ALBERT & PLOWMAN (No.2)
[2018] FCCA 3579
•14 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALBERT & PLOWMAN (No.2) | [2018] FCCA 3579 |
| Catchwords: FAMILY LAW – Parenting – high conflict parenting relationship – allegations of sexual abuse. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS ALBERT |
| Respondent: | MR PLOWMAN |
| File Number: | SYC 5837 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 26 October 2018 |
| Date of Last Submission: | 18 November 2018 |
| Delivered at: | Wollongong |
| Delivered on: | 14 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mariole |
| Solicitors for the Applicant: | Rebecca Bailey & Associates |
| Counsel for the Respondent: | Ms Cantrall |
| Solicitors for the Respondent: | Croydon Legal & Conveyancing |
| Counsel for the Independent Children's Lawyer: | Mr Anderson |
| Solicitors for the Independent Children's Lawyer: | Helen Volk Lawyers |
ORDERS
PREVIOUS ORDERS
That, save for the Order made by consent on 26 October 2018, all previous parenting Orders be discharged.
PARENTAL RESPONSIBILITY
That, subject to the provisions of Order 3 below, the Father have sole parental responsibility for the Child [X] born 2013 (“the Child”).
That, in the exercise of his responsibility pursuant to the preceding Order, the Father:
(a)except in case of emergency, provide the Mother with not less than 42 days notice of any decision he intends or is required to make, with such information as he considers relevant to the decision to be made;
(b)take into account and give proper consideration to any views or opinions expressed by the Mother to the Father, PROVIDED THAT the Mother provides such views or opinions to him within 21 days of receiving such notice from the father pursuant to Order 3(a);
(c)inform the Mother of the decision made by him in exercise of his responsibility, within 7 days of having made such decision.
LIVING ARRANGEMENTS
That, subject to the provisions of Order 5, the Child live with the Father.
SPENDING TIME ARRANGEMENTS
That, subject to the provisions of Orders 6 to 9 below, the Child spend time with the Mother as follows:
(a)Until 21 December 2018:
(i)Each alternate week from 6:00pm Wednesday until 9:00am Friday commencing the first Wednesday after the making of these Orders;
(ii)Each alternate weekend from after preschool Friday until 9:00am or the commencement of preschool Monday commencing the second Friday after the making of these Orders;
(b)From 21 December 2018 until the commencement of school 2019:
(i)Each alternate week from 6:00pm Friday until 6:00pm the following Friday, and in lieu of agreement, commencing Friday 28 December 2018;
(c)Once the Child commences school:
(i)During NSW Public school terms:
A.Each alternate weekend from after school Friday until the commencement of school Monday, commencing the first Friday of the school term; and
B.Each alternate Wednesday from after school until the commencement of school Friday, commencing the second Wednesday after the commencement of the school term;
(ii)For one half of each of the NSW Public school term 1, 2 and 3 school holiday periods, and in lieu of agreement:
A.the first half in odd numbered years (commencing from the conclusion of school on the last day of term, and concluding at 6pm on the middle day of the holiday period); and
B.the second half in even numbered years (commencing at 6pm on the middle day of the holiday period, and concluding with the resumption of school);
(iii)For one half of the NSW Public school Christmas holiday period, and in lieu of agreement:
A.December 2019/January 2020, each alternate week from 6:00pm Friday until 6:00pm the following Friday, commencing the first Friday after the conclusion of the school term (including the last day of the term if it is a Friday);
B.December 2020/January 2021, for two blocks of 10 days, commencing at 6:00pm on the 10th and 30th day of the holiday period and concluding at 6:00pm on the 20th and 40th day of the holiday period respectively, and for one half of the remaining holiday period, commencing at 6:00pm on the middle day of the remaining holiday period and concluding with the resumption of school;
C.From December 2021 and each alternate year thereafter, for the first half of the school holiday period commencing with the conclusion of school on the last day of term until 6:00pm on the middle day of the holiday period;
D.From December 2022 and each alternate year thereafter, for the second half of the holiday period, commencing at 6:00pm on the middle day of the holiday period, and concluding at the commencement of school on the resumption of the school year;
(d)on the weekend which includes Mother’s day from the conclusion of school Friday until the commencement of school Monday;
(e)from 3:00pm Christmas Eve until 3:00pm Boxing Day (26 December) in even numbered years;
(f)From 3:00pm Boxing Day (26 December) until 3:00pm 28 December in odd numbered years;
(g)for 4 hours on the Child’s birthday and the Mother’s birthday, which shall reduce to 2 hours if the birthday falls on a school day, and in lieu of agreement, from 12:00noon to 4:00pm on a non-school day, and from after school until 2 hours after the conclusion of school, on school days.
SUSPENSION OF TIME
That the time the Child spends with the Mother shall be suspended:
(a)on the weekend which includes Father’s Day;
(b)from 3:00pm Christmas Eve until 3:00pm Boxing Day (26 December) in odd numbered years;
(c)from 3:00pm Boxing Day until 3:00pm 28 December in even numbered years;
(d)for 4 hours on the Child’s birthday and the Father’s birthday, which shall reduce to 2 hours if the birthday falls on a school day, and in lieu of agreement, from 12:00noon to 4:00pm on a non-school day, and from after school until 2 hours after the conclusion of school, on school days.
That the time the Child spends with the Mother pursuant to Orders 5(a)(i) and 5(c)(i)(B) above shall be suspended in the event the Mother relocates her residence outside the Region 1 Shire.
PERSONAL PROTECTION ORDERS
That the Mother be restrained by injunction from permitting the Child to come into contact with the child [A] born 2002 (“[A]”) or stay overnight in any home in which [A] resides, whilst [A] is present.
COMMUNICATION
That the Child communicate with the Mother, by telephone or such other agreed available communication such as Facetime or Skype, and in lieu of agreement, between 6:00pm and 7:00pm each Wednesday and Saturday when he is in the Father’s care, and in this respect the Mother shall contact the Father on his last notified mobile telephone number.
That the Child communicate with the Father, by telephone or such other agreed available communication such as Facetime or Skype, and in lieu of agreement, between 6:00pm and 7:00pm each Thursday and Saturday when he is in the Mother’s care, and in this respect the Father shall contact the Mother on her last notified mobile telephone number.
That each parent shall facilitate the Child communicating with the other parent by telephone, at any reasonable time he expresses a wish to do so.
That the parents communicate with one another as follows:
(a)By telephone in the case of emergency;
(b)By text message where the information to be relayed or sought requires notification or a response within 48 hours;
(c)By email in any other case;
To facilitate the effective communication between the parents:
(a)Each parent shall communicate with the other parent in a manner that is polite, to the point, and limited to the issue pertaining to [X];
(b)Where a response is requested by either parent, the responding parent shall respond:
(i)Within the time requested in the communication; or
(ii)Where no response time is requested, within 7 days.
CHANGEOVER
For the purposes of facilitating the Child’s time with each parent in accordance with Orders 5 and 6 above, changeover is to occur as follows;
(a)If the Child’s time with the Mother commences or concludes at preschool or school, the Mother or her nominee shall collect the Child from preschool or school at the commencement of such time and return the Child to preschool or school at the conclusion of time;
(b)If the Child’s time with the Mother does not commence or conclude at preschool or school, then the parents or their nominee shall facilitate changeover at McDonalds Family Restaurant at Suburb C.
RESTRAINTS
That each parent be restrained from denigrating the other parent or any member of the other parent’s family or household in the presence or hearing of the Child, and shall forthwith remove the Child from the presence of any other person who does so.
AUTHORITIES AND INFORMATION
Subject to the provisions of Order 17, this Order operates as the authority of the Father, for the Mother to obtain directly from the service provider, such information as she may seek in relation to the care, education or development of the Child from any health, medical, educational or extracurricular practitioner providing care or services to [X] (“service provider”).
The authority pursuant to Order 16 is automatically revoked in the event that the communication from the Mother to the service provider is hostile, inflammatory, critical, or derogatory of the service or the Father, or in any way undermines the care or service provided to [X] by the service provider, in which case, the mother shall obtain such information from the Father.
For the purpose of facilitating Order 16, that the Father inform the Mother, within 48 hours of the information becoming available, the identity and contact details for any service provider who provides services to [X].
In the event that the authority pursuant to Order 16 is revoked, the Father shall provide to the Mother, such information as she seeks, within 7 days of a request for same.
That each parent keep the other informed of their address and contact telephone number and email address, and inform the other of any change to such details within 24 hours of the change occurring.
That each parent forthwith notify the other of any medical emergency, serious medical problem, hospitalisation or accident in relation to the Child which occurs whilst the Child is in their care, including details of the relevant hospital or treating practitioner, and any medication provided to or prescribed for the Child.
SPECIFIC ISSUES
That, the Child be enrolled to attend, and attend School M for his primary education.
That each parent be restrained from enrolling [X] to participate in any extra-curricular activity which occurs during the time the Child spends with the other parent, without first obtaining the consent of the other parent in writing (which may include by text message or email).
That, in the event [X] is enrolled in an extra-curricular activity pursuant to the preceding Order, each parent shall facilitate [X]’s attendance at such extra-curricular activity.
Nothing in Order 23 shall prevent either parent from enrolling [X] in an activity which occurs only during the time [X] is in their respective care.
PROVIDED that they conduct themselves with courtesy and respect toward the other parent, each parent shall be at liberty to attend all sporting, educational, extra-curricular and social activities in which [X] is engaged, to which parents are ordinarily invited, notwithstanding that such attendance may occur during a time when the Child is in the care of the other parent.
Unless otherwise specified, the school holiday periods shall be deemed:
(a)to commence at the conclusion of school on the last day of the school term; and
(b)To conclude at the resumption of school on the first day that children are required to attend school in the new term.
