FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAMILTON & COLEMAN | [2016] FCCA 901 |
| Catchwords: FAMILY LAW – Parenting – children aged 4 & 3 living with their mother - where the father was originally seeking orders allowing him to spend time with the children but after years of conflict with the mother is now seeking an order that the children live with him – where the mother does not want the children to have a relationship with the father and is extremely confrontational and difficult to deal with – whether a change of residence should be considered – weight to be given to the children’s attachment to the mother. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA |
| Applicant: | MR HAMILTON |
| Respondent: | MS COLEMAN |
| File Number: | NCC 496 of 2013 |
| Judgment of: | Judge Terry |
| Hearing dates: | 2,3 & 4 February 2015, 7 & 8 May 2015 and 27August 2015 |
| Date of Last Submission: | 27 August 2015 |
| Delivered at: | Newcastle |
| Delivered on: | 22 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boyd |
| Solicitors for the Applicant: | Lyons Barnett Kennedy |
| Counsel for the Respondent: | Mr Bateman |
| Solicitors for the Respondent: | Legal Minds |
| Solicitor Advocate for the Independent Children’s Lawyer in February and May 2015 | Mr Munday |
| Solicitors for the Independent Children’s Lawyer until 1 June 2015 | Moin & Associates |
| Solicitor Advocate for the Independent Children’s Lawyer on 27 August 2015 | Ms Wooi |
| Solicitors for the Independent Children’s Lawyer from 1 June 2015 | Kristina Wooi |
ORDERS
The father shall have sole parental responsibility for the children X born (omitted) 2011 and Y born (omitted) 2013 (“the children”).
The children shall live with the father.
The children shall spend time with the mother as follows:
(a)each alternate week during school terms from 4.00pm or the conclusion of school on Thursday to 9.00am or the commencement of school on Monday;
(b)upon X commencing school for one half of the Term 1, 2 & 3 school holiday periods being the first half of the school holidays in even numbered years commencing in 2016 and each alternate year thereafter and the second half of the school holidays in odd numbered years commencing in 2017 and each alternate year thereafter from either the conclusion of school on the day which is the last day of the school term until 5.00pm on the day which is the mid-point of the school holidays or from 5.00pm on the day which is the mid-point of the school holidays until 5.00pm on the Sunday prior to the commencement of the new school term;
(c)upon X commencing school and subject to Orders 3(f) and (4) the children shall spend the first week and each alternate week of the school holidays with the mother in even numbered years commencing in 2016 and the second and each alternate week with the mother in odd numbered years commencing in 2017 from either the conclusion of school on the day which is the last day of the school term until 5.00pm on the following Sunday or from 5.00pm on the Sunday until 5.00pm on the following Sunday;
(d)upon Y attaining the age of six, for one half of each Christmas school holiday period being the first half of the school holidays in even numbered years commencing in the 2016/2017 Christmas period and each alternate year thereafter and the second half of the school holidays in odd numbered years commencing in the 2017/2018 Christmas period and each alternate year thereafter from either the conclusion of school on the day which is the last day of the school term until 5.00pm on the day which is the mid-point of the school holidays of from 5.00pm on the day which is the mid-point of the school holidays until 5.00pm on the Sunday prior to the commencement of the new school term.
(e)for Easter, to alternate each year between 9.00am on Good Friday to 11.00am on Easter Sunday in odd numbered years and 11.00am on Easter Sunday to 4.00pm on Easter Monday in even numbered years.
(f)for Christmas Day, alternately between 4.00pm on Christmas Eve to 1.00pm on Christmas Day in even numbered years and 1.00pm on Christmas Day to 1.00pm on Boxing Day in odd numbered years.
(g)in the event the children are not in the care of the mother on their birthdays from 3.00pm to 7.00pm.
Notwithstanding any other order the children shall spend time with the father for Christmas alternately between 4.00pm on Christmas Eve and 1.00pm on Christmas Day in odd numbered years and 1.00pm on Christmas Day to 1.00pm on Boxing Day in even numbered years.
Notwithstanding any other order if Mother’s Day falls on a weekend when the children would not ordinarily be with the mother the children shall spend time with the mother that weekend from 4.00pm on Saturday until 9.00am or the commencement of school on Monday.
Notwithstanding any other order if Father’s Day falls on a weekend when the children would ordinarily be with the mother, the mother shall return the children to the father at 4.00pm on Saturday rather than at 9.00am or the commencement of school on Monday.
In the event the children are not in the care of the father on their birthdays the children shall be returned to the father’s care from 3.00pm to 7.00pm.
Changeovers which do not take place at school because the children have not yet commenced school or the school is not open for attendance that day shall take place at McDonalds Restaurant at (omitted).
Each party shall behave civilly to the other at changeover and neither party shall attempt to discuss any issues concerning the care of the children with the other party at changeover.
The parties shall communicate by the use of a communication book which will pass between them at changeover or by text message only for the purpose of issues relating to the care of the children.
Each party shall keep the other informed of their current residential address and contact phone numbers and each party is to notify the other in writing within 14 days of any change to his/her current contact details.
Each parent is restrained and an injunction is granted restraining them from denigrating the other party or a member of the other party’s family to or in the presence or hearing of the children.
The father shall keep the mother advised by SMS text message of the medical practitioner(s) who he nominates will be the children’s treating doctor(s).
The mother is restrained from taking the children to a medical practitioner during the time the children are in her care unless there is a medical emergency.
The mother is restrained from taking the children to any medical practitioner other than practitioners engaged by the father to treat the children.
Each of the parents is to ensure the children take any prescribed medications during the time that they are in their care.
Each parent may obtain from the children’s school copies of newsletters, reports and order forms for school photographs and any other information normally provided to parents.
Each parent may attend all events involving the children including:
(a)Sporting fixtures;
(b)Extra-curricular activities that allow for parental attendance;
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
IT IS NOTED that publication of this judgment under the pseudonym Hamilton & Coleman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 496 of 2013
| MR HAMILTON |
Applicant
And
MS COLEMAN
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Hamilton & Ms Coleman are in dispute about parenting arrangements for their daughters X aged 4 years and 10 months and Y who has just turned 3.
The parties separated in July 2012 and litigation commenced on 1 August 2012 when X was 13 months old and Y as yet unborn.
For a long time the father was simply seeking orders for the children to spend time with him. By the commencement of the hearing however his preferred position was that the children should live with him.
In the Case Outline document filed on the father’s behalf on 30 January 2015 his counsel said that the father still sought orders in the alternative as set out in his amended application filed on 6 May 2014 (namely orders for time) but that:
Given the difficulties the father and the Children’s Contact Service had had with the mother, the father has come to the view that if the children are to have a meaningful and drama-free relationship with both parents, the preferable orders are those proposed in Order 4 of his amended application. [ie that the children live with him and spend time with the mother.]
The orders sought by the father during final submissions on 27 August 2015 were that:
· he should have sole parental responsibility for the children;
· the children should live with him; and
· the children should spend time with the mother from Thursday to Monday each alternate week during school terms and for part of the school holidays once X commenced school.
The mother’s position has always been that the children should live with her. She initially supported the children spending unsupervised time with the father and various interim orders were made to this effect but she told the family report writer in May 2014 that she felt that the children were not safe with the father and that he should only be spending supervised time with them.
By the commencement of the hearing the mother’s position had changed again. She sought orders that she should have sole parental responsibility for medical and health issues and that parental responsibility otherwise be shared; that she be permitted to relocate to the (omitted) area; and that the father spend time with the children each third weekend from Friday to Sunday and for half of the three shorter school holidays and for two separate weeks during the Christmas school holidays.
Soon after the trial commenced the mother abandoned her relocation proposal and by the time of final submissions on 27 August 2015 the orders she sought were that:
· she should have sole parental responsibility for the children;
· until X commenced school in 2017 X should spend three nights per fortnight with the father;
· until Y commenced school in either 2018 or 2019 she should spend one night per fortnight with the father; and
· the children should commence spending block school holiday time with the father once X commenced school.[1]
[1] There are two contradictory proposals about Y’s time with the father during school holidays in the minute of ordered tendered by the mother’s counsel on 27 August 2015, one suggesting that Y should start spending school holiday time with the father when X did and the other that she should start it when she commenced school. I have adopted the more generous proposal as the mother’s proposal.
The effect of these orders would be a significant difference between the time each child spent with the father for at least the next two and possibly the next three years.
The orders proposed by the Independent Children’s Lawyer on 27 August 2015 were that the children should live with the father and that he should have sole parental responsibility. She proposed that the children spend time with the mother on one day each fortnight and for blocks of no more than one week at a time during school holidays.
The dilemma for the court is whether despite the children’s age and primary attachment to their mother it would nevertheless be in their best interests, because of the mother’s unwillingness/inability to support a relationship between the children and the father, her behaviour to the father and his partner and others and her behaviour in relation to decision making, to order a change of residence.
The hearing
The matter was never going to be an easy one given the dilemma highlighted above and unfortunately the hearing was bedevilled by problems.
The matter was listed for hearing on 2, 3 & 4 February 2015 but cross-examination of the witnesses was not completed in that time and in addition the paediatric assessment which the family report writer recommended be obtained had not been obtained and it was clear that it was essential that a report from a paediatrician be obtained before the hearing concluded.
The matter was adjourned to 7 & 8 May 2015 for continuation of the hearing and an appointment was made for the children to see a paediatrician on 1 May 2015. However on 28 April 2015 the mother unilaterally cancelled the appointment and when the trial resumed on 7 May there was still no paediatric report available.
Cross-examination of the mother and the family report writer was concluded on 7 & 8 May but the matter had to be adjourned again so that the paediatric report could be obtained. An order was made facilitating the father taking the children to an appointment which it was hoped could occur by 1 June 2015 and the matter was adjourned to 4 June 2015 to receive any further evidence and take submissions.
The paediatrician’s appointment did not take place until 9 June 2015 which would have required a further short adjournment anyway but in the meantime another complication arose in that shortly after 8 May 2015 the Independent Children’s Lawyer, who had acted as his own advocate, became seriously ill and had to retire from practice.
