Acquafredda & Qurbonov
[2024] FedCFamC1F 609
•10 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Acquafredda & Qurbonov [2024] FedCFamC1F 609
File number(s): PAC 1542 of 2019 Judgment of: CURRAN J Date of judgment: 10 September 2024 Catchwords: FAMILY LAW – PARENTING – Where after hearing evidence from single expert parties reached consent about live with and decision making orders – Where the children have been living on a week about arrangement – Where orders made for week about living arrangement to continue by consent – Where issues in dispute were limited to changeover, therapies and extra-curricular activities, the extent of the father’s psychological treatment, and who should hold the passports Legislation: Australian Passports Act 2005 (Cth), s 11
Family Law Act 1975 (Cth), Pt VII, ss 4, 60B, 60CA, 60CC, 61C, 61CA, 61D, 64B, 67ZC
Cases cited: Jacks & Samson (2008) FLC 93-387; [2008] FamCAFC 173
Oberlin & Infeld [2021] FamCAFC 66
Division: Division 1 First Instance Number of paragraphs: 80 Date of hearing: 4-10 September 2024 Place: Sydney Counsel for the Applicant: Ms Bateman Solicitor for the Applicant: Jacqui Griffin Mobile Solicitor Counsel for the Respondent: Ms Meares Solicitor for the Respondent: Peerzada & Associates Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Sydney West Family Lawyers ORDERS
PAC 1542 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ACQUAFREDDA
Applicant
AND: MS QURBONOV
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
10 SEPTEMBER 2024
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
Decision Making
1.The parties shall have joint decision making responsibility for the children X born 2012 and Y born 2013 in respect of all decisions concerning the major long-term issues relating to the care and welfare of the children.
Live with arrangements
2.The children shall live with the parties on a week about basis as follows:
(a)With the mother, each alternate week from the conclusion of school on Friday (or 3.00 pm on non-school days) until the conclusion of school the following Friday (or 3.00 pm on non-school days), with such time to commence on Friday 20 September 2024 following the making of these Orders.
(b)With the father, each alternate week from the conclusion of school on Friday (or 3.00 pm on non-school days) until the conclusion of school the following Friday (or 3.00 pm on non-school days), with such time to commence on Friday 13 September 2024.
(c)At other times and with variations of the above as agreed between the parties in writing.
3.Notwithstanding any other order, the children shall spend time with the parties on the following occasions:
(a)In even numbered years - With the mother from 4.00 pm Easter Saturday until 4.00 pm Easter Sunday and with the father from 4.00 pm Easter Sunday until 4.00 pm Easter Monday.
(b)In odd numbered years – With the father from 4.00 pm Easter Saturday until 4.00 pm Easter Sunday and with the mother from 4.00 pm Easter Sunday until 4.00 pm Easter Monday.
(c)On the weekend of Mother’s Day if the children are not already spending time with the mother, from after school on Friday (or otherwise 3.00 pm on a non‑school day) to before school (or otherwise 9.00 am on a non-school day) on Monday.
(d)On the weekend of Father’s Day, if the children are not already spending time with the father, from after school on Friday (or otherwise 3.00 pm on a non‑school day) to before school (or otherwise 9.00 am on a non-school day) on Monday.
(e)In odd numbered years – With the father from 4.00 pm Christmas Eve until 4.00 pm on Christmas Day and with the mother from 4.00 pm Christmas Day until 4.00 pm on Boxing Day.
(f)In even numbered years – With the mother from 4.00 pm Christmas Eve until 4.00 pm on Christmas Day and with the father from 4.00 pm Christmas Day until 4.00 pm on Boxing Day.
Make up time
4.Where one of the parents has retained the children (or either of them), hereinafter referred to as the “retaining parent”, for longer than is provided for in these orders, the children shall live with the other parent, hereinafter referred to as the “other parent”, for extra time for the same amount of time that the children (or either of them) were retained by the retaining parent, until the retention time is made-up, on the next occasion that the children are to live with the other parent and each occasion thereafter (if relevant) and the time that the children living with the retaining parent shall be correspondingly reduced.
5.Order 4. does not prevent the other parent from prosecuting contravention proceedings against the retaining parent.