THERAPEUTIC INTERVENTION
That both parents do all things necessary and sign all necessary documents to continue to facilitate [X]’s attendance at [Psychology Clinic], until [X] attains the age of 7 years, or for such period as is recommended by [Psychology Clinic], and themselves participate in such manner as requested by [Psychology Clinic], with each parent to be responsible for meeting the cost of any therapeutic sessions they are to attend, and, with the parties to share equally the cost of the sessions to be attended by [X] where such sessions are not covered by Medicare.
That each parent facilitate [X]’s attendance upon such other therapeutic service provider recommended by [Psychology Clinic], during the time [X] is in their respective care, for such period and duration as is recommended by [Psychology Clinic], or the recommended therapeutic service provider.
Each parent shall use their best endeavours to utilise the strategies recommended by [Psychology Clinic] or such other recommended therapeutic service provider for managing [X]’s behaviour, to achieve consistency in caregiving and to promote his wellbeing.
IT IS NOTED that publication of this judgment under the pseudonym Albert & Plowman (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
SYC 5837 of 2013
| MS ALBERT |
Applicant
And
| MR PLOWMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X], who was born on 2013, and is 5 years old. These Reasons for Judgment explain why [X], who has been living with his parents in a shared-care arrangement, should now live with his Father, and spend time with his Mother.
Background
The background facts set out below are drawn from the joint chronology that was prepared in accordance with an Order of the Court. Where the facts are not agreed, this will be noted.
[X]’s Mother is the Applicant in this case. She is 45 years old. [X]’s Father is the Respondent. He is 48 years old. They commenced a relationship in 2011. It is not clear when, precisely, they started living together on a full-time basis. It was probably no later than 2013. By then, the Mother was 8 months pregnant with [X].
The early months of their relationship appear to have been quite tumultuous. There was at least one separation. The Mother alleges that the Father was violent on more than one occasion. The evidence indicates that the Father was, in fact, charged with assault, and an apprehended violence order (“AVO”) was taken out to protect the Mother. Nonetheless, in August 2012, the Mother wrote to the Police and indicated that she did not wish to proceed either with the AVO or the criminal charges.
In August 2012, and irrespective of the length of their separation, the parties reconciled. It appears that the AVO did not proceed, and the assault charges were dropped. There is an issue in the proceedings about whether, as the Mother contends, she was coerced into doing so by the Father and his family, or whether, as the Father contends, the withdrawal of the charges, and the Mother’s letter to the Police, evidenced a fabrication of the events in question. Not much turns on this.
In 2013, the parents purchased a property in Suburb D, an outer suburb of Sydney. The Father still resides there. [X] was born on 2013. There were complications at his birth. An emergency caesarean was performed, and [X] transferred to the neonatal intensive care unit at [Hospital].
The parties separated on a final basis in September 2013. It is important to recognise that this was a short, turbulent relationship, and that [X] was less than a year old when his parents separated. Difficulties soon arose between the parents about arrangements for [X] to spend time with his father. The Father commenced proceedings on 4 October 2013. There was an incident shortly thereafter which resulted in the Mother being served with an apprehended violence order, to which she later consented on an interim basis, but without admissions.
The first Orders in [X]’s life were made on 4 December 2013. He was about 6 months old at the time. The Court observes that more of [X]’s life has been spent with his parents litigating over him, than otherwise. The Interim Orders made on 4 December 2013 provided for [X] to live with his mother, and spend supervised time with his father. Eventually this commenced at a CatholicCare contact centre.
In 2014, the Father appears to have commenced a relationship with his present wife, Ms Y. She has become an important person in [X]’s life, and this will be discussed below.
On 21 March 2014, further Interim Orders were made, and the Father commenced unsupervised time with [X].
In 2015, the Mother commenced working full time, and [X] commenced attending day-care 4 days per week. There were a number of problems associated with the Father’s time with [X], with the Mother raising certain concerns, and the Father denying that there was any problem.
In March 2016, the Mother entered into a contract to purchase what is her present home at Suburb E, near Sydney. She still lives there. The Mother was working at the time in the Sydney CBD. [X] was enrolled at [Early Learning Centre] in Suburb E, 5 days per week. The Centre will henceforth be referred to as “[Early Learning Centre]”, and a number of events relate to [Early Learning Centre], which will be discussed below.
On 17 March 2016, the parents entered into Final Parenting Orders by consent. These Orders provided that [X] would live with his mother and spend time with his father each alternate weekend and on Wednesday from 1:00pm to 6:00pm. From August 2017, [X]’s time with his father would increase to take place each alternate weekend from after day-care/school on Friday to the commencement of day-care/school on Monday and each Wednesday from after day-care/school to the commencement of day-care/school on Thursday. It is important to recognise that by the time of the present proceedings, all parties, including the Independent Children’s Lawyer, accepted that these Orders were plainly not working, and were no longer in [X]’s best interests. The Court concurs.
Shortly after the purchase of the Suburb E property, the Mother ceased her employment. In 2016, the Mother met her current partner, Mr Z. The Mother appears to have been out of work for most of the rest of 2016.
Mr Z, the Mother’s partner, has 3 children, and his son [A] came to live with him, then aged 14, in January 2017. The significance of this event will shortly become apparent. There does not seem to be much dispute between the parents that [X] and [A] had the opportunity to spend time together, and probably did spend time together, after January 2017.
By April 2017, the Mother was still not working, and having financial difficulty. She secured temporary employment in Town 1 and then Town 2 and enrolled [X] in day-care in Town 2, while continuing his placement at [Early Learning Centre] in Suburb E. In June 2017, the Mother reduced [X]’s time at [Early Learning Centre] from 5 days, to 3 days, ostensibly for financial reasons.
In September 2017, the Mother was offered a position with a [employer omitted] in Canberra. The issue arose about whether the Mother would be able to relocate with [X]. The Father indicated that he did not consent to [X] being relocated outside of the Region 1 shire, the local government area in which the Mother’s home is located.
On 4 October 2017, [X], who has special needs (which will be discussed below) attended the [Hospital] Growth and Development Clinic. Both parents were present. An incident occurred. The details of this incident will be discussed below.
In October 2017, the Mother commenced her new position in Canberra. As at this time, therefore, the Mother was living in Suburb E, was working in Canberra and was in a relationship with Mr Z, who lived in Town 2.
On 30 October 2017, the Mother commenced the present proceedings, asking the Court to make orders that would allow her to live with [X] in Town 2. The Father opposed this.
By December 2017, it appears that the Father and Ms Y had commenced cohabitation. They married in 2018. The matter came before the Court on an interim application by the Mother to relocate to Town 2. The Court ordered that [X] continue to live with his mother, and spend time with the Father, but that the Mother be restrained from relocating [X] to Town 2, or, indeed, from allowing [X] to spend more than 2 weeknights per week in Town 2, and further requiring her to ensure that he attends at day-care 3 days per week.
April 2018 was a tumultuous month for this family. [X] made disclosures to his father, and to Ms Y, that Mr Z’s son, [A], had sexually assaulted him. [A] was either 15 or 16 at the relevant time, and the Court accepts that the last time that [A] spent any time with [X] was towards the end of March 2018. [X]’s disclosures triggered a number of events, which resulted in the involvement of New South Wales Police, and the New South Wales Department of Family and Community Services. A dispute arose between the parents about whether, and if so, under what conditions, [X] should return to his mother’s care. The Mother, and her partner, changed the weekends that [A] would spend time with his father, so it did not coincide with [X] being there.
On 15 April 2018, the Mother received an email that contained an assertion that she had been advised by one of the childcare workers at [Early Learning Centre] 12 months earlier of a disclosure that [X] had made relating to [A]. The relevant evidence in this regard is from Ms B, whose evidence will be discussed below.
On 17 April 2018, the Father filed an urgent application that came before the Court on 30 April 2018. The parties entered into Interim Orders establishing a shared-care arrangement.
In June 2018, the Mother, having accepted an offer made in May 2018, commenced employment in Town 2 with a [employer omitted], working 5 days per week.
Early in June 2018, it seems that both parents were notified by New South Wales Police that the investigations relating to [X]’s disclosures about [A] would not be continuing, for want of evidence.
On 24 July 2018, I formally dismissed the Father’s Interim Application that [X] live with him, and thus left in place the Orders of 30 April 2018. However, the matter was listed for urgent Hearing. Indeed, the matter was heard on 24 October 2018. The Mother appeared with her Counsel, Ms Mariole, the Father with his Counsel, Ms Cantrall, and the Independent Children’s Lawyer by her Counsel, Mr Anderson.
The competing proposals
By the time the evidence had concluded on day 3 of the Hearing, the Independent Children’s Lawyer’s proposal was that, in effect, the Father have sole parental responsibility, [X] lives with him, and spends time with his mother. The precise Minute of Order proposed by the Independent Children’s Lawyer is reproduced in the First Schedule to these Reasons.
The Mother’s proposal was likewise contained in a Minute of Order that was provided to the Court on the final day of the Hearing. She proposed that she have sole parental responsibility, that [X] live with her, and spend time with the Father. It should be noted that during the course of the Hearing, the Mother discontinued her application insofar as it involved relocation with [X].
The Father’s proposal largely supported that of the Independent Children’s Lawyer. The differences will be discussed below. The Orders proposed will be discussed in greater detail below. The Orders proposed by both parents are also reproduced in the First Schedule to these Reasons.
When the Orders are considered in more detail, it will be seen that the Court had to decide on parental responsibility, with whom [X] lives, what spends time with arrangement should be put in place, whether there is an unacceptable risk of abuse to [X] emanating from [A], and how parenting arrangements can somehow manage the intractable conflict that seems to exist between the parents.
