Belgrove and Belgrove (No.2)
[2018] FCCA 984
•22 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BELGROVE & BELGROVE (No.2) | [2018] FCCA 984 |
| Catchwords: FAMILY LAW – Parenting – high conflict. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MR BELGROVE |
| Respondent: | MS BELGROVE |
| File Number: | WOC 1071 of 2015 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 4 and 5 May, 8 September 2017; 1 March 2018 |
| Date of Last Submission: | 1 March 2018 |
| Delivered at: | Wollongong |
| Delivered on: | 22 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Acorn Lawyers |
| Solicitors for the Respondent: | Autore & Associates Solicitors & Barristers |
| Counsel for the Independent Children's Lawyer: | Mr Grew |
| Solicitors for the Independent Children's Lawyer: | Illawarra Family Lawyers |
ORDERS
THE COURT ORDERS THAT:
The parents have equal shared parental responsibility for their children [X] born 2011 (“[X]”) and [Y] born 2012 (“[Y]”) (collectively referred to as “the boys”);
Both parents consult with the other parent before enrolling the boys or either of them in any extra-curricular activity or before committing the boys to any activity which would impact on the time the boys spend with the other parent;
That both parents keep the other informed of the following:
(a)Contact details for the boys; and
(b)Any medical appointments, counselling sessions or serious medical interventions for either of the boys;
If required to do so by the school or the other parent, both parents authorise the other parent to receive notices, photos, reports or other school documents which are usually provided to a parent.
LIVE WITH / SPEND TIME WITH
The boys live with their mother at times when they are not living with their father.
If the father lives within a radius of 30 kilometres from the school currently attended by [X]:
(a)That the boys live with their father for all periods outside the Christmas school holidays from after school on Friday in each alternate week until before school on the following Friday;
If the Father does not live within a radius of 30 Kilometres from the school currently attended by [X]:
The boys will spend time with their father in a three week cycle:
(a)From after school Friday until before school on Monday; and
(b)From after school Friday until 7.00 pm; and
(c)From after school Friday until before school on Monday.
The boys will spend time with their parents during the Christmas school holidays as follows:
(a)Where the beginning of the holidays is in an odd-numbered year:
(i)From after school on the last day of Term 4 until 5.00 pm on 26 December with their father;
(ii)From 5.00 pm on 26 December until 5.00 pm on 8 January with their mother;
(iii)From 5.00 pm on 8 January until 5.00 pm on 22 January with their father;
(iv)The balance of the holiday period until the first Saturday of the new school year with the mother;
(b)Where the beginning of the holidays is in an even-numbered year:
(i)From after school on the last day of Term 4 until 5.00 pm on 24 December with their mother;
(ii)From 5.00 pm on 24 December until 5.00 pm on 5 January with their father;
(iii)From 5.00 pm on 5 January until 5.00 pm 19 January with their mother;
(iv)The balance of the holiday period until the first Saturday of the new school year with their father;
The boys spend time with their Mother and Father respectively on Mother's Day and Father's Day as follows:
(a)if changeover would otherwise occur on Saturday and the changeover would result in the boys being in the care of the father, it will occur at 5.00 pm on Mother's Day;
(b)if changeover would otherwise occur on Monday and it would result in the boys being in the care of the mother, it will occur at 10.00 am on Mother's Day; and
(c)if changeover would otherwise occur on Saturday and the changeover would result in the boys being in the care of the mother, it will occur at 5.00 pm on Father's Day; and
(d)if changeover would otherwise occur on Monday and it would result in the boys being in the care of the mother, it will occur at 10.00 am on Mother's Day;
For the purpose of calculating the children’s time with each parent during school holidays:-
(a)School holidays shall commence at the end of the last school day that the eldest child is required to attend and shall conclude at the commencement of the first day that the eldest child is required to attend school the following term (school holidays shall therefore include pupil free days)
(b)Where a school holiday period has an even number of nights the first half shall conclude at 6pm on the middle day (e.g. where there are 14 nights at 6pm on the 7th day)
(c)Where a school holiday period has an odd number of nights the first half shall conclude at 9am on the day following middle evening (eg where there are 15 nights in the school holiday period the first half shall conclude at 9am the morning after the 8th night)
For the purpose of facilitating the Father's time with the children, and except when the children are collected from or delivered to school, the Father will collect the children from the home of the Mother or in the alternative the Shopping Centre at the commencement of time and the Mother will collect the children from Shopping Centre, or such other place as agreed, at the conclusion of the Father's time with the children.
COMMUNICATION
Both parents facilitate telephone communication with the other parent using face-time as follows:
(a)At any time requested by the boys or either of them;
(b)On the children’s birthdays or the parents’ birthdays if the boys are not seeing the other parent on that day; and
(c)Between 7.00 pm and 7.30 pm on Tuesdays and Thursdays when the boys are not otherwise seeing the other parent.
RESTRAINTS
The mother be restrained from leaving the boys or permitting the boys to be left in the sole care of the maternal grandfather;
Both parents be restrained from physically disciplining the boys or either of them.
Both parents shall do all things to ensure that no other person physically disciplines the children.
INTERNATIONAL TRAVEL
Both parties are at liberty to travel with the children outside of the Commonwealth of Australia provided that:-
(a)The travelling parent must provide the non-travelling parent at least 3 months’ notice of their intention to travel internationally with the children;
(b)That the travelling parent must provide the non-travelling parent with:-
(i)Copies of airline tickets
(ii)Travel itineraries;
(iii)A contact telephone number for where the children will be staying
At least 21 days prior to the proposed travel.
(c)That the parties do all acts, sign all documents and give all consents necessary to ensure that each child maintains a current Australian passport and a current (country omitted) passport, with the cost of same to be shared equally between the parties.
(d)That the mother shall be responsible for holding the [X]'s Australian and (country omitted) passports and the father shall be responsible for holding [Y]'s Australian and (country omitted) passports whenever the children are not travelling internationally with either parent pursuant to these Orders.
(e)The non-travelling parent shall provide the travelling parent with the children’s passports that they hold at least 21 days prior to the proposed travel and the travelling parent shall return the passports not usually held by them to the non-travelling parent within 7 days of returning to Australia with the children, or earlier if required to facilitate overseas travel for the non-travelling parent.
That each parent keep the other informed of:-
(a)Any medical problems or illness suffered by either of the children whilst in either parent’s care as soon as the parent becomes aware of same;
(b)Any medications that have been prescribed for either of the children;
(c)Any specialist medical appointments regarding either of the children;
(d)Any significant social, school or religious functions which either of the children are to attend unless it has already been published in the school bulletin;
(e)The residential address and particulars of others who may reside with the children and any change to these within 48 hours of such change occurring;
(f)The home telephone number, mobile telephone number, landline telephone number (if any) and email address of the parent and any changes thereto within 24 hours of such change occurring;
(g)Any other important matter relevant to the welfare of either of the children.
Both parents shall be entitled to attend all events involving the children including, but not limited to:-
(a)Sporting functions;
(b)Extra curricular activities that allow for parental attendance;
(c)School functions that allow for parental attendance, including but not limited to concerts, school assemblies, sports days, parent teacher interviews, canteen duties and social functions,
And the parent who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from such event.
Pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
NOTATION
(a)In order to avoid any doubt, the intent of these Orders is that if the father relocates within a radius of 30 kilometres of the boys' school the arrangement will be one of equal time, and in that regard it is the father's intention to relocate.
IT IS NOTED that publication of this judgment under the pseudonym Belgrove & Belgrove (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1071 of 2015
| MR BELGROVE |
Applicant
And
| MS BELGROVE |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two boys: [X] who is 6, and his brother, [Y], who is 5. The Court was asked by the parents of the boys to decide where they should live and how much time they should spend with each parent. These Reasons for Judgment explain why the Court has made the orders that it has.
Background
The Father is the Applicant in this case. He is 60 years old. He describes himself as a (occupation omitted), and he lives in Region 1. The boys’ mother is the Respondent. She is 40 years old, describes herself as undertaking Home Duties, and lives with the boys in a suburb of Sydney. The Mother and the children live in the same home as the Maternal Grandparents.
The most recent interim orders were made by this Court on 21 December 2016 following an interim hearing. The orders provide for the children to live with their mother, and to spend time with their father. Currently, this occurs on the second and third weekend of each three-week cycle from Friday after school to Monday before school. In addition, the children spend time with their father for half of the school holidays and on special occasions.
The Court’s reasons for judgment were delivered on 21 December 2016, and were published as [2016] FCCA 3476. Some of those reasons warrant reference in the present judgment because so many of the Court’s observations about the parents, albeit made at an interim hearing, have been confirmed after four days of final hearing. For example, in paragraph 1 of my interim reasons for judgment I was very critical of the parents for seemingly conducting this litigation as if it were about them, rather than the children. That impression may confidently now be expressed as a finding. I was critical about the parents because of their lack of trust for each other, their inability to communicate with each other and their habit of attributing the worst possible motives to each other. That impression is confirmed after the final hearing. I criticised the parents for seeming to be singularly focused on winning this case, rather than on finding a solution that is best for their children. That impression is confirmed. In paragraph 2 of my interim reasons for judgment I had described the case as a “power struggle between the parents” in which the children were innocent victims. That continues to be the case. At paragraph 4, I noted the geographical distance that separates the homes of the parents, but suggested that the greatest barrier for the children was not a geographical one, but rather the ‘…vast psychological distance that exists between these homes’. I noted the very different approach to parenting, and different values, that each parent embraced. I hypothesised that the ‘…greatest threat to these children is in their respective parents’ homes. It is not a physical threat. It is a psychological threat.’
