these children [6 and 5] on the weight to be accorded their views about time with the parent who was absent from the very process set up to have the children express them.
That it was all designed to give some clout to the negative views the children would express about time with their father is highly probably and there is little wonder the report was not taken into account by the Court, if that be the fact. The complaint to that effect is without substance.
Before moving to the second area of deficit, a further allegation of physical abuse of P by the father arose after these proceedings were instituted in early 2007. It is the mother’s evidence that P told her on his return from his father’s on 20 May 2007 that his father, to teach him a lesson, had forced his hand over a hot pot and he was burnt by the steam. She took him to the doctor, there was a mark that could have been a burn, and the doctor notified the Department. The Department contacted the father later and he denied doing so. The Department did not take the matter further.
P – sexual abuse
As well as selective reporting of physical abuse, it emerges that the mother failed to make mention in some quarters – but not others – of her concerns that the father was sexually abusing P.
It came to light at the hearing that between 2002 and 2005 she had made notes of statements she attributed to P reflecting wrongdoing by his father of a sexual nature. I shall come to the detail shortly but, before that, this can be observed:
·She said nothing of this at any time to the professionals addressing P’s behavioural problems and developmental delay who maintained involvement with P until at least June 2003 and perhaps beyond. [The Diagnostic & Assessment Clinic was contacted during the JIRT investigation that got underway in July 2004.]
·She appears to have said nothing of it to Ms V who ostensibly was consulted to address concerns about the children’s behaviour and their emotional well-being. One could expect to read it in the psychologist’s report if she had, not to mention the psychologist making a timely notification to the Department.
·It is common ground she said nothing about sexual abuse in her affidavit evidence or at all to the Court in the lead up to - or at - the 2004 hearing, including the interim hearing or the contravention hearing during 2003.
·It is also common ground she said nothing of it to Dr R who prepared three reports in all, including after these allegations emerged.
·Nor did she say anything about a sexual abuse history or about having any concerns in that direction in any affidavit she filed in these proceedings, despite it remaining an issue after the orders of 2004 and despite the submissions that were ultimately made about the allegations on her behalf in closing [noted later].
·At no point did she raise the issue with the father to seek his response or clarification and at no point did she take any step to have P’s contact with his father cease or to have it supervised.
·She did not raise it with Dr O, the paediatrician who saw P in early 2005 for behaviour issues after intervention by the school and the father in late 2004.
·Nor did she raise it with Dr W when he interviewed her in the course of these proceedings. The issue came to light from Dr W’s inspection of documents produced by the Department under subpoena; he raised it with her. This is what he reported:
‘I asked [the mother] about her previous concerns that [P] might have been molested. She said that [P] was about four or five at the time and he had been saying concerning things and exhibiting concerning behaviour. At an earlier age he had also been smearing his faeces. She said the things that he said were that his father had weed on him, that his father had squashed his willy in his bottom and that when [P] was playing with his penis he would say that this was how his daddy gets his milk. He was also crying out in his sleep words to the effect of "no more horsie". She indicated that after a great deal of deliberation, she had contacted the Department of Community Services who spoke to [P]. She said that he repeated these things to them and that he had also previously told her mother the same. She said that the feedback she received was that there was not a lot of detail about the context in which this had happened, and she said that her husband's legal representatives had managed to get the investigation closed down. However she indicated that she does not think that (abuse) is happening now, [P] will still occasionally talk about it out of the blue. She said that if she responds with further questions, he will not talk about it and he seems very uncomfortable.
She said that she had not put it in the recent affidavit because she had not seen it and she also indicated that she is still very scared of [the father]. However she also indicated in the past two years she has not noticed any sexualised behaviour. Prior to that [P].was masturbating and was putting wet toilet paper over his penis and groaning on the toilet. When he was in Kindergarten he was also kissing some of the boys and he was also bumping bottoms with some of the boys. She also said that his first comments about sexualised behaviour may have occurred as early as three years of age.’
Later in his report he observed:
‘I note the documents obtained under subpoena from the NSW Department of Community Services. Since the March 2004 orders, there appear to have been two notifications in relation to [P], the first in about June or July 2004 concerning alleged statements by [P] consistent with sexual abuse by his father, and the second in about May 2007 again based on a statement by [P] on this occasion alleging that the father burnt [P’s] hand with steam in the course of teaching him a lesson about hot water. The sexual abuse allegation appears to have been thoroughly investigated by the JIRT. Their investigations involved a home visit, interviews and also speaking with some of the professionals who had been involved with [P], who repeated the statements his mother alleged, but apparently despite being six years of age he was unable to provide a more detailed description of what happened. Although there was some concern that this may be an artefact of an autistic disorder, which had clearly been considered at that time, ultimately based on all of the information available to them, JIRT took the view that sexual and physical abuse could not be substantiated and a recommendation for counselling through Unifam was made. The second allegation apparently was also not able to be substantiated, although it appears that there was some medical evidence that [P] did have what could have been a burn.’
