ATKINSON & ATKINSON

[2016] FCCA 628

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATKINSON & ATKINSON [2016] FCCA 628

Catchwords:
FAMILY LAW – Interim parenting – where consent orders promote for father to spend time with children – where limited time has in fact taken place – where the best interests of children indicate time needs to be re-introduced but reduced – where parental conflict is very high and contributes to child’s anxiety – where therapy needs to occur.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

MRR v GR [2010] HCA 4
Goode & Goode [2006] FamCA 1346

Applicant: MR ATKINSON

Respondent: MS ATKINSON

File Number: WOC 293 of 2014

Judgment of: Judge Altobelli

Hearing date: 3 March 2016

Date of Last Submission: 3 March 2016

Delivered at: Sydney

Delivered on: 17 March 2016

REPRESENTATION

Solicitors for the Applicant: Fulcrum Legal

Counsel for the Respondent: Ms Gillies

Solicitors for the Respondent: Hansons Lawyers

Solicitors for the Independent Children's Lawyer: Johnson Horsley Lawyers

ORDERS

(1)Orders 4, 7 and 12 of Orders dated 7 December 2015 are hereby discharged.

(2)The children X and Y born (omitted) 2008 (‘the children’) live with their mother.

(3)The children shall spend time with their father as follows:

a.From the conclusion of any organised sport that the children may be attending (or from 9.00am if there is no sport) until 7.00pm each Saturday, commencing Saturday 5 March 2016. Note: the father is free to attend X’s sport on Saturday mornings if he wishes to attend.

b.From after school until 7.00pm each Tuesday.

c.By phone, initiated by the father at least once a week between 6.00pm and 7.00pm, and at any reasonable time at the request of the children but that the mother shall do all things to facilitate such a call.

d.At other times as might be agreed upon between the parties from time to time.

(4)All changeovers pursuant to the contact referred to in Order 3 above occur at McDonalds (omitted).

(5)The children’s time spent with their father pursuant to Order 3 above shall be reviewed after the expiration of 12 weeks to determine whether time spent should be increased to include overnight periods.

(6)The parties shall do all things to ensure that the children continue to receive therapeutic counselling and support from Ms S for such period and on such terms as Ms S might determine.

(7)The parties shall authorise Ms S to release any information to the Independent Children’s Lawyer which might be requested by him in relation to the children’s treatment by her.

(8)Otherwise, the balance of the Orders made 7 December 2015 shall continue.

(9)The Independent Children’s Lawyer is to obtain information from the Family Therapist in relation to the progress of the family therapy prior to the adjourned date.

(10)The matter be adjourned to 22 June 2016 at 11:30am for Mention.

IT IS NOTED that publication of this judgment under the pseudonym Atkinson & Atkinson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 293 of 2014

MR ATKINSON

Applicant

And

MS ATKINSON

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1.This case is about X and Y, who are 7 years old.  The Mother wants to suspend their time with the Father.  The Father wants to expand his time with the children.  Consent Orders were entered into between the parents with the benefit of full legal representation on 7 December 2015.  By way of background, it is clear that these children have spent limited time with their father since separation in 2013 because he was a fly in fly out worker and then worked overseas for a period of time.  In reality, the children have only spent limited time with him since his return to Australia and have continued to spend limited time with him even after the Consent Orders were made.  At the moment, the children are spending no time with their father.

2.The Consent Orders made 7 December 2015 actually provide for the children to spend time with their father on an increasing basis, including, eventually, overnight time.  It should be noted from the Court’s perspective that its duty is to make orders in relation to the children that is based on their best interests and not necessarily fettered by whatever their parents agreed to on 7 December 2015.  However, that is obviously a relevant consideration because it represents what they themselves thought was appropriate at the time. 

3.The orders sought by the Mother are contained in her Application in a Case, supported by her Affidavit of 17 February 2016, and her Counsel provided a case outline, and I will incorporate that into Schedule 1 of these reasons.