Nothing has changed. Four days of evidence merely confirms the impression formed at an interim hearing, at which neither parent gave evidence. This Court always considers it to be unfortunate, indeed regrettable, when it must be so trenchant in its criticism of parents.
This is a finely balanced case. The issues are actually quite narrow. It is unsurprising, therefore, that in finely balanced cases the Court must look to, and make judgments about, parental attitudes, attributes and capacities. When parents bring these claims, and fight them as bitterly as the present case has been fought, they must reasonably anticipate that the Court will sit in judgment of their behaviour and attitude, and be critical of them.
In this case, the Court formed the strong impression that both parents were so entrenched in their interpersonal conflict that the case became, for them, an exercise in convincing the Court that the other was the worst parent. This undignified scramble to the abyss was surprising given that both parents are clearly intelligent, articulate and high-functioning individuals outside of the realm of the present dispute.
What is extraordinary, and gratifying to the Court, is that the expert evidence suggests that [X] and [Y] are remarkably resilient. Dr M, a forensic and clinical psychologist who was engaged as the Part 15 Expert in this case, stated in his report dated 19 April 2016 at page 29, as follows:
As a starting point, the author notes that there was no indication that the children were experiencing any psychological distress as a result of either the separation or the parent’s mutual antipathy. Neither parent rated either child as experiencing emotional or behavioural difficulties, there was no evidence in the subpoenaed education reports, there was no evidence in subpoenaed medical reports, and importantly, both Mr M’s report of 25/02/16 and that of Ms K in interview some 12 months later (11/04/17) stated clearly that the children were happy and well adjusted. Furthermore, the author observed no behaviours of the children at either home to suggest distress or dysfunction, and observed relaxed and attached behaviours at both homes.
On the one hand, the Court expresses its surprise, and delight, that the children would be so resilient, particularly given the clear evidence before the Court that both parents have exposed the children to their interpersonal conflict, and both parents have said and done inappropriate things in the children’s presence. The parents must receive some credit for producing two such resilient children, notwithstanding their antipathy towards each other.
The Competing Proposals
By the time of final submissions, the parents and the Independent Children’s Lawyer had agreed that there should be an order for equal shared parental responsibility in relation to the children. At one level, the Court is surprised by this. It was common ground between the parties that the relationship between the parents could be described as a toxic one. Their lack of trust, and inability to communicate, was likewise common ground. Yet all parties agreed to equal shared parental responsibility. At another level, however, the Court accepts that equal shared parental responsibility is in the best interests of [X] and [Y].
Towards the end of the hearing the evidence of both parents showed the slightest glimmer of hope in terms of an improvement in their ability to communicate about the children. Perhaps the parents had absorbed some of the wisdom contained in Dr M’s expert report? Perhaps the parents had grown weary of this protracted and no doubt physically, emotionally and financially taxing litigation, and thus lapsed into more reasonable behaviour? Perhaps the proceedings had achieved a therapeutic and cathartic process, which has made it easier for them to move on? Perhaps, being more cynical, they had listened to the exchange between Dr M and myself when he was in the witness box - the outcome of which was a view clearly shared by both of us (tentatively my me, of course, at that time) - that neither parent could be trusted with sole parental responsibility. Be all of that as it may, the parents are to be commended for their decision in relation to equal shared parental responsibility.
The Father’s proposal, briefly stated, was that if he were able to relocate to within a radius of 30 kilometres from the school that [X] currently attends, there should be an equal shared care arrangement in place from after school on Friday until before school on the following Friday. If the Father did not so relocate, however, then the children would spend time with him on a three-week cycle, during which, on weeks 1 and 3, they would be with him from after school Friday, until before school on Monday, and then in week 2 from after school Friday until 7.00 pm. There was a veiled suggestion in the Father’s proposal that if the Court did not believe that equal time was in the children’s best interests that they should live with him, and spend significant and substantial time with their mother. The Court did not understand, however, that to be the Father’s main proposal.
The Mother’s proposal was, in effect, to maintain the existing arrangement. She thus proposed that the children remain living with her, and spend time with the Father on the second and third weekend of each three-week cycle, from after school on Friday to before school on Monday, as well as half the school holidays and on special occasions.
The Independent Children Lawyer’s proposal was consistent with that of the Father.
There was a subsidiary issue about international travel as well. That will be dealt with a discrete issue, below.
The orders proposed by the Father, the Mother and the Independent Children’s Lawyers are reproduced in the first, second and third schedules respectively to these reasons.
Chronology
The case outline provided by the Independent Children’s Lawyer at the commencement of the hearing contains a very useful chronology that draws on the material filed by each of the parents. The chronology is reproduced in the fourth schedule to these reasons. The Court makes findings consistent with the factual assertions contained in the chronology. Most of the document contains asserted facts that are not controversial, or are not in any event determinative of the issues before the Court. Where there is a contentious issue that does influence the Court’s decision, it will be dealt with in the reasons below.
The chronology also provides a very useful procedural history.
The Evidence before the Court
In the Father’s case, he relied on the following affidavits:
a)Application initiating proceedings filed 29 October 2015;
b)Amended Initiating Application filed 6 October 2017;
c)Notice of Risk filed 29 October 2015;
d)Affidavit of Applicant filed 26 April 2017;
e)Affidavit of Applicant filed 12 July 2017;
f)Affidavit of Applicant filed 3 November 2017;
g)Affidavit of Ms M sworn 28 April 2017;
h)Affidavit of Ms F sworn 20 April 2017;
i)Affidavit of Ms D sworn 1 May 2017; and
j)Affidavit of Ms B filed 8 December 2016.
Only the Father was required for cross-examination.
In the Mother’s case, she relied on the following affidavits:
a)Response filed 6 November 2016;
b)Application in a Case filed 28 November 2016;
c)Amended Response filed 3 May 2017;
d)Notice of Risk filed 6 November 2016;
e)Affidavit of Respondent filed 9 December 2016;
f)Affidavit of Respondent filed 14 December 2015;
g)Affidavit of Respondent filed 28 November 2015;
h)Affidavit of Respondent filed 6 November 2015;
i)Affidavit of Mr V filed 9December 2016; and
j)Affidavit of Mr V filed 14 December 2015
The Mother was cross-examined. The Maternal Grandfather, Mr V, was not made available for cross-examination, despite being required for this purpose. As will be seen below, this was a significant deficit in the Mother’s case. The Father made some quite serious allegations concerning the Maternal Grandfather. The Court was very surprised when what appears to be a seemingly conscious decision was made not to call the Maternal Grandfather.
There was no suggestion, and there was no evidence, suggesting that he could not give evidence for any reason. The Father’s case, as will be seen below, is that the Court should draw an adverse inference in this regard. Whether such adverse inference should be drawn, or whether the issue should be treated as the weight to be given to evidence, is something that will be discussed below.
In the Independent Children’s Lawyer’s Case, evidence was presented in the form of the report of Dr M, which will be discussed below. He was also required for cross-examination.
The following material was tendered:
| A1 | Letter from Child Support Agency dated 15 April 2017 |
| A2 | Text message from Ms Belgrove to Mr Belgrove |
| R1 | Correspondence bundle between the parties’ solicitors |
| R2 | Referral to paediatrician x 2 |
Outline of these Reasons for Judgment
The applicable law will be set out. Some preliminary observations will then be made about the evidence of the witnesses, particularly going to matters of credit. The expert evidence of Dr M will then be considered. His evidence was both independent, and expert, and it is thus convenient to discuss his evidence first, but the Court has the benefit of doing so in circumstances where it has the totality of all the evidence before it. By discussing Dr M’s evidence first, however, this is not to suggest that his evidence has primacy. It is simply a convenient way to deal with the evidence.
The evidence of the parents will then be considered by reference to the primary and additional considerations that are set out in s.60CC of the Family Law Act 1975 (‘the Act’). The statutory pathway will be explored, and then a decision made about orders that are in the best interests of the children.
The Applicable Law
The applicable law is, of course, Part VII of the Family Law Act (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.
Observations about the Evidence of the Parents
The manner in which both the Father and the Mother gave their evidence had much in common. They were both pervasively unresponsive, despite repeated warnings about the importance of simply listening to and answering the question, and how adverse inferences about credit might be drawn from unresponsive answers. The two parents were so self-absorbed about this conflict, and so focused on winning the competition that they perceived themselves to be engaged in, that they seemed to have considered themselves not bound by the rules that bind other litigants. This case took four days instead of three because of their self-indulgence. Would that it were possible to make an order for costs against both of them to penalise them for such self-indulgent behaviour, which came at the expense of the many other litigants in this Registry.
The evidence of both parents was permeated by emotion. There was sarcasm. There was thinly disguised loathing of each other. Bitterness crept around the corner of the answers to many lines of enquiry in cross-examination. Both parents, by their answers to questions about the present and the future, seemed stuck in the past. Whilst the Father was often emotional, the Mother was sometimes melodramatic and histrionic. Whilst the Father was often unresponsive, the Court did not find him to be evasive in the same way as the Mother was found to be evasive.