The Legal Aid Commission appointed a new Independent Children’s Lawyer who filed a Notice of Address for Service on 1 June 2015. After consultation with the parties’ legal representatives the court took the unusual step of ordering and paying for a transcript of the proceedings to assist the Independent Children’s Lawyer. As a matter of procedural fairness the transcript was made available to the solicitors for the mother and father as well as to the Independent Children’s Lawyer.
The matter resumed on 27 August 2015. The paediatrician’s report was tendered that day and submissions were made and judgment reserved. Unfortunately by this time Newcastle had lost a judge and the workload pressure in the registry was extreme and competing priorities meant I was unable to find time to immediately prepare a judgment.
I deeply regret that it has taken me as long as it has to finalise this decision.
The evidence
The father relied on his amended initiating application filed on 6 May 2014, his affidavit filed on 21 January 2015 and the affidavits of his wife Ms A and the paternal grandmother Ms J both filed on 21 January 2015.
The mother relied on her affidavits filed on 30 January 2015, 6 May 2015 and 1 June 2015 and on the affidavit of her father Mr M filed on 28 January 2015. She also relied on a proof of evidence tendered on 3 February 2015.[2]
[2] Exhibit E
The mother’s affidavit filed on 1 June 2015 was filed pursuant to an order made on 8 May 2015 permitting her, should she engage in any services in relation to counselling and psychiatric assessment between then and the next adjourned date, to file and serve an affidavit setting out the arrangements she had made in that regard. The affidavit was received on 27 August 2015 save for the annexures to it which were problematic and were all struck out after argument on 27 August 2015.
The mother also filed on 10 June 2015 without leave an affidavit of Dr T, a psychiatrist she consulted in early June 2015. Prior to the commencement of submissions the mother’s counsel made an oral application to re-open his case to allow him to rely on that affidavit.
This was opposed by the father’s counsel and by the Independent Children’s Lawyer. I read the affidavit and was of the view that it would not assist me to make a determination about the best outcome for the children. The psychiatrist provided a very general opinion about the mother and his opinion was clearly based on her self-report and perception of the case although I note that he had also been supplied (without leave) with a copy of the Family Report.
I refused leave for the mother’s counsel to re-open his case and rely on that affidavit.
On 27 August 2015 the paediatric reports prepared by Dr A in respect of the children were tendered by consent.
A Family Report was prepared by Ms K, a Regulation 7 Family Consultant following interviews on 21 May 2014.
The mother, the maternal grandfather, father, Ms A, the paternal grandmother and the family report writer were cross-examined.
An assessment of the witnesses
The father, his wife and the paternal grandmother were all credible witnesses; the mother’s counsel did not suggest otherwise.
There were some issues with the maternal grandfather but they concerned him contradicting to a degree some of the evidence given by the mother.
The mother was not a witness of credit. There were numerous problems with her evidence.
On more than one occasion the mother gave contradictory and confusing evidence and sometimes this was within the one passage of evidence. During submissions the father’s counsel referred to the passage where the mother was challenged about her evidence that the father had beaten her daughter B every day, asserted that she had meant that the father had verbally abused B every day and upon further challenge asserted that the father had both beaten and verbally abused the child every day.
The mother told the family report writer that B did not spend time with her biological father and did not know him. During cross-examination in May 2015 the mother claimed that B’s father had come down from Queensland for the child’s birthday on (omitted) 2015 and that B had seen him late the previous year and had spent other time with him and had a good relationship with him.
The evidence about what happened at a shopping centre in (omitted) was another example of the mother’s unreliability as a witness. It was common ground that the father and his partner were at the shopping centre and saw the mother and children and that the father waved to the children. The father said that he attempted no other interaction. The mother alleged that the father and his partner stalked and harassed her in the shopping centre and she made a complaint to police.
The police investigated the complaint and their records state that the police viewed CCTV footage of the parties inside a jewellery store and also outside a supermarket and that the footage confirmed the father’s version of events. Police observed that the father made no attempt to interact with the mother in the jewellery store and appeared to be genuinely shopping and that the mother went into and out of the jewellery store several times while the father was there. They observed that the father made no approach to the mother near the supermarket and that the mother instead approached the father.
The evidence in the police records is of course hearsay, but I consider it relevant in that it wholly and convincingly corroborated the father’s version of events and gave the lie to the mother’s version of events.
There were occasions when the mother’s evidence was contradicted by documents. She unilaterally attempted to change the children to a different medical practice and said that the surgery told her that they would no longer treat the children because of conflict caused by the father. A letter from the surgery contradicted this. The mother said she had been told something different from the receptionist.
The mother told the father in January 2015 that the children had lost their place at day care because he had not paid the fees she demanded. The day care centre confirmed in writing that although they wanted the issue of outstanding fees resolved the children had not lost their place at the day care centre. The mother also alleged that the father abused a doctor at the (omitted) Surgery on 27 February 2015. The father denied it and there was nothing in the surgery notes to confirm it.
During cross-examination the mother claimed that she did not have written proof about a certain medical matter because the doctor was too afraid of the father to write a letter.
The evidence in the mother’s affidavit filed on 6 May 2015 about why the children did not attend the appointment with a paediatrician on 1 May 2015 was misleading and inaccurate. The mother claimed that she had to cancel the appointment because the children were too ill to travel on 1 May 2015. She failed to mention that she had rung the surgery and unilaterally cancelled the appointment on 28 April 2015.
These are but some examples of dubious, contradictory or confusing evidence given by the mother. I will have to assess the evidence about each issue in dispute on its merits but my concerns about the mother’s credit will have a bearing on that assessment.
Background
The mother and father met in about 2008, commenced a relationship in (omitted) 2010 and commenced living together in either April or May 2011 when the mother moved into the father’s home in (omitted). They separated on 15 July 2012 and they have two children, X born on (omitted) 2011 and Y born on (omitted) 2013.
The mother has a daughter B born on (omitted) 2006. B lived with the mother and father during their year long period of cohabitation.
Within 3 days of separation the parties had their first argument about the father spending time with X. In what was a precursor of things to come the father asked to have X for the night and the mother refused saying that the child was too sick.
Within 3 weeks of separation, litigation had commenced with the father filing an application in the Local Court at Tamworth seeking orders about spending time with X.
On 16 October 2012 orders were made which provided for X to spend time with the father each Monday and Wednesday from 2.00pm to 5.00pm and each alternate weekend from 9.00am on Saturday to 4.00pm on Sunday.
On 20 November 2012 orders were made which provided for X to spend every second weekend from Saturday to Sunday, every second Wednesday overnight to Thursday morning and each alternate Sunday from 1.00pm to 5.00pm with the father.
On 5 March 2013 the proceedings were transferred to the Federal Magistrates Court as it then was.
The father cared for X for a week in (omitted) 2013 when the mother was in hospital for the birth of Y. He took X to the hospital each day to see the mother.
On 4 June 2013 orders were made which provided for the father to spend time with X each alternate weekend from 9.00am on Saturday to 4.00pm on Sunday and in the other week from 5.00pm Thursday to 5.00pm Friday. No orders were made about Y because there was a dispute about her paternity which each parent said was fuelled by the other.
The parents agreed to undergo paternity testing and by the next mention date of 20 September 2013 it had been confirmed that the father was Y’s father and an order was made that Y spend time with the father for two hours each week.
There were numerous difficulties with changeovers and on 7 November 2013 the father filed a Contravention Application. At the hearing in February 2015 he alleged that the mother failed to make the children available on 6 occasions in September 2013 and 4 occasions in October 2013. He said that he filed the contravention application because he was at the end of his patience; he alleged that the mother had also failed to make X available on 27 occasions when the Local Court orders were in place and on 2 occasions after the orders were made on 4 June 2013.
On 6 February 2014 orders were made also by consent providing for the father’s time with X and Y to increase. These orders provided for X, who was then 2 ½, to spend 3 nights/4 days per fortnight with the father and for Y who was then almost 1 to spend 4 to 4 ½ hours with him each week until she turned one and thereafter 7 hours each alternate Friday and 7 hours each alternate Sunday, coinciding with time X was spending with the father. It was ordered that changeover occur at (omitted) Children's Contact Centre if this was open and alternatively at McDonalds (omitted).
The father filed another contravention application on 17 March 2014 alleging that the mother failed to make the children available on 6 occasions in February 2014 and one occasion in March 2014.
The father went into considerable detail in his trial affidavit about the variety and extent of the difficulties which had occurred with changeovers and with the children not being made available to spend time with him. He detailed numerous occasions when the mother claimed the children were sick, occasions when she unilaterally decided to alter the changeover venue and occasions when she just did not turn up. I have no reason to disbelieve his evidence and furthermore in broad general terms the mother agreed that the children had missed a significant number of visits with the father over the years. Not only that, the evidence she gave suggested that not all of the missed visits had been for justifiable reasons. She said as follows in her affidavit:
I say I cannot recall the specific times and dates listed [in a contravention applications filed by the father] but verily believe that if any time was missed the children were either unwell, changeovers were not operating smoothly and I felt threatened by the applicant and/or his mother and I was experiencing difficulties with the Contact Centre staff as outlined above.[3]
[3] Affidavit of Ms Coleman filed 30 January 2015 paragraph 191
The mother made endless difficulties at the (omitted) Children's Contact Centre. She complained about the location of the entrance the centre required her to use, about the facilities in the area where she was required to wait, about the centre not identifying staff to her and about information the staff was allegedly not recording. In October 2013 she decided that she would not use the centre in breach of the orders.
Changeovers resumed at the Contact Centre in February 2014 after the Centre conducted mediation with the mother but she continued to complain. She alleged that the father and his partner had stalked her at the Centre, driving past when she was arriving and leaving, filming and photographing her and sticking their finger up at her.
I do not accept the mother’s evidence. The father vehemently denied it and he was a witness of credit and the evidence about the incident at a shopping centre in (omitted) where the mother also alleged that she was stalked and harassed by the father which does not stand up to scrutiny tells against her.
The mother’s attitude to compliance with the orders is demonstrated in the following email she sent in September 2013, apparently to the paternal grandmother:
It hasn’t been ok for the last 3mths and no ive alrady told the centre I will not use it again. Stuff the orders specialy when it hurst X if he wishers 2 give her back its maccas or ur place its whats bet for X[4]
[4] Page 35, annexures to the father’s trial affidavit
There were also some disputes between the parents at changeover which were witnessed by the children.