Dr W concluded in his report that the children are not at an unacceptable risk of any form of abuse or neglect in their father’s household. He did express concern that the mother’s continuing preoccupation with the father and his parenting ability is causing the children significant distress, most obviously C.
Of course Dr Ysaid all of this in his report before he saw the mother’s hand written notes after they came to light at the hearing. Those notes [exhibit 5] and the Department’s file [exhibit 11] unfold this chronology related to these allegations - which can be superimposed on the history outlined earlier about P’s behaviour and the allegations of physical abuse to give a more complete picture:
·27 May 2002 [exhibit 11]: The counsellor’s note records the mother wondering whether P may have been abused by his father in ways other than those she was aware of, although there is nothing to indicate she had in mind sexual abuse.
Ø[This was several days after the mother had instituted Court proceedings. P was not having any contact with his father since she had brought the supervised arrangement to an end in early March as noted earlier.]
·3 October 2002: Dr R produced his first report for the court. It is an agreed fact that the mother raised no allegation of sexual impropriety/ abuse – which is of no particular surprise in the circumstances.
·12 November 2002: [exhibit 11] There are notes by the mother’s counsellor recording the mother’s concern about P playing with faeces and putting his own finger in his anus; the mother reported that P occasionally lies on top of her in bed and moves his body up and down; the mother expressed concern about possible past sexual abuse; she reported P to be exhibiting other concerning behaviour such as masturbating to erection and having nightmares from which he wakes holding his bottom and calling out his father’s name; she reported that putting his finger in his anus, masturbating and smearing faeces had become more noticeable/concerning because she had toilet trained him. There is also note of a discussion about making a report to the Department and possible outcomes ‘given that [P] does not speak well enough to make a disclosure’ [he was 4½ years of age] and discussion of her fears about the father’s reaction if he found out a report had been made.
·28 November 2002: [exhibit 11, tag 7] - The mother’s counsellor notified the Department about concerns that P was being sexually abused. He was related to be smearing faeces, masturbating to erection, putting his finger in his own anus, lying on top of his mother and making up and down movements, crying out his father’s name [he calls his father by his first name] and holding his bottom. This is added: ‘[the mother] has become more concerned about these behaviours in the last few months since she has toilet trained [P]. [P] cannot speak well enough to tell anyone what happens to him.’ And later: ‘[the mother] is very concerned about [P’s] father’s reaction if he finds out that a report has been made about possible sexual abuse’.
·25 December 2002: [mother’s notes, exhibit 5] – This is the first of the mother’s handwritten notes: ‘This was the fourth time [P] had gone with his dad since the end of June. On the first 3 occasions, [P] did not react badly at night. However on Christmas night he did. Since the end of June when contact ceased for [P] with his father, [P’s] sleep pattern at night was excellent. No distress, etc. was waking, etc. but was easy to resettle. Yet on Christmas night, he went back to the waking repeatedly; being distressed – wanting me to be with him & to comfort him; having nightmares; repeatedly crying out, “no, no, no!” And at one stage he also said, “No more piggy-backy.”
·26 December 2002: [mother’s notes, exhibit 5] - ‘[P] climbed up the back of the lounge and rocked back and forth repeatedly on top of the lounge while moaning. At the same time he was playing with small “Toy Story” figurines and pressed one to another. It appeared that he was pressing their faces together. He did this for a considerable amount of time – perhaps 10-15 mins (My mother was also present)’.
Ø[28 December was the occasion mentioned earlier when she observed the long red mark on his neck which he attributed to his father smacking him with a present.]
·29 December 2002: [mother’s notes, exhibit 5] – ‘On way from Church, I bought [C] and [P] vanilla thick shakes from McDonalds. [P] made a hole in the top and refused to drink b/c it was white. [C] & I had to say it was beige so that he wd drink it. This has happened many times.’
·1 January 2003: [mother’s notes, exhibit 5] – ‘Whilst sitting on the toilet, [P] was again playing with his penis (as he often does) and had an erection. I noticed that he was putting his hand into the toilet bowl and wetting his penis and then wiping it with toilet paper (which stuck etc).’
·6 February 2003: [exhibits 6 & 11] - This is the date of a report from Dr S, paediatrician, to Dr H. Reference is made to problems of likely mild atypical autism, behavioural problems which include separation anxiety and some tantrums and oppositional behaviour, toileting issues and finally ongoing concerns the mother has regarding visitation with his ‘natural father’. Improvement with intervention of speech therapist and improvement in speech noted – as for behaviour problems, mother reported improvement after separation and less defiant and less temper tantrums – but recurs after visits to father. The report includes this passage:
‘The last issue is that of sexualised behaviour that the mother was concerned about. She described him as masturbating which is a common behaviour that young children engage in and is not necessarily a sign of any abuse. She also described that he would often touch his anal area and smear faeces on the wall, which again is a behaviour I have explained can be seen often in children with developmental delay.