The evidence
In the Mother’s case she relied on the following documents:
a)Amended Initiating Application of Ms Albert filed on 21 September 2018;
b)Affidavit of Ms Albert filed on 21 September 2018;
c)Affidavit of Mr Z filed 21 September 2018;
d)Affidavit of Mr C filed 21 September 2018;
e)Affidavit of Ms F filed 21 September 2018;
f)Case outline document prepared on behalf of Ms Albert filed 22 October 2018;
g)Final written submissions prepared on behalf of Ms Albert filed 2 November 2018.
In the Father’s case he relied on the following documents:
a)Response of Mr Plowman filed 20 December 2017;
b)Affidavit of Mr Plowman filed 26 September 2018;
c)Affidavit of Ms Y filed 21 September 2018;
d)Affidavit of Ms B filed in Court on 30 April 2018;
e)Case outline document prepared on behalf of Mr Plowman filed 19 October 2018; and
f)Written submissions prepared on behalf of Mr Plowman filed 9 November 2018.
The following documents were tendered as evidence during the proceedings:
a)Email dated 26 July 2017 to the Father from [Early Learning Centre];
b)Email 26 July 2017 from the Mother to the Father;
c)Email of Ms Albert dated 16 September 2017 to Region 2 Developmental Centre;
d)Documents produced in answer to subpoena to [Medical Centre];
e)Affidavit of Ms Albert affirmed and filed 15 March 2016;
f)Letters from [business omitted] dated 20 June 2018;
g)Phone record from extracts of [Psychology Clinic] in relation to [X] dated 15 – 28 June 2018;
h)Text messages from Ms Albert to Mr Plowman in relation to the Child’s MRI in October 2018;
i)Discharge summary relating to [X] dated 28 September 2018;
j)Ms Albert’s letter to area commander of North West Regional Police;
k)Letter from Daycare dated 28 November 2017;
l)[Psychology Clinic] session notes dated 5 September 2018;
m)Notes of the 12th September 2018 ([Psychology Clinic]);
n)Police statement of Ms Albert and photo of injuries;
o)[Early Learning Centre] Centre Daily sign/out sheets;
p)Bundle of job applications the Mother has made and responses received;
q)JIRT file - NSW Police documents produced in answer to subpoena;
r)Letter from Father’s Solicitors Croydon Legal dated 19 September 2017 to the Mother;
s)Series of letters from the Father to the Mother dated June and July 2017;
t)Extract from Department of Family and Community Services helpline dated 4 April 2018;
u)Letter from the Father to Daycare dated 19 October 2017;
v)Session note in relation to [X] dated 12 September 2018 – [Psychology Clinic];
w)Screen shot of note on Ms B’s mobile phone – dated 7 April 2017;
x)Affidavit of Mr Plowman sworn 10 March 2014 and filed 11 March 2014
y)Letter to Dr H from the Independent Children’s Lawyer dated 25 October 2018;
z)bundle of text messages between Mr Z and his ex-partner dated 22 June (year not specified);
aa)Orders in the matter of [Mr Z matter name/file number omitted] dated 19 April 2018 and 3 October 2018;
bb)Report of Dr H dated 29 September 2018; and
cc)Bundle of job applications/responses made by the Mother over 2017 and 2018 period.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The case law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The evidence of Dr H, Clinical Psychologist
Dr H was appointed as the Single Joint Expert in this case. His Report dated 29 September 2018 became exhibit ICL5. It is convenient to deal with Dr H’s Report before the other evidence. This is because Dr H’s Report is both independent and expert. As will be seen, the Court has reservations about the evidence of both parents, and this had the inevitable result that greater weight would be placed on independent and expert evidence.
In discussing Dr H’s evidence below, the Court will make its own observations, based on having had the benefit of observing the totality of the evidence, and having had time to reflect on the same.
In the first paragraph of his Report, under the heading Methodology, Dr H states:
I have been asked to undertake an assessment in relation to the somewhat bitter dispute between Ms Albert and Mr Plowman over who should be the primary parent for their son [X].
The Court observes that Dr H used measured words in describing the dispute between the parents as “bitter”. By the time that Dr H was cross-examined on day 3 of the Hearing (26 October 2018), he referred to the “deep-seated hatred” that each parent felt towards each other. The Court accepts these descriptions of the nature of the parental conflict, and of the parents themselves.
In his Report, Dr H refers to the traumatic circumstances of [X]’s birth, and the inference is that these circumstances may well either explain or have contributed to the subsequent developmental and behavioural issues that [X] experienced.
At paragraph 10, Dr H refers to the event which, he contends, brought the conflict between the parents to a head. He states:
Matters finally came to a head in April 2018 when allegedly [X] made a disclosure of sexual abuse by [A], who is the 15-year-old son of Mr Z. A JIRT investigation was inconclusive although my reading of the JIRT investigation indicates that it is likely that the alleged event could not be substantiated. It is probable that the alleged event, if it had occurred in some form, did not occur in the form that has been disclosed. Indeed somewhat concerningly the police material, and indeed the preschool material from the pre school [Early Learning Centre], indicates that [X] is the kind of child who makes stories up and is deceitful and deceptive. He has been problematic in his behaviour over a significant period of time and considerable suspicion needs to be held about any disclosures that he might have made. It is Ms Albert’s contention that Mr Plowman has in fact coached the disclosure although Mr Plowman absolutely denies that. He notes that the disclosure was originally made to his partner Ms Y, and this was confirmed on my interview with Ms Y.
The issue of whether [A] presents an unacceptable risk of abuse to [X] has been a very difficult one for the Court. This is will be discussed in more detail below. What the Court can confidently state is that it is not able to find that, as the Mother contended, the Father coached the disclosure. There is no evidence to support that finding. Indeed, the strong impression created is that notwithstanding the maelstrom of parental conflict to which [X] was almost continuously exposed to, the Father’s concerns about [X]’s disclosures relating to [A] were bona fide.
At paragraph 11, Dr H introduces the issue of the earlier disclosure made by [X] relating to [A] in April 2017. He states:
According to the school documentation a disclosure had previously been made in April 2017 by [X] as to [A] sexually abusing him, at that time in the form of the doodle game, or fellatio. However I have significant concern about the engagement of the preschool in this matter. It is clear that Mr Plowman has sought to cultivate the preschool in his favour by providing them with documentation that is pertinent to the Family Court matter and his ongoing argument with Ms Albert for no good reason. None of the information that he has supplied appears to be relevant to the preschool’s needs to know how to manage [X]. It seems that he was attempting to isolate Ms Albert in regards to her relationship with the preschool although Ms Albert’s own behaviour in regards to the way in which she got on with the preschool seems to have contributed to that.
Whilst this will also be discussed in more detail below, the situation will be found to be not nearly as straightforward as Dr H appears to believe. As it turns out, the Court will accept the evidence of Ms B to the effect that she reported to the Mother in or about April 2017 that [X] had made a disclosure in relation to [A]. The Court will not accept the Mother’s denials about this. Even Dr H conceded in cross-examination that, if this were the case, it would reflect adversely on the Mother’s protective capacity for [X], as well as reflect poorly on her priorities.
The Court is also able to state that it is not able to find that the Father sought to cultivate the preschool in his favour, but even if that were the case, the Court does not believe that this is reason to discount the evidence of Ms B, in any way.
At paragraph 12, Dr H continues his discussion about the April 2017 disclosure, as follows:
The documentation from the preschool indicates that a teacher by the name of Ms B spoke to both parents in April 2017. She recalls a very critical comment by the mother in regards to this disclosure as she clearly didn’t believe it and blamed Mr Plowman for it. Much to my surprise neither Mr Plowman nor Ms Albert have any recollection of that conversation. Given how incensed Mr Plowman was about Ms Albert I would have thought it extremely unlikely that if he had been told at that stage that [A] was sexually abusing his son he would not have acted on that information, even if Ms Albert had wanted to sweep it under the carpet. However I am also astounded that the disclosure being made was apparently never conveyed to the preschool Director, nor was there any notification to the police or the Department of Family and Community Services made. I had a great deal of difficulty in accepting the documentation in regards to these issues from the preschool as I think it is extremely unlikely that such a serious allegation would have been made and conversations with the parents held and yet no formal process of investigating that having taken place.
Dr H was correct in suggesting that the preschool, and its staff, failed to make appropriate mandatory reports of the disclosure. With respect, however, Dr H may have been distracted by this in placing less weight on the evidence of Ms B.
Dr H discusses the issue of family violence at paragraph 17 and 18 of his Report. The Mother’s case was, in short, that the Father perpetrated family violence on her and that was the main reason why she left him. As it turns out, this was not a determinative factor in this case. Even if it was an issue in the relationship in the past, it is clearly not an issue currently, and indeed has not been one since the parties separated. The Court does record, however, that it will find the Mother’s evidence to be unsatisfactory in many respects.
The Court notes that Dr H found the Father to be a controlling man. The Court is able to say that there is insufficient evidence before it to substantiate this contention. When the totality of the evidence is reviewed, what is apparent is that both parents, in fact, sought to “manipulate the external environment” to achieve their own aims in this case. For all practical purposes, the Court does not consider family violence to be a determining issue in this case.
Dr H also discussed the Mother’s substance abuse claims made against the Father. He concluded that, at most, it may be a historical concern, but it does not affect his parenting capacity at the moment. The Father made allegations about the Mother’s alcohol abuse. Dr H concluded that there are no current issues in this regard. The Court will, having regard to all of the evidence before it, likewise conclude that the past consumption by the parents of drugs and alcohol is not a determining factor in this case.
