BELLWOOD & TARVIS

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELLWOOD & TARVIS

[2020] FCCA 3160

Catchwords:
FAMILY LAW – Parenting – what time children spend with the Mother – where the family dynamics of the Mother’s new household complex.

Legislation:

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

Cases cited:

MRR v GR [2010] HCA 4

Applicant:

MS BELLWOOD

Respondent:

MR TARVIS

File Number:

WOC 1269 of 2018

Judgment of:

Judge Altobelli

Hearing dates:

3 – 5 November 2020

Date of Last Submission:

5 November 2020

Delivered at:

Wollongong

Delivered on:

20 November 2020

REPRESENTATION

Counsel for the Applicant:

Mr Alexander

Solicitors for the Applicant:

MDV Family Lawyers

Counsel for the Respondent:

Ms Spain

Solicitors for the Respondent:

Insight Legal Solutions Pty Ltd

Counsel for the Independent Children's Lawyer:

Ms Humphreys

Solicitors for the Independent Children's Lawyer:

Melea Mullard Lawyers

ORDERS

All existing parenting orders in relation to the children X born in 2015 and Y born in 2016 (“the children”) be discharged.
The Father have sole parental responsibility in relation to issues concerning the care, welfare and development of the children of a long term nature including (but not limited to) issues of that nature about:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health;
(d)The children’s name, and
(e)Changes to children’s living arrangements BUT NOT such as to make it significantly more difficult for the children to spend time with a parent.
The Father shall consult with the Mother in relation to any decision to be made in accordance with Order 2 and shall give genuine consideration to any input by the Mother provided that such input is given in a reasonable timeframe.
Each party be solely responsible for issues concerning the day to day care, welfare and development of children while the children are in his or her care.
The children live with the Father.
The children spend time with the Mother as follows:
(a)From the date of these Orders, until 1 January 2021, as follows:-
(i)Week One:
A.From 11:00am until 6:30pm Monday, with such time to occur in the absence of the Mother’s current partner’s children;
B.From the conclusion of preschool, or 3:15pm on a non-school day, Thursday, until 6:30pm Friday, with Y to continue to attend preschool on the Friday, and X is not to attend preschool on the Friday, with such time to occur in the absence of the Mother’s current partner’s children;
(ii)Week Two:
A.From 11:00am until 6:30pm Monday, with such time to occur in the absence of the Mother’s current partner’s children;
B.From the conclusion of preschool, or 3:15pm on a non-school day, Thursday, until 6:30pm Friday, with Y to continue to attend preschool on the Friday, and X is not to attend preschool on the Friday, with such time to occur in the absence of the Mother’s current partner’s children;
(b)From 1 January 2021 until the commencement of Term 1 2021, as follows:-
(i)Week One:
A.From 11:00am until 6:30pm Monday, with such time to occur in the absence of the Mother’s current partner’s children;
B.From the conclusion of school or preschool, or 3:15pm on a non-school day, Thursday, until 6:30pm Friday, with Y to continue to attend preschool on the Friday, and X is not to attend preschool on the Friday, with such time to occur in the absence of the Mother’s current partner’s children;
(ii)Week Two:
A.From 11:00am until 6:30pm Monday, with such time to occur in the absence of the Mother’s current partner’s children;
B.From the conclusion of school or preschool, or 3:15pm on a non-school day, Thursday, until 6:30pm Saturday, with Y to continue to attend preschool on the Friday, and X is not to attend preschool on the Friday, with such time to occur in the absence of the Mother’s current partner’s children;
(c)From the commencement of Term 1 2021, until the commencement of Term 3 2021, as follows:-
(i)Week One:
A.From the conclusion of school or preschool, or 3:15pm on a non-school day, Thursday, until the commencement of school or preschool Friday;
(ii)Week Two:
A.From the conclusion of school or preschool, or 3:15pm on a non-school day, Thursday, until 6:30pm Saturday.
(d)During the school holiday period following Term 1 in 2021, the children’s time with the Mother is to continue in accordance with Order 6(b) of these Orders, however the children’s time with the Mother is to be extended to 6:30pm on the Sunday of Week Two, instead of 6:30pm Saturday;
(e)During the school holiday period following Term 2 in 2021, the children’s time with the Mother is to continue in accordance with Order 6(b) of these Orders, however the children’s time with the Mother is to be extended to 6:30pm on the Monday of Week Two, instead of 6:30pm Saturday;
(f)Commencing Term 3 2021, as follows:-
(i)Week One:
A.From the conclusion of school or preschool, or 3:15pm on a non-school day, Thursday, until the commencement of school or preschool Friday;
(ii)Week Two:
A.From the conclusion of school or preschool, or 3:15pm on a non-school day, Thursday, until 6:30pm Sunday.
(g)During the school holiday period following Term 3 in 2021, the children’s time with the Mother is to continue in accordance with Order 6(f) of these Orders, however the children’s time with the Mother is to be extended to 6:30pm on the Monday of Week Two, instead of 6:30pm Saturday;
(h)During the school holiday period following Term 4 in 2021, the children’s time with the Mother is to continue in accordance with Order 6(f) of these Orders, however the children’s time with the Mother is to be extended to 6:30pm on the Tuesday of Week Two, instead of 6:30pm Saturday.
In addition to living with the Father in accordance with Order 5 of these Orders, the children spend time with the Father on the following occasions of special significance:-
(a)From 3:00pm Christmas Eve until 3:00pm Christmas Day, in odd numbered years;
(b)From 3:00pm Christmas Day until 3:00pm Boxing Day, in even numbered years;
(c)From 5:00pm Good Friday until 10:00am Easter Sunday, in odd numbered years;
(d)From 10:00am Easter Sunday until 5:00pm Easter Monday, in even numbered years;
(e)In the event that either of the children’s birthdays fall during a time when the children are spending time with the Mother, then the children to spend time with the Father from 9:00am until 3:00pm, in the event that the child’s birthday falls on a non-school day, or from the conclusion of school until 6:30pm on a school day, on both of the children’s birthdays of each year;
(f)In the event that Father’s Day falls during a time when the children are spending time with the Mother, then the children are to spend time with the Father from 6:30pm the Saturday prior to Father’s Day until the commencement of school on Monday immediately following Father’s Day of each year;
In addition to spending time with the Mother in accordance with Order 6 of these Orders, the children spend time with the Mother on the following occasions of special significance:-
(a)From 3:00pm Christmas Eve until 3:00pm Christmas Day, in even numbered years;
(b)From 3:00pm Christmas Day until 3:00pm Boxing Day, in odd numbered years;
(c)From 5:00pm Good Friday until 10:00am Easter Sunday, in even numbered years;
(d)From 10:00am Easter Sunday until 5:00pm Easter Monday, in odd numbered years;
(e)In the event that either of the children’s birthdays fall during a time when the children are living with or spending time with the Father, then the children are to spend time with the Mother from 9:00am until 3:00pm, in the event that the child’s birthday falls on a non-school day, or from the conclusion of school until 6:30pm on a school day, on the children’s birthdays of each year;
(f)In the event that Mother’s Day falls during a time when the children are living with or spending time with the Father, then the children to spend time with the Mother from 6:30pm the Saturday prior to Mother’s Day until the commencement of school on the Monday immediately following Mother’s Day of each year.
Commencing 2022, the children spend time with each of their parents for one half during the New South Wales gazetted school holiday periods following Terms 1, 2 and 3, as agreed between the parents in writing, and in the absence of agreement, as follows:-
(a)In even numbered years, from the conclusion of school on the last day the children are required to attend school until 6:30pm on the middle Saturday of the holiday period with the Mother, and from 6:30pm on the middle Saturday of the holiday period until the commencement of school on the first day the children are required to attend school in the new school term, with the Father; and
(b)In odd numbered years, from the conclusion of school on the last day the children are required to attend school until 6:30pm on the middle Saturday of the holiday period with the Father, and from 6:30pm on the middle Saturday of the holiday period until the commencement of school on the first day the children are required to attend school in the new school term, with the Mother.
Commencing 2022, during the Christmas school holiday periods, as agreed between the parents in writing, and in the absence of agreement, as follows:-
(a)In even numbered years, with the Mother from the conclusion of school on the last day the children are required to attend school until 6:30pm the second Sunday of the school holiday period, with the children to then spend time with the Father until 6:30pm the following Sunday, and each alternate week thereafter, with changeover to occur at 6:30pm each Sunday, until the new school year resumes; and
(b)In even numbered years, with the Father from the conclusion of school on the last day the children are required to attend school until 6:30pm the second Sunday of the school holiday period, with the children to then spend time with the Mother until 6:30pm the following Sunday, and each alternate week thereafter, with changeover to occur at 6:30pm each Sunday, until the new school year resumes.
For the purpose of the implementation of these Orders, in the event that changeover is occurring on a school or preschool day, the Mother, or her representative, is to collect the children from school or preschool at the commencement of her time with the children, and is to return the children to school or preschool at the conclusion of her time with the children.
For the purpose of the implementation of these Orders, in the event that changeover is occurring on a non-school day, the Mother, or her representative, is to collect the children from a location as agreed between the parents in writing, and in the absence of agreement, from McDonalds Town B, at the commencement of her time with the children, and the Father is collect the children from a location as agreed between the parents in writing, and in the absence of agreement, from McDonalds Town B.
Both parents are entitled to attend all events involving the children, including but not limited to:-
(a)Sporting fixtures;
(b)Extra curricular activities that allow for parental attendance; and
(c)Pre-school and school functions and pre-school and school events that allow for parental attendance, including but not limited to, concerts, assemblies, sports days, parent and teacher interviews, canteen duties and other school social functions, and the parent who has the children in their care on the day of such activity will be responsible for the children’s day to day care at such event and the children’s transportation to and from that event.
Both parents, when attending any of the events referred to in Order 13, will ensure they behave respectfully towards each other and not expose the children to conflict at those events.
The children are to have the following parental communication:-
(a)Reasonable telephone conversation with the Father as the children may request, and the Mother will facilitate the making of such telephone calls;
(b)Reasonable telephone conversation with the Mother as the children may request, and the Father will facilitate the making of such telephone calls; and
(c)Privacy during telephone conversations with both parents and each parent is to ensure that they facilitate this.
The parents will ensure that they keep each other informed as soon as it is reasonably practical of:-
(a)Any medical problem or illness suffered by either or both of the children whilst in either parent’s care;
(b)Any medications that have been prescribed for either or both of the children;
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor, or therapist regarding either or both of the children;
(d)Any significant social, school or religious functions which either or both of the children are to attend;
(e)Their current residential address and contact telephone number, including mobile and landline, if applicable, and inform the other parent of any changes to their contact details within 24 hours of such change occurring; and
(f)Any other important matter relevant to the welfare to either or both of the children.
Both parents authorise by these Orders any school or preschool attended by either or both the children to provide to either parent upon request any reports, photos, other information or documents relating to the children, that are normally provided to a parent of a child, at that parents’ cost.
Both parents authorise by these Orders the children’s General Medical Practitioner or any other treating medical practitioner to provide to either parent any information, medical reports or other documentation relating to the children at that parent’s cost.
Both parents authorise by these Orders the provider of any extracurricular activity to either or both of the children to provide to either parent any information or documentation relating to the children at that parent’s cost.
The Mother continue to attend upon her treating medical practitioners, including but not limited to, her General Practitioner, and any counsellor, therapist, psychologist or psychiatrist as she may be referred to, at such frequency as recommended by those medical practitioners, and to comply with all recommendations and treatment plans as advised by them.
The Mother is to take all medications prescribed by her treating medical practitioners, in accordance with the dosage prescribed by them.
The Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of either or both of the children and the Mother shall do all things reasonably necessary to remove either or both of the children from the presence of any person who does so.
The Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of either or both of the children and the Father shall do all things reasonably necessary to remove either or both of the children from the presence of any person who does so.
Within 6 months of the making of these Orders, each parent shall enrol in and complete the 123 Magic Emotional Coaching parenting course, or Triple P Parenting, or a similar parenting course, and provide a copy of their Certificate of Completion to the other parent, or their legal representative.
Within 6 months of the making of these Orders, each parent shall enrol in and complete the Circle of Security parenting course, and provide a copy of their Certificate of Completion to the other parent, or their legal representative.
Within 14 days of the date of these Orders, both parents do all things necessary to arrange for X’s speech and educational needs to be assessed by an appropriately qualified specialist, such as a paediatrician, or other specialist as recommended by X’s preschool or school, with both parents to ensure that X attends upon such medical practitioner at such times at such frequency as recommended by the medical practitioner, and to comply with all recommendations and treatment plans as advised by them, with both parents to share equally in the costs of the same.
The Legal Aid Commission of NSW is requested to extend the appointment of the Independent Children’s Lawyer for 6 months from the date of these Orders.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 7 days’ notice by application to the Court in Chambers as regards the interpretation, implementation and enforcement of these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1269 of 2018

MS BELLWOOD

Applicant

And

MR TARVIS

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about two children, X, who will shortly turn 5, and her sister, Y, who will shortly turn 4. These Reasons for Judgment explain the Orders the Court has made about where the children should live, and how much time they should spend with each parent.