Changeover and the endless missed visits were not the only issues which gave rise to dispute between the parties after separation. Other issues which arose were:
· The father formed a relationship with Ms A (formerly (omitted)) in October 2012 and he alleged that the mother stalked, harassed and made offensive comments to and about his new partner. There were allegations and counter allegations about the mother and the new partner denigrating each other on social media and there were disputes and resentment about whether the mother had unreasonably declined to allow the children to attend the father’s engagement party and wedding.
· The father was concerned that the mother was unnecessarily taking the children to doctors, perhaps to obtain medical certificates to justify not allowing them to spend time with him or perhaps for her own purposes. This led to conflict between the parties at doctor’s surgeries and the hospital and to acrimonious exchanges of correspondence between solicitors.
· The mother made a number of complaints to police about the father. On two separate occasions she accused him of kidnapping, one occasion being after he arrived at X’s day care centre 15 minutes before the designated pick up time. She complained that he was stalking and harassing her and as a result of her complaints the police made three (ultimately unsuccessful) ADVO applications. The mother also made a number of requests for the police to do welfare checks while the children were in the father’s care.
When the hearing commenced on 2 February 2015 the children were spending time with the father pursuant to the 6 February 2014 orders although the father alleged that the mother had failed to comply with the orders on some occasions leading up to Christmas 2014 and on 16 & 18 January and 1 February 2015.
On 4 February 2015 the hearing was adjourned to 7 May 2015 for further hearing. The mother did not provide the children to spend time with the father on (omitted) 2015 (Y’s birthday), 3 April 2015 (Good Friday), 5 April 2015 (Easter Sunday) and 30 April and 1 May 2015 (the day the father was due to take the children to (omitted) to see the paediatrician). On each occasion she claimed that the children were too ill to spend time with him.
The trial resumed on 7 May 2015 and on 8 May 2015 an interim order was made that the children commence spending time with the father each weekend from 4.00pm on Friday until 4.00pm on Sunday.
The father was ordered to arrange for the children to attend a paediatric appointment which the court hoped would occur prior to 1 June 2015. He was ordered to pay for the costs of the appointment and it was ordered that each party be at liberty to attend the appointment and that they behave civilly and respectfully to each other at the appointment.
It was further ordered that each party was otherwise restrained from taking the children to any non-emergency medical appointment.
Finally an order was made resolving a dispute about the children’s surnames. X had been registered as Hamilton at birth but Y had been registered as Coleman. It was ordered that the children henceforth both be known by the surname Hamilton-Coleman.
Some specific issues
Before turning to the s.60CC (2) & (3) matters I intend to consider the evidence about:
i)The children’s medical treatment.
ii)The mother’s allegations about family violence.
The children’s medical treatment
The father’s concerns
The father told the family report writer that he was concerned about the number of times the children were being taken to the doctor. He said that he was not sure if the mother was using or overusing medical concerns to prevent him seeing his children or overusing medical interventions to meet her own needs. He raised these concerns again in his trial affidavit.
The father alleged that during the relationship the mother would often give X and/or Panadol every four hours and sometimes at the same time and that X had been having antibiotics regularly since she was 6 weeks old.
He complained about the number of times X had been taken to the doctor. During the trial the mother conceded that Medicare records showed that X had 27 visits to the doctor in 2011, 35 visits to the doctor in 2012 and 23 visits to the doctor in 2013.
The father said that just after the parties separated they both went to (omitted) with X to see a paediatrician about her ears and the paediatrician said that he did not recommend an operation to insert grommets and recommended that there be a limit to the antibiotics X was given to prevent her developing immunity. The letter referred to X having had 16 courses of antibiotics. However later the mother went back to the paediatrician without him and secured his agreement to X having grommets inserted.
The father complained that the mother had arranged an MRI for X over his protests although X was distressed and the MRI could not take place.
The father complained that he was told nothing about the fact that on 17 January 2015 the mother took X to an ENT specialist in (omitted), was consulted about whether she should have her tonsils out and that his requests for information about the results of her hearing tests went unanswered.
The mother disputed that she over-medicated or repeatedly taken X to the doctor or emergency department unnecessarily. She alleged that X had suffered serious respiratory infections, tonsillitis and ear infections which required immediate medical attention from the age of 8 weeks.
The mother agreed that she took X back on her own to see Dr M a week after the first appointment and was again told that it was undesirable for grommets to be inserted when X was less than 2 years of age and that Dr M said that the child would need to have a number of operations as she grew older and surgery would leave scar tissue which was not good for her ears and that sometimes it was better to let the eardrum burst as it was better capable of healing itself than surgery.
The mother nevertheless said that when X was 21 months old she pushed to have grommets inserted because tests showed X was 90% deaf in both ears and was having constant ear infections. She noted that while the father remained concerned he ultimately agreed to the operation.
The mother said that an ultra sound had showed problems with X’s spine when the mother was 20 weeks pregnant and that she was told that X might have spina bifida. X did not appear to have spina bifida when she was born but she did have a hip displacement which required her to be put in a hip brace for several months as a baby. The mother said that spina bifida had never been definitely ruled out and she wanted X to have an MRI scan to put the issue beyond doubt.
The mother agreed that she took X to see an ENT Specialist in (omitted) in January 2015 for a check-up and also because X was experiencing bleeding from the ears. She said that she was told that X should have grommets put in and should have an adenontonsillectomy and that the operation was scheduled for 21 February 2015.
The mother said that Y started suffering from ear and throat infections in March 2014 and she arranged for her to have grommets inserted and an adenoidectomy on 6 December 2014. She said that although this was driven by her, the father did not seek any court orders to prevent it occurring.
The only other health issue that had arisen in relation to Y was that the mother took her to the hospital on March 2016 alleging that she had symptoms of whooping cough. As a result she withheld Y from spending time with the father on the weekend of 19 and 20 March 2015, which included her birthday when the father expected to have her in his care.
The paediatric examination
Given the issues raised by the father about the children’s medical treatment the family report writer recommended that the children be taken for a paediatric assessment.
The parties had not organised this by the time the trial commenced but when the matter was adjourned on 4 February 2015 it was agreed that it would be organised.
It was envisaged that the father would make the appointment because he had already identified an appropriate paediatrician in (omitted) who could see the children fairly soon and in due course he made an appointment for the children to see the paediatrician on 1 May 2015.
The father informed the mother of the appointment in an entry in the communication book on 12 April 2015. He said that he would transport the children to the appointment as the children would be with him on that day, a Friday. There was no suggestion that the mother could not attend the appointment.
On 28 April 2015 the mother rang up the paediatrician and unilaterally cancelled the appointment and did not re-book it. Not only that, she withheld the children from the father on 1 May 2015 claiming that they were too sick to spend time with him.
In her affidavit filed on 6 May 2015 the mother claimed that she cancelled the appointment because:
· both children were too sick to travel; and
· she could not afford to pay $640.00 for the consultation and report.
There was absolutely no evidence to corroborate the mother’s claim that Y was ill on 1 May 2015. She had attended day care uneventfully around this time.
The mother did take X to the hospital on 29 April 2015, the day after the appointment was cancelled. The hospital notes record that the mother said that X had been well at breakfast and had gone to pre-school but that the pre-school had phoned to say that she had vomited and so the mother collected her and took her home. The mother said that she was concerned that X might have passed out in the toilet at home and so she arranged to have her transported to hospital.
The hospital notes record that X looked well and was talking and interactive. The mother nevertheless failed to make her available to spend time with the father the next day.
I do not accept that X was ill on 29 April 2015 or the following days or that X or Y were ill on the days leading up to the paediatric appointment. I am satisfied on the balance of probabilities that the mother cancelled the paediatric appointment for no good reason and deliberately withheld the children from spending time with the father to prevent the father attempting to take them to the appointment.
The father’s counsel put to the mother that she cancelled the appointment out of spite because earlier on 28 April 2015 her application for an ADVO against the father had been dismissed by the Local Court. It is enough for me to say however that I am satisfied that there was no valid reason for the mother to cancel the appointment.
The mother also suggested that the children could not have attended anyway on 1 May because she found out that there was flooding which had cut (omitted) between (omitted) and (omitted) and that (omitted) was on flood watch and she assumed all the roads into town would have been blocked. However by that time the appointment had already been cancelled.
On 8 May 2015 an order was made allowing the father to take the children to the appointment with a paediatrician and they saw Dr A in (omitted) on 9 June 2015. Both parents attended the appointment.
Dr A examined X and heard from both parents and reported that her clinical impression was that X’s general health was excellent.
Dr A recommended that X continue with speech therapy and have a dental review to address any concerns. She said that she could see no signs of spina bifida on examination and did not recommend an MRI as it would have to be performed under general anaesthetic due to X’s resistance to the procedure.
Dr A said that she could not comment on whether X had been given antibiotics too frequently. She noted that on the mother’s description, breathing difficulties and asthma seemed to be only infrequent and said that appropriate clinical documentation whenever she was reviewed could easily resolve the issue of whether asthma was a problem for X..
Dr A found it very difficult to examine Y because she screamed and struggled whenever Dr A attempted to examine her. Dr A said that her clinical impression was that Y was generally a healthy (and strong) child.
Dr A recommended a dental check and referral to a speech pathologist. She said if there were concerns about Y’s diet, a referral to a dietician at (omitted) Hospital for further examination could be obtained but commented that from what she saw of the child her nutrition was excellent. She felt that given Y’s history of ear infections she might quite likely have needed frequent antibiotics.
Conclusions about the medical issues
The father was not someone who presented an overblown case to gain an advantage. I accept that he has had genuine concerns from time to time about the mother’s decisions concerning medical treatment of the children. However his evidence about what happened prior to separation was so general and so non-specific as to amounts of medication given or times that it was given that it is impossible for me to find that the mother overmedicated X with Panadol or antibiotics during the relationship.
It is also not open to me on the evidence to find that the mother’s decisions concerning treatment in respect of X’s or Y’s ears or tonsils were in themselves unjustified.