4.The orders sought by the Father are contained in his Response to an Application in a Case filed 26 February 2016.  He relies on his Affidavit of that date.  His solicitor filed a case outline document, and again, I incorporate that.

5.The Independent Children’s Lawyer set out orders in his case outline document dated 3 March 2016.  He relied on the evidence contained in the Family Report of 13 November 2015. 

6.The effect of the orders sought by the Independent Children’s Lawyer was that the children’s time with the Father be limited to Saturdays, but during the day, and coinciding at least in part with organised sport.  In addition, the children would spend time with their father from after school until 7:00pm each Tuesday with these parenting arrangements to be reviewed after eight weeks and on the basis that the family participates in family therapy.  Thus, in effect, the Independent Children’s Lawyer was proposing a modification to the Consent Orders which reduces the children’s time with their father and removes overnight time. 

7.The applicable law is, of course, Part VII of the Family Law Act. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.

8.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.

9.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.

10.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.

11.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.

12.In MRR v GR [2010] HCA 4, the High Court said

8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

"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."  (emphasis added)

Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

"(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."

Sub-section (3) explains what is meant by the phrase "substantial and significant time".

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".

13.A little later in the judgment the High Court said:

14.13. 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. 

15.The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

…

72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

…

82. In an interim case that would involve the following:

(a) identifying the competing proposals of the parties;

(b) identifying the issues in dispute in the interim hearing;

(c) identifying any agreed or uncontested relevant facts;

(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

16.A very useful chronology of relevant facts was prepared by the Independent Children’s Lawyer.  It is particularly useful, and I will again incorporate it into these my reasons for judgment in Schedule 3.

17.The Mother’s case is that she entered into the Consent Orders with some reluctance, but nonetheless with the hope and expectation that the orders would work.  She says they have not worked.  She says overnight time has not been successful.  She says the Father has not been consistent in spending time with the children and that the children do not enjoy their time with him.  Moreover, she says that Y is so emotionally distressed about the thought of spending time with his father that he has expressed thoughts of self-harm which reflect the anxiety that he is experiencing.  From the Mother’s perspective, the key to the future is successful participation in family therapy and parental education, including both parents engaging in a parenting orders program.

18.The Father’s case is that the Mother is seeking to undermine his relationship with the boys and is not facilitating their time with him.

19.The Independent Children’s Lawyer points to a number of objective facts – that the Mother has been the primary carer for these children, there have been two previous sets of Consent Orders intended to facilitate the children’s time with their father, but neither has been successful, the Family Report interviews indicate that even the Mother believes that the children love and miss their father and want to spend time with him.  The Independent Children’s Lawyer discounts some of the weight to be attributed to any concern that the Mother has about the Father’s lack of consistency in abiding by contact arrangements.  Moreover, the Independent Children’s Lawyer submits that any risk of harm to the children as manifested, for example, by Y’s comments about self-harm, are mitigated because of engagement in family therapy.  Indeed, the Independent Children’s Lawyer urges the Court to consider the hypothesis that the children’s behaviour is more likely attributable to the exceedingly high level of conflict that is obviously present in this case.

20.The only objective evidence before the Court is a Family Report prepared by a Family Consultant, Ms K dated 12 November 2015.  This report was in evidence.  She observed, for example, that the Mother’s proposal for the children to spend time with their father was somewhat vague, there seemed mutual acknowledgement between the parents of the high conflict between them and the fact that the children were exposed to that conflict.  The inability of the parents to communicate and their lack of trust for each other was palpable.  She observed that whilst X wanted to spend time with his father, Y was much more reserved.  The children were unsettled in observation with their father; indeed, Y was described to be disturbed.  Nonetheless, she recommended that unless the Court found that there was a risk of harm to the children, they should be spending time with their father.  Indeed, it is quite obvious that the Consent Orders are an attempt to reflect the recommendations contained in the Family Report.