Background

The Mother is the Applicant in this case. She is 28 years old and describes herself as a homemaker. The Father is the Respondent in this case. He describes himself as a labourer and is 26 years old. Both live in the Region C of New South Wales.
From the children’s perspective, there are other significant people in this case. The maternal grandmother is 57 years old, and paternal grandmother 43 years old, and both have been involved, at various times, in the lives of the children.
The children have a stepbrother, the Mother’s child from a previous relationship. D is 9 years old. The Mother was only 19 years old when D was born. For all practical purposes, this Court finds that from D’s perspective, the Father in this case was his psychological father, and was an important relationship to him. The evidence indicates that D has only recently commenced some form of contact and communication with his biological father.
The Mother has re-partnered. Her partner is a 28-year-old farmer who has two children from a previous relationship, E, who is 5, and F, who is 3. The Mother’s partner’s children in fact live with their own mother, but they spend significant and substantial time with him, particularly on weekends.
X and Y live with their father, and spend time with their mother, but this has only recently become overnight time.
D lives with his mother, and thus only spends time with X and Y when they are with her. The Mother has only recently commenced cohabitation with her partner, but this means that D is always with the Mother when E and F are spending time with the Mother’s partner. It also means that X and Y spend time with D, at the same time that E and F are spending time with their father.
The Mother’s partner works long hours on a farm. His day commences at 3:30am, and finishes at 6:30pm, on Tuesdays to Saturday inclusive. His home is on the farm, and thus he is never too far away from the house, and he often returns home during his lunch breaks to spend time with the Mother, and the children who are there.
The evidence clearly establishes that there have been times, in the recent period of the children’s lives, that all five children have been left in the care of the Mother, particularly on Saturdays, whilst her partner is working at the farm.

There has been much change in the lives of this family network. For example, the Mother’s relationship with her partner, and their new home arrangements, are comparatively new. The Father’s caring arrangements for X and Y changed substantially only a few months ago when his work changed from an interstate position to a local one. This meant that he, in effect, stepped up his responsibilities as primary carer for the children, in circumstances where the paternal grandmother had up until then played a very significant role. All three parents in this case (the Mother’s partner included) are relatively young, and relatively new to the parenting situations in which they now find themselves.
X and Y’s parents commenced a relationship in 2013, and this probably ended in October 2018. 2018 was a tumultuous year for this family. The Mother experienced episodes of poor mental health in both 2018 and probably early 2019. The Mother had two mental health-related admissions, both in the context of overdoses of prescription medication, and where the evidence suggests there was at least some suicidal ideation. The children had remained in the Mother’s care on separation, but because of the matters referred to above, they went into the Father’s care on 20 November 2018, and have remained there.
The Court is able to indicate, even in these background facts, that it finds that there is no present risk to the children arising from the Mother’s mental health and/or substance abuse. As will be seen, there are other concerns about the Mother’s parenting capacity, which will be discussed below. The absence of risk is reflected in the evidence the Family Consultant gave and in the respective proposals advanced by the parents during, and at the conclusion of the hearing. There is no need to say anything else about any risk of harm to the children arising from the Mother’s mental health or drug misuse.
The present proceedings were commenced by the Mother in December 2018, and in particular she sought a recovery order, that is for the children to be returned to her care. On 10 December 2018, the Court ordered the children to continue to live with the Father and spend time with their mother, and then on 12 December 2018, for the children to live with their father and spend time with their mother on Monday, Wednesday, and Friday, from 2:30pm until 6:30pm.
Between 12 December and 15 February 2019, the Court finds that the Mother had 26 opportunities to spend with the children, but probably only took up 12 of those opportunities. The Court is not overly critical of the Mother in this regard. She provided satisfactory explanation for some of the missed opportunities. The evidence suggests that she was still recovering her mental health and managing her substance abuse. No more needs to be said about this part of this family’s life.
When the matter came before the Court on 15 February 2019, the Mother was in fact in a hospital, where she had voluntarily admitted herself. Orders were made for the Mother to continue to spend time with the children, but on the basis that it be supervised by the maternal grandmother or maternal aunt.
By the time that the matter came back to Court on 8 April 2020, the reality is that the Mother had established a safe track record of spending time with her children. It is unsurprising, therefore, that consent Orders were made for the children’s time with their mother to become unsupervised. The Mother’s time was, however, daytime only.
On 30 September 2020, the Family Report that had been prepared by Family Consultant Ms G was released to the parties. The Report will be dealt with in much more detail below, but what becomes important is that the parents had about five weeks when they could have started to implement, or work towards implementing, some of Ms G’s recommendations, but failed to do so.
It is possible to make some findings about further matters, which will provide deeper context for that which is to follow.
The Mother’s son, D, suffers from anxiety. She deposes to being very worried about how the changes that he has experienced in his life have affected him. The Mother has every reason to be concerned about D. The Court finds that she has struggled in meeting aspects of his needs. Even before separation, at a time when D viewed the Father in these proceedings as his psychological father, he had very high school absences. In 2019, well after separation, D was away 69 days. In 2020, and even allowing for the COVID-19 pandemic, he had been away from school 39 days to the date of the Hearing, which started on 3 November 2020.
But even on the most generous interpretation of the Mother’s evidence, and making allowances for the COVID-19 pandemic, the Mother’s explanations for D’s absences from school are inadequate. The reality is that she struggled to get him to school at a time when, on her own evidence, she was experiencing no mental health issues, and there were no substance abuse issue problems in her life.
Moreover, Ms G in her oral evidence, poignantly explained the difficulties that D would be experiencing in his life. He had experienced the loss of a father figure, meaning the Father in these proceedings. He was adjusting to a new home environment that involved a new father figure and the introduction of his two children, E and F. He was now starting to spend time with his own biological father. He was probably missing his relationship with X and Y. To use the words of the Family Consultant in reference to D’s life: “There is too much going on.”
X misses, and longs for, her mother. She starts school in 2021. She very much needs to spend one-on-one time with her mother, but in recent times she has had to share her mother’s attention not just with Y and D, but with F and E as well. Ms G was particularly concerned about how X would cope with changes in her life in her immediate future.
The Mother’s partner’s son, F, has special needs. He has been diagnosed with Type 1 Diabetes and requires a feeding tube to ensure normal glucose level is maintained in his body, and requires constant monitoring to maintain his blood sugar levels. He cannot be fed by mouth. He is constantly monitored by a system that will communicate by telephone message to a network of carers in the event that there are issues with his blood sugar level. To use his father’s own words, D must be “always in eye-shot”, and if his glucose levels drop, triggering an alarm, his needs must be attended to within 20 minutes.
The next important finding of this Court is that the Mother did not tell the Family Consultant about her relationship with her new partner, and his children, at the family report interviews. On any view of the evidence, this relationship had started. It was an important relationship that should have been disclosed but was not. The Mother explained in cross-examination that she did not disclose it because it was a new relationship. The Court does not accept this. There are two hypotheses.
The more likely hypothesis is that the Mother simply did not understand the significance of disclosing this to the Family Consultant. The less likely hypothesis is that the Mother deliberately chose not to disclose, because she understood the potential implications on her case, which was at that time that the children live with her and spend time with the Father, of her own very complex family arrangements. The Mother’s failure to disclose was disappointing. It probably prolonged the Hearing. Nonetheless, Ms G was able to assimilate the new information and make appropriate alterations to her recommendations.
Finally, and in the context of preliminary observations, this Court concludes, having heard the evidence of the parents, that there are no relevant issues as to credit. Whilst they both, at times, failed to tell the truth, none of the matters were ultimately relevant to the questions the Court had to adjudicate on. These are young parents, who have gone through a difficult separation, and who face challenges in their lives, not the least of which was parenting these children. They do not need any unnecessary odium that would be caused by adverse credit findings.