There are reasons to be concerned about the mother’s actions in regard to medical treatment of the children and moreover there is a high likelihood that medical issues will continue to cause problems in the future unless one parent has sole parental responsibility for making decisions about medical treatment.
One problem is the parents have different pre-dispositions to seeking medical treatment, with father having a more robust laid back approach and the mother veering to the side of being excessively cautious. This is demonstrated by their different views about whether X should have an MRI to test for spina bifida (there was no sign of it when she was born but the mother wanted her to have an MRI at age 3 or 4 to rule it out completely) and whether caution was still warranted after a test cleared Y of having whooping cough (the father felt the test result was the end of it, the mother felt that further isolation was required).
The parent’s predisposition about seeking medical treatment together with the mother’s hostility to the father and her tendency to dramatically overreact to situations can all too easily lead to high conflict between the parents over medical issues and a classic example of this occurred when Y fell off a chair on 30 January 2015 while spending time with the father and bruised her forehead.
Y did not become unconscious or vomit and the father while sorry for Y was not terribly worried about the incident and simply noted the accident and bruise in the communication book. When the mother saw the bruise on the child’s forehead at changeover however she sent a furious text message to the father saying that she was taking the child to hospital, rushed the child to the emergency department and made a notification to DOCS.
When the father arrived at the hospital to find out what was happening hospital staff would not allow him to see Y because the mother had asked them not to let him in claiming she was fearful of him. Hospital notes record that the father was polite and non-threatening.
Y was sent home with the mother without treatment indeed the hospital notes state “this injury is of no concern” but the mother withheld Y from spending time with the father the next day which was an additional day he was supposed to have with her pursuant to an arrangement between the parents.
Another reason why disputes about medical issues are likely to continue unless the father has sole parental responsibility for medical issues and the mother is restrained from taking the children to the doctor except in the event of an emergency is that the mother’s most common excuse for not sending the children to spend time with the father is that they (or one of them but she always withholds both) are too ill to spend time with the father and she has repeatedly sought medical certificates to justify this.
A third reason why disputes about medical issues are likely to continue absent specific orders being made about medical treatment is the mother’s high handed actions in relation to obtaining medical treatment.
On 16 October 2012 an interim order for equal shared parental responsibility was made but the mother did not consult the father about taking X to an ENT Specialist in January 2015 which resulted in an operation being scheduled. She acknowledged in cross-examination in May 2015 that an operation on X by an ENT specialist had been cancelled after X’s hearing test in January 2015 had come back clear. However she said that the operation had now been scheduled for 13 June 2015. The following exchange then occurred:
Father’s Counsel: When did you tell Mr Hamilton about this?
Mother: I haven’t
The fact that the parents are in dispute about medical issues and have an extremely poor relationship has also resulted in quarrels in doctor’s surgeries, one surgery refusing to continue treating the children and the mother unilaterally attempting to change from one surgery to another because she felt that a surgery had sided with the father.
On 27 February 2015 the parents had a dispute inside the surgery at (omitted) Practice. The mother alleged that the father also abused her in the car park and she made a complaint to police and refused to allow the father to spend time with the children that day.
The mother’s allegations about family violence
The mother alleged that the father was violent to her, B and members of his own family.
The mother’s evidence about the father being violent to her was in the most general terms. She alleged that he started to be aggressive when she moved in with him in April/May 2011 although she provided no particulars. She alleged that his aggression increased in June 2011, again providing no particulars. She also alleged that the father became stressed about his job and that she observed him punch holes in walls and cause damage to doors.
The maternal grandfather said that after separation the mother showed him damage to walls and doors which she said had been caused by the father but he had no independent knowledge of the father ever being violent.
The mother alleged that at a family dinner in July 2011 the father “got into a punch up” with his mother and sister at their home. She alleged that she was “abused and hit” by the father and the paternal grandmother Ms J at a changeover at (omitted) Police Station in February 2013. The father and Ms J denied these allegations and I do not accept them.
The mother also alleged that the father threatened her in the car park at the (omitted) Practice and that there had been occasions since separation when the father had stalked her which would come within the definition of family violence in the Family Law Act.
The father denied all of the allegations made against him. There was no evidence that he was a person prone to behave aggressively. He has no criminal convictions for offences of violence. He has not sent the mother threatening or abusive emails since separation in fact the reverse is the case, with the mother regularly calling the father names such as “idiot” “dickhead’ and “ass hole.” The family report writer commented that the father did not display any aggression during interview.
Finally the mother was not a witness of credit and the emails she has sent to the father demonstrate a propensity to make dramatic and colourful allegations (for example that she had not eaten for three days or had kidnapped X from day care). I do not accept that the father has been violent to the mother however that violence is described.
The mother also alleged that the father was violent to B. She alleged that on or about 18 June 2011 he became angry with B who ran and hid under a bed. She said that the father then ripped the end of the bed and threw it damaging the wall while yelling at B that she was a spoiled brat. She alleged that he pulled B out from under the bed by her legs and hit her on the bottom and upper legs causing B to wet her pants. The mother said that she locked herself, B and three day old X in B’s bedroom for several hours until the father calmed down.
The mother alleged that B was traumatised as a result of the father’s behaviour toward her and had attended on Ms O, a psychologist, and Dr K, a paediatrician, for treatment for anxiety and general behaviour problems as a result of the applicant’s treatment of her. She alleged that B was suffering from post-traumatic stress disorder and had been prescribed Lovan.
In conversation with the family report writer, the mother referred to the fact that B allegedly had post-traumatic stress disorder:
...because Mr Hamilton beat her on a daily basis trying to make her something she was not. This happened after I moved in with him. I saw a change in B because he was trying to be the father figure and she did not like it. I did lots of stuff with her outside and when we moved in with him he started belting her.[5]
[5] Family Report paragraph 59
There is no corroboration of the mother’s claims and the mother was conspicuously not a witness of credit. She did not bring B to the family report interviews and she did not subpoena records from those allegedly treating B which could easily have been done.
In those circumstances I cannot and do not accept the mother’s assertions about the father’s treatment of B who sadly remains a shadowy figure in this litigation.
The parties circumstances
The father is 31. He is a (occupation omitted) who operates his own business and he lives in (omitted) with his wife Ms A, her daughter A born on (omitted) 2007 (8) and their child C born on (omitted) 2015.
Ms A is 29. She and the father commenced a relationship in (omitted) 2012 and married on (omitted) 2014. Ms A is an (occupation omitted) when not on maternity leave.
The father has extended family in (omitted) including his mother Ms J, step-father Mr R and a brother.
The mother is 33. She lives in (omitted) with B who is 7 (almost 8) as well as X and Y.
There was no evidence that the mother had re-partnered.
When the hearing commenced the mother was engaged in home duties. She has a history of employment and did a TAFE course following separation. In her trial affidavit she said that she intended to do a further 6 month TAFE course but did not want to disclose details of the course because the father had caused problems when she attended TAFE before.
There was no foundation for this assertion and in my view it was symptomatic of the mother’s contrary and uncooperative attitude.
The mother’s family in (omitted) at the time of the hearing were her father Mr M and a brother and sister.
At the commencement of the hearing the mother was seeking an order which would permit her to relocate to the (omitted) area with the children. She said that this area presented better opportunities for her in terms of family support, employment and slightly cheaper accommodation. Her mother has recently moved to this area from (omitted) and her sister also lives there.
Shortly after the hearing commenced the mother abandoned her relocation proposal but more than once during cross-examination she said that she did not intend to pursue relocation “at this time”, and there were occasions during text message exchanges after separation when the mother dramatically announced that she intended to move away from (omitted).
In the light of this and in the light of the evidence generally about the mother’s attitude to the father, it is somewhat troubling to me that during final submissions the mother’s counsel said that the mother opposed an order that the parties keep each other advised of their residential address. The mother sought such an order at the commencement of the hearing.
The children’s best interests
Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and to determine the children’s best interests, I must have regard to the matters in ss.60CC(2) and 60CC(3) of the Family Law Act.
The primary considerations in s.60CC(2) are:
a)the benefit to the children of having a meaningful relationship with both of the children's parents; and
b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
S.60CC (2A) provides that the court must prioritise (b) over (a) and I will therefore deal with (b) first.
As outlined earlier there is no evidence that the father had ever committed acts of family violence and there is no evidence that he is likely to do so in the future nor is there any evidence that he is likely to abuse or neglect the children.
There was also no evidence that the children were likely to be exposed to abuse as it is defined in the Family Law Act or to neglect or family violence in the care of the mother.
The only relevant primary consideration therefore is (a), the benefit to the children of having a meaningful relationship with each of their parents and it is a pivotal consideration in this matter.
It was the father’s case that he would support the children having a relationship with their mother if they lived with him and I accept that this is correct.
The father did not have too many positive things to say about the mother. He criticised her to the Family Consultant for being disorganised and untidy and he was critical of what he considered to be her excessive concern about and overreaction to the children’s medical issues. However I consider that the father was being absolutely genuine in the following passage from his trial affidavit:
I do not want to separate Y and X from Ms Coleman in these proceedings. I have never threatened to take the children away from Ms Coleman. All I want is to be able to spend more regular, quality time with them without drama caused by Ms Coleman.
This is not a case in which there has been a flow of insulting or verbally abusive text messages from the father to the mother, he has withheld one of the children only once and that long ago and only for one night, he has co-operated with the children spending some special occasions with the mother and he made a reasonable proposal about the mother’s time with the children should they live with him.
I am satisfied that if the children live primarily with the father he will not denigrate the mother to them and will comply with orders and that the children will be able to have a meaningful relationship with the mother unless the mother does something to put that at risk.
I also note that the paternal grandmother who may well have more to do with the children if they live with the father is not hostile to the mother. She has been supportive of the mother since separation despite the fact that the mother has run hot and cold with her, on occasions asking for help with the child and on other occasions rejecting her. The paternal grandmother has helped the mother where she could when the mother has asked for help. In early 2014 for example she agreed to a request by the mother that she look after the children on Mondays and Fridays while the mother was at TAFE doing a (omitted) course and she also looked after the children when the mother did work experience.
The children need to have a meaningful relationship with the father. He is an upstanding member of the community who loves the children, cares for them and wants to guide them and ensure that they develop into valuable adults.