21.The Father’s proposed orders can be dealt with in brief terms.  To propose some extension of the current arrangement for the children to spend time with him, for example, to immediately introduce overnight time, is simply out of the question.  It seems to be a proposal that is predicated on the Court accepting his proposition that the Mother was alienating the children from him.  It assumes that the Father did nothing to contribute to the problems that currently confront this family.  It is, with respect to the Father and those who represent him, an unrealistic proposal that ignores the obvious issues in the lives of these children and reflects very little insight on his part.  It is a polarised proposal, but, on the facts of this case, it is not surprising.

22.The Mother’s proposed orders can likewise be dealt with in brief terms.  To suspend the existing orders is to assume that the reason for the children’s behaviour is entirely attributable to the Father and not at all to her.  Her contention, for example, that she could not possibly be an alienating parent because she has enrolled in a parenting orders program and because she is supporting the children’s engagement in family therapy is nothing less than naive.  The Mother’s proposal is just like the Father’s, polarised, but not surprising on the facts of this case.

23.The clearest insight into the nature of the relationship between the parents and the terrible turmoil that these children find themselves in is found in correspondence between the parents’ lawyers.  The correspondence in question is attached to the Father’s Affidavit of 26 February 2016.  The relevant annexure starts from “X” onwards.  The Court acknowledges that it may not have the complete correspondence between parents.  Needless to say, what it does have is of sufficient concern. 

24.This exchange of correspondence is not very flattering either to the parents or to their lawyers.  Both parents engage in attempts at point scoring.  The Mother’s first letter of 17 December 2015 contained a hint, but probably not nearly as subtle as that, in the last paragraph that she was preparing to terminate contact.  There was a mutual posturing in terms of what the orders that they agreed to in fact said.  From the Father’s perspective, a simple request for an address was met with obfuscation.  There are mutual allegations of misconduct.  The impression is created that the staff at the day care centre were enlisted by the Mother as allies in her cause.  The Father’s sense of indignation is only matched by the Mother’s sense of righteousness.  Nowhere in the extracted exchange of correspondence is there evidence of any constructive attempt to problem solve or to seek to understand how the boys might be experiencing the conflict between their mother and father. 

25.Is it any wonder, the Court asks rhetorically, that Y is experiencing anxiety?  The Court believes that there is more than ample evidence provided by the parents themselves to support the Independent Children’s Lawyer’s hypothesis that perhaps the real issue facing these children is an inability to cope with the parental conflict which at times seems on the precipice of descending into pathological hatred.  The stakes for X and Y are very high.  If only their parents could get off their metaphorical high horses, abandon their polarised positions, they might see that the focus must be on addressing their toxic relationship so that the boys may enjoy the legal right that they have – not the parents – to have a meaningful relationship with both parents. 

26.Having regard to all the evidence, this Court believes that the only way that this can be achieved is to make Orders consistent with those sought by the Independent Children’s Lawyer.  With hindsight, perhaps, these parents were optimistic in somehow expecting that the Orders of 7 December 2015 could be successfully implemented without somehow changing the nature of their relationship with each other.

27.The order proposed for the children to spend time with their father by the Independent Children’s Lawyer is, in this Court’s estimation, far more likely to succeed than either maintenance of the current arrangement or acceding to the Father’s proposal.  It is essential, however, that the boys continue to spend time with their father even during the course of family therapy.  The absence of their father from their lives must not be normalised. 

28.The Independent Children’s Lawyer proposes, and the Court accepts, that Orders 7 and 12 of the existing Orders are an unnecessary and unrealistic restriction on the Father’s time, though it must be acknowledged that the orders proposed by the Independent Children’s Lawyer will not give much scope for travel anyway.  Order 12 in particular empowers Y unnecessarily and thus exposes him to even more pressure.  Indeed, if Y needs to receive any message at all, it is that his mother and father are expected to comply with Orders that involve him spending regular time with his father. Indeed, the Court will request the Independent Children’s Lawyer to explain to the boys that the Court has considered all of the matters and all of the concerns that the parents have raised but nonetheless has decided that these orders are in their best interests. 