Competing proposals

This is a case where, quite appropriately, some of the proposals evolved in response to the evidence that was presented before the Court, particularly from the Family Consultant, Ms G. In the Mother’s case, at the commencement of the proceedings, she initially proposed equal shared parental responsibility, that the children live with her, and also live with the Father for six nights each fortnight. After her cross-examination, her Counsel announced that the Mother was no longer pressing for an order that the children live with her, that instead the children live with the Father and spend time with her.
By the time of closing submissions, her proposal had evolved further. The Mother’s final proposal is reproduced in the First Schedule to these Reasons. In short, she proposed equal shared parental responsibility, that the children live with the Father, and that overnight time with the children progressively increase over four stages, from two overnights a fortnight, to three overnights a fortnight, then to four, and ultimately to five.
In the Father’s case, he consistently proposed sole parental responsibility, and that the children live with him. His initial proposal, at the commencement of the Hearing, suggested an immediate move to overnight time and a progression over three stages which would commence in term 3, 2022, with the Mother having three overnights each fortnight. By the time of the Final Hearing, the four-stage proposal provided for an immediate commencement of overnight time, one night each fortnight, and concluded at stage four, commencing term 2, 2022, with four overnights a fortnight. The Father’s final amended minute of order is also reproduced in the First Schedule to these Reasons.
The Independent Children’s Lawyer’s proposal also evolved. The final minute proposed by the Independent Children’s Lawyer became exhibit ICL4. There are four stages. In the first stage, there would be two overnights, and by the fourth stage, commencing term 3, 2021, there would be four overnights each fortnight. The Independent Children’s Lawyer’s minute is also reproduced in the First Schedule to these Reasons.
It thus becomes apparent that the by the time of the final submissions, the main issues for the Court to determine had narrowed. There was an issue about whether the Father and Mother should have equal shared parental responsibility, or whether the Father should have sole parental responsibility. The other issue focused on the Mother’s time with the children, and the rate at which it progressed.

The evidence

In the Mother’s case, she relied on the following documents:
a)Amended Initiating Application filed on 23 October 2020;
b)Affidavit of Ms Bellwood affirmed and filed on 23 October 2020;
c)Affidavit of Mr H affirmed on 23 October 2020 and filed on 26 October 2020;
d)Affidavit of Ms J affirmed and filed on 11 December 2018;
e)Notice of Risk filed on 7 December 2018; and
f)Case Outline document filed on 29 October 2020.
In the Father’s case, he relied on the following documents:
a)Amended Response to Initiating Application filed on 23 October 2020;
b)Affidavit of Mr Tarvis affirmed on 22 October 2020 and filed on 23 October 2020;
c)Affidavit of Ms K affirmed on 22 October 2020 and filed on 23 October 2020;
d)Notice of Risk filed on 11 December 2018; and
e)Case Outline document filed on 29 October 2020.
The Independent Children’s Lawyer filed a Case Outline document on 2 November 2020.
The following material was tendered as evidence during the course of the proceedings:
a)Information regarding primary school enrolment;
b)Copy of snapchat message sent by Father to Mother;
c)Family Report completed by Family Consultant Ms G;
d)Education & Training counselling file of D;
e)Education & Communities School records for D;
f)Independent Children’s Lawyer’s amended minute of order;
g)Statement of legal fees paid by the Father;
h)Father’s amended minute of order;
i)Bundle of photos taken by the Mother between October 2019 and February 2020;
j)Suburb L Women’s Clinic admission form dated 6 October 2018;
k)Material produced pursuant to subpoena on Employer M;
l)Father’s payroll advice from Employer N;
m)O School attendance report for D;
n)Immunisation history for D; and
o)Mother’s amended minute of order.

The applicable law

The applicable law is found in 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.

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:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