Both sought to externalise responsibility for obvious lapses in parental judgment, by blaming the other and seeking to minimise their own culpability. Both had a propensity to give answers to questions strongly suggesting to the Court that they were each determined to have their own way. The Mother seemed determined, at times, to want to punish the Father for past grievances. This was not so present in the Father’s evidence.
Having regard to these observations about the manner in which both parents gave their evidence, and noting that this provides an insight into parental attitudes and their capacities, the Court is left with the evidence of two parents whose evidence is plainly unreliable and unhelpful in ultimately deciding what orders are in the best interests of [X] and [Y]. The relevant assertions made by each parent need to be examined very carefully in light of other evidence, especially the expert evidence.
The Evidence of Dr M
Dr M’s report is dated 19 April 2016 (an obvious typographical error – it should be 2017). It was received by the Court and released to the parties on 21 April 2017. It was based on interviews and observations conducted on 31 March and 7 April 2017. Significantly, Dr M was able to meet with the Maternal Grandparents, even though they did not give evidence in this case. In addition, he had available to him all of the documents that had been filed in the proceedings as at the date of his report, together with any documents that had been produced on subpoena. Moreover, by the time that Dr M gave evidence on 8 September 2017 - day 3 of the hearing - he had also had available to him the subsequent trial affidavits.
When Dr M interviewed the Father, he reported that he was frequently emotional. When the Father was asked what he considered to be the best scenario for the children, Dr M reported that he said the children would be best served if his was the primary carer, though he did not doubt that the children needed their mother and they loved her. His concern was that:
If Ms Belgrove is the primary carer she and her father will cut him off, and he will eventually have no role in the children’s lives.
(Page 13, lines 47-49)
The Court notes that, notwithstanding what the Father told Dr M, the Father’s main preference appeared to be for an equal time arrangement, subject to him moving closer to the children’s school. However, the Father’s concern about being cut out of the children’s lives remained his principal concern throughout the hearing, for good reason, as it turns out.
At page 14, in response to a question which was, in effect, about disrupting the children, and whether he would be prepared to move to Suburb R, Dr M records the Father’s response as follows:
Would you be prepared to move to Suburb R for enhanced involvement in their lives? Mr Belgrove said that if he could find employment to enable him to live in Suburb R, then he would consider this for a 50:50 arrangement with the children. He said that he could then “accept” that the children are living in the same house as the grandfather (given that he would be able to maintain some balance for the children). However, Mr Belgrove said that emotionally he would struggle to live in Suburb R, being away from friends and supports, as well as the enhanced resources (for the children) of his current locale and the superior aesthetics
Despite the Father telling Dr M that he would struggle emotionally with living in Suburb R, there is no doubt that the Father’s case was that he would in fact move closer to the area so that the children could live on an equal time basis with him, but not have to change their schools. Indeed, the Father’s evidence at the trial suggested that he had made enquiries about living in Suburb Q, a nearby area.
When Dr M interviewed the Mother, he found her to be guarded, but then extremely effusive when talking about her achievements in life, and extremely confident in her presentation. She felt quite strongly that the existing orders worked well for both her and the children. She acknowledged that Mr Belgrove would always remain the children’s father, but she considered him incapable of co-parenting. Indeed, at page 19, lines 33 to 34, she told Dr M that she considered an ideal arrangement would be for the children to only see their father each second weekend. When Dr M sought to explore with the Mother the Father’s proposal about relocating closer to where the children are living, he noted that:
She was inflexible about changing the current orders, observing that this scenario was offered to Mr Belgrove two years ago.
(Page 19, lines 39–40)
The Court observes that this is an example of the Mother seemingly wanting to punish the Father for not accepting an offer she made in the past. The other issue of course is why an arrangement that she considered appropriate two years ago, was no longer appropriate?
When Dr M asked her to explain why she felt that the Father was contesting the matter, she explained:
Why do you think that Mr Belgrove is contesting the Contact Orders? Ms Belgrove said that Mr Belgrove’s own parents had a bitter divorce and that the vexatious allegations ‘runs in the family’. She opined that Mr Belgrove wants to ‘destroy’ her – that he wants the upper hand and to have Parental Responsibility. She said that Mr Belgrove could have moved closer and gone to mediation in the past but didn’t because he is motivated by money
It is interesting that her hypothesis about the Father being motivated by money was not in fact explored by her solicitor in cross-examination of the Father. What she told Dr M does resonate, however, with the Court’s observation of both parties in relation to there being a power struggle between them.
The Mother told Dr M that she believed the greatest risk that the Father presented to the children was his manipulation of the children by trying to get them to say things about her and her parents. She recalled how controlling the Father was during their relationship, and explained that she did not want that for the children (page 20, lines 6-9).
The focus then turned to the role of the Maternal Grandfather in the children’s lives. The relevant extract of the report is found at page 20, lines 11-37 inclusive:
Q.What form of discipline did your parents use when you were a child? Ms Belgrove recalled that her parents would mostly ‘scream at her’ – that there was the occasional smack but it was mostly yelling. She disclosed that her parents use “old discipline” with [Y] and [X], but that she takes the primary parenting role and that she is always home (The author notes that during the interview, Ms Belgrove directed [X] to ask his grandfather for something that he wanted, saying “ask daddy”, then quickly correcting herself and saying “ask Daddy”, the colloquial term for grandfather).
Q. What form of discipline do you use with the children? Ms Belgrove said that she uses only positive reinforcement. She stated that she had attended two PPP parenting programs and taken the children to the “Cool Kids” program at (location omitted). She proceeded to show the author her certificates of completion of the PPP parenting program as proof of her attendance
Q. Mr Belgrove has alleged that your parents hit the children with objects, leaving bruises. How do you explain this? Ms Belgrove said that the children are “boys” about the same age and that they “fight”. She said that they are highly competitive with each other and that they give each other the bruises. She laughed at the proposition that their grandmother bruises them, observing that her next door neighbour is a police man and if the children were being assaulted, why then had he not taken action? She further argued that if the children were being harmed, the teachers at their schools would take action. Ms Belgrove asserted that she does not condone hitting children, but alleged that Mr Belgrove does
Q. What is the nature of the conflict between your father and Mr Belgrove? Ms Belgrove said that Mr Belgrove doesn’t like her father (Mr V) and that Mr Belgrove feels threatened because Mr V has become a “role model” to the children. She said that Mr Belgrove never showed Mr V respect and “bludged” when living at the grandparents’ home. She denied ever hearing Mr V say anything negative about Mr Belgrove in front of the children, adding that Mr Belgrove is not talked about at the home. The author challenged Ms Belgrove by sharing that the [X] stated to the author “[Grandfather] says dad is a dickhead”(See interview with children). Ms Belgrove contended that Mr Belgrove had coached the children to say these sorts of things, adding that Mr Belgrove swears a lot and is ‘foul mouthed’, even at change-overs.
The Court observes that much more will need to be said about the relationship between the Father and the Maternal Grandfather. It is important to record the Mother’s clear view that the Maternal Grandfather is a role model to the children. Clearly, the Mother cannot either concede, or conceive of the possibility, that her father would be derogatory of the children’s father, in the presence of the children. Her hypothesis is that, if the children did report what was alleged, it was on the basis of the Father’s coaching of the children.
Dr M’s interview of the Maternal Grandfather becomes important, given that he was not available to be cross-examined at the hearing. The relevant extract is found at page 21, lines 1-17:
Mr V – Maternal Grandfather
Mr V was interviewed at his home immediately after the author spoke with Ms Belgrove. Mr V was predominantly interviewed with respect to the current situation and in relation to the allegations made by Mr Belgrove. The author first asked Mr V what he thought was going on. He replied that he believed Mr Belgrove to be vindictive because he is incensed that Ms Belgrove left him. Mr V then referred to Ms Belgrove having told Ms V that she left without taking any money from her relationship with Mr Belgrove, who Ms Belgrove alleged had $700,000 in the bank. Mr V stated that Mr Belgrove was using finances to try to control his access to the children.
Mr V stated that he believes Mr Belgrove coaches the children, asserting that it was a lie that either he or his wife hit the children. He said that he has two other grandchildren (Mr G’s children) and that there have been no complaints about their being hit. He denied saying pejorative things about Mr Belgrove to the children, countering that Mr Belgrove is foul mouthed and seeks to provoke him when they come into contact at school events. Mr V lamented that the children are being damaged by Mr Belgrove’s unrelenting hostility and opined that unless his daughter (Ms Belgrove) is given sole custody, the children will be harmed. Mr V stated that he believes that Mr Belgrove should have no contact with the children.
It is interesting to observe that the Maternal Grandfather seems to share his daughter’s hypothesis about the Father’s coaching of the children in relation to the allegations about the Maternal Grandfather’s denigration of the Father in the presence of the children. The Court observes that the Maternal Grandfather’s view about the matter before the Court is quite strident: that the Father should have no contact with the children. The absence of the Maternal Grandfather to give evidence at the hearing is striking, in the circumstances.
Dr M was able to observe the children in a home environment, as well as make observations about their interaction with the significant adults in their life. At page 22, lines 38-45, and page 23, lines 1-6, he records:
Contact Observations and Children’s Interviews
The author had the opportunity to observe the children at both parents’ homes and conducted the interviews at the father’s home. As noted elsewhere in this report, both homes were adequately resourced for the children, with each demonstrating an abundance of children’s toys and equipment. Both homes were considered safe in terms of their physical layout. Further to this, the children demonstrated significant attachments to both parents, as observed through their interactions with their parents, their desire to share interests with their parents, and their ability to separate from the parents to explore their home environment, play independently or speak with the author, while returning to the parent intermittently to reassure themselves of the parent’s proximity. Furthermore, both parents were observed to put in place appropriate limits, discipline minor infractions and maintain a parent role. The author opines that both children are attached to each parent and that a strong bond exists between each parent and both children. There were no observed risks observed for the children at either home.