29.The Court does have some concerns, however, about the Independent Children’s Lawyer’s proposal.  Firstly, a review of this arrangement in eight weeks is simply not possible.  A review of these arrangements should be in not less than three months’ time. The other concern that the Court has about the Independent Children’s Lawyer’s proposal is that the changeovers that involve the parents coming into contact with each other seem to be highly problematic.  So noting those two concerns, a review in about three months’ time should be informed by the progress of the family therapy.  Given that there is ample evidence from both parents for the Court to be concerned about transitions, the Court’s preference would be for changeovers to take place at a neutral venue, and preferably a venue that minimises the stress for these children as they move from one parent to another. 

30.More than anything else, these parents need to understand what they are doing to their sons by continuing to act as they have in the past. 

31.So the order I am making is the order proposed by the Independent Children’s Lawyer, however, instead of a review in eight weeks, I’m going to put it in for mention only on 22 June 2016 at 11.30 am.  I’m going to ask the Independent Children’s Lawyer if he is able to obtain information from the family therapist about the progress of family therapy on that day. 

32.The only other change that I wish to discuss with the parties is the changeover arrangements.  The Court would prefer to see a neutral and safe changeover venue so that it doesn’t have to be at the home of either of the parents.  The changeover, pursuant to the orders proposed by the Independent Children’s Lawyer, will be at McDonald’s at (omitted).

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 20 April 2016

Schedule 1

The Orders sought by the Mother

1.That this application is urgently listed.

2.That pending further Order the children’s time with the Father is suspended.

3.That an Independent Children’s Lawyer is appointed for the children.

4.That forthwith the property owned by the Atkinson Family Superannuation Fund located at Property I is placed on the market for the property to be leased forthwith.

5.That the parties authorise Hansons Lawyers to release the sum of $6,000.00 from funds held in trust to pay down the arrears owning on the mortgage with (omitted) Bank which is secured over the property owned by the Atkinson Family Superannuation Fund.

6.That the parties are to forthwith sign all necessary documents to authorise the (omitted) Bank to release funds which are frozen in the account name Mr & Ms Atkinson Pty Ltd to pay down any arrears owing on the mortgage with (omitted) Bank.

7.That the husband, within 48 hours, is to deliver all sets of keys for the property located at Property I, (real estate omitted).

8.Thereafter the wife shall sign all necessary documents to cause the property to be leased and she shall have sole control over the leasing of the property including but not limited to signing all tenancy agreements and nominating suitable tenants.

9.The rental income derived from that property is to be paid into the Mr & Ms Atkinson Investments Pty Ltd account held with (omitted) Bank and thereafter the mortgage over the property owned by the Atkinson Family Superannuation Fund shall be funded by the payments made into that account.

10.In the event that the husband fails to deliver the keys as outlined in Order 7 or he fails to provide vacant possession of the property located at Property I, pursuant to the Federal Circuit Court Rules 2001 Regulation 25B.62, the Court will issue a Warrant for Possession, without notice to the Respondent, upon the request of the Wife, which will authorise the Federal Police to enter the premises located at Property I and remove the husband Mr Atkinson from possession of the premises in order to give possession of the real property to the wife, Ms Atkinson.

11.That thereafter the husband be restrained from remaining in, approaching within 200 metres of or entering upon any part or portion of the property situate at Property I.

12.The preceding order is an order for the personal protection of the wife made under section 114 of the Act to which the power of arrest without warrant as provided therein attaches by reason of section 114A of the Act.

13.That the Marshall, the Deputy Marshall, all officers of the Australian Federal Police and all officers of the State and Federal Police be authorised and directed with such assistance as they require and if necessary by force to:

a.Arrest, without warrant, the respondent in the event that the husband fails to leave the property Property I or attempts to re-enter the property, once possession has been provided to the wife.

14.That the husband pay the wife’s costs of this application.