Changeover
6.For the purposes of changeover that does not occur at the children’s school, unless otherwise agreed, the parent or their nominee shall meet at Suburb B McDonald’s or other location as agreed between the parties in writing.
7.Both parents shall ensure that all uniforms, bags, laptops, books and school related belongings are made available at changeover, as well as any equipment, stationery, uniforms or property necessary to facilitate the children's participation in any extra‑curricular or school related or vocational activities, whilst the children are in the care of either party.
NDIS
8.By this order, the mother and father shall do all such things and acts to provide each other the following:
(a)All information and details in relation to the children’s NDIS funding and involvement in the NDIS scheme;
(b)All information, including but not limited to any reports and diagnosis from the children’s treating medical practitioners.
(c)Any information and/or advice received from any of the children’s service providers and third party providers.
(d)All details from any of the children’s extra-curricular activities.
(e)The mother and father are to ensure that they are respectful in all communication they have with any of the children’s NDIS service providers, medical practitioners and any other third parties that provide services for the children.
Medical
9.Notwithstanding any other order and unless otherwise agreed between the parties in writing, the children’s General Practitioner (GP) shall be C Medical Centre situated at D Street, Suburb B NSW, and the parties shall do all acts and things to ensure the children’s continued attendance at the practice.
10.Notwithstanding any other order and unless otherwise agreed between the parties in writing, the children's dentist shall be Dr E of F Dental Practice situate at G Street, Suburb H NSW, and the parties shall do all acts and things to ensure the children's attendance at the practice for the purposes of dental issues which are appropriate for assessment/treatment by a dentist.
11.Notwithstanding any Order and unless otherwise agreed between the parties in writing, the children's paediatrician shall be Dr J of K Medical Centre situated at L Street, Suburb M NSW and the parties shall do all acts and things to ensure the children's continued attendance and compliance with the recommendations of Dr J.
12.The parents are both restrained from having the children attend upon any other paediatrician, therapist, counsellor, psychologist unless as directed by children’s health care professionals or as agreed between the parents in writing.
13.Each parent shall ensure that:
(a)The other parents is given no less than 14 days’ notice in writing of any appointments made for the children with any health care professional other than their GP or in the case of an emergency;
(b)A copy of any report relating the children from any paediatrician, therapist, counsellor, psychologist or other health care professional is provided to the other parent within 7 days of receipt of such report.
14.In the event of the child/ren suffering a medical emergency requiring medical attention while spending time or living with either parent:
(a)The other parent is to be notified as soon as practicable.
(b)The other parent is to be provided with the full details of the practitioner or medical facility upon which the child/ren attends as soon as practicable.
(c)The medical practitioner or facility is to be advised that both parents have access to the child/ren medical records and the information obtained with them upon request.
School and Extra-curricular
15.The parents do all acts and things to enrol the children at N School, for attendance from Year 7 until Year 12, unless otherwise agreed between the parents in writing.
16.These orders shall act as authority for the children’s school to provide to both parents with copies of the children’s school reports, newsletters, photograph order forms and invitations to attend any activities which parents are invited to attend and for both parents to be named on all school and extracurricular records as emergency contacts.
Communication
17.The children are to communicate by telephone with the parent they are not living with between 6.30pm until 7.00pm each Monday and Wednesday and any other day that the children shall reasonably request and for this purpose:
(a)The parent the children are not living with, is to contact the children on their mobile telephone(s);
(b)That the children are permitted to have their mobile telephones in their possession at the times above for the purpose of accepting the telephone call; and;
(c)That the parents shall not actively participate in the other parents’ conversation with the children and shall afford the children privacy to take the call, in so far as it is practicable to do so.
18.The mother and father shall communicate in relation to the children by email except in the case of emergency when they will communicate by text message.
19.Each parent be permitted to communicate directly with the children’s schools, sporting bodies and medical practitioners and allied health professionals to obtain any necessary information and or documents about the child’s progress and this order shall constitute sufficient authority for such communication.