The Court notes that there is no dispute between the parties that both children are attached to each parent, and that a strong bond exists between each parent and both children.
[Y] was interviewed. This disturbing passage is found at page 23, lines 21-25.
[Y] was directly asked about his grandfather, identified as [grandfather]. He said that [grandfather] gives him and his brother treats, such as lollies, and that he enjoys watching his grandfather care for the [pets] at their house. Asked directly what ‘[grandfather] says about his father (Mr Belgrove), [Y] said that [grandfather] thinks he is “a stupid idiot”. He then went on to say that [grandfather] was ‘naughty’, and when prompted to say why, responded “[grandfather] doesn’t do anything for us – he stopped giving us treats”.
[X] was also interviewed, and this disturbing passage is found at page 24, lines 19-26.
11.[X] explained his understanding of separation by using a metaphor, saying that it is like [pets] split into separate cages. This was seen by the author as an allusion to his experiences at his mother’s home with the [pets] that his grandfather keeps, prompting the author to ask directly about the maternal grandfather –
a. [X] told the author that ‘[grandfather] is very nice and that he plays with [grandfather]. He volunteered that “[grandfather] thinks daddy is very mean. [grandfather] said daddy tried to free the [pets]. [grandfather] thinks that daddy is very naughty. Mummy says that daddy is very naughty – I think they are lying. [Grandfather] calls daddy ‘a fucking idiot’.”
What appears to be the conscious decision made in the Mother’s case not to expose her father to cross-examination is hard to understand in view of the evidence from Dr M about what both boys said to him about the Maternal Grandfather’s denigration of the Father. The context must not be overlooked: even the Mother’s solicitor, in closing submissions, described their relationship as a toxic one. It is worth digressing here to explore the other evidence in relation to this issue.
In the Father’s trial affidavit affirmed 24 April 2017 he deposes to the children’s disclosures about the Maternal Grandfather’s denigration of him at paragraphs 59, 63 and 64. In the Father’s updated affidavit filed 3 November 2017 at paragraphs 4 and 5, the Father gives further evidence about an incident which the Father construes as an attempt by the Maternal Grandfather to exclude him from saying goodbye to [X] at school, and then alleged abuse. At paragraph 10 of the affidavit of Ms D, affirmed 1 May 2017, she also deposes to a disclosure made by [X] about the Maternal Grandfather’s denigration of the Father.
Ms D was not required for cross-examination, and thus the Court accepts her evidence. The Father was cross-examined about his evidence, but the Court is inclined to accept his evidence in this regard. The Mother denies, in general terms, that this denigration has taken place, but at most, her evidence is that she did not hear it. The Maternal Grandfather does not formally deny the allegation, but his affidavits predate the Father’s affidavits referred to above.
On any objective view of the evidence, the Court is seriously concerned about the evidence which suggests that the Maternal Grandfather has actively denigrated the Father to the children. In the circumstances of a toxic relationship between the parents, and where the Maternal Grandfather articulated the view that the children should have no contact with their father, this becomes a very serious issue from the Court’s perspective. The Mother sees the Maternal Grandfather as being a positive role model for the children. Given the Court’s concerns articulated above, based on the evidence, that can hardly be the case.
Returning to Dr M’s report, he conducted various psychometric tests. Significantly, neither parent identified any significant concerns with respect to either [X]’s or [Y]’s mental health and behaviour. As already noted in these Reasons for Judgment, they are resilient boys. Moreover, neither parent presented with any psychological issues. In relation to the father, Dr M records at page 28, lines 12-18:
Summary of Psychometric Assessments for Mr Belgrove
There was a complete absence of any psychological issues in Mr Belgrove’s assessments. In the author’s experience, it is not uncommon for parents in custody disputes to seek to portray themselves in a positive light, although by conventional standards, Belgrove's PAI profile did not evidence this. What is consistent is that Mr Belgrove does not perceive the current difficulties as relating to his behaviour, nor does he embrace the idea of personal change (RXR). In short, the psychometric assessments yield no data to suggest that Mr Belgrove is mentally unwell, aggressive or psychopathically manipulative.
In relation to the mother, he notes at page 29, lines 10-15:
Summary of Psychometric Assessments for Ms Belgrove
Ms Belgrove’s results show consistency with her presentation at interview and the collateral data reviewed by the author. While there is an absence of any current diagnosable mental health issue, the data suggest an ongoing paranoia, an inability to accept her role in the distress of others, and an emotional imperviousness to that distress. This would be concordant with her reluctance to appreciate Mr Belgrove’s role in the children’s lives.
He concludes about the parents at page 29, lines 19-30, as follows:
Conclusions
The author observed that both parents evidence a virtuous self-presentation and an assessment of their parental capacities as being superior to the other. Further, both parents seek to portray the other parent’s incapacity by reference to even minor issues. The author concurs with Consultant Ms S’s appraisal that co-parenting will be difficult for these parents. Ideally, parents are able to place the needs of the children ahead of their mutual antipathy and co-parent effectively. When this is not the case, psychotherapeutic interventions, such as Multi-Modal Family Intervention (Ferraro, Malespin, Oehme, Bruker & Opel, 2016; Frielander & Gans Walters, 2010) may be employed to assist alignment of parenting goals in the service of meeting the children’s psychological and emotional needs. However, such interventions assume a degree of insight into the need for change. Neither Mr Belgrove nor Ms Belgrove evidenced readiness to accept treatment or similar interventions in the author’s assessments, as demonstrated by their Treatment Rejection scores on the PAI.
The Court observed that after spending four days in Court with the parents, and observing their performances in the witness box, that it completely concurs with Dr M’s description of the parents’ “virtuous self-presentation” and believing that ‘…their parental capacities as being superior to the other.’
Dr M’s conclusion that neither parent showed readiness to accept treatment because they had no insight into the need for change was palpably evident throughout their evidence.
Dr M, however, observed four matters of risk.
The first one is identified at page 29, lines 46-49, through to page 30, lines 1-9:
On the matter of risk, there are four issues to consider. First, there appears to be sufficient evidence that the children have been subjected to corporal punishment in the past, most probably from the maternal grandmother. The affidavit of Ms B, the subpoenaed material from FaCS, the comments by Ms K to the author (with respect to her colleague “Ms A”), and the subpoenaed material from Town 1 medical practice (11/11/16 and 21/11/16), would all attest to this. Furthermore, the mother during interview, disclosed to the author that her parents use “old style” parenting techniques. However, neither child disclosed to the author any current experience of corporal punishment and no further notifications have been made. Additionally, the FaCS ROSH assessment determined that the event(s) were minor and did not ultimately meet threshold. On the basis of the data available, it is likely that any incidence of corporal punishment was circumscribed, relatively minor, and has been discontinued. Ms Belgrove’s demonstrable engagement in parenting education (PPP) would suggest that she has taken action to enhance her, and probably her parents’, parenting styles. The author opines that this risk is no longer relevant.
The Court agrees, on balance, with Dr M’s assessment that the risk of corporal punishment for the children is probably not a great one. The Court would have been assisted, and would have been reassured, by evidence from both Maternal Grandparents. The risk is probably moderated by the fact that the Mother knows that the Father will be vigilant for signs of the children having been subjected to corporal punishment. Moreover, the Mother probably also understands that as the children grow older, their capacity to self-report will become greater.
The second risk is identified at page 30, lines 11-23:
A more serious matter is the maternal grandfather’s denigration of the father in the presence of the children. While both the mother and the paternal grandfather allege that the father has ‘coached’ the children to make these allegations, the consistency of reports, including the affidavit of Ms V and the children’s disclosures during interview to the author, coupled with the grandfather stating to the author that he believed that the father should have no contact with his children, lead the author to conclude that these allegations are probable. The grandfather appears incapable of separating his antipathy toward the father (and his perception that his daughter was treated poorly) from the needs of the children with respect to their relationship with their biological father and the author strongly recommends that, if the children were to remain living with the mother, the grandfather agree to undertake counselling at the Family Relationships Centre. The father’s distress at being “replaced” is not unreasonable, however the importance for the children is ensuring that their ongoing relationship with their father, with whom they have a clear attachment, is not undermined by the grandfather.
The Court believes that Dr M’s concerns about the Maternal Grandfather’s denigration of the Father are indeed well-founded. It is interesting that he had access to an affidavit of Ms V that was not, in fact, read as part of the Father’s case at the final hearing. However, as previously adverted to, there was an affidavit of Ms D affirmed 1 May 2017, that similarly corroborates the children’s disclosures about denigration. Dr M’s description of the Maternal Grandfather feeling “antipathy” towards the Father is a conclusion that he was entitled to draw on the material before him. The Court accepts this description.
The Court has already expressed concern that the Mother considers the Maternal Grandfather to be a role model for the children. Disconcertingly, there is nothing in the evidence from the Mother which suggests any acceptance that her own father’s relationship to the children’s father is an issue in this case, or an acceptance that there might be some substance to the Father’s allegations and Dr M’s concerns, or insight that something in fact needs to be done to manage the situation. Again, it is extraordinary that the decision was made not to call the maternal grandfather to give evidence. In these circumstances, the weight that can be given to his denials of the allegations of denigration is minimal.