Dr H noted that each parent had re-partnered, and indeed he interviewed both Mr Z, the Mother’s partner, and Ms Y, the Father’s wife. At paragraph 29 he noted that his observations of [X] with both these adults revealed that he had a genuinely positive relationship with both of his stepparents. Moreover, there appeared to be no confusion in his mind as to who is his mother and father. Indeed, the Court is able to conclude from the totality of the evidence that both parents are well supported by their respective partners. Importantly, [X] appears to have a good relationship with both of his stepparents who seem to provide a very positive influence in his life. The role of [X]’s stepparents is not a determining issue in this case.
Dr H spends considerable time in his Report discussing [X]’s vulnerabilities, and how, in effect, these vulnerabilities are accentuated in the context of the bitter dispute between his parents. The dilemma for [X] is explained at paragraph 32 and 33 of the report:
[32] I have extensively reviewed the medical files and this is included in the documentation. The review is part of this report. Essentially [X] began to show behavioural difficulties around 2016. An interesting phenomenon occurs about that. When I spoke to the paternal grandparents they had not observed any significant behavioural difficulties when [X] was with them although they are aware that others have said that he could be at times oppositional defiant. When I spoke to the mother and Mr Z about [X] they said that he had been difficult during periods of 2017 which they attributed to difficulties [X] had when he was visiting his father and problems associated with the father getting in [X]’s ear and causing him to be rejecting or defiant when attending on the mother and Mr Z. Nonetheless they thought that other than for a period of time in 2017 his behaviour was reasonably settled. He continued to show some occasions of defiance but they did not see that it was particularly problematic in his behaviour.
[33] In contrast Mr Plowman and Ms Y indicated [X] exhibited quite severe and prolonged episodes of defiant behaviour. All parties referred to [X] at times as becoming extremely aggressive for no clear reason, with his eyes glazing over and all parties did recognise that he had a fascination with fire, with weapons and at times being cruel to animals. Indeed it appears very likely that [X] has quite a significant oppositional defiant disorder problem. I am particularly concerned that if this is not addressed within the next year in a concerted fashion it is likely to become an entrenched and difficult behaviour for him. He also clearly has social skills deficits and these have been noted for some time, both at the preschool and in the context of the father’s observation of [X] although the mother says he appears to be quite good at getting on with people and is able to generate friendships. Nonetheless the overall opinion is that [X] continues to show social skills deficits and this appears to have been something the mother did acknowledge when she undertook the [Hospital] interviews in 2017.
The dilemma for [X] is that his parents appear to see, and report, different things about [X]’s behaviour. Indeed, the totality of the evidence demonstrates that his parents have not, historically, “been on the same page” on the issue of his treatment.
At paragraph 34 he notes that [X] has an avoidance of any activities that involve fine motor coordination. At paragraph 35-37 Dr H states:
[35] Of greater concern were the adaptive functioning and behavioural assessments that were undertaken by the [Hospital] clinic. It is clear that he has low levels of adaptive function and he also has quite a severely disturbed behavioural pattern of the oppositional defiant type. Whilst his distractibility does not appear to warrant diagnosis of Attention Deficit Disorder he is clearly a person who has major problems in his ability to function and maintain focus, although on my assessment and observation of him he had a much better capacity to retain focus when he was in the care of his father than he was with his mother, although a number of hypotheses account for that.
[36] Firstly by the time I had observed him with his mother he had been in Town 3 and a long way from home for a substantial period of time and clearly he was tiring. Secondly he was eating chocolate during his time with his mother and that to my mind was impacting upon his behaviour, and thirdly I think he felt that he was simply bored with being in the room that he was in for such a long time. He simply wanted to get out and he continually made requests for his mother to take him to a park. For these reasons I think that the observations with the mother probably were at some disadvantage to her.
[37] [X] clearly has problems in social skills development. He needs a structured preschool program but there are concerns that the mother has undermined the capacity for that to take place. Indeed the preschool material raised a very concerning accusation that the mother had in fact been forging entries into the register about the day that she was bringing [X] to the preschool and the times that he was actually staying in the preschool. When I initially raised this with Ms Albert she declined to agree to that saying that she wrote down what was true. However when I presented her with the documentation to suggest otherwise she then agreed that she had done that and that she had marked him as present on days when he wasn’t there and at times changed the time that he was there. She said she had been told by an unnamed staff member (who she can no longer remember the name of) and has since left [Early Learning Centre], that it was appropriate for her to do so. What had occurred is that Ms Albert had used up all of the allowable absent days for [X] by mid 2017. She had a conversation with a caseworker at the preschool that said ‘well just put him down as having been there when he hasn’t and that way there won’t be any problems’. She claims she did so at the direction of the preschool. I think that is an extraordinary claim to make and I think it is extraordinary behaviour, if it is true, on the part of a preschool worker and it certainly wasn’t something that the Director appeared to be aware of or had any agreement with. I suggest that at least in this aspect of the assessment Ms Albert was being somewhat deceptive about her motivation for such behaviour. The likelihood is that Ms Albert simply found it too difficult, given all the demands on her time for working in Canberra, to follow the requirements of the pre school. She was at the time trying to maintain a relationship in Town 2 and at the same time trying to get [X] to school in Suburb E and it was simply too difficult and she was unable to do so.
At paragraph 37, Dr H refers to the Mother as being “somewhat deceptive” in relation to the falsification of [X]’s attendance records at the pre-school. The Mother’s evidence in cross-examination clearly confirmed this. But the issue is not just the Mother’s “deception”, to use Dr H’s word, but her failure to understand the importance to [X] of consistent attendance at the preschool, given his social skills development challenges. This Court, indeed, finds as Dr H hypothesised, that the Mother was simply finding it too difficult at the relevant time, and, ultimately, prioritised her own interests, over those of her son.
In relation to the observations of [X] with both parents, Dr H notes at paragraph 42:
It was notable in my observations that there was a greater deal of warmth and affection between [X] and the mother than between [X] and the father, which may relate to parenting styles but may relate to simply an aberration of the observation. However, Ms Y and the father describe [X] as a somewhat standoffish child whilst the mother and the grandparents define [X] as an affectionate and warm child suggesting that [X] has quite a different kind of relationship with his mother as with his father. There is a difference in the extent to which modelling of warmth and emotion takes place across the two families.
At paragraphs 43 – 48, Dr H returns to the issues of the sexual abuse allegations and explains why he sees no risk of abuse to [X], from [A]. At paragraph 43, he opined that for the Father, the alleged abuse, “is part of the engine that drives his decision that he should be the primary parent..” Based on the totality of the evidence, the Court believes that Dr H may have overstated the case, on this issue. The Court believes that even if there had not been this disclosure of sexual abuse, the dysfunctional nature of the relationship between the parties would have manifested itself in another crisis, that would have brought the deep-seated hatred between the parents to a head.
Nonetheless, and without setting out these four paragraphs, the Court can readily understand how Dr H would conclude that, on the basis of the information before him, there is any risk of harm to [X] from [A]. It seems quite clear to the Court that Dr H was comforted in his opinion because of the fact that the Mother and her partner had implemented a safety plan, such that [A] and [X] do not come into contact with each other, thus ensuring minimal likelihood of further abuse taking place, even if it had taken place in the past.
At paragraph 62, Dr H identifies an issue in this case. He states:
Ms Albert said she is currently living between Suburb E and Town 2 although it’s clear that she wants to live in Town 2, and she seeks to maximise whatever time she can in Town 2. In essence she lives in Suburb E typically only on a Wednesday night. As far as I can gather she is in Town 2 on the Monday and Tuesday when [X] is with the father and on Thursday [X] stays with the grandparents although the grandparents told me that on occasion when [X] is with them the mother will also stay with the grandparents as well, seemingly wanting to maximise her time with her son.
As it turns out, and with the Court having regard to the totality of the evidence, Dr H’s assessment of the Mother’s living arrangements at the relevant time is, in fact, correct. But this is not the living arrangements that the Mother represented in her evidence to the Court, and to the Father, and was, in reality, another part of the Mother’s deception which was motivated, in effect, by prioritising her relationship with Mr Z, and her work, over the needs of [X].
At paragraph 83, Dr H again records his very positive impressions of the Father’s partner, Ms Y, and, in particular, he was impressed “by the level of knowledge that Ms Y appeared to have about [X]. She has clearly been strongly involved with him, and it is clear that [X] enjoys his contact with her.” This is consistent with the Court’s own observation of the evidence given by Ms Y.
Dr H interviewed the maternal grandparents, and paragraph 99 gives an insight into the potentially toxic home environments in which [X] lives:
The grandparents do agree that Ms Albert can say some pretty negative things about Mr Plowman when [X] is in the home, but they denied that [X] would be in any position to only hear these things as he would be in another room watching TV. Nonetheless it remains my concern that both parents do not lose any opportunity to denigrate the other and that [X]’s current trauma responses are in fact in response to the fact that he is aware of and is exposed to severe parental acrimony which is causing him great distress.
[X] was observed with both his parents, and the observations are recorded at 102-105:
[102] Observation of Contact. The observation of contact with both the father and the mother took the same form. I saw the father with [X] for about 15 minutes and then I had the father and Ms Y in the room for another 15 minutes and similarly when the mother’s turn came I had the mother with [X] for 15 minutes and then Ms Albert and Mr Z together for about 15 minutes.
[103] [X] was generally well behaved in both contacts. It was clear that he was more bored, tired and restless and his attention focus deteriorated in the contact with his mother than with the father. I had already indicated that I believe that there are external factors responsible for that and that did not reflect any difficulty in his relationship.