Therapy
20.Within 21 days from the date of these orders, the mother shall engage the services of a suitably qualified clinical psychologist for a minimum of 20 individual sessions with a focus on Cognitive Behavioural Therapy AND for this purpose, the mother shall have leave to provide to her clinical psychologist a copy of the two reports authored by Dr O, Single Expert dated 16 July 2020 and 2 August 2022 and a copy of these orders.
21.The mother shall authorise her treating therapist the contact Dr O to communicating with him about his Single Experts Reports and the assessments conducted therein to assist the therapist in therapy formulation.
P Organisation Courses
22.Within 12 months from the date of these orders the parents respectively shall watch each of the following online videos produced by P Organisation and discuss the content of each of these webinars with their psychologist:
[List omitted]
Contact details
23.Each parent shall inform one another in writing within 48 hours of at least one contact telephone number, email address and their residential address and shall advise one another within 48 hours in writing should there be any change to these contact details.
Restraints
24.Without admission, the parents, their servants and agents be hereby restrained by injunction from:
(a)Denigrating the other parent or a person with whom the other parent has a relationship in the presence or hearing of the children;
(b)Abusing, threatening, stalking rebuking or otherwise denigrating the other party and/or the children;
(c)Communicating any information intended for the other parent through the children; and
(d)Causing the children to be a medium in any way to adult members between the mother and father or between the mother and father and any other person;
(e)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings with any third parties;
(f)Consuming illicit substances or prescription medication beyond the recommended dose or becoming intoxicated beyond the legal blood alcohol limit for driving, whilst they have the children in their care and the 24-hour period prior; and
(g)Smoking in the presence of the children.
25.Both parents shall be restrained from attending each other’s residential addresses and workplace unless otherwise agreed between the parents in writing.
26.The parents are restrained by way of injunction from:
(a)Recording phone or video communications between the children and the other parent.
(b)From having a smart home device in the bathroom or the children’s bedrooms.
(c)From recording the children or the other parent at any time without their consent.
Travel
27.The mother and father shall be permitted to apply for and renew an Australian Passport for the children pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth).
28.Each parent shall be permitted to travel outside of Australia during their time with the children in accordance with these orders on the basis that the travelling parent provides to the non-travelling not less than four weeks prior to the proposed travel, copies of the following:
(a)Itinerary inclusive of all flight numbers/transport information and accommodation details; and
(b)A telephone contact number or email where the child and travelling parent can be contacted during the overseas travel.
(c)Copy of travel insurance for each of the children for the period of travel.
29.For the purposes of order 28, the travelling parent must not propose to take the children to a country listed on the Australian Government Smart Traveller website with a do not travel alert and must not propose to take the children to a country which is not a signatory to the Hague (Child Abduction) Convention.
ON A FINAL BASIS THE COURT ORDERS THAT:
Changeover
30.Both parties provide the children with their own clothes, uniforms, own devices and other things as required when the children live with each parent and shall ensure that any things or items belonging to the other parent’s home are returned at the next changeover.
NDIS and Medical
31.Notwithstanding any order and unless otherwise agreed between the parents in writing, the parents shall do all things necessary and reasonable to ensure that the children’s NDIS plans are complied with.
32.Notwithstanding any order and unless otherwise agreed between the parents in writing, both parents respectively are permitted to participate in the creation of NDIS plans for the children, as arranged with the NDIS.
33.The parents respectively shall use their best endeavours to follow the recommendations provided by the children’s medical practitioners, dentist, counsellor and social workers and the parents respectively shall be respectful in all communications and dealings with such third parties.
34.These orders shall act as authority for any medical practitioner, dentist, counsellor, NDIS provider or service, or other allied health professional who treats the children to provide information to both parents upon request to the extent permitted by law, and both parents shall be responsible for requesting such information directly from the health care providers and the parent who makes such request shall be responsible for the cost of such request.
35.The parties shall do all acts and things necessary to work with and comply with the NDIS providers including but not limited to support workers, support coordinators, local coordinators, any of the works involved in the NDIS activities and therapeutic treatments and use their best endeavours to comply with the NDIS plans.
School and Extra-Curricular
36.The parents shall ensure that the children attend all school excursions, camps, and other activities provided by the school or high school.