The last concern was that he would often perform mounting positions on a daily basis, particularly when he was around his mother. This behaviour was not noted at the preschool. I consulted the child Protection Unit and spoke to Dr [MN] about this and he felt this could also be still consistent with his autism and developmental delay rather than any signs of sexual abuse. He did however say that children who come from a traumatised and abusive family situation will often act out.’
Dr S did not notify the Department but he encouraged the mother to do so if she had ongoing concerns about any further abuse.
Ø[It will be noted that Dr S’s report did not completely capture the description given by the mother of P’s behaviour to her counsellor since there is no mention of the child calling out his father’s name while holding his bottom. Nor does it make any mention of the child’s refusal many times to drink a vanilla thick shake – an entry that could only be worthy of inclusion on the topic of wrongdoing by reason of the connection with semen.]
·4 March 2003: A further report from Dr R was released following his appointment with the mother for her to canvas supposed errors and omissions in his initial report. It is common ground she made no mention of concerns about sexual abuse or any sexualised behaviour by P.
·3 September 2003: [exhibit 8] – The counsellor’s notes record the mother saying she wants the children to spend time with their father only during the day and not have any overnight time. The mother also stated she had concerns about C telling her she had a vulval itch. The possibility of sexual abuse was discussed but it was concluded there was not ‘sufficient evidence’.
·3 September 2003: [exhibit 10] – This is the date of Ms V’s report to the mother’s solicitors. There is no mention at all of any sexualised behaviour by P or any concerns about sexual abuse, despite the mother relaying to her concerns about the father’s behaviour towards her and towards the children in other respects and the purpose of the consultation was supposedly to address the mother’s concerns about behaviour.
·4 December 2003: [mother’s notes, exhibit 5] – ‘Teachers at […] EIU [early intervention unit] reported that [P] was very unsettled – not himself, yelling. In evening [P] smeared his poo while on the toilet.’
·24 January 2004: [mother’s notes, exhibit 5] – ‘[P] sounded like he was having nightmares in his sleep at roughly 2.30 am. He was calling out “No” and crying softly. I went to his room to check on him. In fact he was awake. I went to lie down with him for a little while to try to resettle him and noticed that is pyjama bottom was wet. I went to change him. He was v upset by this and was about to cry. I asked, “What’s the matter?” [P] answered, “Because you’re taking off my pants.” I explained, “But I have to because they’re wet.” Once changed he fluctuated between starting to resettle and being peaceful and then crying out. I was worried and said, “What’s wrong?” He said “My bottom. He bumped my bottom. Dad squashed my bottom with his belly button and then I squashed him.” [P] then sat up. He didn’t want to stay in his room. He wanted to come to my room. He again fluctuated between resettling and sounding upset. He didn’t fall asleep again until after 3am.’
·29 January 2004: [mother’s notes, exhibit 5] – ‘In the evening, after his shower, [P] went to his room and lay on his bed. As he waited for me to get his nappy (which he still wears at night) and pyjamas, I noticed that he was playing with his penis – pushing it up and down and at the same time saying “up, down, up down, etc” I said, “what are you doing [P]?” and he immediately stopped and said, “Nothing” then he said that his dad also does it “for his milk”. Then he laughed and said, “Like Bessie the cow”. Her note to follow: ‘I phoned the child protection unit…said they’d follow up following week but they didn’t.’
Ø[The notes reflect escalating gravity which was to increase before long.]
·30 January 2004: [mother’s notes, exhibit 5] – The mother says she phoned the Department.
·8 February 2004: [mother’s notes, exhibit 5] – ‘The children returned at approximately 6pm after spending the weekend with their father. I asked the children how their weekend was. [P] said, “Bad.” I asked why. He said, “Dad was silly” I asked, “Why do you say this”. [P] answered, “because he put his wee wee ([P’s] word for willie as he can’t pronounce the l sound) inside my bottom.” [P] also made groaning noises, saying this is what his father does at such times. When I put him to bed at night, [P] reiterated the above and said that his father lies down on top of him and that he had to lie on the bed face down (he demonstrated) [P] further added that his father gets him to sit on him and that again he puts his “wee wee inside my bottom.” The note goes on to say that she rang the child protection unit again and they told her to call DOCS.
·1 March 2004: [mother’s notes, exhibit 5] – The mother rang the Department and was told the matter was awaiting the allocation of a caseworker.
·15 March 2004: Dr R’s further report released. Again there is nothing about concerns or suspicions of sexual abuse or P’s sexualised behaviour or any statements by him implicating his father in wrongdoing.
Ultimately and in the final analysis I am more persuaded by the proposal put by the ICL than by the father for reasons related to the difficulties inherent in the children splitting their time to that extent according to the ICL’s submissions on that topic. The children do need time with their father, it does need to be substantial and significant, they do need to be able to continue to develop their meaningful relationship with him, it is necessary they be able to do that through their own experiences of him and life in his household, and their interests do require the benefit of his input and involvement. But for reasons submitted they also need the stability of having one primary place to live and their entanglement in ongoing parental disputes minimised as much as possible. Tipping their time during school terms more in favour of their father has its attractions, particularly in light of the mother’s lack of support for their relationship with him, but it is the children who are left to live with the arrangement in place and it is the children who have to deal with the responses of their parents.