Schedule 2

The Orders sought by the Father

1.   That the Application in a Case filed 18 February 2016 is dismissed.

2.   That the Father and the Mother have equal shared parental responsibility for the children X (born (omitted) 2008) and Y (born (omitted) 2008).

3.   That pending further order, the children live with the Mother.

4.   That pending further order, the Father spend time with the children as follows:

4.1.  on each Tuesday from after school or 2:45 PM until 7 PM;

4.2.  from 9 AM on Saturday until 7 PM on Sunday on each alternate weekend;

4.3.  commencing 1 April 2016, from 2:45 PM or the end of school on Friday until 7 PM on Sunday on each alternate weekend;

4.4.  commencing in the school holidays at the end of term 1, 2016, for one half of all school holiday periods, with the times and dates to be agreed, and failing agreement the first half, with the times set out above to be suspended during that time;

4.5.  from 12 noon on Christmas Day until 7 PM on Boxing Day in 2016;

4.6.  at such other times as agreed between the parties.

5.   That pending further order, for the purposes of changeover on occasions other than at school/day care, changeover is to take place at the car park of (omitted) McDonalds’s restaurant.

6.   That pending further order, in the event either party takes the children outside of the (omitted) region during their time, they are to notify the other party in writing and provide an itinerary, including an address for any overnight visit.

7.   That each party is restrained from communicating about these proceedings and are otherwise required to follow the guidelines as recommended by the Family Report writer in relation to discussing issues regarding these proceedings with the children.

8.   That for the purposes of these Orders, school terms and school holiday periods are determined by the school the children attend, and that school holidays commence at the time school term concludes on the last day of term, and conclude at the time school term commences on the first day of term.

9.   That if either child wishes to contact either parent, the parties will make arrangements for this to occur, and they will ensure they facilitate this in accordance with the children’s wishes.

10. That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:

10.1.any medical problems or illness suffered by the children, whilst in his care;

10.2.   any medication that has been prescribed for the children;

10.3.any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

10.4.any social, school or religious functions which the children are to attend;

10.5.   the residential address of the Father;

10.6.   the telephone contact number of the Father;

10.7.   any other matter relevant to the welfare of the children.

11. That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:

11.1.any medical problems of illness suffered by the children, whilst in her care;

11.2.   any medication that has been prescribed for the children;

11.3.any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

11.4.any social, school or religious functions which the children are to attend;

11.5.   the residential address of the Mother;

11.6.   the telephone contact number of the Mother;

11.7.   any other matter relevant to the welfare of the children.

12. That each party is restrained from denigrating the other party to the children or in the presence of the children, or allowing the children to be in the presence of anyone denigrating the other party.