37.The mother and father are both entitled to attend any extra-curricular activity that the children attend or other events that parents are invited to attend and both parents shall be restrained by injunction from approaching the other parent during their attendance at the extra-curricular activity and/or school event.
38.The parties shall ensure the children’s continued participation in all extra‑curricular/vocational and therapeutic activities which the children currently participate in.
39.Neither parent shall enrol the children in any extra-curricular activity or other arrangements that would require participation of the children during the time that they will be with the other parent, without the written agreement of the other parent.
Therapy
40.Within 21 days from the date of these orders, the father shall engage the services of a suitably qualified clinical psychologist for a minimum of nine individual sessions with a focus on understanding emotions and learning alternative emotion regulation strategies AND for this purpose, the father shall have leave to provide to his clinical psychologist a copy of the two reports authored by Dr O, Single Expert dated 16 July 2020 and 2 August 2022 and a copy of these orders.
Travel
41.The mother shall retain the children’s passports at all times when not travelling with the father.
42.The mother must provide the children's passports to the father within seven days of being notified of the intended travel, and the father is to return the children's passports to the other parent within seven days of his return from overseas.
Leave to ICL
43.The ICL is granted leave to provide to the Department of Communities and Justice and NSW Police a copy of these orders and a copy of the two reports authored by Dr O, Single Expert dated 16 July 2020 and 2 August 2022, and request that they be added to their respective electronic databases for any future reference.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Acquafredda & Qurbonov has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTCURRAN J:
INTRODUCTION
These are parenting proceedings between the father, Mr Acquafredda, and mother, Ms Qurbonov. There are two children of the marriage, subject of these proceedings: X born 2012 (“X”) and Y born 2013 (“Y”). X has been diagnosed with Attention Deficit Hyperactive Disorder (ADHD) and Autism Spectrum Disorder (ASD) and Y has been diagnosed with ASD.
I am not going to go through the significant history, most of the history is not in dispute. The parties have had a long history in this court which ultimately resulted in an application being filed by the father for time after it had been stopped.
An expert report was prepared by Dr O and was released on 13 August 2020. Following that report being received interim orders were made on 16 September 2020 providing for the father's time to progress.
Certain allegations were made to the Department of Communities and Justice (“DCJ”). They were investigated and found to be without concern.
In mid-2021 DCJ contacted the father about new allegations that had made including the father self-harming in front of the children, assaulting Y, leaving the children unsupervised for long periods and placing cameras in X's bedroom.
In mid-2021 a DCJ investigation commenced and a DCJ caseworker attended the father's home to remove the children voluntarily to place them with the mother. The father did not see the children after this time for a period. The father was served with an Apprehended Domestic Violence Order (ADVO) for no contact with the children, arising from the late 2020 allegations. NSW police commenced investigation.
On 31 August 2021 the father filed an application for parenting orders.
On 24 December 2021 a Magellan Report was released.
In early 2022, the ADVO was withdrawn and dismissed, and NSW police advised the father they were not charging him.
On 2 August 2022 the second expert report prepared by Dr O was released.
On 4 October 2022 the father resumed spending time with children by way of consent orders. In December 2022 further orders were made for time increasing between the children and the father, resulting in ultimately more recently an equal time arrangement.
THE LAW - PARENTING
Parental responsibility
Parental responsibility is defined in the Family Law Act 1975 (Cth) (“the Act”). Each parent, according to s 61C of the Act has parental responsibility for the child, and the parents are encouraged, where it is safe to do so to consult each other about major long-term issues in relation to the child having regard to the children’s best interests pursuant to s 61CA.
The Court has the power to make parenting orders that allocate parental responsibility for decision making to the parties jointly, solely or in relation specified major long-term issues under s 61D(3).
The term “major long-term issues” are defined in s 4(1) of the Act.
Orders in respect of children are informed under Pt VII of the Act. The meaning of a parenting order is defined at s 64B.
Section 60CA of the Act provides that the Court is to regard the best interests of the children as the paramount consideration. Section 60B of the Act outlines the objects and principles under Pt VII being to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child (“CROC”).
Section 60CC(2) outlines the matters that the Court is to take into account in determining what is in the best interests of the children, those being:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
The court must, pursuant to s 60CC(2A) have consideration to any history of family violence, abuse, or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child's family.