On a balance of all the considerations and objectives it is my opinion their interests will be better served by adopting the proposal put by the ICL. Orders will be made accordingly.
Form of orders
There is a raft of ancillary orders proposed from all directions, but they have not necessarily been adopted and others have been modified. Those considered consistent with the children’s interests have been set out in the draft orders.
The telephone has been a source of dispute, more particularly mobile phone usage, and the orders are drafted to allow the parents to agree what they decide about it but failing agreement the mobile phone can be left behind and telephone calls made when the children request from the home landline. A minimum is stipulated for the longer absences from each parent during school holidays.
There is an order proposed about contact with the school although it is not apparent why an order is necessary since they have equal shared parental responsibility. In any event it is made and expressed in mutual terms.
Notice about medical treatment is uncontroversial and is made as sought although it should hardly be necessary since any responsible parent would give notice.
On the historically vexed topic of extra-curricular activities the proposals have not been adopted. Of course the parents are free to agree to put in place at any time something contrary to what the orders will provide. For now, in my judgment, it will be best for the children to limit any extra curricular activities during their time with each parent to activities arranged by that parent rather than have parent A enrol them in something and then expect parent B to take them to it. Unless there is agreement between the parents to the contrary, they will each be restrained from making any arrangements that would commit the children to anything during the time they will be with their other parent.
As for the restraint on consultations with experts, that will continue. Again, the parents will be free to agree on any consultations should the occasion arise.
The father puts a proposal about the issue of passports for the children and their travel outside Australia. But that order will not be made. It could only instil anxiety about their whereabouts and the children do not need the burden of that. There is no current plan to travel internationally and if a concrete proposal is developed at some stage then the other parent will have to be approached for their consent. If it is not forthcoming then regrettable it will be an issue for the Court to decide.
Finally, it remains to say that this is a case where the children will probably benefit from talking to the ICL about the outcome rather than being left to hear only the perspective of either parent. This was agreed in closing and arrangements will be made for that to occur as soon as practicable.
Schedule of orders sought
Orders sought by father pursuant to amended application filed December 2007
1.That the parenting orders in relation to the children [C] born […] February, 1997 and [P] born […] April, 1998 ("the children") made on 24 March, 2004 in the Family Court of Australia in proceedings number SYF 3856 of 2002 be discharged.
2.That the parties have equal shared parental responsibility for the children.
3.That the children live with the father as follows:-
i)during school terms from after school on Wednesday afternoon to before school the following Tuesday morning in each fourteen (14) day cycle;
ii)for one half of all school holidays other than the Christmas December/January school holidays, being the first half of each such school holiday period during years ending in an even number and the second half of school holidays during years ending in an odd number. The parties may vary the application of this order by written agreement between them. To facilitate the arrangement the father will collect the children from school (or the mother's home if such time commences after the commencement of the school holidays) and return the children to the mother's home.
iii)from 3.00pm Christmas Eve until 3.00pm on Christmas Day in odd numbered years and from 3.00pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years.
iv)for one half of the Christmas December/January_ school holiday period in whatever configuration the parties agree to but failing agreement the father is to elect either the first half or the second half and give the mother one month's notice in writing of his election.
4.That each party have sole responsibility for the day-to-day care welfare and development of the children whilst the children are in his or her care.
5.In the event that the father is unable to collect the children or is unavailable for part of the time the children are to spend with him then the children may be collected by their step-mother or another nominated person the children are familiar with and the children shall be permitted to spend time with their step-brother and step-sister during the time they are to be with their father and, for such purpose, the father shall ensure that the mother has reasonable notice of such event occurring.
6.That notwithstanding any other order herein contained the parties shall ensure that the children:-
a)are with the father each year for Father's Day from 5.00pm Father's Day Eve until 6.00pm Father's Day and with the mother each year for Mother's Day from 5.00pm Mother's Day Eve until 6.00pm Mother's Day;
b) have telephone communication with each parent each 4th day when the children are to be away from that parent for more than 3 days.
7.That for the purposes of interpreting these orders the first six day block period that the children are to be with the father pursuant to Order 3 (a) hereof shall commence the first Wednesday afternoon of the school term where the father has had the children for the first half of the preceding school holidays and the second Wednesday of such school term where he has had the children for the second half of the preceding school holiday.
8.That each parent do all such things and sign all such instruments, documents, document authorities and the like necessary to ensure that:-
a)Each parent is at liberty to communicate directly with the children's school teachers and other school authorities as to the children's progress at school and any problems being experienced by the children and to enable their school records to show each parent as a person to be contacted in the case of an emergency and to ensure that each parent is on the mailing list for copies of school reports and circulars as to upcoming events;
b)To enable each parent to communicate directly with any treating professional as to any health related treatment being undertaken by the children without necessarily first referring to the other parent.