The third issue of risk is set out at page 30, lines 25-47:
Thirdly, the issue of the mother’s mental health has been raised and assessed by the author. In the current assessment, the author found no evidence of extant mental ill health. However, her results on the PAI and the PPR-I are consistent with her mental health history of experiencing “acute manic psychosis” (RPAH notes 02/06/07). Ms Belgrove evidences ongoing paranoia (PAI), social detachment (Coldheartedness on PPI-R) and a lack of insight (Blame Externalisation on the PPI-R and her comment to the author that the RPAH notes were “an interpretation”). There was sufficient corroborative data to suggest that Ms Belgrove’s mental health difficulties exceeded a ‘one-off’ event, with her doctor (Dr O) observing a history of anxiety (which can also be seen as a sub-clinical presentation of paranoia and mania), the RPAH notes recording both the grandfather (Mr V) and the fiancée (Ms K) reporting a prior history of paranoia, and the author’s observations during interview of elevated mood, hyperbole and grandiosity when describing her past achievements. The 2007 admission under section 24 of the Mental Health Act is unlikely to be solely attributable to situational stress at that time. Given the absence of evidence of depressive episodes, a diagnosis of either Bipolar Disorder NOS or Schizoaffective Disorder might be considered by a psychiatrist if Ms Belgrove became unwell again.
In terms of what this means for her care of the children, the author notes that Ms Belgrove did not demonstrate evidence of being currently unwell and that episodes of psychosis in the mental health population are often precipitated by stress, which she appears to manage well through her Pilates and the support of her parents. Not-with-standing the grandfather’s denigration of the father, and the grandmother’s (alleged) history of using corporal punishment, while Ms Belgrove remains living with her parents and utilising their support in her care for the children, Ms Belgrove’s vulnerability to mental health issues is not considered by the author as a risk factor for the children.
The Court agrees that this is a minimal risk, from the children’s perspective. There is nothing in the evidence to suggest that the children are vulnerable or at risk.
The last risk identified is at page 31, lines 1-11:
Last, the father’s emotional lability is an issue of relevance. During interview, [Y] identified the father as being sad when saying goodbye and Ms K reported the preschool (“Ms E”) as saying that he lingers at the centre at drop off’s, cries and that this results in [Y] being upset for sometime after he leaves. Added to this, Mr Belgrove was frequently tearful during interview with the author and Ms K identified his need to seek personal counselling for his grief. Mr Belgrove’s distress, while understandable, needs to be managed so as not to cause the children distress, especially when, by all accounts, they are currently well adjusted to the routines of separation. The author suggests that Mr Belgrove seek support to enable better management of his emotions. The author further notes that there is some evidence that the father’s fears are being directly conveyed to the children, with [X] revealing to the author that the father worries that Ms Belgrove will take the children away and that Mr Belgrove will never see them again.
The Court accepts that one concern for these children is that the Father seems unable to regulate his own emotions in their presence. Dr M did not consider this to be a grave risk, but a matter that could be dealt with by the Father seeking assistance.
Dr M concludes about risk management as follows, at page 31, lines 13-34:
The risks outlined above are manageable. Thus, any change in the current contact arrangements may be considered without over-reliance on the concerns raised by both parents. The personal history and preferences of the parents, as obtained through interview, suggest that Mr Belgrove values the opportunities provided by immersion in different cultures and the embracement of change, while Ms Belgrove is centred on the role of family and stability. Their core values are discrepant and appear to have been contributory to both the dissolution of their marriage and their ongoing antipathy. Both appear to want to invest within their children their personal value sets. While neither value set is necessarily better or worse than the other, and while the children would benefit from both value sets, the circumstance of the separation impedes compromise. Given that the children are not experiencing any distress or current harm and appear well settled in the routines of life, and that at their developmental stage of life would benefit from a maintenance of routine, the author is unable to recommend to the Court any significant change in the status quo, with the one exception. Both children would prefer additional time with the father and their relationship with their father is well established. Further, additional time with the father would meet his perceived ability to ameliorate the grandfather’s influence over the children. Given that the father does not have employment or family responsibilities in Town 3, there is little impediment to his relocation to accommodation more proximal to the children’s current school. The author recommends that if the father relocated that his custody be increased and that a week about arrangement be established (50:50 shared care). This would result in no predictable cost to the children and an enhancement of their relationship with the father. However, should the father decline to relocate, then the current orders should be maintained. The author does not recommend any reduction in the father’s current contact with the children.
Dr M’s recommendations are found at page 33 lines 4-13:
The author is of the opinion, should Mr Belgrove relocate to accommodation proximal to the mother, that a 50:50 shared care arrangement be established. However, should Mr Belgrove determine that he is unwilling or unable to do so, then the current Orders should be maintained, but not reduced. Further, the author recommends that the grandfather attend the Family Relationships Centre to assist his understanding of the importance of Mr Belgrove in the children’s lives and the harm upon the children of any action to undermine Mr Belgrove’s parental responsibilities, and that Mr Belgrove attend personal counselling to assist him to better manage his emotions in the presence of the children. The author further suggests that the parents equally share school holidays, alternate special occasions, and that additional contact between the children and either parent be determined by written negotiation.
It is clear that the Father’s final proposal, indeed supported by the Independent Children’s Lawyer, reflects Dr M’s recommendations. The operative factors appear to be the children’s preference for additional time with their father, their well-established relationship with him, and that additional time may help deal with the problem of the Grandfather’s denigration over the children.
Dr M was cross-examined on the afternoon of day 3 of the hearing.
Counsel for the Independent Children’s Lawyer explored with Dr M whether there would be any risk to the Mother’s mental health if she moved out of the home of the Maternal Grandparents. He accepted that the Mother has an underlying vulnerability which might arise under extreme stress. Thus, living alone with the children might be an exacerbating factor of that stress. When the children are with the Maternal Grandparents, that stress is adequately managed. Dr M thought that if the Father relocated closer to the Mother’s home, and spent more time with the children, after a period of initial adjustment it might in fact relieve the stress on the Mother as the Father would become responsible for them over greater periods of time.
Dr M was also supportive of the Father managing his inability to deal with his own emotions. He suggested the Father engage with a Clinical Psychologist, perhaps even be placed on a mental health plan. Without such professional assistance, Dr M was concerned about whether he could self-manage into the future.
Dr M explained to Counsel for the Independent Children’s Lawyer that he adhered to his recommendations. He explained that the children appear to have adjusted well, and he would expect them to adjust well to any changes that involve greater time with their father. He emphasised that in relation to the children there was no psychopathology evident yet. The Court believes this is important evidence for the parents to remember: there is no psychopathology evident yet. One of the risks that the Court considers for these children, in the future, is continued exposure to the toxic relationship and insidious conflict between the parents. The Court hopes that the conclusion of this litigation might help ameliorate that.
Dr M was cross-examined by Counsel for the Father. One line of cross-examination suggested, in effect, that Dr M was optimistic in his assessment of low risk of corporal punishment to these children simply because the Mother had undertaken parental education in this regard. This did not necessarily obviate, Counsel suggested, a risk of corporal punishment from the Maternal Grandparents. Dr M accepted this but noted that it did not mean that the Maternal Grandparents could not change.
He was aware of the evidence of significant discord in the maternal family, with a dispute between the mother’s brother, Mr G, and her father. Dr M pointed out, however, that the allegations of corporal punishment were in relation to the Maternal Grandmother, not the Maternal Grandfather. Dr M accepted that the prospects of the Maternal Grandfather changing his overbearing and dominant behaviour were poor.
Dr M agreed with Counsel that the Mother’s psychological testing did suggest that she lacked empathy and could be socially detached, and that this could be a concern for the children. Nonetheless, the children appeared to be doing well, and increasing their time with the Father would be a mitigating factor of any such risk.
Dr M was asked to respond to the assertions in the Mother’s case that the children had been coached to report non-existent denigration by the Maternal Grandfather. Dr M explained that he did not observe anything to suggest the children had been coached to say anything.
Dr M was extensively cross-examined by Mr Autore, the solicitor representing the Mother. The cross-examination was ineffective and did nothing to undermine Dr M’s report.
This Court has, of course, the benefit of assessing Dr M’s evidence not just by reference to his report and cross-examination, but also by reference to the entirety of the evidence, and particularly that of the parents. The Court accepts Dr M’s report and his recommendations. He has identified the relevant risks, and the management of these are adequately reflected in his recommendations.
Not only is there nothing in his cross-examination, or in the evidence of the Mother and Father that would detract from his report, but indeed the evidence of the parents is entirely consistent with his report. Indeed, his depiction of the parents is uncannily accurate, based on the Court’s own experience of them. Dr M’s report, and his recommendations, will therefore receive considerable weight.
The Cross-Examination of the Parents
Before considering the evidence of the parents from the perspective of the primary and additional considerations articulated in s.60CC of the Act, it is useful to discuss the evidence that the parents gave in cross-examination as this will inform the Court’s findings about the considerations aforesaid.