The evidence of the Family Consultant

The Family Report was prepared by a very experienced Family Consultant, Ms G, and was dated 30 September 2020. It is proposed that the contents of the Report are discussed but to interpose, where appropriate, observations about the evidence, including the cross-examination of Ms G. It is important to remember that the Mother had not disclosed her relationship with her partner at the time of the report interviews.
In terms of proposals, the Mother indicated to the Family Consultant that whilst her preference was that the children live with her, and spend each alternate weekend with their father from Friday to Sunday, and then extend to the commencement of school Monday, she also explained that if the Court ordered the children to continue to live with the Father, she wanted her time to increase and to include overnights, and block periods during the school holidays. At the time of the report interviews, however, she could not offer any concrete proposals for her time with the children.
As for the Father, at the report interviews he proposed that the children live with him, and that the Mother’s time with the children continue to be supervised, as well as the Mother undergo random urinalysis. During the interviews, he explained that he now supported the Mother having unsupervised time with the children, initially commencing each alternate week from Friday to Sunday.
Ms G indicated a number of matters that were potential risk factors, including family violence, child safety and wellbeing, drugs and alcohol, and mental health. As foreshadowed earlier in these Reasons, having regard to the totality of the evidence before the Court, this Court concludes that there are no such risks of harm to the children.
At paragraph 53 of her Report, Ms G observed that despite communication between the parents improving, the Father has ongoing concerns about the Mother’s parenting capacity. She noted that this could be a significant issue at a time when the children’s time with the Mother increases, and includes block periods. At paragraph 54, she suggested that the parents would be supported in navigating the likely increase in the children’s time by seeking professional support to address the issues for the children and any concerns of either parent.
Indeed, the recommendation that she makes at paragraph 88 is that unless the parents have already done so, they attend a parenting after separation or similar group to assist them with developing appropriate communication strategies, and consider attending a parenting course such as the ones referred to in that paragraph. It is interesting to observe that both parents acknowledged in cross-examination that their communication had in fact improved, but neither had, as yet, taken up Ms G’s recommendations about parental education. The Court recognises, however, that there was a relatively short period between the release of the Report, and the Hearing.
Ms G observed X and Y, noting that they were happy and relaxed, showing no anxiety on separation from their father. At paragraph 60 and 61, Ms G records:
[60] It would be expected that, given the age of the children when their parents separated and the parenting history since that time, Y in particular, would be unlikely to have as strong a bond with her mother, as one would expect X to have. X seems to be yearning for more time with her mother, while Y, seems to cope with moving between her parents, without any emotional distress.
[61] While each child spoke positively of D, it seems that the age differences coupled with the limited time the children have spent together in the last two years, might mean that this bond needs to be strengthen by the three children be able to spend more time together.
The observations of the interaction between the children and their parents are important. These are set out at paragraphs 62 to 68 and they are reproduced in full:
[62] The children excitedly and affectionately greeted their mother and D. The group quickly settled on the floor and sorted through various farm and jungle animals with X and Y each competing to name the animals. The group moved to the white- board, and thereafter X and Y moved between the white-board, playing with the animals and seeking to have the writer join in. Ms Bellwood was, on some, occasions able to have X and Y engage with her in a joint activity, while D moved between the white-board and drawing at a table, with Ms Bellwood not attempting to encourage D to join in the group activity. At one stage, X said that she wanted to “talk to Daddy”, and shortly after this Y said that she wanted “to go and talk to Nanny” [as far as the writer was aware the paternal grandmother was not in the Registry]. Ms Bellwood was able to divert both children back to an activity, while assuring them they would see both their paternal grandmother and father “soon”.
[63] There was a sense that the group, while more or less relaxed, was “busy”, with the three children moving between activities. On occasions, it was as if X and Y were each competing for their mother’s attention. Ms Bellwood seemed to lack the capacity to have the three children be involved in a group activity; or would respond to one child and overlook the other, with there being a sense that, during these interactions, Ms Bellwood appeared almost unaware of D’s presence. On those occasions, D was observed to have distanced himself from his mother and sisters. Towards the end of the observations, the competition from X and Y for their mother’s attention and distancing by D increased, accompanied by both X and Y raising their voices in order to get their mother’s attention. These interactions were followed by, either intentionally or unintentionally, the children seemingly making choices with one child moving to sit close to her mother and the other child moving a chair to sit in close proximity to the writer and seeking to engage the writer in the activity she was doing. Without any communication between them, the children spontaneously changed places. Ms Bellwood was not successful in encouraging the child who was sitting next to the writer to join her and the other child, and again, the mother was not able to assist the children to engage with her jointly.
[64] It became apparent during the observation of the children and their mother that, on occasions, Ms Bellwood had difficulty in understanding what X was saying/asking. The writer had the same difficulty.
[65] At the end of the observation (the children had been advised that the time with their mother and D was coming to an end) the children accompanied their mother and D to the waiting area. X became distressed and clung to her mother, despite Y’s assurance that they would see their mother “soon”. Ms Bellwood reassured X, telling her how long it was until they would spend the afternoon together, and carried X to her father.
[66] Mr Tarvis took X in his arms and attempted to sooth her, with X repeating that, “I want Mummy”. Y appeared relaxed and unaffected by either her mother and D’s departure or X’s distress. The children spoke to their father about the activities they had done with their mother and D, with X maintaining close physical proximity to her father. In the early part of this observation, X moved from crying (softly) to whimpering, but then returned to crying. Y informed X that, “Mummy is gone”, which reactivated X’s distress. It took approximately 15 minutes before X seemed to become settled in a play activity and had succeeded in regulating her emotions, although Mr Tarvis was attentive to her distress and tried to assist her.
[67] The play between the children and their father was indicative of a group which is used to, and enjoys playing together. Mr Tarvis was able to engage the children simultaneously in a joint activity, and able to follow their leads.
[68] Towards the end of the observation with their father, X again became upset and said, “I want to go home”. It seemed, however, that X’s internal distress might not have reflected the level to which she escalated her crying, seeming to remain relaxed, particularly after her father picked her up, cuddled her and the writer indicated that they could leave.
Ms G’s evaluation commences at paragraph 74. Having regard to the fact that in cross-examination Ms G was informed of the circumstances of the Mother’s new relationship, and this substantially changed her view about the arrangements for the children, the discussion of this section will be selective.
Ms G noted that X and Y are young children whose developing bond to their mother was disrupted by the end of the parental relationship and then moving to live with their father. For X in particular, this occurred at the end of her first critical development stage (0-3), and Y’s bond to her Mother was still in its early stages of development, as she was under 2. Because of this comment, Ms G was concerned that the children’s bond to their mother might have been compromised. She also had the same concern about their bond to the Father, who appeared to have spent considerable time away from the children because of the nature of his work.