9.That each parent keep the other informed as to all sporting, religious, cultural and educational events in which the children are from time to time involved and (or which relate to activities of the children although they themselves might not be involved for example parent teacher interviews) at which parents may attend and each party be so at liberty to attend.
10.That each of the parties shall consult with each other before any decision is made for the enrolment of the children in any sporting and other extra curriculum activity and before any commitment is made to the children concerning such proposed activity and each parent shall ensure that the children attend all sporting and other extra curriculum activities at which they are enrolled and at which attendance is required during the period of time that each parent has the children in his or her care.
11.That each parent at all times keep the other informed as to all medical, dental or health related treatment (excluding minor ailments) being undertaken by the children and the identity of the treating professionals and shall forthwith give such authority whether written or oral as is required to permit the other to communicate directly with treating professional concerning the treatment of the child or children and shall notify the other of all appointments with any such treating professional forthwith after the appointment, (excluding for minor ailments) has been made and in the event of any emergency treatment shall notify the other party at the earliest possible time.
12.That both parties are restrained from referring either child for assessment or consultation to a counsellor or medical practitioner, for the purpose of obtaining a report or using any such information, in relation to the present or future Court proceedings.
13.That each party be and is hereby restrained from denigrating the other or any partner of the other in the presence of the children and in any way using obscene or inappropriate language in the presence of the children or permitting any other person to do so.
14.That each parent be restrained from smoking in the presence of the children or consuming alcohol to excess in the presence of the children and shall take all reasonable steps to restrain others from smoking in the presence of the children.
15.That each party keep the other informed at all times of his or her then current address and telephone number and keep current a normal non mobile service at all times connected to their respective place of residence.
16.That the mother ensure that if her mother is present at changeovers she does not speak to the father or discourage the children from attending with their father.
17.For the purpose of calculating the half school holiday periods the school holidays shall be deemed to commence at the conclusion of school on the last day of term and conclude at 5.00pm on the day before school commences in the new term save and except that in the event that the first day of the school term is a pupil free day then it shall conclude at 6.00pm on that day.
18.The father and the mother shall forthwith do all acts and things and sign all necessary documents to cause passports to issue for each of the children and on the issue of those passports the mother shall retain [C’s] passport and the father shall retain [P’s] passport.
19.The father and the mother be permitted to take the children for an overseas holiday to a Hague Convention country for a period of up to three weeks in duration every two years and for such purpose the party wishing to take the children shall give the other party two months' written notice of the intention to do so, furnish the party with a copy of the return airline tickets and _travel itinerary at least two weeks prior to the proposed holiday and put in place arrangements whereby the children can communicate with the other party whilst on holidays by telephone.
Orders sought by the mother - exhibit 1
1.That the children of the marriage, namely [C], born […] February 1997, and [P], born […] April 1998, ("the children"), live with the mother.
2.That the mother and the father have equal shared par ental responsibility for the children.
3. That the children spend time with the father as follows:
a)during school term, every second weekend from 9:00 am until 6:00 pm on Saturday and from 9:00 am until 6:00 pm on Sunday commencing on the first weekend following the date of these orders for the remainder of the school term current at the date of these orders and, for each subsequent term:
i)in even years (eg 2008), recommencing on the first weekend after the beginning of the term; and
ii)in odd years (eg. 2009), recommencing on the second weekend after the beginning of the term;
b)dining school holidays, for half of each school holiday period as follows:
i)for school holiday periods which begin in an even year (eg 2008), from 9:00 am until 6:00 pm each day, commencing on the first day following the last day of school term and concluding on the first day following the midpoint of the school holiday period; and
ii)for school holiday periods which begin in an odd year (eg. 2009), from 9:00 am until 6:00 pm each day, commencing on the day before the midpoint of the school holiday period and concluding on the last day of the school holiday period;
c) each Greek Orthodox Easter Sunday as follows:
i) in even years (eg. 2008), from 8:00 am until 2:00 pm; and
ii) in odd years (eg. 2009), from 2:00 pm until 8:00 pm;
d) each Christmas Day as follows:
i) in even years (eg. 2008), from 8:00 am until 2:00 pm; and
ii) in odd years (eg.. 2009), from 2:00 pm until 8:00 pm;
e) each Father's Day from 8:00 am until 8:00 pm; and
f) at such other times as agreed between the parties in writing.
4.That, notwithstanding Order 3 above, the children shall spend time with the mother on the following occasions as set out below:
a) each Greek Orthodox Easter Sunday as follows:
i) in even years (eg 2008), from 2:00 pm until 8:00 pm; and
ii) in odd years (eg. 2009), from 8:00 am until 2:00 pm;
b) each Christmas Day as follows:
i) in even years (eg. 2008), from 2:00 pm until 8:00 pm; and
ii) in odd years (eg. 2009), from 8:00 am until 2:00 pm; and
iii) each Mother's Day from 9:00 am until 6:00 pm.