There is reason to be concerned that if the children live with the mother their relationship with their father might be undermined.
The mother’s evidence in her trial affidavit was that she supported that relationship. She said as follows:
It is not my intention to deny the Father the opportunity to have a loving and meaningful relationship with the children. I have on Father’s Day, Mother’s Day for the paternal grandmother, Christmas, Easter, and Birthdays encouraged and assisted the girls to prepare cards with pictures and drawings and a small gift to take at changeovers for the event.[6]
[6] Mother’s affidavit paragraph 224
However actions speak louder than words and the mother has frequently behaved in ways which give credence to the family report writer’s view that the mother does not want the children to have a relationship with the father.
The mother did not contact the father after Y’s birth and give him the opportunity to be named on Y’s birth certificate or to have any input into her surname. Y was registered as Y.
The mother refused to allow the children to attend the father’s engagement party even for a short period. The reason she gave was that it was an adult event with alcohol.
During the hearing a document from X’s day care dated 9 October 2014 called “update child details form” was tendered. The form was completed by the mother. She named herself in Box 1 headed “Parent/Guardian 1.” She did not complete the box headed “Parent/Guardian 2” and in the third box headed “Other parent/guardian and emergency contact” she put the name of the paternal grandfather Mr M.
The mother has a proprietorial attitude to the children and often talked in her evidence about decisions she had made for them. Ever since separation she has behaved in a highly confrontational way toward the father and has withheld the children when she has felt that he has stepped out of line.
An example of this happened in June 2014.
On 19 June 2014 when the mother’s solicitors wrote to the father’s solicitor to say that as X now attended day care on Mondays and Thursdays the father was to collect her from day care at 3.00pm on Thursday rather than from McDonalds at 4.30pm.
On Thursday 31 July 2014 the father arrived at day care at 2.45pm instead of 3.00pm. He said and I accept that X showed him her drawings and asked him to play with her in the sandpit. The father did not leave the day care centre until 3.00pm but he started receiving messages from the mother stating:
What part of picking X up after 3.00pm from daycare do you not understand. U can leave her at daycare today. If u take her now ill have u for kidnapping
I’ll call the police. Kidnapping and stalking.[7]
[7] Father’s affidavit filed 21 January 2015 paragraph 167
The father left the day care centre with X at 3.00pm and at about 3.20pm received a telephone call from the police advising that the mother was at the police station complaining that he had kidnapped X as he was only supposed to have her from 4.30pm with changeover at McDonalds.
At about 4.00pm the father went to the police station and showed them the letter dated 19 June 2014. The police took no further action.
The father was due to have Y the following day but shortly after he left the police station he received a call from the Contact Centre saying that no changeover would be taking place for Y the following morning but X was still to be returned to the contact centre the following afternoon.
The mother also revoked her consent to the father collecting X from day care and he received a number of threatening messages from the mother around this issue including:
And u will not go anywhere near the daycare. U do not have any rights or court orders to get X or Y from daycare. U go to daycare and they will call the police and I will make sure u get charged. I see u still haven’t lost ur ass hole ways. Grow the hell up Mr Hamilton and start acting like a real father. But I guess u will never be a real father.[8]
[8] Father’s affidavit paragraph 173
The mother has withheld the children from the father on numerous occasions without good reason. I do not accept that the Contact Centre rather than the mother was at fault in 2013/14 and the medical evidence does not support a finding that the mother was justified in withholding the children on 1 May 2015 when X was allegedly ill or on 19 March 2015 when Y was allegedly too ill to go to the father.
After these proceedings commenced the mother failed to provide the children to the father on three important occasions, namely on Y’s birthday and on Good Friday and Easter Sunday, claiming on each occasion that the children or one of them was ill.
The events surrounding the alleged illness on the weekend close to Y’s birthday are an excellent example of the problems arising from the mother’s high handed behaviour. Y was coughing and the mother said that she formed the view that Y might have whooping cough. There was no evidence to support this, only a fear by the mother, and the hospital notes suggest that the hospital considered that Y was well. The mother said that she did not want to send Y to spend time with the father if she might have whooping cough because he had a small child in the home, but she did not give him the opportunity of having any input into this decision. She simply declined to send both children.
The mother then offered make up time on days of her choosing and acted as if it was the father who was being unreasonable because he did not accept her proposal.
The mother has never been willing to agree to any extensive time between the children and the father. During the family report interviews she promoted the idea that the children were at risk of harm in his care and their time with him should be supervised.
The mother’s final proposal was for some quite limited time between the children and the father. She proposed that X spend time with him from 4.30pm Friday until 4.30pm Sunday each alternate weekend,[9] and from 9.30am Tuesday until 9.30 am Wednesday each alternate week and once she commenced school for half of the school holidays. She proposed no block holiday time until then but proposed that once X commenced school the children spend half of Term 1 2 & 3 school holidays and two non-consecutive weeks of the Christmas school holidays with the father.
[9] In Exhibit BB this is stated to be each weekend but the mother’s counsel clarified during submissions that this was an error and that the mother was proposing that the time be each alternate weekend.
She proposed that Y spend time with the father from 4.30pm on Friday until 4.30pm on Saturday each week.
The father gave evidence during the trial about the distress Y exhibited when he collected X but not her and I accept his evidence; it is entirely likely that this would occur. The mother gave absolutely no explanation for why Y’s time with the father should be so restricted for the next two years and why she should not move onto to a regime similar to X’s at any time prior to commencing school.
The presentation of this minute of orders sought strongly suggests that nothing that occurred during the trial has changed the mother’s attitude to the father and that she will continue to try to ensure that he has the least involvement with his daughters that she can manage.
The mother’s provocative behaviour around the issue of the children spending time with the father continued even after the trial commenced and her behaviour around cancelling the paediatric appointment showed no thought for the girls. Her complete inability to see that she is at the very least part of the problem was further demonstrated by the fact that she has never engaged in the counselling recommended by the family report writer and on 27 August 2015 sought the following order:
The father shall forthwith make an appointment with and attend a course of counselling with a properly qualified counsellor or facility with a view to assisting him with managing his communication with the mother and her family and reactions to situations. The father is at liberty to provide to such a counsellor a copy of the Family Report of Ms K of 28 July 2014.[10]
[10]Exhibit BB proposed order 14
Not only is there no justification for such an order, it was a provocative proposal by the mother because the family report writer recommended as follows in her report:
Ms Coleman engage with and attend counselling which will assist her with managing her communication with others and reaction to situations. It will be important that this counsellor is familiar with the issues that can arise when a parent has significant medical concerns about their child.[11]
[11] Family Report paragraph 128
The mother did not engage in any counselling following the release of the report and during cross-examination in May 2015 said that she could not afford it.
She was asked whether she had considered obtaining a mental health plan and on 22 May 2015 she apparently took up this suggestion and obtained a referral from her GP for counselling. In her affidavit filed on 1 July 2015 she said that she had made an appointment to see Ms R at (omitted) and had attended one session and hoped to attend five more. However not only was this done extremely belatedly, the reason the mother gave for engaging with the counsellor was:
to assist me to cope with anxiety that I have experienced during the course of the present litigation....[12]
[12] Mother’s affidavit filed 1 June 2015 paragraph 2
This was not the counselling the family report writer had in mind and it is impossible to be optimistic that this counselling will assist in changing the mother’s behaviour, her problems in interpersonal relationships and her attitude to the father.
If the children live primarily with mother there is a high risk that their relationship with their father may be harmed over time either as a result of exposure to conflict created by the mother, being withheld from spending time with the father by the mother and hearing the mother denigrating the father or becoming aware of the nature of the text messages she sends him or being exposed to conflict at changeover.
The family report writer expressed concern that the mother could influence a small child with negative comments or excessive questioning about the other parent and I agree that this is of concern. There is no sign that it is happening at present and Y and X have a good relationship with the father but as they become older this could easily change.
The family report writer was concerned about the impact on the children of being exposed to conflict and said as follows in her report:
The mother was asked if she thought the difficulties around changeover would emotionally damage the girls it was observed that she was unable to reflect on her own behaviour and apportioned blame to the father and his partner.[13]
[13] Family Report paragraph 76
I have considerable reservations about whether the children will be able to maintain a meaningful relationship with the father if they remain living primarily with the mother, even if they spend more substantial time with him than the mother proposes.
The first of the additional considerations in s.60CC (3) is any views of the children and the weight to be given to those views.
X and Y are still only 4 and 3. It was not suggested that they had any views about future parenting arrangements.
I must consider the nature of the children’s relationship with each of their parents and any other persons including any grandparents or relatives of the children.
The family report writer observed X and Y to show no fear of either parent although she said that X was somewhat reserved with Ms A.
It was implicit in the family report writer’s evidence the mother was the children’s primary attachment figure but there are little snippets of evidence in the subpoena material which suggest that the children are close to the father. One example was the evidence about what happened at the Dr T’s surgery where he observed the children to go happily to both parents and especially the father.
The children have a very good relationship with the paternal grandmother Ms J and the mother has asked her for assistance to care for the children from time to time.
Presumably the children have a good relationship with their sister B but I have no independent means of assessing that. The mother did not bring B to the family report interviews and according to the mother B suffers from post-traumatic stress disorder and anxiety. However the father did not suggest that the children complained about B.
The children also have a sister in their father’s household. She was born after the hearing commenced and there was no evidence about the children’s relationship with her.
I must consider the extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the children or to spend time with or communicate with the children.
The father has sought to spend time with the children from the date of separation in the case of X and the date of Y’s birth in the case of Y. The mother alleged that he was not much interested in Y after her birth but I do not accept that there was ever a time when he has been an uninterested father. He has also sought to be involved in decision making.
The mother has similarly always been interested in spending time with the children and making decisions about them.
I must consider the extent to which each of the children’s parents has fulfilled or has failed to fulfil their obligation to maintain the children.
The mother has been financially supporting the children as their primary carer since separation.
The mother made a big issue of the father’s failure to contribute to certain medical expenses for the children but she has been the author of her own misfortune with regard to child support.
The father was assessed to pay child support for X after separation and he paid the amount assessed. However on 26 June 2013 he received a letter from the Child Support Registrar returning his last payment and telling him the mother had requested that the assessment be cancelled.