CONSENT ORDERS
At the conclusion of the evidence of Dr O on the fourth day of this hearing, where he strongly recommended the continuation of the current week about arrangement and explained why in his view such an arrangement was in the best interests of the children, the parties reached agreement in respect of final orders, which were largely in accordance with Dr O’s recommendations. I agree that despite the very difficult history of this matter, that such orders are in the best interest of the children. I have carefully considered both of the reports of Dr O and listened carefully to his evidence. I have carefully considered s 60CC(2) and the matters that the court must take into account in determining what is in the best interests of the child and I make the orders by consent, noting that the ICL also sought the orders to be made by consent and I am satisfied that these orders are in the best interests of these children.
There remained, however, a number of matters that were not agreed and I will go through each of these matters by reference to the ICL’s proposed minute, which I am going to mark as Exhibit A.
ICL Proposed Order 8
The ICL proposed the following order:
That both parties provide the children with their own clothes, uniforms, own devices and other things as required when the children live with each parent and shall ensure that any things or items belonging to the other parent's home are returned at the next changeover.
The mother consented to such an order.
The father opposed such an order.
There was no evidence of difficulty between the households over the past five months where it has been week about care.
I was persuaded however, by the ICL's submission that given the historical poor communication between the parties in the past, and the benefit to the children of not having to carry significant items, clothing and belongings between each household every second week as they live with each other parent. I am now satisfied that such an order is in their best interests and I make the order as proposed by the ICL.
ICL Proposed Order 10
The ICL initially proposed order 10 which said:
The mother and father are to follow the recommendations provided by:
a) The children’s NDIS service providers.
b) The children’s school/s including their teachers, advisers and Principal.
c) Any provider of extra-curricular activities.
d) Any medical practitioners.
e)Any third party providers, including support co-ordinators, support workers and local co-ordinators.
in relation to the children’s attendance, referrals and other matters required for the children.
The ICL ultimately submitted that order 10, in parts, was too broad and I agree with that assessment.
The ICL submitted that the father's proposed orders 6, 7 and 22 coupled with the ICL's proposed orders 11 and 17, collectively are orders that are in the best interests of the children.
The mother maintained that the originally proposed order 10 should be made.
Order 10 as initially drafted is an order that requires the parents to follow the recommendations of the children’s schools, including their teachers, advisers and Principal, any provider of extra-curricular activities, and any third party providers, including support co-ordinators, support workers and local co-ordinators. In my view that order would require the parents to follow recommendations that in effect hands over decision making that should remain with the parents. A teacher may recommend certain study hours, a sports coach may recommend certain skills training and a local co-ordinator may recommend certain activities for the children. These are merely recommendations, likely by people with the best interests of the children in mind. However, ultimately it is my view it is for the parents to consider any recommendations and make their own decisions, hopefully being informed by various professionals. I am not satisfied that an order divesting such decision making responsibility and requiring compliance with recommendations of unnamed third parties is either enforceable or is in the children's best interests.
The children do however have special needs and as referred to earlier X has been diagnosed with ADHD and ASD and Y has been diagnosed with ASD. They both have the benefit of assistance through the NDIS. The mother is concerned that the therapies and supports are embraced fully for the benefit of the children. Her counsel helpfully took me to exhibit 27 which identified the large number of support services provided and the therapies and supports that are enjoyed by the children. She also submitted, and I agree, that given the vulnerabilities of the children that the supports should not cease abruptly. These considerations all have merit and I have considered them carefully.
It is also important that both parents, with whom the children live now on a week about basis in an ongoing way, are involved in and informed of the recommended supports and the proposed therapies. The father's orders 6, 7 and 22 ensure that the specialist recommendations by medical and allied therapies as arranged with the assistance of the NDIS co-ordinator are engaged in and that both of the parents are permitted to be involved in any NDIS planning if so invited by the NDIS case co-ordinator.
The father has complained that the mother has in effect limited his ability to be involved in the decisions as to therapies and support services. The mother does not agree she has done so. By these orders it is intended that each parent is able to be consulted and participate in any usual planning of NDIS activities that the NDIS undertakes. It is intended that each parent is permitted to engage with NDIS about matters that the NDIS usually consult with parents about.