5.That, for the purposes of Orders 3 and 4 above, while the children or either of them attends a NSW Government school:
a)any references to school terms shall mean NSW Government Schools terms as gazetted; and
b)any references to school holidays and school holiday periods shall mean NSW Government School holidays as gazetted.
6.That, for the purposes of facilitating Orders 3 and 4 above, changeovers shall be implemented as follows:
a)the father, or his nominee, shall collect the children from the mother's home at the commencement of the time the children are to spend with the father; and
b)the mother, or her nominee, shall collect the children from the father's home at the end of the time the children are spending with the father.
7. That the children communicate with the father by telephone as follows:
a)between 6:00 pm and 6:30 pm every Friday that they are not already with him, with the father to call the children and the mother to take all reasonable steps to ensure that the children are available to answer the father's call;
b)between 6:00 pm and 6:30 pm, or such other. times as is agreed to between the parties, on each of the children's birthdays; if the children have not already spent time with the father on that day, with the father to call the children and the mother to take all reasonable steps to ensure that the children are available to answer the father's call; and
c)at such other reasonable times as the children may request, with the mother to facilitate the children's making of the call to the father.
8.That the children communicate with the mother by telephone at such reasonable times as the children may request, with the father to facilitate the children's making of the call to the mother.
9.That each parent do all such things, sign all such instruments, documents, authorities and the like necessary to ensure that:
a)each parent is at liberty to communicate directly with the children's school teachers and other school authorities as to the children's progress at school and any problems being experienced by the children and to enable their school records to show each parent as a person to be contacted in the case of an emergency and to ensure that each parent is on the mailing list for copies of school reports and circulars as to upcoming events; and
b)to enable each parent to communicate directly with any treating professional as to any health related treatment being undertaken by the children without necessarily first referring to the other parent.
10.That each parent keep the other informed as to all sporting, religious, cultural and educational events in which the children are from time to time involved and (or which relate to activities of the children although they themselves might not be involved for example parent teacher interviews) at which parents may attend and each party be so at liberty to attend.
11.That each parent ensure that the children attend all sporting and other extra curriculum activities at which they are enrolled and at which attendance is required during the period of time that each parent has the children in his or her control.
12.That each parent at all times keep the other informed as to all medical, dental or health related treatment (excluding minor ailments) being undertaken by the children and the identity of the treating professionals and shall forthwith give such authority whether written or oral as is required to permit the other to communicate directly with treating professional concerning the treatment of the child or children and shall notify the other of all appointments with any such treating professional forthwith after the appointment (excluding for minor ailments) has been made and in the event of any emergency treatment shall notify the other party at the earliest possible time..
13.That both parties are restrained from referring either child for assessment or consultation to a counsellor or medical practitioner, for the purpose of obtaining a report or using any such information, in relation to the present or future Court proceedings
14. That each party be and is hereby restrained from denigrating the other or any partner of the other in the presence of the children and in any way using obscene or inappropriate language in the presence of the children or permitting any other person to do so.
15.That each parent be restrained from smoking in the presence of the children or consuming alcohol to excess in the presence of the children and shall take all reasonable steps to restrain others from smoking in the presence of the children.
16.That each party keep the other informed at all times of his or her current address and telephone number and keep current a normal non mobile service at all times connected to their respective place of residence.
Orders sought by the independent children’s lawyer – exhibit 14
1.That the mother have sole parental responsibility for the children [C] born […] February, 1997 and [P] born [April 1998].
2.a. That the mother consult with the father in relation to issues regarding the children's:
i.Education including choose of school that they are to attend;
ii.Religious and cultural upbringing;
iii. Medical treatment and therapeutic treatment &
b. Consultation shall take place, at the very least, by the mother providing to the father, in writing, at least 28 days written notice of her intention to:
i. Change the children's school
ii.Involve the children in a ceremony or event of religious or cultural significance.
iii. Have the children undertake medical or therapeutic treatment of a non emergency nature;
and allowing the father sufficient time prior to any event taking place to provide his written objections along with the reasons for such objections if the father does not support the course proposed by the mother.
3.That the children live with the mother except as otherwise provided for in these orders.
4. That the children spend time with the father as follows:
a. During the school term:
i.Each alternate weekend from after school Friday to the commencement of School Monday or in the event that the Monday is a public holiday to the commencement of the next school day with the first such weekend to occur on
b.For one half of the school holidays as agreed between the parties in writing, or failing agreement for the first half of school holidays in even numbered years and the 2nd half of the school holiday period in odd numbered years.
c.In the event that Father's day does not fall on a weekend that children would otherwise be spending time with the father from 5 pm on the day immediately prior to Father's day to the commencement of school the following Monday.
d.Each Greek Easter weekend from the conclusion of school Friday to the commencement of school Monday with the first such period to occur in years ending in an even number;
e.From 3 pm on Christmas Eve to 3 pm Christmas day in odd numbered years and from 3 pm Christmas day until 3 pm on Boxing Day in even numbered years.
f.At such other times that the parties may agree in writing.