Subsequently the father opened a bank account for the children and paid money into it and also bought clothes for the girls.
On 10 December 2013 the father received a letter advising that child support was reinstated commencing 19 November 2013 and he resumed making child support payments.
On 6 November 2014 the father again received a letter stating that the assessment had been cancelled.
The mother has been playing games with child support and as a result the children have been deprived of support the father could have provided even if it was not extensive support. It is an example of very poor and very manipulative behaviour by the mother.
It beggars belief that after deliberately cancelling the child support assessment for the second time the mother sent the following email to the father on 12 January 2015 when the parties were having a dispute about payment of the day care fees (to which the father had offered to contribute)::
I have paid for daycare 2 yrs by my self for both girls. I can’t afford it. And because u won’t pay for anything for the girls they have to go with out. Don’t worry I will show the court what money I get and where every cent goes each and every wk. I can also show the court where I have gone to salvos and got food clothes and toys for Christmas because u are too much of a ass hole to help me out. Like I’ve said before u make big bucks that u don’t claim to tax or child support and the girls go without everything. I now haven’t eaten in 3 days because the girls come first. S bloody forgive me for not wanting to be nice to a heart less ass hole of a dad who doesn’t care if his beautiful girls have food or not.
I must consider the likely effect of any change in the children’s circumstances including the likely effect on the children of any separation from either of their parents or any other children or person with whom they have been living.
This is a central issue in the case.
The mother is the children’s primary attachment figure. The family consultant said in cross-examination said that this was a matter of great importance and that removing children of the age of these children from their primary attachment figure can have adverse consequences for them.
If I order such change it will be because I consider from an adult perspective that living with their father represents the best long term outcome for them, but the children will not understand why the change has been made even if some attempt is made to explain it to them. From their perspective they are being adequately looked after on a day to day basis by their mother.
The family report writer stressed that the children might become distrustful of adults if required to change residence in those circumstances and that it might take time for them to settle into a change of residence.
However the children may settle reasonably well. The father has been a constant presence in their lives for all of their lives and they go willingly to spend time with him. They are familiar with his home and familiar with his wife and since 8 May 2015 they have been spending every weekend at his home. The father is a calm organised person not prone to outbursts of impatience, the children will continue to attend the same day care centre and see the same friends and they have a good relationship with their paternal grandmother.
If the mother does not respect the father as a parent and if conflict is likely to continue because the mother in truth does not wish the children to have a relationship with the father, does not always comply with court orders, makes unilateral decisions about such things as choice of day care centre and then acts as if the father has no right to visit the centre, has difficulty co-operating with organisations such as the Contact Centre and makes dramas out of her relationship with them, applies for ADVO’s without good reason, makes dramatic complaints to the police about stalking or kidnapping which are without foundation and asks the police to do welfare checks when the children are with the father creating drama in the children’s lives then a change of residence may be the only way to ensure that the children have a good relationship with both of their parents and that some sort of peace is restored.
I will have to return to this difficult issue after making findings about the remaining s.60CC (3) matters.
I must consider the practical difficulty and expense of the children spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
This is not an issue because both parents live in (omitted).
I must consider the capacity of each of the children’s parents and any other person including any grandparents or other relatives of the children to provide for the needs of the children including their emotional and intellectual needs.
The father has a good capacity to provide for his daughters’ day to day and intellectual needs. He does not use drugs or abuse alcohol and he has no criminal convictions or mental health issues. X and Y are lucky to have such a father. He is an excellent role model for them.
The mother told the family report writer that she feared for the safety of the children while in the father’s care and wanted him to have supervised time with them. She alleged that X had returned home and said “Daddy hurts me” and “Daddy hurts Y.” She also alleged that the father would not let the children sleep.
I do not accept the mother’s evidence. I do not accept that the father has harshly physically chastised the children or failed to look after them properly on a day to day basis.
The family report writer expressed a concern about the father’s capacity to provide for the children’s emotional needs. She said as follows in her report:
The father, while demonstrating that he would provide good practical parenting for his daughters, emphasised that he wants his daughters to become independent and grow and develop without being mollycoddled. He agreed that he and the mother had different parenting styles and agreed that he wanted the girls to be clean, tidy and organised. The father would provide good physical care for his daughters but would benefit from more insight into their emotional needs and the impact of these proceedings on this. The father would meet the educational, medical and social needs for his daughters.[14]
[14] Family Report paragraph 49
The weight to be given to this observation has to be tempered however by consideration of the fact that this is not a case where the litigation has continued because of a rigid pursuit by the father of either equal time or residence of the children. The father has had no option but to pursue orders through the court. I do not consider that left to her own devices the mother would have facilitated time.
The father has never indulged in sending the mother abusive text messages or denigrating her to her face and in the presence of the children. He has shown great restraint in his interactions with her and in that respect he has had regard for the children’s emotional needs.
Ms A is also a capable parent who would provide well for the children’s needs. Her daughter A came to the family report interviews and the report writer commented that she was meeting her developmental milestones and seemed safe and secure with her stepfather and mother.
If the children live with the father and Ms A, the size of the father’s household will double and for the next twelve months it will contain three children who were not yet at school, because the recommendation of the family report writer, which the father said that he intended to follow, was that X, who will not be five until June 2016, not commence school until 2017.
The father has the support of the paternal grandmother however and there is no reason to suppose that the father and Ms A would not cope if a change of residence was ordered.
The mother does not have criminal convictions and does not abuse drugs and alcohol and it is not open to me to find that she has any mental health issues. Dr A noted that the children were strong, healthy looking children. They spend the majority of their time with their mother and this therefore speaks well of the mother’s capacity to provide day to day care for them.
The father said that he had concerns about the mother’s capacity to care for the children because B at the age of 4 was still using a dummy and was not properly toilet trained and was not ready for pre-school but there was no indication that X was in a similar situation, and the mother did take X for a speech assessment in January 2015.
However although the mother is capable to providing good day to day care for the children and no doubt will be capable of ensuring that they attend school in due course, there are many reasons to be concerned about her parenting capacity.
The mother showed a lack of capacity to provide for the children’s emotional needs by refusing to agree to Y spending the same time with the father as X which has only occurred since the court made an order on 8 May 2015. I accept the father’s evidence about Y crying at changeover at McDonalds when the father collected X and left her behind. The mother gave no reason for insisting on different regimes for the two children.
Another concern about the mother’s parenting capacity is that she has an extremely negative view of the father’s wife and is quite abusive to and about her.
The mother has sent Ms A derogatory messages ranging from “duck off” (sic), “u should of kept u ducking big black noise (sic) out off Mr Hamilton and my children’s life” and “duck off Mr Hamilton is a big boy who can reply to his own msg for his child not urs u over grow ape.”
On 4 May 2014 the mother asked the father if he could look after Y or X as she had an extra day at TAFE and the paternal grandmother was unavailable until 1.00pm. The father was required to work and he sent the mother a text message saying that Ms A could look after the children until 1.00pm. The mother responded as follows:
No bloody way, I wouldn’t even give that family a dead dog to look after and if I find out that anyone but ur self has looked after the girls without u asking me look out. Ur already in a lot of hot water. How much more to u want to be in idiot.
I accept the father’s evidence about finding the mother waiting in her motor vehicle outside Ms A’s home and about her “stalking” Ms A on Facebook by setting up a fake profile and uploading photographs of them onto it.
There was nothing to suggest that the mother’s hostility to Ms A had abated by the time of the trial and on 27 August 2015 she sought an order that Ms A not be present at changeovers unless she remained in a motor vehicle.
The children have been spending time with Ms A for years and she is a capable, caring adult. There is evidence in the father’s affidavit that the children are aware of the mother’s dislike of her and being exposed to this sets up conflict and difficulty for the children.
This feeds into another concern about the mother namely that her extremely poor interpersonal skills and her confrontational and manipulative behaviour have caused numerous problems for the children and the father.
The mother has frequently failed to provide the children to spend time with the father and on a number occasions has gone to the police station and requested that the police do a welfare check while one or both of the children are in the father’s care. She unjustifiably made endless difficulties at the contact centre. She has high handedly sought to change their medical centre because she believed they were siding with the father and made threats to the father that the police would be called if he went to the children’s day care centre.
The family consultant expressed the view that the mother tended to apportion blame to others rather than accept responsibility for her own actions and was reactive to incidents and that she:
...reacted before taking a measured approach to situations, this was particularly evident during the interview and in some of the social media material presented. It will be important in the future that she consider the implications of how this might impact on her children.[15]
[15] Family Report paragraph 87
These opinions are amply borne out by the evidence about events such as the mother’s reaction to the father turning up 15 minutes early at day care referred to earlier in the judgment. They are also borne out by text messages sent by the mother to the father such as this one on 20 April 2014:
I gave X a long bath, and her temp has dropped at long last but the diarrhea still hasn’t stopped if her temp goes back up though the night u might have u will be arrested. So u work it out. Don’t contact me again Mr Hamilton.[16]
[16]Page 69 annexures to father’s trial affidavit
The family report writer commented that the mother:
Lacked some insight into the emotional trauma that children could experience when changeovers were taking place. She was unable to reflect on the impact of verbal and non verbal communication when changeovers were taking place.
The family consultant recommended that the mother attend counselling to assist her to remedy the way she reacted to situations and related to others but as noted earlier the mother has never engaged in such counselling.
I must consider the children’s maturity sex and background.
The children are 4 and 3. Their age is relevant to the issue of whether any consideration should be given to substantially separating them from their primary attachment figure but I have discussed this in an earlier section of the judgment.
I must consider any issues of family violence involving the parents.
For reasons previously given I reject the mother’s allegations that she or B have experienced any family violence at the hands of the father.
I must consider whether there are any family violence orders.
The mother has made a number of applications for family violence orders, all ultimately unsuccessful.
At the end of July 2012 the mother complained to police about the father and an interim Apprehended Domestic Violence Order (ADVO) was made against him. The father defended the matter and some months later the application was withdrawn by the police.
The police again applied for an ADVO on the mother’s behalf in 2013 but the father defended the matter and the application was withdrawn by the police in November 2013.