The Father was cross-examined about his current and future employment plans. The distinct impression formed by the Court is that the Father’s current employment is probably greater than that which he asserts, but also that his employment capacity is significant. The Court believes that, if the Father wanted to, he could work full time in a (occupation omitted) position. The Court accepts, however, that he has consciously chosen not to work full time so that he might be available to the children.
In cross-examination the Mother contended, and the Court agrees, that on conclusion of these proceedings the Father will probably increase the amount of work that he does, though remain committed to being available for the children based on the orders the Court makes. The Court finds that if it makes the orders proposed by him, he will probably find work that he can do from the area to which he relocates, in order to be closer to the children’s school.
The cross-examination of the Father leads the Court to conclude that a relocation to an area closer to the children’s school is certainly not his first preference, but it is something that he will willingly do if it means spending more time with the children. The Father genuinely believes that the lifestyle in the area in which he currently lives is an ideal, indeed possibly idyllic, lifestyle for the children. However, he accepts that the education of the children should not be disrupted if at all possible.
The Father was extensively cross-examined about whether he was genuine in his commitment to relocate to an area closer to where the children currently live and go to school. The Court is satisfied that, since at least Dr M’s report, that the Father’s commitment in this regard is genuine.
The Father impressed the Court in cross-examination by the insight he demonstrated about, for example, his own emotional nature and the reality of his dislike for the children’s mother, and the inability to trust or communicate with each other. His insight was only marginally better than that of the Mother’s in this regard.
The cross-examination of the Mother and Father seen in its totality revealed the appalling nature of their communication and trust difficulties. The areas in which they failed to communicate with each other, or disagreed about, included whether the children should have lunch boxes, or lunch money, which doctors, dentists and optometrists they should attend, whether they should be seeing a psychologist, their freedom to travel on holidays with the other, and so forth. There is no need to go into detail with respect to much of this evidence. The communication and trust problems in the context of what is acknowledged to be a toxic and high-conflict relationship, is common ground in this case.
What became apparent from sitting through several days of cross-examination of both parents is that a bad situation becomes worse whenever these two come into proximity to each other. This means that school and preschool is a flash point for the parents, and the point at which the children are most likely to be exposed to parental conflict, at a place where they should otherwise be relatively safe.
But perhaps the nadir of the evidence about parental conflict is that demonstrated by the evidence the Court heard about the awards that [X] receives at school. The current arrangement is that whenever [X] receives an award at an assembly, he in fact receives a second award, which is forwarded directly to the mother. The Mother explained in cross-examination that this arrangement had been entered into because ‘…it was a battleground before then”. Thus, she explained that whenever [X] receives an award, he gets to keep it (and presumably take it to his father’s home), and she then later gets one from the school. This situation is appalling enough. Regrettably, what makes it worse is that when the Mother was cross-examined about the likelihood of [X] being aware of this special arrangement in relation to him, she suggested that he was probably unaware. When she was challenged about this belief and the likelihood that [X] would be aware of what the Court would describe as an unusual arrangement about his awards, the Mother was noticeably unresponsive and uncomfortable with the line of questioning.
The concern here is the Mother’s lack of insight about the impact of the parental conflict which manifests itself in such an insidious way. Of course, the criticism cannot be limited to the mother. The Court accepts that the duplication of [X]’s school awards is in many ways a metaphor for the entrenched parental conflict to which he has been exposed, but which thankfully he does not seem to be suffering from, so far.
Another example of school being a flash point for parental conflict occurred in March 2017 at [X]’s school assembly. The Father gives evidence about this in his affidavit of 3 November 2017. He was at [X]’s school assembly at 11.30am on that Friday morning. The Father’s evidence is that the Maternal Grandfather was there, the Mother arrived late, and left about 10 minutes before the ending of the assembly in question. In this regard, the Mother’s evidence differs from that of the Father. She maintained in cross-examination that she was present at all relevant times, and observed the incident that is about to be described. The Court prefers the Father’s evidence on this point, sufficient concerns have been already raised about this Court giving unquestioning acceptance to the Mother’s evidence on contentious points.
The overall impression created by the Mother’s evidence is that she would support her father’s evidence, even if it meant, for example, presenting as her own direct evidence that which she was told by the Maternal Grandfather.
In any event, the Father deposes to making his way to say goodbye to [X] immediately after the assembly. He observed the Maternal Grandfather to say goodbye to [X]. At paragraph 4 of the said affidavit the Father deposes
“I then observed the Maternal Grandfather to intentionally walk to the end of the chairs in such a manner that meant I could not proceed any further to say goodbye to [X]. He appeared to do this intentionally”.
The Father concludes that the Maternal Grandfather stopped his attempts to see [X]. He asserts that he saw the Maternal Grandfather “Move his mouth as to swear and insult me by mouthing the words ‘fuck off’”.
The Maternal Grandfather, of course, did not give evidence in this case. Both the Maternal Grandfather’s actions, and his alleged words, are consistent with other evidence that reflects the ill feeling that he bears towards the Father, and his denigration of the Father in the presence of the children. This incident at the school on Friday, 17 March 2017 is more likely to have occurred as the Father deposes. He was, of course, cross-examined about the incident. A number of matters were put to him. The Father accepted that the Maternal Grandfather was entitled to be at the school assembly, particularly as he had other grandchildren there. He denied that he was the one who swore at the Maternal Grandfather. He denied that he was approached by police (and, indeed, there is no evidence of a report to the police in relation to this incident).
(ii)During NSW school holiday periods as follows:-
A.For the second half of all NSW school holiday periods in odd numbered years; and
B.For the first half of all NSW school holiday periods in even numbered years.
C.The 3 weekly cycle arrangements shall be notionally counted through the school holiday periods so that they recommence in the same pattern during school term.
In the event that the father relocates within 30km of the children’s school:During NSW school terms:From 5pm Friday until 5pm the following Friday each alternate week.(ii) During the Christmas school holiday periods as follows:-
(A)For the second half of all NSW school holiday periods that commence in odd numbered years; and
(B)For the first half of all NSW school holiday periods that commence in even numbered years.
(C)The week about arrangements shall be notionally counted through the school holiday period so that they recommence in the same pattern during school term.
(c)On the following special occasions:
(i)From 9:00am Christmas Eve until 3:00pm Christmas Day in 2019 and each alternate year thereafter;
(ii)From 3:00pm Christmas Day until 5:00pm on Boxing Day in 2018 and each alternate year thereafter;
(iii)From 5pm on the day immediately preceding Father’s Day until the commencement of school the day following Father’s Day.
(d)Such further and other times as agreed between the parties in writing from time to time.
That the father’s time with the children shall be suspended as follows:-
a.On the following special occasions:-
i.From 9:00am Christmas Eve until 3:00pm Christmas Day in 2018 and each alternate year thereafter;
ii.From 3:00pm Christmas Day until 5:00pm on Boxing Day in 2019 and each alternate year thereafter;
iii.From 5pm on the day immediately preceding Mother’s Day until the commencement of school the day following Mother’s Day.
5.For the purpose of calculating the children’s time with each parent during school holidays:-
a.School holidays shall commence at the end of the last school day that the eldest child is required to attend and shall conclude at the commencement of the first day that the eldest child is required to attend school the following term (school holidays shall therefore include pupil free days)
b.Where a school holiday period has an even number of nights the first half shall conclude at 6pm on the middle day (e.g. where there are 14 nights at 6pm on the 7th day)
c.Where a school holiday period has an odd number of nights the first half shall conclude at 9am on the day following middle evening (eg where there are 15 nights in the school holiday period the first half shall conclude at 9am the morning after the 8th night)
6.For the purpose of facilitating the Father's time with the children, and except when the children are collected from or delivered to school, the Father will collect the children from the home of the Mother or in the alternative the Shopping Centre at the commencement of time and the Mother will collect the children from Shopping Centre, or such other place as agreed, at the conclusion of the Father's time with the children.
7.That each parent facilitate the children communicating with the other parent, with such communication being effected by the children calling the home phone number or the other parent’s mobile number (including by way of Skype or Facetime) as agreed between the parents or failing agreement as follows:-
a.On Tuesdays and Thursdays from 6.30pm until 7.30pm;
b.On the children’s and parent’s birthdays from 6.30pm until 7.30pm for all of these occasions; and
c.At the request of the children or either of them.
8.That both parents be restrained by injunction from using physical force upon the children when disciplining them.
9.Both parents shall do all things to ensure that no other person physically disciplines the children.
10.Both parents shall be restrained by injunction from photographing or video-recording the children for any purpose directly or indirectly related to these proceedings.
11.Pursuant to s.68B of the Family Law Act 1975, the parties be restrained from:
a.Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Children.
b.Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
12.For the purpose of communicating between the parents in relation to parenting matters only, the parents shall communicate by sending an email to the other parent’s email address, or SMS text message to the other parent’s mobile phone.
13.That each parent keep the other informed of:-
a.Any medical problems or illness suffered by either of the children whilst in either parent’s care as soon as the parent becomes aware of same;
b.Any medications that have been prescribed for either of the children;
c.Any specialist medical appointments regarding either of the children;
d.Any significant social, school or religious functions which either of the children are to attend unless it has already been published in the school bulletin;
e.The residential address and particulars of others who may reside with the children and any change to these within 48 hours of such change occurring;
f.The home telephone number, mobile telephone number, landline telephone number (if any) and email address of the parent and any changes thereto within 24 hours of such change occurring;
g.Any other important matter relevant to the welfare of either of the children.