5. The father's time with the children is suspended:
a.from 5pm on the day prior to Mother's day to the commencement of school the following Monday.
b.From 3pm on Christmas Eve to 3 pm on Christmas day in even numbered years and from 3 pm Christmas day until 3pm on Boxing day in odd numbered years.
c. From the conclusion of school Friday to the commencement of school Monday each Greek Easter weekend in years ending in an odd number.
6. Order 8 as per father's application.
7. Order 9 as per father's application.
8. Order 11 as per the father's application.
9. Order 12 as per the father's application.
10.0rder 13 as per the father's application.
11.Order 15 as per the father's application.
12.Notation 17 as per the father's application.
Orders made by Le Poer Trench J 24 March 2004
1.That the children of the marriage, [C] born […] February 1997 and [P] born […] April 1998 reside with the mother.
2.That the mother and father be responsible for the day to day welfare and development of the children [C] and [P] including but not limited to attending upon and consulting with medical practitioners and medical service providers, pre-school teachers and school teachers.
3.That the father have contact with the said children of the marriage as follows:-
(i)Each alternate weekend from after school Friday until 6.00pm on Sunday to commence on Friday 2 April 2004. To facilitate contact, the father will collect the children from school and then return them to the mother’s home. FURTHER the father is to ensure that until the commencement of term 4 this year the children telephone their mother within the first hour after he has collected them from school.
(ii)Each Wednesday from after school on Wednesday afternoon until 6.30pm to commence 24 March 2004. To facilitate contact, the father will collect the children from school and then return them to the mother’s home.
(iii)One half of all school holidays, other than the Christmas December/January school holidays, being the first half of each such holiday period during years ending in an even number and the second half of school holidays during years ending in an odd number. The parties may vary the application of this order by written agreement between them. To facilitate contact, the father will collect the children from school (or the mother’s home if such contact commences after the commencement of the school holidays) and return the children to the mother’s home. If the father collects the children from their school to commence his holiday contact then he is to have the children telephone their mother within one hour of his having collected them.
(iv)NOTE: The parties have agreed that for the Easter School Holidays in 2004 the father shall collect the children from the mother at 4.00 p.m. on Sunday the 11th April and return them to her on Sunday 18th April 2004.
(v)In the event of Greek Easter falling during school term in any year and where it does not fall on a weekend scheduled as a weekend for the fathers contact pursuant to these orders, then upon the father giving one months notice in writing to the mother he may elect which scheduled weekend either immediately before or immediately after the Greek Easter weekend he wishes to forego and nominate the Greek Easter weekend in its’ stead.
(vi)Telephone contact each Friday that the children are not in the care of the father between 6.00pm and 6.30pm. The mother must make available either a land line or mobile phone for the father to initiate the call. The mother and father shall accommodate the wishes of the children should they wish to call either parent at all reasonable times outside this time.
(vii)Telephone contact from 6.00pm to 6.30pm or such other times as is agreed between the parties on the children’s respective birthdays.
(viii)From 1.30 p.m. Christmas Eve until 1.30p.m. on Christmas Day in 2005 and each alternate year thereafter. From 1.30p.m. on Christmas Day until 1.30.p.m. on Boxing Day in 2004 and each alternate year thereafter. The children are to be with their mother from 1.30p.m. on Christmas Eve until 1.30 p.m. on Christmas day in 2004 and each alternate year thereafter. The children are to be with their mother from 1.30.p.m. on Christmas Day until 1.30 p.m. on Boxing Day in 2005 and each alternate year thereafter.
(ix)In the Christmas 2004 school holiday period the father is to have two periods of block contact of no more than 7 days duration each. One block of 7 days is to be taken in the first half of the school holidays and one block is to be taken in the second half of the school holidays. The two blocks are not to be taken consecutively and there must be at least one week spacing between the two. The father is to select a period and notify the mother in writing no later than one month before the holidays commence.
(x)During the Christmas 2005 school holidays the father is to have up to 3 weeks of block holiday contact with the children. These holidays are to be taken in two blocks. Neither block is to be longer than 14 days and the blocks are not to be consecutive. There is to be not less than 7 days between blocks. The father is to give one months notice in writing to the mother of the dates he is nominating for that contact.
(xi)As and from the commencement of the Christmas school holidays in 2006 the father is to have one half on the Christmas school holidays in whatever configuration the parties agree to but failing agreement he is to elect either the first half or the second half and give the mother one months notice in writing of his election.
(xii)The father is to return the children to the mother from 10.00am New Years Eve to 11.00am New Years Day commencing 31/12/2005 and thereafter on each alternate New Years Eve/New Years Day.
(xiii)Such variation to the orders for contact or such other contact as agreed by the parties in writing
4.That each party have sole responsibility for the day to day care, control and welfare of the said children whilst in his or her care.