The police applied for an order on 5 March 2014 after a complaint by the mother but withdrew the application on the first return date of 25 March 2014.
The mother filed an application on her own behalf seeking an ADVO against the father shortly after 27 February 2015. She alleged that the father and Ms A verbally abused her in the car park at the (omitted) Practice after the father had verbally abused the doctor inside the practice for writing referrals to specialists for the mother. She alleged that the father said that she was a “silly dumb bitch and a shit mother.”[17]
[17] Mother’s affidavit filed 6 May 2015 paragraph 1
She alleged that Ms A also called her a bitch and a dumb mother.
The mother made a complaint to police but the police declined to assist her and she therefore made her own application for an ADVO.
The father defended the application and on 28 April 2015 when the matter was mentioned in court the court declined to make the order.
I must consider the parties attitude to the children and the responsibilities of parenthood.
It was the mother’s case, and she made this clear to the family report writer in May 2014, that the father has always had an agenda of “taking the children from her” and would stop at nothing until he achieved that goal.
I do not accept that this is correct. The father did not start out with the goal of removing the children from the mother or drastically reducing their time with her. The orders he originally sought were that the parties have equal shared parental responsibility and that the children live with the mother and spend age appropriate defined time with him.
The father has changed his position only after a lengthy period of conflict and difficulty trying to be a part of the children’s lives.
Insofar as the mother has made it difficult for the father to spend time with the children she has displayed a very poor attitude to the father and the responsibilities of parenthood.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
If I order that the children remain living primarily with the mother the risk of further proceedings is extremely high.
There is nothing to suggest that the mother had changed or is indeed capable of changing her attitude to the father. There is a very high likelihood that if the children remain with the mother there will at the very least be further contravention proceedings and also that there may be a further application by the father for a change of residence.
There is of course some possibility of further proceedings even if the children live with the father because of the mother’s behaviour and attitude to the father.
I must consider any other relevant matter.
A relevant matter is that the sheer amount of acrimonious conflict and dispute between the parties which has occurred since separation must have taken its toll on the parties. I am sure that it has affected the father and even if the mother does not admit it I would be surprised if it had not taken its toll on her.
It would be in the interests of the parties and of the children for orders to be made which have some prospect of reducing the frequency and extent of conflict over the children.
Parental Responsibility
The parents currently have parental responsibility pursuant to an interim order made on 16 October 2012 but I am required to disregard that in making a final parenting order.
Pursuant to s.61DA of the Family Law Act, I must apply a presumption that the parties should have equal shared parental responsibility for the children absent a finding that one of them has abused the children or committed an act of family violence.
There has been no abuse or family violence in this case but s.61DA (4) provides however that the presumption may be rebutted by evidence that it would not be in the children’s best interests for it to apply.
I do not see how an order for equal shared parental responsibility could possibly work for the children.
There is strong foundation for the following observation by the family report writer:
The father and mother....have an acrimonious relationship. Any form of communication between them whether it is verbal, written, electronic, through social media or a third party, is difficult.
The parents managed to get into an argument as recently as 27 February 2015 at the doctors surgery when they attended to get a referral to a paediatrician. An exchange of text messages between them even about something as simple as the return of clothing ended with the mother saying that she had thrown clothes the father was wanting in the bin. The mother calls the father a dickhead or an asshole and other offensive names or threatens to have him arrested in text message exchanges about the children. It is impossible to see how these parents could effectively exchange ideas or proposals about any major long term issues concerning the children.
There is also clear evidence that the mother is not willing to share parental responsibility regardless of court order. There are numerous examples in the evidence of the mother making decisions about medical treatment without any attempt to discuss the matter with the father first despite the order for equal shared parental responsibility. This is someone who says “stuff the orders” when she gets annoyed.
The mother repeatedly gave answers in cross-examination which suggested that she felt that she had the right to make those decisions about the children. The flavour of her evidence was that the father was being unreasonable and making a nuisance of himself to her and to medical practitioners by questioning her decisions and asking for information.
The mother acted as if she alone had a right to determine whether the father went inside the day care centre X attended and she threatened to call the police if he went there against her will.
In her report prepared in May 2014 the family report writer was strongly of the view that the mother should not have sole parental responsibility for the children. Later in her report she said as follows:
It is noted that both parents could find sharing parental responsibility difficult but given the issues raised in this report it is recommended that parental responsibility be shared.
The recommendation was however made in circumstances where the family report writer proposed that the child live with the mother.
Usually if sole parental responsibility is indicated the order made is that the parent the children are to primarily live with have sole parental responsibility. However I agree with the family report writer that I should not make an order that the mother have sole parental responsibility for these children, given the mother’s attitude to the father. It would give her yet another weapon to use to exclude the father from the children’s lives and this means that if I order that the children live with the mother the options about parental responsibility are either unpalatable or likely to be unworkable.
I would either have to order equal shared parental responsibility to give the father standing with schools and medical people and ensure that he was not cut out of the loop or I would have to order that the father have sole parental responsibility notwithstanding that the children were living primarily with the mother.
In either scenario I strongly suspect that the mother would continue to make unilateral decisions leading to ongoing conflict and the issue in the end is whether this will have to be endured because all in all the children should remain with their primary carer.
The family report writer’s recommendations
In her report the family report writer recommended that the children live with the mother and spend substantial age appropriate time with the father.
She was of the view that the mother did not want the children to have a relationship with the father but felt that considerable weight should be given to the importance of their strong attachment to their mother.
She recommended that the children spend “developmentally related time” with their father that is that X continue to spend two nights a week with him and that Y commence an overnight stay once she turned 3 and that this time be increased to include school holidays once the girls commenced school.
When the report was prepared the father was not seeking residence of the children, at least as far as the family report writer was aware. However when the hearing commenced in February 2015 the father had come to the view that the drama and conflict over compliance with orders and the mother’s attitude to him was never going to change and he informed the court that his primary application was that the children live with him.
The family report writer was asked about this proposal in cross-examination. She was not privy to all of the evidence which emerged during the hearing before me but upon being apprised of some of the events that had occurred since May 2014 she said that this case strongly tested the assumption that children should if there were no safety concerns remain with their primary carer. She recommended at the very least that the children spend a very substantial amount of time with the father.
Conclusion
This is a troubling and difficult matter. X and Y are young and have lived with their mother all their lives. They have also lived all their lives with their sister B.
If I order a change of residence the children will have to adapt to living in a different household for the majority of the time and to being part of a different sibling group. They have spending each weekend with the father since 8 May 2015 and no application has been made to change those orders based on allegations that the children have not settled into the arrangement but to order that they spend eleven days/ten nights each fortnight with the father as opposed to four nights/four days per fortnight will represent as significant change for them.
However if I leave the children primarily with the mother then exposure of the child to further conflict is inevitable and I have to be concerned about the debilitating effect on the parents of being endlessly engaged in conflict. I also have to be concerned that the children’s relationship with the father may well be undermined by extensive exposure to the mother’s negative view of the father and his wife.
The mother has no capacity to facilitate a relationship between the children and the father. She untruthfully accuses him of harming the children, makes allegations that he has stalked her when he has not and reacts in a strenuously oppositional and disproportionate way when father does something which displeases her such as turning up at the day care centre 15 minutes early.
The mother’s counsel submitted that whatever the problems with the mother’s behaviour it had not affected the children’s relationship with the father to date. There was external evidence that they were happy and excited to see him. He submitted in effect that it was premature to remove the children from the mother and that the court should see how matters went for a bit longer and if there were further problems which brought the matter back to court deal strenuously with the matter then. He submitted that the court should take comfort in the fact that the mother had commenced counselling.
I am conscious of the fact that the evidence suggests that the children currently have a good relationship with the father and that there have been no further contravention applications filed since final submissions on 27 August 2015 and that no request has been made to re-open the case and certainly a possibility in this matter would be to give the mother one more chance and to make orders that the children live with her and spend time with the father but to make it clear that if there was further trouble then the court would have little option but to consider a change of residence.
However the likelihood of further trouble is extremely high and the possibility of the children’s relationship with the father being undermined if they remain with the mother is unacceptably high.
The mother made untruthful allegations about the father’s treatment of B, she has made false claims to police about the father stalking and harassing her and she made a notification to DOCS when Y fell off a chair and bruised her forehead. At best she embellishes and at worst fabricates and she has repeatedly tried to obtain ADVO’s against the father.
The risk is extremely high if the children live with the mother that if something happens to upset her she will make false allegations and withhold the children. The mother’s behaviour with child support (stopping and starting it), cancelling the paediatrician appointment and accusing the father of kidnapping after he went to the day care centre 15 minutes early mean that if the children live primarily with the mother the roller coaster ride the parties have been on for the last three years will almost inevitably continue and as the children get older it might begin to affect them.
The history of problems in this matter is too long and the mother’s attitude too entrenched. There has been repeated conflict between the parties for three years because of the mother’s non-compliance with orders and her unilateral decisions about medical issues which she knew would impact the matter.
The mother’s desire to exclude the father from knowledge and involvement in the children’s lives has not changed in the last three years.
The mother did not engage in counselling until after the end of her cross-examination and then sought counselling for anxiety and stress and not to address the issues identified by the family report writer and not only that she provocatively suggested that the father should go to counselling to help him change his communication style.
To do what the mother’s counsel proposed would almost inevitably condemn the parties, and the children, to the stress and cost of further prolonged litigation. It might make a change of residence more rather than less easy for the children if it eventually had to occur, because while at present they are perhaps too young to be aligned by the mother, as they grow older they might become aligned with her if she continually presents the father to them in a negative light and convinces them that he is responsible for ongoing conflict.
The mother’s counsel alternatively suggested that the court could make interim orders, but even if the mother behaved well and was compliant with orders while the interim orders were in place, there is no guarantee that problems would not start up again as soon as the matter was finalised, and the parties have already been in the court system for far too long.
This court, to adapt a remark O’Ryan J once made in a Family Court case I appeared in, is not in the business of managing the lives of families. The role of the court is to resolve disputes, not to indefinitely hover over parties ready to step in when needed to chastise them for wrongdoing and then step back into a watching role as long as they behave themselves.