It is in the best interests of children, particularly with special needs to continue to have the benefit of the therapies identified by their medical specialists as necessary for them to meet their potential and address any health and other issues that they have. I am also satisfied that order 11 authorising both parents to obtain information is appropriate, provided they meet any costs involved in obtaining that information and I am satisfied that is in their best interest.
Accordingly, the order that I will make with some variation is the father’s proposed orders 6, 7, 22 and as follows:
That these orders shall act as authority for any medical practitioner, dentist, counsellor, NDIS provider or service, or other allied health professional who treats the children to provide information to both parents upon request to the extent permitted by law, and both parents shall be responsible for requesting such information directly from the health care providers and the parent who makes such request shall be responsible for the cost of such request.
And:
The parties shall do all acts and things necessary and reasonable to ensure that they work with NDIS providers including but not limited to support workers, support coordinators, local coordinators, any of the works involved in the NDIS activities and therapeutic treatments and use their best endeavours to comply with the NDIS plans.
ICL Proposed Order 20
The proposed order 20 was:
That the parents shall ensure that the children attend all school excursions, camps, and other activities provided by the school or high school, and any others in accordance with the children's wishes.
The ICL amended the order that he sought by removing the reference to “any other orders in accordance with the children’s wishes.” On the basis that such an order was fraught and was too broad, potentially opening up an area of conflict. The father opposed the amended order the mother agreed with it. I accept that the order proposed by the ICL is in the best interests of the children.
It is appropriate, in the absence of agreement otherwise, for the children to have the benefit of excursions, camps and other activities provided by the high school or school and I make the order sought. But I do not include an order that the parents are required to comply with the children's wishes in respect of activities. Issues such as the cost of activities and the benefit to the children of activities are a matter for the parents not the children to determine.
ICL Proposed Order 22
The ICL proposed order 22 was initially:
The mother and father are both entitled to attend any extra-curricular activity that the children attend or other events that parents are invited to attend and for the purposes of the above order, the party who intends to attend the children's extra-curricular activities and/or school events on times that they are not otherwise spending time with the children as per the order, that parent shall notify the other parent in writing within seven days of their intention to attend and both parents shall be restrained by injunction from approaching the other parent during their attendance at the extra-curricular activity and/or school event. The parents shall allow a nominee or support worker, or teacher to facilitate safe interactions between the children and the parents.
The ICL during submissions varied the order sought to read:
The mother and father are both entitled to attend any extra-curricular activity that the children attend or other events that parents are invited to attend and both parents shall be restrained by injunction from approaching the other parent during their attendance at the extra-curricular activity and/or school event.
The mother maintained that the entire order including the notice period and the capacity to allow a nominee to facilitate safe interaction should be made.
The father did not agree the order should be made at all.
The communication between the parties has at times been appalling. The conduct of both the parties towards one another has involved family violence allegations, each allegation have been denied by the other. Examples of the poor behaviour was the subject of cross examination over the last few days of the trial. The father for example wrote an email to the mother referring to the area in which she lived as a “shit hole.” The mother has for reported concerns, for example, of the chipped tooth suffered by X to the police. The mother made the report in the middle of the night causing the police to attend the father's home and wake the children. These behaviours do not reflect well on either of the parties.
The mother has a trauma history, however, arising from childhood sexual abuse. Her evidence is, and it was not in contest, that she has been diagnosed with complex PTSD. She says contact with the father causes her further trauma.
The father complains that the mother has engaged in a pattern of making false complaints and exaggerated complaints about his care of the children. An example, as I said, is when the children were in the care of the father and Y threw a rock and chipped X's tooth. The children lied to the father about the event but told the mother something had occurred through their devices. X sent a text to the mother asking her not to call the police. The mother called the police who attended late at night and woke the children to interview them about the apparent risk in the father’s care.
The lack of trust between the parents is ongoing. The parties agreed with Dr O’s recommendation for them to receive psychological supports including to address their poor co‑parenting behaviour and the poor co-parenting relationship. To restrain them from approaching the other parent is an order which in my view will assist to reduce conflict and provide the mother with some comfort given her evidence about her reactions to seeing the father arising from her past history of trauma.