13. That the Mother pay the Father’s costs of and incidental to these proceedings.

Schedule 3

Chronology Provided by the Independent Children’s Lawyer

Date	Event	Reference
(omitted) 1955	Father’s date of birth (now aged 61)
(omitted) 1967	Mother’s date of birth (now aged 48)
(omitted) 1974	Mother’s partner Mr G was born (now aged 41)
(omitted) 1991	Mother’s child A was born (now aged 24)
(omitted) 1997	Mother’s child B was born (now aged 18)
2007	Date of commencement of cohabitation	M’s affd filed 8.9.14 para 4
(omitted) 2008	Date of birth of subject children Y and X
(omitted) 2008	Date of marriage	M’s affd filed 8.9.14 para 4
01.03.2013	Date of separation Children remain living with mother and spend limited time with father Mother alleges that children spent time with father on four occasions March 2013 and September 2014, including an occasion when they flew to Perth for 3 nights	M’s affd filed 8.9.14 para 5 M’s affd filed 8.9.14 para 42 M’s affd filed 8.9.14 para 44
11.07.2013	Mother obtains AVO due to high level of calls and text messages from father	M’s affd filed 8.9.14 para 43
05.09.2013	Mother reports breach of AVO to police after father continues to “harass” her	M’s affd filed 8.9.14 para 43
03.07.2014	Parties divorce	M’s affd filed 8.9.14 para 5
09.09.2014	Orders made by consent for children to spend 3 hours with father on 11 September 2014 and then spend 4 nights with father from 22-26 September 2014	Orders 9.9.14
16.10.2014	Parties attend Child Dispute Conference	CDC Memo dated 16.10.14
Dec 2014	Mother alleges she agreed for father to spend block time with children, provided he returned them by 5pm on 30 December, but father did not return children until 5:30pm the following day after taking them interstate without notice to her	M’s affd filed 24.8.15 para 10
11.02.2015	Mother alleges she advised father he will need to call home phone if he wishes to speak with the children and father subsequently began calling the children and making inappropriate comments	M’s affd filed 24.8.15 para 12
08.04.2015	Orders made by consent for the children to spend time with father (once he is residing permanently in Australia and upon him giving the mother 21 days written notice) for day only on 5 occasions and thereafter each alternate weekend from 2pm Saturday until 5pm Sunday Father alleges he requested to spend time with children whilst he was physically present in Australia and mother refused as she already had plans Father alleges he called the children that night in accordance with the orders and mother did not allow him to speak with them	Orders 8.4.15 F’s affd filed 26.2.16 para 6 F’s affd filed 26.2.16 para 7
15.04.2015	Father alleges the mother did not make the children available for telephone contact	F’s affd filed 26.2.16 para 9
18.04.2015	Father alleges the mother did not make the children available for telephone contact	F’s affd filed 26.2.16 para 10
22.04.2015	Father alleges the mother did not make the children available for telephone contact	F’s affd filed 26.2.16 para 10
Late Apr 2015	Mother alleges father made inappropriate comments to children during phone contact Father alleges his conversation was gentle and unprovocative	M’s affd filed 24.8.15 para 14 F’s affd filed 26.2.16 para 10
28.04.2015	Mother indicates she will not facilitate telephone communication with children	F’s affd filed 26.2.16 para 12
29.04.2015	Father alleges the mother did not make the children available for telephone contact	F’s affd filed 26.2.16 para 14
30.04.2015	Father alleges that mother agreed for children to visit him in (country omitted) if he purchases return tickets	F’s affd filed 26.2.16 para 15, Ann E
02.05.2015	Father alleges the mother did not make the children available for telephone contact	F’s affd filed 26.2.16 para 16
09.05.2015	Father alleges the mother did not make the children available for telephone contact	F’s affd filed 26.2.16 para 18
13.05.2015	Father alleges the mother did not make the children available for telephone contact	F’s affd filed 26.2.16 para 19
20.05.2015	Mother alleges father made inappropriate comments to children during phone contact	M’s affd filed 24.8.15 para 15
24.05.2015	Father alleges the mother did not make the children available for telephone contact	F’s affd filed 26.2.16 para 23
27.05.2015	Father alleges the mother did not make the children available for telephone contact	F’s affd filed 26.2.16 para 23
June 2015	Father returns to Australia permanently Mother alleges that she was unaware whether the father did intend to reside in Australia permanently and as such did not make the children available in accordance with the orders	M’s affd filed 24.8.15 para 17 M’s affd filed 24.8.15 para 25
03.06.2015	Father alleges the mother did not make the children available for telephone contact	F’s affd filed 26.2.16 para 26