5.That for the purposes of implementing the parenting regime more particularly set forth herein in the event that the father is unable to collect the children, the father or such person nominated by the father being a member of his family or such other person with whom the children are familiar with collect the children at the commencement of the time they are with him and/or return the children at the end of the period that they are with him. The father is to ensure the mother has reasonable notice of such event occuring.
6.That notwithstanding any other Order herein contained the parties shall ensure that the children:
(a) Are with the father each year for Father’s Day from 5.00pm Father’s Day Eve until 6.00pm Father’s Day and with the mother each year for Mother’s Day from 5.00pm Mother’s Day Eve until 6.00pm Mother’s Day.
(b) Have telephone contact with the mother each fourth day when the children are to be away from the mother for more than three days.
7.That for the purposes of interpreting these Orders the first weekend that the children are to be with the father pursuant to Order 3(i) and 3(ii) hereof shall be the first weekend of the school term where the father has had the children for the first half of the preceding school holidays and the second weekend of such school term where he has had the children for the second half of the preceding school holiday.
8.That each parent do all such things, sign all such instruments, documents, document authorities and the like necessary to ensure that:
(a) Each parent is at liberty to communicate directly with the children’s school teachers and other school authorities as to the children’s progress at school and any problems being experienced by the children and to enable their school records to show each parent as a person to be contacted in the case of an emergency and to ensure that each parent is on the mailing list for copies of school reports and circulars as to upcoming events;
(b) To enable each parent to communicate directly with any treating professional as to any health related treatment being undertaken by the children without necessarily first referring to the other parent.
9.That each parent keep the other informed as to all sporting, religious, cultural and educational events in which the children are from time to time involved and (or which relate to activities of the children although they themselves might not be involved for example parent teacher interviews) at which parents may attend and each party be so at liberty to attend;
10.That each parent ensure that the children attend all sporting and other extra curriculum activities at which they are enrolled and at which attendance is required during the period of time that each parent has the children in his or her control;
11.That each parent at all times keep the other informed as to all medical, dental or health related treatment (excluding minor ailments) being undertaken by the children and the identity of the treating professionals and shall forthwith give such authority whether written or oral as is required to permit the other to communicate directly with treating professional concerning the treatment of the child or children and shall notify the other of all appointments with any such treating professional forthwith after the appointment (excluding for minor ailments) has been made and in the event of any emergency treatment shall notify the other party at the earliest possible time.
12.That both parties are restrained from referring either child for assessment or consultation to a counsellor or medical practitioner, for the purpose of obtaining a report or using any such information, in relation to the present or future Court proceedings, except for the purpose of attending counselling at Unifam.
13.That each party be and is hereby restrained from denigrating the other or any partner of the other in the presence of the children and in any way using obscene or inappropriate language in the presence of the children or permitting any other person to do so.
14.That each parent be restrained from smoking in the presence of the children or consuming alcohol to excess in the presence of the children and shall take all reasonable steps to restrain others from smoking in the presence of the children
15.That each party keep the other informed at all times of his or her then current address and telephone number and keep current a normal non mobile service at all times connected to their respective place of residence.
16.That the mother ensure that if her mother is present at contact changeovers she does not speak to the father or discourage the children from attending on contact with their father.
17.For the purpose of calculating the half school holiday periods for the fathers block contact the school holidays shall be deemed to commence at the conclusion of school on the last day of term and conclude at 5.00 p.m. on the day before school commences in the new term.
18.That the mother shall pay to the father the sum of $2,798.00 in respect of monies paid and outstanding to Dr [R] and the father shall otherwise be responsible for payment of all outstanding monies owing to Dr [R]. The mother shall pay such sum of $2,798.00 to the father on or before 1 August 2004 from which time interest at the rate prescribed pursuant to the Family Law Rules as currently applying or at a rate of 7% per annum whichever is the lower.
19.That both parties continue to attend the program, “Keeping Contract Parenting While Living Separate Lives” conducted by UNIFAM, and comply with any follow-up recommendation made by any counsellor on behalf of UNIFAM. The parties to attend at such times and frequencies as recommended by their UNIFAM case worker.
20.These orders and a copy of the Judgement may be published to UNIFAM.
21.That all prior orders made between the parties and relating to their children be discharged.
22.That each party pay $1,650 to the Legal Aid Commission of New South Wales on account of the costs incurred by the Child Representative. The mother is to have 6 months to make such payment. The father is to make his payment within three months.
23.That the fathers application for costs be dismissed.
24.Pursuant to Section 65DA I attach to the formal Orders of the Court, annexure ‘A’ which sets out the responsibilities of the parties under these orders and the penalties for breach of Court orders and I otherwise request the solicitors for each of the parties to render appropriate advice to their client as to the penalties which may be imposed if orders of the Court are breached.
25.I direct the solicitor for the father and the Children’s Representative to uplift from the Registry any documents produced to the Court pursuant to a subpoena issued by or on behalf of their client and then forthwith return such documents to the person or entity producing same to the Court.’
I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore
Associate:
Date:
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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