This led Ms G to suggest that Y’s likely primary bond was transferred from her mother to her father, or possibly the paternal grandmother, given the extent of care provided by the same. In relation to X, it was possible that X’s bond might also have been transferred from the Mother to her paternal grandmother. The Court notes that this is very important evidence because, by the time of the Hearing, it was common ground that the Father had changed the nature of his interstate work to being local, and thus being far more available for the care of the children than he had been in the past. Not only, therefore, was the Father’s primary parenting role for the children comparatively new, but it represented yet another change for them.
Ms G was concerned that D seemed to be marginalised during the observation, with his mother primarily interacting with X and Y, and struggling to be able to interact with the three children simultaneously. Ms G observed at paragraph 77: “Again, if the children were able to spend a longer period in their mother’s care, these issues would be likely to be overcome.” As it turns out, of course, on one scenario, not only would these three children be together with their mother, but it would be in the context of the Mother also caring for her partner’s two children, one of whom has special needs.
In her Report, Ms G observed the potentially important role of the Father in D’s life. This is an observation she made several times during cross-examination. D’s time with the Father was not, however, an issue before the Court, and there was little suggestion in the Father’s case that this was an issue for him. The relationship between D and his father, therefore, will not be discussed in these Reasons.
Ms G made observations that she could not understand why the parenting arrangements in place at the time of the family report interviews, which provided for regular but relatively short daytime contact between the Mother and the children, could not progress to include overnights and block periods. Ms G opined that the lack of progress was probably attributable to the Father’s concern about the Mother’s parenting capacity and the reality that the Mother’s ability to care for the children for other than short periods had not been tested. She observed that the observation suggested that it was the Father who was able to show that he was more attuned to the children’s needs, able to settle both the children and involve them in joint activities.
At paragraph 80, Ms G stated:
Given the information available to the writer, it seems that the children would benefit from their time with their mother increasing immediately, and including overnight. It might be that overnight time ought to follow on from the Sunday the children already spend with their mother, so that their time with their mother ends at the commencement of pre-school/school on Monday. Ideally, the children ought to continue to spend time with their mother each week. It might be that, when X commences school, the children continue to spend time with their mother each Thursday (X from the end of school until 6.30; and Y being with her mother, prior to her commencing school, for the whole day). It is the writer’s view that both X and Y would benefit from one-on-one time with their mother to strengthen their bond with her (and her with them). This is something which would seem to be easily arranged at this stage for Y, as she does not commence school until 2021. The children’s overnight time with their mother, provided that there are no concerns, and it is the writer’s view that, at this stage, there seem to be no concerns for the children’s wellbeing in their mother’s care, ought to increase within a short period. It is suggested that, over the next eight to ten months the children’s time with their mother increase so that, by the time Y is due to commence school (2021), the children’s parenting arrangements allow for weekly time with their mother, as well as consecutive nights (for example in one week from the end of school on Thursday until 6.30 pm or the commencement of pre-school/school on Friday; and in the alternate week from the end of pre-school/school on Thursday or Friday until the commencement of school on Monday). It will be important that the children’s time with their mother allow for block periods during schools holidays. Perhaps in term one school holidays in 2021 the children ought to be able to spend up to three or four consecutive nights with their mother, with this time increasing by an additional night each school holiday period, so that they are eventually spending up to seven consecutive nights with their mother in the school holidays at the end of terms one, two and three. It is suggested that the parents consider the children living in a week about parenting arrangement during the December-January school holidays. Many children under 12 years do not cope with spending blocks of 14 to 21 days with each parent during this period.
As will be seen, aspects of this recommendation are reflected in each of the proposals put forward before the Court.
In relation to equal shared parental responsibility, on the basis that each parent had reported that their communication is improving, she suggested equal shared parental responsibility.
Ms G’s recommendations are found at paragraphs 83 to 88 as follows:
[83] It is recommended that the parents have equal shared parental responsibility for the children.
[84] It is recommended that the children continue to live with their father.
[85] It is recommended that the children’s time with their mother increase and include overnight, with the overnight times gradually increasing. Initially, overnight time could occur on, say, Sunday, with the mother to take the children to pre-school/school on Monday and the children return to their father’s care at the end of pre-school/school that day. This time could gradually extend so that the children spend time with their mother each week from the end of pre-school/school on Thursday to the commencement of pre-school/school on Friday; and, in the alternate week, from the end of pre-school/school on Thursday to the commencement of pre-school/school on Monday (or alternatively from Friday to Monday before increasing to Thursday to Monday).
[86] It is recommended that, as the children’s time with their mother increase, it include the sharing of the school holidays at the end of terms one, two and three and that consideration being given to the children living in a week about arrangement during the December-January school holidays.
[87] It is recommended that the parents, perhaps in consultation with the children’s pre-school, arrange for an assessment of X’s speech and/or educational needs and that, if such an assessment occurs, the report be shared with the school which X will attend in 20201.
[88] It is recommended that, unless the parents have already done so, they attend a parenting after separation or similar group to assist them with developing appropriate communication strategies and consider attending a parenting course such as 123 Magic Emotional Coaching or Triple P Parenting (contact P Counselling Centre).
Ms G was examined by Counsel for each of the parties. She had read the trial Affidavits. She agreed that the Mother had not told her about her new relationship with her partner, who had two children aged 5 and 3, one of whom had Type 1 Diabetes. Ms G agreed that while she was aware that D’s school attendance record was not good, as told to her by the Mother, she was not aware of the full extent of his absences between 2017-2020.
When Counsel for the Independent Children’s Lawyer suggested to Ms G that the landscape in the Mother’s household had changed significantly since the family report interviews, Ms G agreed. She explained that she now held significant concerns because of the change in the household configuration. The Mother had spent limited time with her own children in the last two years. Both X and Y were observed to be seeking her attention. The children had been through many changes in their lives, and “…this must slow down…”
The Mother was in a new relationship. X and Y do not really know her new partner. They do not know his children. The Mother’s partner’s children do not really know the Mother, their new stepmother. To thus introduce X and Y into these circumstances was problematic. In addition, D would be readjusting to all of these changes in his home environment, including a new male role model, the Mother’s partner. He was also apparently commencing time with his own biological father. Ms G stated: “There is too much going on.” Further, Ms G emphasised that there should, as much as possible, be no major changes for X coinciding with her transition to school. For Y, by the time she starts school in 2022, a settled pattern of spending time with her mother should be in place. Ms G was particularly concerned about X, and that she would struggle in her transition to school, if this was not managed very carefully. She emphasised that: “These issues are magnified in a household with five children.”

