Father’s relationship to be reestablished

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/11.html

38. However, the best interests of the two children, in my judgment, require what might be described as “a cautious robustness” to the reintroduction of the children to spending time with their father. Immediate therapeutic counselling is in their best interests. Reintroduction to their father, through that therapeutic process, is also in their best interests, as recommended. However, I am very concerned that an open-ended time frame, coupled with the mother’s clear view that the children should spend no time with their father, will result in no actual progress towards the children spending time with their father being made in the six month period suggested, before orders providing for time are made. The real risk of the children becoming completely estranged from their father, that the family report writer has so clearly pointed out actually exists at present, in my judgment, demands a fairly robust approach. If the children do not start spending time with the father soon, it could very well be too late. At the same time, there is a need to be mindful of the need for reintroduction in a way that ensures the children’s physical safety and emotional wellbeing are appropriately secure.

39. As such, I will order that the counselling, that is to involve the father as determined by the counsellor, be conducted within a concrete time-frame for the children to be reintroduced to spending time with their father by the Easter school holidays this year. That is not to say that they are to have unsupervised time with the father by the Easter holidays, but rather, such time as is considered appropriate and facilitated by the Centacare X staff. I would expect it to be carefully supervised.

40. I do, however, consider it in their best interests to start some specific, supervised, short periods of time with their father within the space of the Easter school holidays, if that can be facilitated by Centacare. Should there be a need, the ICL can seek to relist the matter to review these orders at the appropriate time.

41. I will order that time is, thereafter, to increase to four hourly periods of supervised time once per month, bearing in mind the father lives in Brisbane and the children live in north Queensland, before leading into a period of five days and four nights in the mid-year school holidays. Such time is to take place in Brisbane at the home of the paternal grandmother, who is to be there at the same time, though not required to supervise every moment of the father’s time with the children.

42. These are interim orders, but given the potential length of time before the matter will come to trial, I will make orders that I consider in the children’s best interests, providing real opportunity for them to re-establish relationships with their father and giving those relationships a chance of developing into meaningful relationships. They will include weekend time once per month during school term and increasingly longer periods during school holidays.

43. The orders I intend to make will obligate the mother to ensure the children are delivered to Centacare X, as directed by Centacare staff, for the counselling and for handovers, for the time they are to spend with the father. The orders will also oblige the father to pay all of the costs of the Centacare counselling and supervision in the first instance but reserve to him the right to seek orders from the Court at a later date that share the burden of those costs between him and the mother in some way. Of course, the determination of any such application would depend on many factual issues and the father cannot simply expect he will get such an order.

44. The orders will also place other obligations on the father in respect of the provision of notice to the mother, travel by him in order to have the children spend time with him, provision for the costs of travel, and the facilitation of communication between the children and the mother during any time that they are with him.

45. The orders will give the mother the option of choosing the alternative location for handovers of the children, should Centacare X not be able to offer a service at the times ordered.

46. The orders will also provide for communication by phone between the father and the children from after the mid-year holidays, imposing obligations on both parents in respect to such communication. I expect by then, the children’s relationships with the father will support the need for regular, more frequent communication between them.

47. In addition, as most particularly submitted by the ICL, I consider it appropriate, having regard to the opinions of the family report writer on the subject, which I accept at this point, to make parenting orders that require the mother to take steps to cause the children’s family names on their school registration records to be recorded as “Cobb” and for their father’s surname to be listed on those records as the children’s father. At the same time, and for similar reasons, I will order that the mother ensures that she refers to the father as the children’s father or their “dad” and not by his given name when she is talking about him to the children or within their hearing. If the children call him “…”, then the mother is to correct them and tell them to refer to him as “Dad”. I consider these critical steps towards reinstating some respect for the father in these children, as well as acknowledgment that he is their father.

What of the mother’s applications? Why dismiss them?