14.Both parents shall be entitled to attend all events involving the children including, but not limited to:-
a.Sporting functions;
b.Extra curricular activities that allow for parental attendance;
c.School functions that allow for parental attendance, including but not limited to concerts, school assemblies, sports days, parent teacher interviews, canteen duties and social functions,
And the parent who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from such event.
15.These Orders operate as the authority to both parents to obtain any relevant health or educational records, reports, information and documents relating to the children.
16.Both parties are at liberty to travel with the children outside of the Commonwealth of Australia provided that:-
a.The travelling parent must provide the non-travelling parent at least 3 months’ notice of their intention to travel internationally with the children;
b.That the travelling parent must provide the non-travelling parent with:-
i.Copies of airline tickets
ii.Travel itineraries;
iii.A contact telephone number for where the children will be staying
At least 21 days prior to the proposed travel.
c.That the parties do all acts, sign all documents and give all consents necessary to ensure that each child maintains a current Australian passport and a current (country omitted) passport, with the cost of same to be shared equally between the parties.
d.That the mother shall be responsible for holding the [X]'s Australian and (country omitted) passports and the father shall be responsible for holding [Y]'s Australian and (country omitted) passports whenever the children are not travelling internationally with either parent pursuant to these Orders.
e.The non-travelling parent shall provide the travelling parent with the children’s passports that they hold at least 21 days prior to the proposed travel and the travelling parent shall return the passports not usually held by them to the non-travelling parent within 7 days of returning to Australia with the children, or earlier if required to facilitate overseas travel for the non-travelling parent.
Schedule #3
Orders Sought by the Independent Children’s Lawyer
That the parents have equal shared parental responsibility for the children, [X], born 2011 and [Y], born 2012.
That the children live with their mother except as otherwise provided for in these Orders.
That the children spend time with their father as follows:-
(a) In the event that the father does not relocate within 30km of the children’s school:
During NSW school terms, commencing on the first Friday after the making of these Orders:
(A) On the first Friday of each 3 week cycle, from the conclusion of school on Friday until 6.30pm.
(B) On the second and third weekend of each 3 week cycle, from the conclusion of school on Friday until the commencement of school on Monday (or Tuesday if Monday is a public holiday or a pupil free day);
During NSW school holiday periods as follows:-
(A) For the second half of all NSW school holiday periods in odd numbered years; and
(B) For the first half of all NSW school holiday periods in even numbered years.
(C) The 3 weekly cycle arrangements shall be notionally counted through the school holiday periods so that they recommence in the same pattern during school term.
(b) In the event that the father relocates within 30km of the children’s school:
During NSW school terms:
(A) From 5pm Friday until 5pm the following Friday each alternate week.
During the Christmas school holiday periods as follows:-
(A) For the second half of all NSW school holiday periods that commence in odd numbered years; and
(B) For the first half of all NSW school holiday periods that commence in even numbered years.
(C) The week about arrangements shall be notionally counted through the school holiday period so that they recommence in the same pattern during school term.
(c) On the following special occasions:
From 9:00am Christmas Eve until 3:00pm Christmas Day in 2019 and each alternate year thereafter;
From 3:00pm Christmas Day until 5:00pm on Boxing Day in 2018 and each alternate year thereafter;
From 5pm on the day immediately preceding Father’s Day until the commencement of school the day following Father’s Day.
(d) Such further and other times as agreed between the parties in writing from time to time.
That the father’s time with the children shall be suspended as follows:-
(a) On the following special occasions:-
From 9:00am Christmas Eve until 3:00pm Christmas Day in 2018 and each alternate year thereafter;
From 3:00pm Christmas Day until 5:00pm on Boxing Day in 2019 and each alternate year thereafter;
From 5pm on the day immediately preceding Mother’s Day until the commencement of school the day following Mother’s Day.
For the purpose of calculating the children’s time with each parent during school holidays:-
(a) School holidays shall commence at the end of the last school day that the eldest child is required to attend and shall conclude at the commencement of the first day that the eldest child is required to attend school the following term (school holidays shall therefore include pupil free days)
(b) Where a school holiday period has an even number of nights the first half shall conclude at 6pm on the middle day (e.g. where there are 14 nights at 6pm on the 7th day)
(c) Where a school holiday period has an odd number of nights the first half shall conclude at 9am on the day following middle evening (eg where there are 15 nights in the school holiday period the first half shall conclude at 9am the morning after the 8th night)
For the purpose of facilitating the Father's time with the children, and except when the children are collected from or delivered to school, the Father will collect the children from the home of the Mother or in the alternative the Shopping Centre at the commencement of time and the Mother will collect the children from Shopping Centre, or such other place as agreed, at the conclusion of the Father's time with the children.
That each parent facilitate the children communicating with the other parent, with such communication being effected by the children calling the home phone number or the other parent’s mobile number (including by way of Skype or Facetime) as agreed between the parents or failing agreement as follows:-
(a) On Tuesdays and Thursdays from 6.30pm until 7.30pm;
(b) On the children’s and parent’s birthdays from 6.30pm until 7.30pm for all of these occasions; and
(c) At the request of the children or either of them.
That both parents be restrained by injunction from using physical force upon the children when disciplining them.
Both parents shall do all things to ensure that no other person physically disciplines the children.
Both parents shall be restrained by injunction from photographing or video-recording the children for any purpose directly or indirectly related to these proceedings.
Pursuant to s.68B of the Family Law Act 1975, the parties be restrained from:
(a) Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Children.
(b) Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
For the purpose of communicating between the parents in relation to parenting matters only, the parents shall communicate by sending an email to the other parent’s email address, or SMS text message to the other parent’s mobile phone.
That each parent keep the other informed of:-
(a) Any medical problems or illness suffered by either of the children whilst in either parent’s care as soon as the parent becomes aware of same;
(b) Any medications that have been prescribed for either of the children;
(c) Any specialist medical appointments regarding either of the children;
(d) Any significant social, school or religious functions which either of the children are to attend unless it has already been published in the school bulletin;
(e) The residential address and particulars of others who may reside with the children and any change to these within 48 hours of such change occurring;
(f) The home telephone number, mobile telephone number, landline telephone number (if any) and email address of the parent and any changes thereto within 24 hours of such change occurring;
(g) Any other important matter relevant to the welfare of either of the children.
Both parents shall be entitled to attend all events involving the children including, but not limited to:-
(a) Sporting functions;
(b) Extra curricular activities that allow for parental attendance;
(c) School functions that allow for parental attendance, including but not limited to concerts, school assemblies, sports days, parent teacher interviews, canteen duties and social functions,
And the parent who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from such event.
These Orders operate as the authority to both parents to obtain any relevant health or educational records, reports, information and documents relating to the children.
Both parties are at liberty to travel with the children outside of the Commonwealth of Australia provided that:-
(a) The travelling parent must provide the non-travelling parent at least 3 months’ notice of their intention to travel internationally with the children;
(b) That the travelling parent must provide the non-travelling parent with:-
Copies of airline tickets
Travel itineraries;
A contact telephone number for where the children will be staying
At least 21 days prior to the proposed travel.
(c) That the parties do all acts, sign all documents and give all consents necessary to ensure that each child maintains a current Australian passport and a current (country omitted) passport, with the cost of same to be shared equally between the parties.
(d) That the mother shall be responsible for holding the [X]'s Australian and (country omitted) passports and the father shall be responsible for holding [Y]'s Australian and (country omitted) passports whenever the children are not travelling internationally with either parent pursuant to these Orders.
(e) The non-travelling parent shall provide the travelling parent with the children’s passports that they hold at least 21 days prior to the proposed travel and the travelling parent shall return the passports not usually held by them to the non-travelling parent within 7 days of returning to Australia with the children, or earlier if required to facilitate overseas travel for the non-travelling parent.