Whilst Ms G acknowledged that one way to manage these issues was for Y and X to only spend time with their mother when her partner’s children are not there, it was nonetheless important for the children to spend time with their stepsiblings as well. She wanted X to spend increased time with her mother in December and January before she starts school in 2021, whilst Y continues to go to preschool. She emphasised the importance to X and the Mother, of having this time together. She urged a slower transition of the children in the Mother’s care, and not too much overnight time too quickly. She emphasised the importance to the parents of education to help them prepare for the parenting challenges that lay ahead of them.
When given the opportunity to describe what a gradual increase in the Mother’s time would look like, Ms G emphasised that it depended on the family dynamics in each household, as well as the relationship between the parents. She described a number of scenarios including, for example, one night each fortnight till the middle of December 2020 or, alternatively, beginning this in January 2021. Ms G emphasised that there were many variables, and many unknowns. She was certainly concerned about the Mother’s ability to care for three children at the same time, let alone the Mother caring for five children at the same time.
Counsel for the Mother cross-examined Ms G, and sought to gently challenge Ms G’s contention as to how the Mother would cope with five children in the same household at the same time. Counsel suggested that there were benefits of such an arrangement, which Ms G acknowledged in the short term. However, there remained issues about the Mother’s capacity and, importantly, X’s sense that she would be sharing her mother in a very busy household.
Even if the children superficially seemed to relate well and play well together in their relatively limited interactions to date, she emphasised that when the children begin to cohabit, a different dynamic will emerge. It mattered not, from her perspective, that both the Mother and her partner are not primary carers of their children. She emphasised that even occasional parenting required much forward planning and insight, as well as an understanding of each other’s parenting style.
Whilst there were some theoretical benefits in limiting the Mother’s time to her children only, Ms G opined that it is likely that in the Mother’s relationship with her new partner, they had envisaged a blended family of five children at times, understandably so. Ms G emphasised that she wanted to see a safety net for the children but especially for X. She suggested that: “…to start something for X, and let it fail, is emotionally abusive to her.”
Ms G’s preference seemed to be for X and Y to spend time with their mother on Sunday night, progressing to Monday afternoon and increasing thereafter. School holidays should not be organised in anything longer than week-about blocks, and even then commencing from 2022-2023. Until then, school holiday time should involve gradual extensions of the weekly time.
It became quite apparent during the cross-examination of Ms G by Counsel for the Father that in fact she thought the best outcome for the children was for an interim order to be made, with a later review to take into account how they experience the arrangement ordered. The Court indicated to the parties that it was open to such a proposal, provided all parties consented to this. The Father explained, through his Counsel, that he simply could not afford to allow the litigation to continue. Accordingly, this Court concludes, not without some reluctance, that it is better for the litigation to be brought to finality now.
When Counsel for the Father cross-examined Ms G, she explained that based on her observation of X, Y, and D, there was no real sense of a strong sibling bond between the girls and their brother, a matter that was perhaps unsurprising given their ages and the period that they had been apart. Her main concern was how the Mother could meet their very divergent needs and prioritise appropriately. Again, her concerns would be magnified in a context where the Mother was caring for five children, and not just three. Again, she took the opportunity to express concern about D, and the risks to him of progressing too much time for the Mother with X and Y. This could be manifested, for example, by acting out, anger, school problems, or even possibly shutting down emotionally.
Counsel for the Father carefully explained to Ms G the arrangements for the Mother’s partner’s children to spend time with him in the context where he was working at least on Saturdays when the children were in his care. Thus, at least on alternate Saturdays, the Mother would have the sole care of five children whilst he was working. Counsel correctly explained to Ms G that both the Mother and her partner had, in cross-examination, indicated confidence that the Mother would cope. Counsel suggested that this demonstrated the lack of insight on both their parts. Ms G’s response was: “Absolutely.”
Counsel asked Ms G about her proposal that X and Y spend time with their mother on Sunday evenings and, in particular, the implications on the household potentially consisting of the Mother, her partner, and five children, on the Monday morning, when those of school age need to go to school. As the evidence suggested that the father would be involved in a fairly long drive in getting his daughter E to school, this meant that the Mother would be largely responsible for getting both X and D off to school, and Y to swimming lessons.
Given D’s reluctance to attend, and record of non-attendance at school, Counsel suggested that the Mother would struggle to organise the household. Ms G explained that any adult would, however in this context, it could be potentially emotionally difficult for both Y and X. Thus, Ms G preferred a proposal whereby Y and X’s time with the Mother was limited to the period when the Father’s children were not there. She emphasised that this was not put as a long-term option, but as a transitional, short-term arrangement. Ms G explained that the ideal arrangement in this regard would not involve too many changeovers or transitions. From X’s perspective, however, introducing more time, including overnights, was actually less emotionally damaging for her if done quickly.
In relation to parental responsibility, whilst Ms G seemed to maintain her recommendation for equal shared parental responsibility, she did acknowledge that prolonged discussion between the parents about significant issues such as schooling was not a good thing for the children.
The Court accepts Ms G’s evidence and recommendations. It is most regrettable that the Mother had not told Ms G of her new family arrangements at the time of the report interviews, because her recommendations could have been formulated at a much earlier stage and, possibly, the Hearing avoided.
The Court concludes that there are, in fact, formidable issues facing X and Y in terms of the introduction of overnight and more significant time with their mother in her new circumstances. The focus must be to craft an arrangement that is sensitive to the needs of X and Y but having regard to the vulnerabilities present in all of the children and adults directly or indirectly involved in this case.