48. The mother sought transfer of the proceedings to Townsville as she is unemployed, studying part-time and parenting four children. She says transfer to Townsville will keep her costs to a minimum. She says she has family support in Townsville as her parents and her husband’s parents live in Townsville. She asserts it will be more convenient for witnesses who have provided affidavit evidence for her, who live in Townsville. She also asserts that transfer should ensure an earlier listing date than keeping the matter in the Brisbane list.

49. The father opposed the transfer, submitting that it would again be rewarding the mother for unilaterally moving far away from him without notice or Court sanction, even whilst the proceedings are pending in this Registry. He asserts that he also has several witnesses who reside here in Brisbane and that transferring the matter to Townsville would be just as inconvenient for them as leaving it in the list here would be for the mother’s witnesses.

50. The ICL also opposed the transfer. She is based in Lismore where the matter was previously being heard. Transferring the matter to Townsville would cause additional inconvenience and cost to her, and would, she said, likely result in an application by her to be discharged and replaced.

51. The mother’s solicitor is based on the NSW north coast, too.

52. The father asserts that the mother’s husband is again working overseas in a fly in – fly out capacity. He says he believes it is in Country P. The mother’s solicitor could not confirm that, saying he did not have instructions on the point.

53. The mother’s own application to be allowed to take the children on holiday to Laos in February confirms that she and her husband consider it to be appropriate for her to travel with the children, even though the children have started a new school year. I know nothing of whether the mother’s younger two children or the mother’s husband would be accompanying her and the two subject children on that proposed trip. The maternal grandmother is said to be accompanying the mother and paying for the trip.

54. Whilst it is possible that the matter would be listed for trial sooner in Townsville than in Brisbane, it is clearly not ready for trial yet and could not be until the therapeutic counselling and ordered time with the father has been in place for a time, so that the family may reconsider their positions in the light of developments. Leaving it in the Brisbane list with potentially longer time to trial will not, in my judgment, create additional prejudice sufficient to demand transfer at this point in time.

55. As for witnesses, having being told what the Townsville witnesses have deposed to in affidavits already filed, mostly historical observations from the time around separation, and having discussed the matter with the ICL and the father’s solicitor, I expect any cross-examination of those witnesses that is required could be arranged to take place by way of telephone connection, thus minimising inconvenience and cost to the mother and those witnesses.

56. I also have no reason to consider that the mother’s family support in Townsville will not still be available to provide logistical support in respect of the children during any time the mother is in Brisbane for the trial.

57. The evidence presented just did not persuade me to the view that the most appropriate thing to do is to transfer the proceedings to Townsville. That is why I dismiss that application.

58. As for the application for orders that would facilitate the provision of passports for the children and their travel with the mother to Laos, there was simply insufficient evidence presented satisfying me that it is in these two children’s best interests to be taken out of school, just after the start of the new school year, on a holiday to visit a maternal family member, who lives in Laos. Whilst I acknowledge that safe travel is mind-broadening and educational for children, there is no evidence explaining why the holiday is proposed just after school starts back after a long Summer holiday period has ended.

59. The undisputed evidence that the mother has made several moves over the years since separation without seeking his approval in advance, and without even giving him any notice, including twice to Country Z, (once after allegedly telling the father that the family was just going on a holiday to Singapore) concerns me sufficiently not to permit the mother to take the two subject children with her on the proposed trip to Laos. Of course, I do not stop the mother travelling with her mother to visit Laos, but I will not sanction her taking the two subject children with her out of the country at this point in time. That is why I dismiss that application.

60. In the immediate circumstances of this case, the evidence does not compel me to consider that passports for these children are necessary, just at the moment, whilst this highly conflictual parenting litigation still remains pending. That is why I dismiss that application.

61. Furthermore, the protective measure of having the names of the two children included on the Federal Police Watch List should give the father, the mother and the ICL, as well as this Court, comfort that the children will not be unilaterally removed from the country by either parent whilst the matter remains pending in this Court. Accordingly, I will make that order.