Accordingly, I make the varied order as was proposed by the ICL:
The mother and father are both entitled to attend any extra-curricular activity that the children attend or other events that parents are invited to attend and both parents shall be restrained by injunction from approaching the other parent during their attendance at the extra-curricular activity and/or school event.
ICL Proposed Order 23
The ICL sought an order:
That the parties shall ensure the children's continued participation in all extra‑curricular/vocational and therapeutic activities which the children currently participate in.
The mother sought an order:
That the parties shall ensure the children's continued participation in all extra‑curricular/vocational and therapeutic activities which the children currently participate in and any future extra-curricular/vocational/therapeutic activities which the children are enrolled in, including but not limited to [sport] and after‑school‑care.
The father did not agree such an order was warranted and opposed an order being made.
The mother contended that the children's special needs warranted orders for their continued engagement in therapies. Given the order that I have indicated above in relation to the parent’s ensuring attendance with the NDIS recommended treatments, I am satisfied that an order for the current NDIS plan to continue is appropriate and I note that any future NDIS plan is to be arranged in consultation with both parents.
Accordingly, I made the order:
That the parties shall ensure the children's continued participation in all extra‑curricular/vocational and therapeutic activities which the children currently participate in.
ICL Proposed Order 24 and Father’s Proposed Order 30
The ICL sought an order:
That neither parent shall enrol the children in any extra-curricular activity that will require participation of the children during the times that they will be in the other parent’s care, without the written agreement of the other parent.
The father sought an order:
That the parents are respectively restrained from making arrangements for the children that occur during times that the children are living with the other parent, without the written consent of the other parent.
The mother agreed with the wording of the ICL's proposed order. The orders in effect seek to bring about the same result.
The parties had been in conflict about activities being arranged during the other parent’s time. An example was the event where the mother arranged a support worker to collect Y to attend X’s concert and the arrangement was during the father’s time where she apparently arranged for a support worker to collect Y from 3.30 pm until 10.00 pm.
It is appropriate that other than ensuring compliance with recommended NDIS therapies in consultation with the children's medical and therapeutic providers that the parents are able to arrange their time with their children, during time that the children are with them, free from interference from the other parent.
Accordingly, I made the order:
That neither parent shall enrol the children in any extra-curricular activity or other arrangements that would require participation of the children during the time that they will be with the other parent, without the written agreement of the other parent.
ICL Proposed Orders 28 and 29
The parties each agreed that the parties would each engage in counselling with a clinical psychologist.
The engagement is not conditional on the time continuing to occur; however it was Dr O’s strongly held opinion that each party would benefit from ongoing adult education and psychological support. The parties agreed to such engagement, and each sought a consent order that they do so.
As the Full Court held in Oberlin & Infeld [2021] FamCAFC 66, the Court does not have the power to make a self-standing order of this nature. But, as confirmed in the decision of the Full Court in Jacks & Samson (2008) FLC 93-387 an order compelling a parent to attend upon a therapist can be made pursuant to s 67ZC absent an attached parenting order to it, but only if it is necessary for the welfare of the children.
Given the evidence of Dr O, I am satisfied that such an order is necessary for the welfare of the children. I am satisfied that an order requiring the parents to engage with their own psychologist is in the best interests of the children and I am particularly satisfied, as I note, the evidence of Dr O, and that each of the parties and the ICL agreed that it was necessary.
What was not agreed was the number of sessions that would best benefit each of the parents. The mother has agreed to a consent order that she attend a minimum of 20 sessions. I make that order by consent. The father said he had completed 11 sessions of the recommended 20 sessions, that Dr O had recommended in the report that was prepared over two years ago. The father sought that he be ordered to attend a minimum of nine sessions. His counsel cited financial limitations for the father, although there was no evidence of such upon which I am able to make any particular finding.
Given his consent to undertaking a minimum of nine sessions, I will make that order but in the hope that he continues to engage with his psychologist for the period recommended by his psychologist who will also have the benefit of the reports from Dr O.