10.06.2015	Mother alleges father made inappropriate comments to children during phone contact and then left her an abusive voicemail message Mother subsequently attends Wollongong Local Court and makes application for personal violence order Father alleges mother did not make children available to speak with him and he made some inappropriate comments on her voicemail out of frustration	M’s affd filed 24.8.15 para 16 M’s affd filed 24.8.15 para 18 M’s affd filed 24.8.15 para 19 F’s affd filed 26.2.16 para 27
22.07.2015	Mother alleges father made inappropriate comments to children during phone contact	M’s affd filed 24.8.15 para 25-27
20.08.2015	Father alleges AVO application was dismissed after mother did not attend court or file documents Father alleges parties had verbal argument at investment property that night	F’s affd filed 26.2.16 para 34 F’s affd filed 26.2.16 para 35
27.08.2015	Father alleges he was arrested and police subsequently made an AVO application on mother’s behalf	F’s affd filed 26.2.16 para 36
29.09.2015	Parties attend family report interviews	Family Report 12.11.15
12.11.2015	Family Report is released	Family Report 12.11.15
26.11.2015	Father alleges AVO application was dismissed after defended hearing	F’s affd filed 26.2.16 para 36
07.12.2015	Orders made by consent for children to spend time with father during the day only until 30 January 2016, and thereafter each alternate weekend from 9am Saturday until 10am Sunday and from after school until 7pm Tuesdays	Orders 7.12.15
25.12.2015	Children due to spend overnight time with the father; mother alleges the children were distressed and crying for her at changeover, then were returned in the same clothes the following day and indicated the father had not permitted them to speak with her Father alleges children were crying when they arrived at changeover with the mother and she yelled at him in front of the children. Father alleges the children calmed quickly and had fun with him and he provided them with clean clothes and pyjamas Father alleges police performed welfare check on children at request of mother, with no concerns noted by police Mother alleges both children subsequently indicated they did not want to see father again	M’s affd filed 18.2.16 para 4-6 F’s affd filed 26.2.16 para 45 F’s affd filed 26.2.16 para 45 M’s affd filed 18.2.16 para 7
Late Dec 2015	Mother completes assessment for POP in accordance with orders	M’s affd filed 18.2.16 para 14
02.01.2016	Children due to spend time with father again, mother alleges father did not attend changeover	M’s affd filed 18.2.16 para 8
05.01.2016	Father alleges he attended vacation care to collect children and manager asked children if they wished to go with father	F’s affd filed 26.2.16 para 49
09.01.2016	Children due to spend time with father again, mother alleges father did not attend changeover Father alleges he attended changeover but mother did not	M’s affd filed 18.2.16 para 10 F’s affd filed 26.2.16 para 51
12.01.2016	Mother alleges she received call from children’s vacation care advising they would not release the boys to the father due to their emotional state Father alleges vacation care refused to release the children to him Mother alleges Y then made comments that his life was not worth living and she makes a GP appointment	M’s affd filed 18.2.16 para 11 F’s affd filed 26.2.16 para 52 M’s affd filed 18.2.16 para 12
16.01.2016	Father alleges mother did not attend changeover with children and he did not spend time with them that day	F’s affd filed 26.2.16 para 55
18.01.2016	Children attend their GP and Y comments that he wishes he was dead, boys are referred to Ms S	M’s affd filed 18.2.16 para 12
23.01.2016	Father alleges mother did not attend changeover with children and he did not spend time with them that day	F’s affd filed 26.2.16 para 57
30.01.2016	Father alleges mother did not attend changeover with children and he did not spend time with them that day	F’s affd filed 26.2.16 para 58
02.02.2016	Father alleges he attended children’s school to collect children and they refused to go with him, and volunteered to the administrative manager that they were not allowed to go because the mother didn’t want them to	F’s affd filed 26.2.16 para 59, Ann AG
03.02.2016	Mother completes phone assessment for POP	M’s affd filed 18.2.16 para 14
13.02.2016	Children attend upon Ms S and she recommends a formal assessment	M’s affd filed 18.2.16 para 16
18.02.2015	Mother files Application in a Case seeking to suspend the current spends time with arrangements	Application in a Case filed 18.2.15
19.02.2016	Date of final property hearing Orders made temporarily suspending father’s current time and appointing ICL, matter otherwise adjourned for interim hearing	Orders 19.2.16
26.02.2016	Father files Response to Application in a Case seeking regular overnight time with children	Response to Application in a Case filed 26.2.16
03.03.2016	Interim hearing