[104] The main difference between the two contacts other than the attention focus was the level of affection that [X] displayed. Whilst he was comfortable with and enjoyed and appeared to have a great time with his father and Ms Y there was no physical connection and certainly no affection. When he was with his mother in contrast there was significant physical connection and he lent up against her and was often touching her and she was quite affectionate and required affection from him. [X]’s behaviour with both of his stepparents was excellent. He appeared to have no difficulty in their presence and he included them in his game. He laughed and joked with them and he appeared to be completely comfortable with each. He called them his stepmother and stepfather to me when I spoke to [X] individually, and he appears to feel that he has a generally good relationship across the families.
[105] [X] tended to demonstrate more behavioural persistence with the father particularly in a game of pick up sticks, which he did try to repeat with his mother but as noted he was unable to persist in that. Nonetheless he did not try to get out of the room. At the end of the contacts when I asked the families to tidy up it was obvious that [X] was not good at tidying up but he engaged in that activity with each parent and he appeared to transition well between each parent.
Clearly, [X] has a different type of relationship with each parent.
[X] was interviewed as well. No assertion was made in this case that his views should carry any particular weight. Dr H quite naturally asked the parents about [X]’s behaviour. At paragraph 110, he notes:
It is clear there is a large disconnect between the parents in how they describe [X] with the father seemingly reporting major problems, which may reflect some exaggeration and the mother minimal problems, which may reflect some minimisation motivated by her desire to prevent any negative opinions being formed about what has been alleged to have occurred to [X] in her home.. However, as I have reviewed this material it is open to conclude that, in part, [X] responds quite differently in different environments and thus the parent’s self report reflect specific dynamics in [X]’s response to these varying home environments. However, on balance I think [X] does genuinely have behaviours that are of concern and the maternal family is motivated to minimise these for strategic reasons.
The Court will conclude, from the totality of the evidence, that Dr H’s opinion that the maternal family has been motivated to minimise the significance of [X]’s behavioural issues, for strategic reasons, is in fact borne out.
Dr H’s formulation appears at paragraphs 111-113:
[111] Formulation. This is a most complex matter that has now been going on in the Family Court for some five years. Mr Plowman presents as a mild man on interview attuned to his child and caring about him. Nonetheless the documentation and indeed Mr Plowman’s behaviour in general suggests that he can be a controlling person who has sought at every opportunity to undermine the reputation of Ms Albert. I am concerned his self-report is not generally reliable. He does not present as having any problematic behaviours such as being particularly prone to violence, drug or alcohol abuse and he does not present as having any mental health problems. He appears to have a stable and loving relationship with Ms Y and Ms Y appears to be a strong maternal like figure for [X].
[112] Ms Albert presents as a somewhat more anxious woman who has had significant turmoil in her life associated with failed relationships. She is particularly anxious of and reactive to Mr Plowman. Whilst I suspect there is some exaggeration in her reaction to Mr Plowman it is also clear that she experienced him as a bullying individual who has sought to control her at every opportunity and she has a strong visceral response to him that she seemingly is unable to control. She is also involved in a stable and apparently caring and loving relationship with Mr Z. Mr Z presents as a person who has a strong paternal role to play for [X]. Ms Albert does appear to be a person who has had some difficulty in resolving her intention in wanting to pursue her relationship with Mr Z on the one hand and maintain continuity and consistency in relation to the court orders with [X] on the other, largely because of the tyranny of distance. Despite her dismissing the distance as not being a critical factor in this issue it clearly is, and is a matter that needs to be considered by the Honourable Court.
[113] [X] presents as a young boy who is currently displaying what I believe to be trauma related behaviours. In trying to investigate the source of this trauma, short of quite prolonged and deep psychological investigation, on the basis of my interview and reading the documentation, the most likely source of this trauma lies in the conflict between the parents. I do not think that much weight can be given to the allegation of sexual harm. I do not believe it has much in the way of any trauma relationship to [X], although the paternal emphasis on this alleged event is such that it is possible to create a sense of victimisation in [X] that will be significantly greater than any he would normally otherwise have felt as a result of the behaviour, if it did occur, by [A]. It is perhaps in part this focus on alleged trauma by the paternal family that accounts in part why [X] appears to present more challenging behaviours in the paternal environment.
As to paragraph 111, the Court has already noted that there is insufficient evidence for it to conclude that the Father is a controlling person. There is, however, ample evidence to demonstrate that both parents have sought, at every opportunity, to undermine the reputation and parenting of the other.
As for paragraph 112, the Court accepts that the evidence does, in fact, establish that the Mother had difficulty in, in effect, managing competing priorities. The professional opinion expressed by Dr H at paragraph 113, about trauma-related behaviours, is a professional opinion he is entitled to express, having regard to the material before him. It is a conclusion that is consistent with the evidence before the Court.
In discussing [X]’s meaningful relationship with each of his parents, Dr H identified the tension between the interest that [X] has in maintaining a relationship with both his mother and father, and the reality that each parent seeks to undermine the quality of the other’s relationship with [X]. The dilemma for [X] is exacerbated by the fact that Dr H believes that his situation is not likely to improve significantly until each parent recognises that they need to resolve the conflict between them, and to move towards a more communicative and cooperative arrangement.
Dr H did not believe that either parent had the capacity to do so. He observed that neither parent was prepared to take responsibility for how they had fanned the conflict with each other. Each was content to blame the other, and not to reflect on their behaviour. Whilst, as will be seen, a form of family therapy was suggested, it was clear to the Court that Dr H was sceptical about the capacity of these parents to change. The Court accepts these statements by Dr H. These statements are entirely consistent with the Court’s own assessment of the parents, having regard to the evidence.
Dr H was of the view that the risk of harm to [X] was derived not from [A], but from his own parents. He contends, and the Court agrees having regard to all the evidence that both parents are so self-absorbed, that they are unable to recognise [X]’s needs. In cross-examination, Dr H would use the term “competition” to describe the parents’ attitudes about their relationship with [X].
Notwithstanding the above, Dr H was of the view that [X] had a loving relationship with both parents, his step-parents, and the maternal grandparents. He thought it was essential that [X] be able to continue these meaningful relationships: “so that the continuity of his psychological world is preserved” (paragraph 123).
At paragraph 126, Dr H expresses this damning opinion:
A critical issue is the effect of the conduct of each of the child’s parents on the child. In my view the conduct of these parents has served to cause a trauma response in [X], which has undermined his psychological well being and will continue to do so until such time as the parents engage in appropriate levels of conflict resolution and communication and cease their internecine battle with each other and mature in their roles as parents for their child.
This Court finds that Dr H’s opinion is soundly based on the evidence. The significance of [X]’s special needs in the context of the parental dispute is discussed at paragraphs 128-129:
[128] The critical issue in this assessment has been the implications of the various medical reports and the November 2017 clinic report in regard to the psychological and environmental stability that [X] requires. At that time [X] was primarily in the care of his mother. It is Mr Plowman’s allegation, buttressed by concerns raised by the preschool, that Ms Albert was not providing the level of structured ability and support that [X] required. It seems on the basis of all the information available despite the objections to that information by Ms Albert that there is some weight to that argument. Nonetheless that argument is in part a function of Ms Albert being required to live in essence in two places at once both in Suburb E and in Town 2 and the dilemma she faced to progress the relationship with Mr Z as opposed to maintaining stability for her son.
[129] It appears to me that Ms Albert continues to have difficulties in gaining insight into some of those issues, largely because she is defensive about her behaviour, which is to be anticipated and expected in a Family Court adversarial situation. Nonetheless it seems that overall both parents are determined to do the best they can for [X] irrespective of the issues arising through 2017 for Ms Albert. She has been compliant with court orders since the 30th April 2018. She has organised her life accordingly and whilst it is not ideal she does appear to be in a position where she has accepted that she needs to provide the structure and stability that her son needs. It remains my thesis that the single biggest threat facing [X] is not necessarily the failures of any one parent but rather the failure of both parents to conduct themselves in a civil and organised way in response to their child and co-parenting with him.
Dr H considered the likely effect of change in [X]’s circumstances, particularly having regard to the competing proposals. At paragraph 131 he expressed the view that [X] has a strong attachment to both parents, and provided there was a reasonable level of contact, he could easily slip into living full time with one parent as with the other, without any significant impacts on him. At paragraph 133, Dr H further reiterated that [X] would adjust equally well living with either parent, and would not suffer any significant harm psychologically if he lived with his father, and saw his mother alternate weekends, and vice versa. He believed that [X] would do well living with his mother, if he saw his father on alternate weekends. He noted that the current shared care arrangement appeared to be proceeding reasonably smoothly and that it was an arrangement that could not survive once [X] attended school due to the considerable distance between the parents. Thus, the Court would need to decide which parent [X] actually lived with.
Dr H was cross-examined. By the time of his cross-examination, he had read the parents’ trial affidavits, and that of the supporting witnesses. He had also had access to documents that had been subpoenaed. By reference to the psychological reports on [X] that he had read, Dr H confirmed that [X] was demonstrating trauma behaviours attributable to parental conflict. He advocated for family therapy as a possible circuit-breaker to the parental hatred. He suggested it should be a single person working with both of them.
Dr H was asked to consider the situation if the Court were to accept the evidence of Ms B from [Early Learning Centre] that the Father did not become aware of the 2017 disclosures until 2018. Dr H agreed that if only the Mother had been told, it does cast some doubts about her. Interestingly, he expressed doubts about the April 2017 allegations, but the real focus for the Court is not on whether the events alleged to have occurred did in fact occur, but whether the Mother’s response to the disclosures was dismissive, or protective. The Court will find that it was dismissive, rather than protective. Even Dr H conceded that, if that were the case, the Mother was prioritising her relationship with her partner, rather than giving serious consideration to whether something occurred.