Accordingly, I make the order in the terms sought by the ICL, but I delete the requirement for 20 sessions and instead insert a requirement of a minimum of nine sessions.
ICL Proposed Orders 37 and 40
The ICL proposed that the mother hold the passports which the mother agreed with.
The father proposed that he hold the passports. His counsel suggested that the mother was a potential flight risk.
There is no evidence of any flight risk of the mother, although she has family members who apparently live overseas. The parties have agreed to week about time and to ongoing and regular engagement with NDIS supports for the benefit of the children. I am not satisfied on the evidence that is before me that the mother is any flight risk or that there is any basis for her to hold or not to hold the children's passports. Quite simply, one of the parents should hold the passports and there is really no merit in preferring one parent over the other.
I will order that the mother hold both passports but that she be required to provide them to the father prior to travel in accordance with the ICL's proposed orders 37 and 40. I make this decision solely because she was previously the parent with whom the children primarily lived.
Accordingly, the order I make is:
That the mother shall retain the children's passports at all times when not travelling with the father.
And:
The mother must provide the children's passports to the father within 7 days of being notified of the intended travel, and the father is to return the children's passports to the other parent within 7 days of his return from overseas.
ICL Proposed Order 41
The ICL sought:
That the ICL is granted leave to provide to the Department of Communities and Justice and NSW Police a copy of these orders and a copy of the two reports authored by [Dr O], Single Expert dated 16 July 2020 and 2 August 2022, and request that they be added to their respective electronic databases for any future reference.
The father sought that the order providing the orders included reference to the words “systems abuse”. In particular, at his proposed order 41 the father proposed:
That, with the intention of reducing the risk of the children (or either of them) suffering from systems abuse, a copy of these Orders are to be provided to:
(a) The New South Wales Police Force, and
(b) The New South Wales Department of Communities and Justice.
I am not persuaded that such an order is necessary. Both the NSW police and the Department have a long history of involvement with this family. To identify that the purpose of providing the reports of Dr O and the orders is to only reduce the children from suffering systems abuse is frankly too simplistic. The reports are comprehensive and raise a number of concerns.
These orders finally dispose of the parenting dispute by orders for equal time. It is a consent position of the parties that the reports be provided to the Department and to the Police. It is the consent position of a very experienced ICL. It follows the strong recommendation of the single expert Dr O who has been involved in this case now for over four years, with his first report having been released on 16 July 2020. Dr O has been involved in this case over a number of years, has seen and assessed the children and the parties twice and has been privy to the recent evidence of the parties. There are significant concerns about the reports that the mother has made to the Police and the Department in relation to risk of the children in the father’s care. I note that those reports have not been substantiated. Dr O, however, also raised serious concerns that to remove the children from the current shared care arrangement could be a cause of distress and grief to the children. The arrangement as opined by Dr O of continuing a week about basis, was in his strong view, the best option in such a fraught and difficult matter.
I will make the order to provide his report as sought by the ICL without limiting the issues as sought by the father. It was the hope of Dr O that with adult education and psychological supports that the co-parenting could continue as parallel parenting. Each parent was ably represented by experienced counsel who proposed that such arrangements were in the children’s best interests and this was supported by the ICL.
Mother’s Proposed Order 11 from Orders of 23 October 2023
The mother proposed a restraint on the parents from being able to attend sport lessons, in accordance with an order that had previously been made by consent on 23 October 2023, which I note was an interim order made at that time.
That order said:
That without admission, the mother and father are both restrained from attending the children’s regular [sport] lessons but can attend all other special [sport] events in relation to the children.
The father and ICL did not support such a restraint.
The orders that I have made today provide that the parents may attend activities that the parents are ordinarily permitted to attend. If this is a therapeutic activity as arranged by NDIS and the parents are not invited to attend, then the parents will not be permitted to do so. If it is an activity in which parents usually attend, then the parents may do so.
CONCLUSION
As I said earlier, I am satisfied that the orders that have been reached by consent, together with the orders I have just made are in the best interest of the children. I commend the parties for being able to reach an agreement in relation to the majority of the matters and this brings the matter to an end.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 12 September 2024
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