Parental responsibility

Both the Independent Children’s Lawyer and the Mother proposed equal shared parental responsibility, but the Father pressed for sole parental responsibility. The Court will make an order for sole parental responsibility. It concludes that it is not in the best interests of the children for the presumption to apply in circumstances where, at best, the evidence indicates that the ability of the parents to communicate has improved, and that is in the period immediately before the Hearing. That is aspirational.
Any arrangement for the children to spend more time with their mother, particularly in the context of the emerging family dynamics of her new household, is more likely to increase communication problems than decrease it. What the evidence demonstrates is, regrettably, quite clear. There is a dispute between the parents about whether X should attend a school at Town B as the Mother proposed, or another school as the Father proposed. When the Mother was cross-examined about this on the first day of the Hearing, she was not prepared to change her mind. Two days later, by closing submissions, she had conceded on the school issue.
It is hard to avoid the inference that it was the pressure of the litigation that forced her to concede what was inevitable given the evidence that emerged. The Mother agreed in cross-examination that X became distressed because her Mother could not tell her what school she would be going to next year. The Mother agreed that the Father had been seeking to discuss the issue with the Mother, and reach agreement, since at least the beginning of 2020, but other than insisting that X should attend the same school as her brother D, the fact is that she simply did not engage in the correspondence.
Moreover, when the practical consequences on X and D of attending the school that the Mother proposed, was critically examined, the following came out. The Mother agreed that whilst D and X would be at the same school, they would in effect be on separate campuses separated by a busy road. At best, they might see each other at library and assembly, and possibly on sporting days, but that was the maximum possible interaction between the siblings.
In reality, the quality of the interaction between D and X that was likely at the events when they might be in the same physical space was minimal, if non-existent. The Mother’s reasons for insisting on X attending the same school as D was unreasonable. X was put to unnecessary distress because of her Mother’s intransigence. This hardly augurs well in terms of future decision-making about major long-term issues. The suggestion that there were not likely to be many future long-term issues for the parents to navigate in the future was mere speculation.
The Court’s lack of confidence in the Mother was unfortunately accentuated by what can only be described as her lack of cooperation in relation to entering the Father’s name on the birth certificates of Y and X. For example, Orders made 12 December 2018, required her to provide to the Father copies of the children’s birth certificates to assist the Father with enrolling the children in day care. In cross-examination, the Mother conceded that she simply did not comply with this Order. She agreed in cross-examination that given the Mother’s inaction, the Father had asked her to sign the necessary application forms that would have resulted in his name being placed on the girls’ birth certificates, but she once again declined. The Mother in cross-examination wisely conceded that if the girls were aware of this, they would have experienced it as being hurtful.
It is notable that both the issue of the birth certificates, and schooling, were live issues between the parents during the period of the litigation before the Court, when each parent knew, or should have reasonably known, that all of their behaviours would be subjected to forensic scrutiny. If the Mother was so uncooperative during the litigation process, one can only wonder how she would handle such issues when the litigation has concluded. The children should not be made to suffer in these circumstances. An order for sole parental responsibility will be made. Nonetheless, the Father will be required to consult with the Mother and to give genuine consideration to any input by her about the issues in question, and the Order should not enable him to relocate the children in a manner that renders impracticable the contact Orders in place at the time.