The other problem is that I cannot make an order for equal shared parental responsibility or give the mother sole parental responsibility and it would be artificial and unworkable to give the father sole parental responsibility if the children lived with the mother, and perhaps that says something in itself; if I cannot give the mother sole parental responsibility when parental responsibility cannot be shared should the children be primarily living with her?
The father can give the children a peaceful life. He interacts in a normal and peaceful fashion with other members of the community. He respects the mother’s role as a parent and can be relied on to comply with court orders. He loves his children.
I am also satisfied that he will do what is needed to assist the children to settle into a change of residence.
I am satisfied that the appropriate order is that the children should live with the father.
The Independent Children’s Lawyer proposed that in this event the children should spend time with mother each alternate Sunday. Her rationale was that the mother did not support the children having a relationship with the father and if they spent such an extensive period of time with her she might attempt to influence them against their father with relentless negative comments.
There is also a concern that the mother might use any extended period with the children to drum up false complaints about the father’s treatment of them.
The father on the other hand proposed that the children spend time with the mother from Thursday to Monday.
In this particular case if the father as parent considers this appropriate then that is the order I will make. It does create an increased risk of negative comments impacting adversely on the children and of allegations being drummed up and therefore an increased risk of further court proceedings but it may also have the advantage of helping the children settle better into the change of residence.
If follows from the fact that I will make an order that the children live with the father that I will also order that the father have sole parental responsibility for them. I am satisfied that he will make good decisions for the children and will not use that power to exclude the mother from involvement with the children’s lives.
It is particularly important that one parent has responsibility for medical decisions and I am satisfied that the father will make good decisions. There was no evidence that his reluctance to take the children frequently to the doctor or to see them medicated frequently was the result of lack of care or lack of interest their health problems. He simply has a different attitude to these issues than the mother.
I intend to make the orders sought by the father that changeover in the future occur either at the school or McDonalds at (omitted). There is expense to the parties in continuing to use the contact centre. These are final orders which will be in place for some time and the number of changeovers at McDonalds will diminish once the children commence school.
I finally note that a change of residence is not a complete panacea in this matter. The family report writer commented on the damage a continuing acrimonious relationship between the parents could do to these children. A change of residence will ensure that the children spend maximum time in an organised peaceful atmosphere but there could still be conflict at changeovers, allegations and even complaints to police. If the conflict continues not only might the matter easily return to court, the children are likely to suffer psychological harm and may become alienated from one of their parents. Sadly however there is a limit to what the court can do. The future is in the hands of the parents.
I certify that the preceding three hundred and six (306) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 22 April 2016
- AGLC
- Hamilton and Coleman [2016] FCCA 901
- Case
- [2016] FCCA 901
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the children, specifically considering the benefit of a meaningful relationship with both parents and the need to protect them from harm. The court also had to assess the parents' attitudes towards their responsibilities, the history of family violence applications, and the children's maturity, sex, and background.
Judge Terry found no evidence of family violence or risk of abuse or neglect by either parent. The primary consideration therefore became the benefit of a meaningful relationship with both parents. The judge accepted the father's genuine desire to spend quality time with the children without conflict and his commitment to supporting their relationship with the mother. The court noted the mother's history of making it difficult for the father to spend time with the children and her unsuccessful applications for family violence orders. The judge was satisfied that the children would have a meaningful relationship with the mother if they lived with the father, provided the mother did not jeopardise this.
The court ordered that the father have sole parental responsibility for the children and that they live with him. Detailed orders were made regarding the children's time with the mother, including specific arrangements for school terms, holidays, birthdays, and public holidays, with provisions for alternating arrangements and specific times for Christmas and Easter. The orders also included injunctions restraining the parents from denigrating each other, specified communication methods, and outlined procedures for medical care and school-related information.
Orders
Orders of the court
1.
The father shall have sole parental responsibility for the children X born (omitted) 2011 and Y born (omitted) 2013 (“the children”).
2.
The children shall live with the father.
3.
The children shall spend time with the mother as follows:
(a) each alternate week during school terms from 4.00pm or the conclusion of school on Thursday to 9.00am or the commencement of school on Monday;
(b) upon X commencing school for one half of the Term 1, 2 & 3 school holiday periods being the first half of the school holidays in even numbered years commencing in 2016 and each alternate year thereafter and the second half of the school holidays in odd numbered years commencing in 2017 and each alternate year thereafter from either the conclusion of school on the day which is the last day of the school term until 5.00pm on the day which is the mid-point of the school holidays or from 5.00pm on the day which is the mid-point of the school holidays until 5.00pm on the Sunday prior to the commencement of the new school term;
(c) upon X commencing school and subject to Orders 3(f) and (4) the children shall spend the first week and each alternate week of the school holidays with the mother in even numbered years commencing in 2016 and the second and each alternate week with the mother in odd numbered years commencing in 2017 from either the conclusion of school on the day which is the last day of the school term until 5.00pm on the following Sunday or from 5.00pm on the Sunday until 5.00pm on the following Sunday;
(d) upon Y attaining the age of six, for one half of each Christmas school holiday period being the first half of the school holidays in even numbered years commencing in the 2016/2017 Christmas period and each alternate year thereafter and the second half of the school holidays in odd numbered years commencing in the 2017/2018 Christmas period and each alternate year thereafter from either the conclusion of school on the day which is the last day of the school term until 5.00pm on the day which is the mid-point of the school holidays of from 5.00pm on the day which is the mid-point of the school holidays until 5.00pm on the Sunday prior to the commencement of the new school term.
(e) for Easter, to alternate each year between 9.00am on Good Friday to 11.00am on Easter Sunday in odd numbered years and 11.00am on Easter Sunday to 4.00pm on Easter Monday in even numbered years.
(f) for Christmas Day, alternately between 4.00pm on Christmas Eve to 1.00pm on Christmas Day in even numbered years and 1.00pm on Christmas Day to 1.00pm on Boxing Day in odd numbered years.
(g) in the event the children are not in the care of the mother on their birthdays from 3.00pm to 7.00pm.
4.
Notwithstanding any other order the children shall spend time with the father for Christmas alternately between 4.00pm on Christmas Eve and 1.00pm on Christmas Day in odd numbered years and 1.00pm on Christmas Day to 1.00pm on Boxing Day in even numbered years.
5.
Notwithstanding any other order if Mother’s Day falls on a weekend when the children would not ordinarily be with the mother the children shall spend time with the mother that weekend from 4.00pm on Saturday until 9.00am or the commencement of school on Monday.
6.
Notwithstanding any other order if Father’s Day falls on a weekend when the children would ordinarily be with the mother, the mother shall return the children to the father at 4.00pm on Saturday rather than at 9.00am or the commencement of school on Monday.
7.
In the event the children are not in the care of the father on their birthdays the children shall be returned to the father’s care from 3.00pm to 7.00pm.
8.
Changeovers which do not take place at school because the children have not yet commenced school or the school is not open for attendance that day shall take place at McDonalds Restaurant at (omitted).
9.
Each party shall behave civilly to the other at changeover and neither party shall attempt to discuss any issues concerning the care of the children with the other party at changeover.
10.
The parties shall communicate by the use of a communication book which will pass between them at changeover or by text message only for the purpose of issues relating to the care of the children.
11.
Each party shall keep the other informed of their current residential address and contact phone numbers and each party is to notify the other in writing within 14 days of any change to his/her current contact details.
12.
Each parent is restrained and an injunction is granted restraining them from denigrating the other party or a member of the other party’s family to or in the presence or hearing of the children.
13.
The father shall keep the mother advised by SMS text message of the medical practitioner(s) who he nominates will be the children’s treating doctor(s).
14.
The mother is restrained from taking the children to a medical practitioner during the time the children are in her care unless there is a medical emergency.
15.
The mother is restrained from taking the children to any medical practitioner other than practitioners engaged by the father to treat the children.
16.
Each of the parents is to ensure the children take any prescribed medications during the time that they are in their care.
17.
Each parent may obtain from the children’s school copies of newsletters, reports and order forms for school photographs and any other information normally provided to parents.
18.
Each parent may attend all events involving the children including:
(a) Sporting fixtures;
(b) Extra-curricular activities that allow for parental attendance;
(c) School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The primary considerations in s.60CC(2) are:a)the benefit to the children of having a meaningful relationship with both of the children's parents; and b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. S.60CC (2A) provides that the court must prioritise (b) over (a) and I will therefore deal with (b) first. As outlined earlier there is no evidence that the father had ever committed acts of family violence and there is no evidence that he is likely to do so in the future nor is there any evidence that he is likely to abuse or neglect the children. There was also no evidence that the children were likely to be exposed to abuse as it is defined in the Family Law Act or to neglect or family violence in the care of the mother. The only relevant primary consideration therefore is (a), the benefit to the children of having a meaningful relationship with each of their parents and it is a pivotal consideration in this matter. It was the father’s case that he would support the children having a relationship with their mother if they lived with him and I accept that this is correct. The father did not have too many positive things to say about the mother. He criticised her to the Family Consultant for being disorganised and untidy and he was critical of what he considered to be her excessive concern about and overreaction to the children’s medical issues. However I consider that the father was being absolutely genuine in the following passage from his trial affidavit:I do not want to separate Y and X from Ms Coleman in these proceedings. I have never threatened to take the children away from Ms Coleman. All I want is to be able to spend more regular, quality time with them without drama caused by Ms Coleman. This is not a case in which there has been a flow of insulting or verbally abusive text messages from the father to the mother, he has withheld one of the children only once and that long ago and only for one night, he has co-operated with the children spending some special occasions with the mother and he made a reasonable proposal about the mother’s time with the children should they live with him. I am satisfied that if the children live primarily with the father he will not denigrate the mother to them and will comply with orders and that the children will be able to have a meaningful relationship with the mother unless the mother does something to put that at risk. I also note that the paternal grandmother who may well have more to do with the children if they live with the father is not hostile to the mother. She has been supportive of the mother since separation despite the fact that the mother has run hot and cold with her, on occasions asking for help with the child and on other occasions rejecting her. The paternal grandmother has helped the mother where she could when the mother has asked for help. In early 2014 for example she agreed to a request by the mother that she look after the children on Mondays and Fridays while the mother was at TAFE doing a (omitted) course and she also looked after the children when the mother did work experience.