Dr H was asked whether it was likely that [X]’s trauma behaviour was related to sexual abuse. He insisted that it was related to the parental conflict.
Dr H was critical of the interview that [X] was subjected to as a result of his disclosures. He explained that sexualised behaviours were normal for children at his age. Dr H was still clearly concerned about the possibility that [X]’s disclosures were generated for him, the inference being that it was by his father.
Counsel for the Mother asked Dr H to explain at what age [X] could self-protect, if the Court did order restraints on contact between [A] and [X]. Dr H explained that this was in part dependent on [A]’s age, too. He would expect sexualised behaviour to disappear by 16 or 17. For [X], protective behaviour could be expected in his early adolescent years. But Dr H made it very clear that he thought it was dangerous for the Court to make an order in relation to [A] and [X] that creates the inference that something has occurred, when in his opinion it has not. He thought it was much more practical to simply require that any contact between [X] and [A] take place in the presence of another adult. He emphasised that care should be taken not to create a legend around [X] that in fact makes it harder for [X]. It is clear from Dr H’s evidence, the Court observes, that he had grave reservations about any order that prevents [X] coming into contact with [A], but still had reservations if an order were made requiring any contact between them to be supervised.
When Dr H gave evidence he was informed, of course, of the Mother’s discontinuance of the application to relocate with [X]. He was asked whether, in view of the Mother’s proposal to remain in Suburb E, it changes his assessment that [X] could slip into living full time with either parent. Dr H expressed the view that it did not change his opinion. He emphasised that the critical issue for [X] is not how much time he has with either parent, but how that is explained to him, and how his parents get on. Dr H emphasised that if his parents do not change their behaviour, nothing will work.
Counsel for the Father cross-examined Dr H about the disclosures. He was asked whether he was suggesting that [X]’s disclosures need to be taken “with a grain of salt”. His response was that children should be believed, but caution must be exercised as one examines the context of the allegations. He emphasised that even [X]’s preschool referred to his tendency to tell lies, and thus one must be cautious about what [X] says.
Counsel suggested to Dr H that there were two aspects to the disclosures. The first aspect was whether the disclosures were in fact made by [X]. Dr H seemed willing to accept that this was the case. The Court will find that this was the case. The second dimension was whether the events disclosed in fact took place. Dr H accepted that he didn’t know whether it did in fact occur. He accepted that if the Court found that in fact [X] did make those disclosures, it would be a concerning thing. He accepted that if the disclosures were made by [X], the reaction by his father would be understandable. This extended to seeking to restrain [X]’s contact with [A]. Ultimately, Dr H accepted that if there was a restraint between [X] and [A] having any contact with each other, there would be no chance of reoccurrence. Dr H did not accept, however, that a restraint would minimise the potential for parental conflict. He accepted that, in the circumstances of this case, where [X] had manifested sexualised behaviours, and where he had also manifested a tendency to tell lies, it was quite likely that he would continue to make disclosures. Dr H ultimately accepted that if [X] was not seeing [A], then any disclosures that [X] makes about [A] could not be believed.
The Evidence of the Mother
It is trite to say that the more confident a Court can be about the evidence given by a parent, the more confident the Court will be that the parent will be able to commit themselves to the very parenting order that they put before the Court. This principle applies to both parents in this case, of course. The Mother was the Applicant, and thus it is appropriate that her evidence be discussed first. In short, the cross-examination of the Mother left the Court with little confidence that she could support the parenting arrangement that she proposed. The survey of the Mother’s evidence which appears below is selective, but is considered adequate to convey why the Court has such concerns about the Mother’s evidence and, ultimately, why this Court has not preferred the Mother’s proposal.
The Mother was cross-examined by Counsel for the Father about whether she was, in fact, living at Suburb E at relevant times for the purposes of these proceedings, as she had represented in her evidence. The Mother’s evidence in cross-examination was unconvincing on this point. For example, when cross-examined about which nights, precisely, she spent in Suburb E, she was at first vague, then inconsistent, and ultimately disingenuous in the answers she gave. Her insistence that Suburb E was her primary residence lacked plausibility.
Before the Court made Orders restraining her from relocating [X], and limiting the number of weeknights that he could spend in Town 2, the Court does not accept that Suburb E was [X]’s primary residence. The reality, the Court finds, is that the Mother was, in fact, transitioning [X] to live with her in Town 2.
A number of concerns arise in this regard. Firstly, it is reasonable for the Court to conclude that she was misleading the Court in her evidence about where, precisely, she and [X] lived. Secondly, it was exposing [X] to unnecessary to travel, it was disrupting his attendance at [Early Learning Centre] in Suburb E, and it was bringing about changes in his life the effects of which could not be properly considered. Moreover, not only did the Mother not tell the Father about these important changes in [X]’s life, but she relied on [X] to tell the Father. Indeed, in cross-examination the Mother would not agree with the proposition that it was compromising for [X] to tell his father that he had moved house, rather than for his mother to tell the Father. This demonstrated significant lack of insight. When it was suggested to her that her actions placed [X] in the middle of his parents’ conflict and inability to communicate, her glib response was that [X] was too young to understand. This again suggested lack of insight and an irresponsible attitude towards her role as [X]’s mother.
When it was suggested in cross-examination that even if [X] was too young to understand, this was even more reason for the Mother to communicate with the Father, her equally glib response was to the effect that “my personal life is my personal life..”. This admission by the Mother really highlights one of the key themes of this case – the Mother’s inability to prioritise [X]’s interests over her own. She conceptualised the issue of where she lived with [X] as a private matter, rather than an issue relevant to [X]’s best interests, in respect of which the Father had a legitimate interest.
The Mother acknowledged in her trial Affidavit, sworn 29 September 2018, that more travel was involved for both [X] and herself as a result of her spending more time in Town 2. She sought to minimise the potential impact on [X] of this by referring to the games they played, and other activities undertaken, in the car. But she acknowledged that even though she had previously represented in an earlier Affidavit that there were benefits to [X] of living in the Region 1 area, including proximity to his father’s home, her motive for living in Town 2 was because of her relationship with Mr Z. What she did not seem to consider was the obvious inconsistency so far as [X] was concerned. The Court accepts that the Mother ultimately abandoned her proposal for relocation, but these are matters that go to her attitudes as a parent, and indeed whether she can be trusted to facilitate and encourage [X]’s relationship with his father, wherever she lives.
The Mother agreed that she had not told the Father when she enrolled [X] in a preschool in Town 1. She explained that she told the Father after the fact, but was then forced to concede that was because the Father had raised it with her, because [X] had said something to him. Again, the dilemma for [X] is apparent, albeit not discernible to the Mother. Her attitude in this regard was clearly demonstrated at paragraph 35 of a statement dated 1 May 2018 that the Mother gave to the Police Child Abuse Unit on 24 April 2018. There she states that [X] attended the day care in Town 1:
Until Mr Plowman discovered it and kicked up a stink. I had to stop using .. day care when Mr Plowman threatened me with a contravention order.
3. From December 2021 and each alternate year thereafter, for the first half of the school holiday period commencing with the conclusion of school on the last day of term until 6pm on the middle day of the holiday period;
4. From December 2022 and each alternate year thereafter, for the second half of the holiday period, commencing at 6pm on the middle day of the holiday period, and concluding at the commencement of school on the resumption of the school year;
d. on the weekend which includes Mother’s day from the conclusion of school Friday until the commencement of school Monday;
e. from 3pm Christmas eve until 3pm Boxing day (26 December) in even numbered years;
f. From 3pm Boxing day (26 December) until 3pm 28 December in odd numbered years;
g. for 4 hours on the child’s birthday and the mother’s birthday, which shall reduce to 2 hours if the birthday falls on a school day, and in lieu of agreement, 12noon-4pm on a non school day, and from after school until 2 hours after the conclusion of school, on school days.
SUSPENSION OF TIME
6. That the time the child spends with the mother shall be suspended:
a. on the weekend which includes Father’s day;
b. from 3pm Christmas eve until 3pm Boxing day (26 December) in odd numbered years;
c. from 3pm Boxing day until 3pm 28 December in even numbered years;
d. for 4 hours on the child’s birthday and the father’s birthday, which shall reduce to 2 hours if the birthday falls on a school day, and in lieu of agreement, 12noon-4pm on a non school day, and from after school until 2 hours after the conclusion of school, on school days.
7. That the time the child spends with the mother pursuant to orders 5(a)(i) and 5(c)(i)(2) shall be suspended in the event the mother relocates her residence outside the Region 1 Shire.
PERSONAL PROTECTION ORDERS
8. That, until [A] (born 2002) (“[A]”) attains the age of 16 years:
a. the mother shall personally supervise the child [X] at any time he is in the presence of [A], and in this respect the mother shall remain close enough to see and hear all interaction between [X] and [A]; and
b. the mother be restrained from permitting the child [A] staying overnight at any place at any time that [X] is also present overnight.
9. That after [A] attains the age of 16 years, and until [X] attains the age of 16 years, that the mother be restrained from permitting [X] from being in the presence of [A], unless there is also another adult present at all times with [X].
10. That Orders 8 and 9 are orders made for the personal protection of the child, [X], pursuant to section 68B of the Family Law Act, 1975.
COMMUNICATION
11. That the child communicate with the mother, by telephone or such other agreed available communication such as facetime or skype, and in lieu of agreement, between 6-7pm each Wednesday and Saturday when he is in the father’s care, and in this respect the mother shall contact the father on his last notified mobile telephone number.
12. That the child communicate with the father, by telephone or such other agreed available communication such as facetime or skype, and in lieu of agreement, between 6-7pm each Thursday and Saturday when he is in the mother’s care, and in this respect the father shall contact the father on his last notified mobile telephone number.