Schedule #4
Chronology Prepared by the Independent Children’s Lawyer
CHRONOLOGY
Reference to F aff 1 relates to the affidavit of MR BELGROVE, sworn 24 April 2017
Reference to M aff 1 relates to the affidavit of Ms Belgrove, sworn 6 November 2015
Reference to M aff 2 relates to the affidavit of Ms Belgrove, sworn 14 December 2015
Reference to M aff 3 relates to the affidavit of Ms Belgrove, sworn 28 November 2016
| Date | Event | Evidence |
| 1959 | Applicant Father born | |
| 1974 | Respondent Mother born | |
| 2007-2007 | Mother admitted under the Mental Health Act to Hospital presenting with paranoid delusions and psychosis | F aff 1 para 80 |
| 2007 | Mother suffered from a ‘nervous breakdown’ | M aff 2 para 56 |
| 2008 | Parties met | F aff 1 para 3 |
| 2008 | Parties commenced relationship | M aff 1 para 5 |
| 2008 | Parties commenced living together | M aff 1 para 6 |
| 2008 | Father relocated to (country omitted) | F aff 1 para 4 |
| 2008 | Mother relocated to (country omitted) to be with the father | M aff 1 para 11 |
| 2008 | Mother went to (country omitted) to visit father. For the next 18 months, the parties lived together for three months and then the mother would travel to (country omitted) for three months | F aff 1 para 4 |
| 2010 | Parties married in (country omitted) | F aff 1 para 5 |
| 2011 | Parties began living together in (country omitted) after mother was granted a visa | M aff 3 para 5 |
| 2011 | Parties relocated to Australia when mother was about 7 months pregnant. Father worked in (country omitted) and returned to Sydney regularly | F aff 1 para 6, 10 |
| 2011 | Parties relocated to Australia one month prior to [X]’s birth | M aff 3 para 5 |
| Sept 2011 | Parties resided with the maternal grandparents for 9 months | M aff 1 para 62 |
| 2011 | Mother remained in Australia, father returned to work in (country omitted) within a week of [X]’s birth and remained there for 9 months. Father would fly back to Australia every month for a weekend. | M aff 3 para 6 |
| 2011 | [X] born at Suburb R | |
| 2012 | Parties moved to the Region P, father continued to work part-time for a (country omitted) company | F aff 1 para 11 |
| 2012 | Parties moved to the Region P | M aff 1 para 18 |
| 2012 | [Y], born on the Region P | |
| 2013 to late 2013 | Parties travelled extensively overseas before returning to Australia to reside on the Region P and then Town 2 | F aff 1 para 14, 15 |
| 2013 | Parties resided with the maternal grandparents for 4 months | M aff 1 para 62 |
| 2014 | Father travelled on two separate 7 day trips, two 3 day trips and two 5 day trips | F aff 1 para 66(a) |
| 04/09/2014-09/09/2014 | Father solely cared for the children. Mother alleges that prior to separation this was the longest that the father cared for the children | M aff 1 para 120 |
| 2015 | Mother engaged the children with early intervention and community programs through a Family Mental Health initiative | M aff 3 para 22 |
| 2015 | Father travelled to Brisbane for 3 days, one 3 day trip to Region R taking [X] with him, two 1 week trips to (country omitted) , one 2 day trip to Melbourne and one 3 day trip to Sydney | F aff 1 para 66(b) |
| March/April 2015 | Mother states the father pushed her out the front door of their home in the presence of the children | M aff 1 para 40 |
| August 2015 | Parties separated. Mother and children relocated to Suburb R to live with the maternal grandparents. | F aff 1 para 15, 22 |
| 06/08/2015 | Parties separated | M aff 3 para 5 |
| 06/08/2015 | Father allegedly told a parking officer to ‘fuck off’ in front of the children at the airport. | M aff 1 para 99-100 |
| 3/08/2015-09/08/2015 | Father spent time with the children | F aff 1 para 41(a) |
| 20/08/2015-24/08/2015 | Father spent time with the children | F aff 1 para 41(b) |
| 26/08/2015-27/09/2015 | Father spent time with the children for 3-4 days each alternate weekend | M aff 1 para 124, M aff 3 para 13 |
| 2015 | Contact arrangement changed “as a result of miscommunication with Mr Belgrove, about his birthday plans”. | M aff 3 para 15 |
| September 2015 | Father proposed an equal shared arrangement for the care of the children | F aff 1 para 24 |
| 23/09/2015 | Father denied access to children for about 6 weeks | F aff 1 para 25 |
| 24/09/2015-27/09/2015 | Father spent time with the children | F aff 1 para 39, 41(c) |
| 30/09/2015 | Mother registered for mediation at Family Relationships Centre at Suburb R | M aff 1 para 134, M aff 3 para 16 |
| 16/10/2015 | Father asked to spend time with the children and mother refused. | F aff 1 para 42 |
| 29/10/2015 | Father commenced these proceedings | F aff 1 para 47 |
| 06/11/2015 | Mother observed [X] refuse to go with his father at changeover. [X] screamed ‘I don’t want to go’ and vomited on the floor. It took the mother 20 minutes to calm [X] down before she could leave. The father allegedly called the mother a “fucking bitch”. | M aff 2 para 15 |
| 09/11/2015 – 21/12/2016 | Father spent approximately equal time with the children, during which time he enrolled the children in School 1, arranged medical, dental and hairdressing appointments | F aff 1 para 27, 28 |
| 06/11/2015-08/11/2015 | Father spent time with the children after being requested to provide an undertaking to return the children | F aff 1 para 57, Annexure “O” |
| 09/11/2015 | Orders made for:- 1. the children to spend time with their father each Thursday until Sunday, with changeover to occur at Shopping Centre; 2. Telephone contact between the father and children each Tuesday; 3. Telephone contact between the mother and children each Saturday; 4. Child Dispute Conference ordered; 5. Adjourned for interim hearing until 17 December 2015; It was noted that the application to transfer the matter to Parramatta Registry would be considered on the next occasion. | |
| 13/11/2015 | [X] said to his mother “Daddy hit me and said I was being naughty”. | M aff 2 para 46 |
| 19/11/2015 | Mother observed the children screaming and crying at changeover and refusing to go with their father. Both children threw up in the toilets. | M aff 2 para 16 |
| Mid-November 2015 | [X] told the father that the maternal grandfather states the father is dumb, doesn’t own a car or house, gives to boys rubbish toys. [X] told the father that the mother does not get them to clean their teeth, bathe before bed, prepare and serve evening meals and did not get them to eat vegetables | F aff 1 para 59, 60 |
| 29/11/2015 | Mother told father she didn’t agree to [X] attending school and asked that the father stop taking him | F aff 1 para 65(a) |
| 03/12/2015 | At changeover, the maternal grandfather whispered to [X] ‘grandfather said to tell you, you are a dickhead’. | F aff 1 para 63 |
| 03/12/2015 | [X] again told the father what the grandfather had said. Later on, [Y] said “grandfather said you are an idiot”. | F aff 1 para 64 |
| 03/12/2015 | Child Dispute Conference Memorandum to Court | |
| 17/12/2015 | Matter adjourned until 4 March 2016 for interim hearing; Independent Children’s Lawyer appointed. | |
| 04/03/2016 | Interim orders providing inter alia for the children to spend time with their father in a two week rotating cycle: 1. Week 1: From 5.00pm Tuesday until 5.00pm Friday; and 2. Week 2: from 10.00am Thursday until 5.00pm Sunday Matter also listed for 2 day final hearing commencing 4 May 2017 | |
| 27/05/2016 | Father emailed the mother about the bruises he had observed on the children | F aff 1 para 104 |
| 28/05/2016 | Mother replied to the father’s email denying any allegations of abuse | F aff I para 104 |
| August 2016 | [X] told the father “Mr G attacked and hit my grandfather. Mummy told me” and “Grandfather fell and hurt himself” and “You should give some money to mummy so she can buy food for us.” | F aff 1 para 69 |
| 2016 | Paternal aunt came to Australia from (country omitted) to care for the children while father attended a wedding in (country omitted) | F aff 1 para 70 |
| 09/09/2016 | Father advised mother he had unilaterally enrolled [X] in School A | M aff 3 para 4(d) |
| Sept 2016 | [Y] told the father “Nanny has been hitting us. She screams at us all the time.” | F aff 1 para 71 |
| 12/07/2016 | Re-listed at the request of the ICL – matter adjourned to 1 December 2016 for mention | |
| 08/09/2016 | Orders appointing Dr M as Single Expert Witness – Assessments to take place in March 2017. | |
| 07/10/2016 | Father requested via his solicitors the mother’s consent to obtain passports for the children to enable his travel to (country omitted) | F aff 1 para 97 |
| 10/11/2016 | Father noticed a large bruise on [Y]’s lower leg and a series of other bruises around his knee region.. [Y] told the father “My grandmother hits me… with a fork, and a knife and a stick.” Father took a video of the bruising and asked him again what had occurred. Father took the children to the doctor. [Y] told the doctor “Grandmother hits us all the time.” The doctor made a mandatory report to FaCS | F aff 1 para 103 |
| 11/11/2016 | Mother advised father she did not consent to passports being obtained for the children | F aff 1 para 98 |
| 13/11/2016 | Father raised concerns about bruises on the children in the parties’ communication book | F aff 1 para 105 |
| 15/11/2016 | Mother replied to father’s comments in the communication book | F aff 1 para 106 |
| 25/11/2016 | [X] sent home from pre-school due to illness. Father took the child to the doctor who prescribed Ventolin for shallow breathing. Doctor noticed further bruising on [X]’s leg. Doctor advised father that a further mandatory report had been made to FaCS | F aff 1 para 109 |
| 28/11/2016 | Parties attended mediation | M aff 3 para 29 |
| 01/12/2016 | Mother’s Application for a Case listed for directions. Matter adjourned until 15 December 2016 for interim hearing. | |
| 08/12/2016 | Father noticed severe sunburn on both of [Y]’s shoulders. Father took child to the doctor who prescribed Hydrocortisone Acetate for five days | F aff 1 para 111, 112 |
| 21/12/2016 | Interim Orders providing inter alia: 1. For the children to live with their mother and spend time with their father: a. On the second and third weekend of a three week cycle; b. One half of each school holiday period; c. Special occasions 2. The child [X] be enrolled in School B commencing in 2017; 3. The father be permitted to travel to (country omitted) with the children for a period of 7 days; 4. The mother enrol [Y] in pre-school and 5. advise the father and the Independent Children’s Lawyer of the enrolment details. | |
| Late 2016 | Father applied for (country omitted) passports for the children | F aff 1 para 113 |
| 18/01/2017 | Father emailed mother advising her of his intended travel to (country omitted) with the children. | F aff 1 para 114 |
| 2017 | Father traveled to (country omitted) with the children | F aff 1 para 114 |
| 21/04/2017 | Orders releasing the report of Dr M dated 19 April 2017 |
Key Legal Topics
Areas of Law
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Family Law
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