13. That each parent shall facilitate the child communicating with the other parent by telephone, at any reasonable time he expresses a wish to do so.
14. That the parents communicate with one another as follows:
a. By telephone in the case of emergency;
b. By text message where the information to be relayed or sought requires notification or a response within 48 hours;
c. By email in any other case.
15. To facilitate the effective communication between the parents:
a. Each parent shall communicate with the other parent in a manner that is polite, to the point, and limited to the issue pertaining to [X];
b. Where a response is requested by either parent, the responding parent shall respond:
i.Within the time requested in the communication; or
ii.Where no response time is requested, within 7 days.
CHANGEOVER
16. Where the time the child spends with the mother does not commence or conclude at preschool or school, that the parents or their nominee shall meet at McDonalds Family Restaurant at Suburb C.
RESTRAINTS
17. That each parent be restrained from denigrating the other parent or any member of the other parent’s family or household in the presence or hearing of the child, and shall forthwith remove the child from the presence of any other person who does so.
AUTHORITIES AND INFORMATION
18. Subject to the provisions of Order 19, this Order operates as the authority of the Father, for the mother to obtain directly from the service provider, such information as she may seek in relation to the care, education or development of the child from any health, medical, educational or extra curricular practitioner providing care or services to [X] (“service provider”).
19. The authority pursuant to Order 18 is automatically revoked in the event that the communication from the mother to the service provider is hostile, inflammatory, critical, or derogatory of the service or the father, or in any way undermines the care or service provided to [X] by the service provider, in which case, the mother shall obtain such information from the father.
20. For the purpose of facilitating Order 18, that the father inform the mother, within 48 hours of the information becoming available, the identity and contact details for any service provider who provides services to [X].
21. In the event that the authority pursuant to Order 18 is revoked, the father shall provide to the mother, such information as she seeks, within 7 days of a request for same.
22. That each parent keep the other informed of their address and contact telephone number and email address, and inform the other of any change to such details within 24 hours of the change occurring.
23. That each parent forthwith notify the other of any medical emergency, serious medical problem, hospitalisation or accident in relation to the child which occurs whilst the child is in their care, including details of the relevant hospital or treating practitioner, and any medication provided to or prescribed for the child.
SPECIFIC ISSUES
24. That, the child be enrolled to attend, and attend School M Public school for his primary education.
25. That each parent be restrained from enrolling [X] to participate in any extra-curricular activity which occurs during the time the child spends with the other parent, without first obtaining the consent of the other parent in writing (which may include by text message or email).
26. That, in the event [X] is enrolled in an extra-curricular activity pursuant to the preceding order, each parent shall facilitate [X]’s attendance at such extra-curricular activity.
27. Nothing in Order 25 shall prevent either parent from enrolling [X] in an activity which occurs only during the time [X] is in their respective care.
28. PROVIDED that they conduct themselves with courtesy and respect toward the other parent, each parent shall be at liberty to attend all sporting, educational, extra-curricular and social activities in which [X] is engaged, to which parents are ordinarily invited, notwithstanding that such attendance may occur during a time when the child is in the care of the other parent.
29. Unless otherwise specified, the school holiday periods shall be deemed:
a. to commence at the conclusion of school on the last day of the school term; and
b. To conclude at the resumption of school on the first day that children are required to attend school in the new term.
THERAPEUTIC INTERVENTION
30. That both parents do all things necessary and sign all necessary documents to continue to facilitate [X]’s attendance at [Psychology Clinic], until [X] attains the age of 7 years, or for such period as is recommended by [Psychology Clinic], and themselves participate in such manner as requested by [Psychology Clinic], with each parent to be responsible for meeting the cost of any therapeutic sessions they are to attend, and, with the parties to share equally the cost of the sessions to be attended by [X] where such sessions are not covered by Medicare.
31. That each parent facilitate [X]’s attendance upon such other therapeutic service provider recommended by [Psychology Clinic], during the time [X] is in their respective care, for such period and duration as is recommended by [Psychology Clinic], or the recommended therapeutic service provider.
32. Each parent shall use their best endeavours to utilise the strategies recommended by [Psychology Clinic] or such other recommended therapeutic service provider for managing [X]’s behaviour, to achieve consistency in caregiving and to promote his wellbeing.
DATED: 28.10.2018
HELEN ELIZABETH VOLK
INDEPENDENT CHILDREN’S LAWYER
Orders Proposed by the Mother
ALBERT & PLOWMAN - SYC5837/2013
Minute of Order sought by Applicant Mother
That all previous Orders in relation to the child [X] born 2013 ("the child") be discharged.
That the Mother shall have sole parental responsibility in relation to long term and significant issues in relation to the child.
That the child shall live with the Mother.
That the child shall spend time with the Father as follows:
4.1Until the commencement of Term 1, 2019:-
4.1.1each week from Monday to Wednesday (changeover is to occur at 5.00pm unless the child is in attendance at day care); and
4.1.2each alternate weekend from Friday to Monday (changeover is to occur at 5.00pm unless the child is in attendance at day care).
4.2From 2019, during school term, commencing on the first Friday,
4.2.1each alternate weekend from after school on Friday (or 3.00pm if the child is not at school on the Friday) until the commencement of school on Monday (or 9.00am if the child is not at school on the Monday) with such time to recommence after the school holiday period on the first Friday of the new school term for students; and
4.2.2each alternate Wednesday from after school (or 3.00pm if the child is not at school on the Wednesday) until the commencement of school on the Thursday (or 9.00am if the child is not at school on the Thursday), with such time to occur on the Wednesday immediately after the father’s time with the child pursuant to Order 6.2.1.
That the child spend additional time with the Father as follows:
5.1Commencing 2019 for nine (9) consecutive nights in each of the Term 1, 2 and 3 NSW school holidays as agreed and failing agreement such time shall commence from after school (or 3.00pm if a non-school day) on the Friday of the last week of school term for students and to conclude at 5.00pm on the second Sunday of the school holiday.
5.2During the NSW Term 4 school holidays as follows:
5.2.1Commencing 2019 and until December 2022, for two (2) block periods of one (1) week each during the Term 4 school holidays which commence in December 2019 as agreed and failing agreement for the third week and fifth week of such school holiday periods, with such time to commence at 5.00pm on the Friday and conclude at 5.00pm on the following Friday.
5.2.2From 3.00pm on 2 January 2021 until 3.00pm on 16 January 2021;
5.2.3From 3.00pm on 2 January 2022 until 3.00pm January 2022;
5.2.4Commencing in the Term 4 holidays that commence in December 2022 for half of each school Term 4 school holiday period as agreed and failing agreement for the first half in years when the holidays commence in an odd numbered year and the second half when the holidays commence in an even numbered year.
5.3From after school on Friday (or 5.00pm if the child is not at school on the Friday) until 5.00pm on Sunday on the Father's Day weekend.
5.4Christmas as follows:-
5.4.15.00pm Christmas Eve to 5pm Christmas Day in odd numbered years
5.4.25.00pm Christmas Day to 5pm Boxing Day in even numbered years
That the Father's time with the child pursuant to these Orders shall be suspended at the following times when the child shall live with the Mother.
6.1During the Mother's Day weekend.
6.2Christmas as follows:
6.2.15.00pm Christmas Eve to 5pm Christmas Day in even numbered years
6.2.25.00pm Christmas Day to 5pm Boxing Day in odd numbered years
That the Mother and Father shall each have liberal and flexible telephone communication with the child such that:
7.1The Father shall telephone the child each Monday and Thursday when he is in the Mother's care between 6.30pm and 7.00pm on a telephone number provided by the Mother.
7.2The Mother shall telephone the child each Saturday and Thursday when he is in the Father's care between 6.30pm and 7.00pm on a telephone number provided by the Father.
7.3The Mother and Father shall encourage and facilitate the child communication with the other parents pursuant to the provisions of these Orders.
That for the purposes of facilitating the Father's time with the child pursuant to these Orders in the event that the child is not living with the Mother in Town 2:-
8.1The Father, Ms Y or Ms L ("his nominees") shall collect the child from the Mother or her nominee (as stipulated below) inside McDonalds Restaurant at Suburb C at the commencement of his time with the child; and
8.2The Mother, Ms Albert or Mr Z ("her nominees") shall collect the child from the Father or his nominee (as stipulated above) inside McDonalds Restaurant at Suburb C at the conclusion of the Father's time with the child
That notwithstanding any other provisions of these Orders, if the Mother or Father's time with the child commences or concludes at day care/school they may collect/deliver the child from/to the school.
That unless otherwise specified in these Orders, the school holidays shall be deemed to commence from after school on the last day of the school term for students and shall be deemed to conclude at the commencement of school on the first day back of the new school term for students.
That the Mother and Father shall keep each other advised of their contact telephone numbers and advise each other within twenty-four (24) hours of any change.
That the Mother and Father shall keep each other advised of the suburb and postcode of their residence and provide each other with no less than twenty-one (21) days' notice in writing of any change to such details.
That the Mother and Father do all things necessary to authorise the child's school/day care to provide to the other parent on a regular basis copies of all school reports, school newsletters and other information regarding the child's school activities.
That the Mother and Father be entitled to obtain directly from any school/day care attended by the child or any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose the Mother and Father shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
That the Mother and Father immediately notify the other parent of medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care That together with such notice the parents is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment for the child.
That the Mother and Father be restrained by injunction from:
16.1Speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the child's presence or hearing.
16.2Consuming illicit drugs within twenty-four hours prior to and during their time with the child.
16.3Drinking alcohol in excess of the NSW driving limit within twenty four hours prior to and during their time with the child.
16.4Attending upon each other's residential address or coming within one (100) meters of the other's residential address without first obtaining the other parents' written consent.
16.5Being in or allowing the child to be in the presence of any person who appears to be, or is, under the influence of illicit drugs and/or alcohol in excess of the NSW driving limit.
16.6Allowing the child to consume alcohol.
That the Mother and Father shall ensure that the child is, at all times, appropriately restrained when travelling in a motor vehicle and in an age appropriate car seat that complies with Australian Standards.
That the Mother be restrained from relocating the residence of the child from outside of the Region 1 Shire area.
That both parties maintain the child's enrolment at Suburb E [Early Learning Centre] until the conclusion of Term 4, 2018.
That the parties do all things necessary to enrol the child into Suburb E Public School for the commencement of Term 1, 2019.
Orders Proposed by the Father
MINUTE OF ORDER SOUGHT BY THE RESPONDENT FATHER
In the event that the Mother relocate to Town 2 or within a 2.5 hour drive from Suburb D:
That all previous Orders in relation to the child [X] born 2013 (“the child”) be discharged.
That the Father have sole parental responsibility for the child.
That the child live with the Father.
That the child spend time with the Mother as follows:
4.1Until the child commences school in 2019 each alternate weekend from after day care (no earlier than 3.00pm) on Friday or if not at day care from 6.00pm until 9.00am Monday or 5.00pm Monday if a long weekend and each alternate Wednesday from 6.00pm until 9.00am on Friday.
4.2Upon the child commencing school in 2019 during school terms each alternative weekend from after school on Friday until 5.00pm Sunday or 5.00pm on Monday if a long weekend with such time to recommence after the school holiday period on the first Friday of the new school term for students.
That the child spend time with his maternal Grandparents upon the child commencing school in 2019 from after school each Wednesday until 9.00am Thursday during school term.
That upon the child commencing school in 2019 the child shall spend time with the Mother as follows:
6.1During school holiday periods for nine (9) consecutive nights in each of the Term 1, 2 and 3 NSW school holidays as agreed and failing agreement such time shall commence from after school (or 3.00pm on a non school day) on the Friday of the last week of school term for students and to conclude at 5.00pm on the second Sunday of the school holiday period.
6.2During the NSW term 4 school holidays for three (3) block periods of one (1) week as agreed or failing agreement, in the first, third and fifth weeks of such school holiday period from 9.00am on Monday to 6.00pm on Sunday until the Term 4 holidays that commence in December 2022.
6.3During NSW term 4 school holidays that commence in December 2022 and thereafter for half of each school Term 4 school holiday period as agreed and failing agreement for the first half in years when the holidays commence in an odd numbered year and the second half of school holiday periods when the holidays commence in an even numbered year.
6.4For the weekend of Mother’s Day from after school on Friday (or 6.00pm Friday if not a school day) until 6.00pm Sunday.
6.5For the weekend immediately following 25 May in each year (unless 25 May falls on a weekend that the child is spending time with the Mother pursuant to these Orders) from after school on Friday (or 6.00pm if not a school day) until 6.00pm Sunday.
6.6From 5.00pm on Christmas Eve until 2.00pm on Boxing Day in years ending in an even number.
That the Mother’s time with the child pursuant to these orders shall be suspended at the following times when the child shall live with the Father:
7.1For the weekend of Father’s Day from after school on Friday (or 6.00pm Friday if not a school day) until 6.00pm Sunday.
7.2From 5.00pm on Christmas Eve until 2.00pm on Boxing Day in years ending in an odd number.
In the event that the Mother live in the Region 1 Shire:
That all previous Orders in relation to the child [X] born 2013 (“the child”) be discharged.
That the Father have sole parental responsibility for the child.
That the child live with the Father.
That the child spend time with the Mother as follows:
11.1Until the child commences school in 2019 each alternate weekend from after day care (no earlier than 3.00pm) on Friday or if not at day care from 6.00pm until 9.00am Monday or 5.00pm Monday if a long weekend and each alternate Wednesday from 6.00pm until 9.00am on Friday.
11.2Upon the child commencing school in 2019 during school terms each alternative weekend from after school on Friday until 5.00pm Sunday or 5.00pm on Monday if a long weekend with such time to recommence after the school holiday period on the first Friday of the new school term for students.
11.3Upon the child commencing school in 2019 during school terms each Wednesday from after school or 3.00pm until before school or 9.00am Thursday.
That upon the child commencing school in 2019 the child shall spend time with the Mother as follows:
12.1During school holiday periods for nine (9) consecutive nights in each of the Term 1, 2 and 3 NSW school holidays as agreed and failing agreement such time shall commence from after school (or 3.00pm on a non school day) on the Friday of the last week of school term for students and to conclude at 5.00pm on the second Sunday of the school holiday period.
12.2During the NSW term 4 school holidays for three (3) block periods of one (1) week as agreed or failing agreement, in the first, third and fifth weeks of such school holiday period from 9.00am on Monday to 6.00pm on Sunday until the Term 4 holidays that commence in December 2022.
12.3During NSW term 4 school holidays that commence in December 2022 and thereafter for half of each school Term 4 school holiday period as agreed and failing agreement for the first half in years when the holidays commence in an odd numbered year and the second half of school holiday periods when the holidays commence in an even numbered year.
12.4For the weekend of Mother’s Day from after school on Friday (or 6.00pm Friday if not a school day) until 6.00pm Sunday.
12.5For the weekend immediately following 25 May in each year (unless 25 May falls on a weekend that the child is spending time with the Mother pursuant to these Orders) from after school on Friday (or 6.00pm if not a school day) until 6.00pm Sunday.
12.6From 5.00pm on Christmas Eve until 2.00pm on Christmas Day in years ending in an even number.
That the Mother’s time with the child pursuant to these orders shall be suspended at the following times when the child shall live with the Father:
13.1From weekend of Father’s Day from after school on Friday (or 6.00pm Friday if not a school day) until 6.00pm Sunday.
13.2From 5.00pm on Christmas Eve until 2.00pm on Christmas Day in years ending in an odd number.
Regardless of where the parents reside:
Day Care
That both parents ensure that the child attends [Early Learning Centre], Suburb E until 21 December 2018 at least 3 days per week from 9.00am to 3.00pm unless he is attending orientation at School M Public School on 29 October 2018, 5 November 2018, 12 November 2018 and 19 November 2018.
Telephone calls
That the Father and the Mother shall each have liberal and flexible telephone communication with the child such that:
15.1That the Father shall telephone the child each Sunday and Wednesday when he is in the Mother’s care between 6.30pm and 7.00pm on a telephone number provided by the Mother and the Mother shall afford the Father privacy during such calls;
15.2That the Mother shall telephone the child each Tuesday and Thursday when he is in the Father’s care between 6.30pm and 7.00pm on a telephone number provided by the Father and the Father shall afford the Mother privacy during such calls;
15.3The Father and the Mother shall encourage and facilitate the child’s communication with the other parent pursuant to the provisions of these Orders.
Changeover
That for the purposes of facilitating time the child spends with each parent, the parent with whom the child is to commence living with or spending time with:
16.1shall organise for the child to be collected at the commencement of such time and the other parent shall organise for the child to be collected at the conclusion of such time from:
16.1.1preschool if the child is at preschool;
16.1.2school if the child is at school;
16.1.3Suburb C McDonalds if the child is not at preschool or school;
16.1.4such other palace as is mutually agreed in writing (including by text message or email; and
16.1.5if the child is not in attendance at preschool or school (on a day the child would normally attend daycare or school) the parent with the care of the child on that day shall inform the other by text message to, in the case of communication with the Mother: … and in the case of communication with the Father: … (or such other number as the Mother or the Father shall advise is their current number) to advise of the child’s absence.
Restraints
That the Mother be restrained by injunction from permitting the child to come into contact with the child [A] or stay overnight in any home in which [A] resides, whilst [A] is present.
That the Father and the Mother be restrained by injunction from:
19.1Speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the child’s presence or hearing from discussing these proceedings in the presence or hearing of the child and shall forthwith remove the child from the presence of any other person;
19.2Consuming illicit drugs within forty-eight hours prior to and during their time with the child;
19.3Drinking alcohol in excess of the NSW driving limit within 24 hours prior to and during their time with the child;
19.4Attending upon each other’s residential address or coming within one hundred metres of the other’s residential address without first obtaining the other parents’ written consent;
19.5Being in or allowing the child to be in the presence of any other person who appears to be, or is, under the influence of illicit drugs and/or alcohol in excess of the NSW driving limit;
19.6Allowing the child to consume alcohol.
Miscellaneous
That unless otherwise specified in these Orders, the school holidays shall be deemed to commence from after school on the last day of the school term for students and shall be deemed to conclude at the commencement of school on the first day back of the new school term for students.
That the Father and the Mother shall ensure that the child is at all times appropriately restrained when travelling in a motor vehicle and in an age appropriate car seat that complies with Australian standards.
That the Father and the Mother shall keep the other advised of their contact telephone numbers and advise each other within twenty four (24) hours of any change in writing.
That the Father and the Mother shall keep the other advised of their residential address and provide each other with no less than seven (7) days notice in writing of any change to such details.
That the Father and the Mother do all things necessary to authorise the child’s school/day care to provide to the other parent on a regular basis copies of all school reports, school newsletters and other information regarding the child’s school activities.
That the Father and the Mother be entitled to obtain directly from any school/day care attended by the child or any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose the Mother and Father shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
That the Father and the Mother immediately notify the other parent of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the child when the child is in their care and that together with such notice the parent is to provide the name of the hospital, treating medical practitioner and/or medical facility that provided medical treatment for the child.