Meaningful relationship

The evidence indicates that the children have a meaningful relationship with both parents, and none of the alternative proposals before the Court indicate that that would change.

Protecting the children from harm

As foreshadowed earlier in these Reasons for Judgment, there is no evidence to suggest that the children are exposed to any present risk of harm whilst in the care of either parent, or are likely to be subjected to such harm in the future. None of the proposals made are consistent with a case involving an allegation of the children needing to be protected from harm. None of the matters put before the Court in evidence are indicative of such harm, either in the Father’s household, or the Mother’s household.

The views of the children

Given the children’s ages, their views carry no weight with the Court, even if there were reliable evidence as to what those views were.

The children’s relationship with their parents, and other significant adults

Both of the children appear to have a good relationship with their parents and indeed with their grandmothers. Both the Mother and her new partner gave evidence of the good relationship between X and Y and him. Whilst the Mother contends for a close relationship between D and the girls, the observations of Ms G are inconsistent with that. In any event, the Court is satisfied that each of the proposals before the Court will ensure that Y and X are able to maintain the good relationships that they have with each of the parents and other significant adults, and children, in their lives.

The extent to which the parents have taken opportunities to be involved with the children

There is evidence to suggest that in the period between December 2018 and February 2019, the Mother did not take advantage of each opportunity that was presented for her to spend time with the children. She gave some explanations for this, including work commitments and health reasons. As the Court has foreshadowed, she was also emerging from a period of poor mental health, and that may well have contributed to this. Notwithstanding this period, the evidence since February 2019 suggests that the Mother has consistently spent time with the children in accordance with the Court Orders. The Mother’s non-cooperation on the issue of X’s schooling, and the Father’s name on the girls’ birth certificates, has been discussed above. She unreasonably failed to participate in making a joint decision on these issues.

The extent to which a parent has fulfilled, or failed to fulfil, the parent’s obligation to maintain the children

The Father supports the children financially, with minimal financial support from the Mother. In relation to X, she pays child support as assessed, but in relation to Y, she pays no child support, as she has failed to confirm that the Father is Y’s father for child support purposes. This is not a significant consideration.

The likely effect of a change in circumstances for the children

Wisely for the Mother, she abandoned her proposal that the children live with her. It was an ill-considered but, no doubt, emotionally driven proposal. The Father has offered stability in the children’s lives that the Mother was plainly unable to do.
Having said that, it is common ground in each of the parties’ proposals, and in the evidence of Ms G, that there is overwhelming benefit to the children in spending more time with their mother, provided that it is introduced, and progressed, in a child-focused and sensitive manner having regard to the family dynamics in the Mother’s new household. Ms G’s evidence was really quite poignant in terms of describing the changes for X and D. By re-partnering, the Mother has brought about significant changes for D and X and Y, but there is no criticism of her re-partnering. Rather, the focus of the present case is to make orders that achieve the most important consideration of the Mother spending more time with Y and X, whilst achieving this in a sustainable, sensitive and child-focused manner.

Issues of practical difficulty and expense associated with contact

There is no evidence to suggest that this is a significant consideration in this case. The parents live reasonably proximate to each other in a geographical sense.

Issues of parental capacity

The evidence is clear that each parent has both a financial and a physical ability to meet the needs of X and Y, and neither really contends that the other parent is unable to do so. The focus is on the children’s emotional needs. The Father, with the assistance of the paternal grandmother, has satisfactorily met these needs since the children came into his care in 2018. The Mother appears to have struggled with meeting D’s emotional needs whilst he has been in her care. This has manifested itself in his non-attendance at school. D suffers from anxiety and, as Ms G explained, has experienced many significant changes in his life. It would not have been easy for the Mother to care for D.
The real focus is the Mother’s ability to deal with X, Y, and D, and then, at times, to also care for her partner’s children, F and E. Ms G’s observations suggested that, at times, the Mother struggled with the three children of her own, and it is a reasonable inference that she would struggle with the care of five children, including not just D, but her partner’s son F, who undoubtedly has special needs.
Whilst this Court is firmly of the view that there is no evidence to indicate that there is any present concern about the Mother’s mental health, in considering her capacity to meet for the needs of the children, the risk of relapse, and the risk of the Mother simply being overwhelmed by the need to manage, even for short periods of times, five children, must be taken into account. The solution that is advanced in various forms, in the proposals before the Court, address the Court’s concerns about the Mother’s parenting capacity by sensitively increasing time, requiring Y and X not to spend time with their mother whilst she is responsible for the care of her partner’s children, at least for a period of time, but recognises that in the fullness of time, the Mother’s household will be a blended family consisting of her children and that of her partner’s.
When the Mother, and her partner were cross-examined about the challenges associated with the Mother caring, at times, for five children whilst her partner worked, their answers were superficial and regrettably suggested a real lack of insight about how difficult it would be. Thus, one of the greatest concerns that the Court has is about the Mother’s capacity to meet the emotional needs of the children, especially the need for one-on-one attention, and the practical implications of that.
There is no evidence to suggest that there are concerns about the Father’s capacity to meet the needs of the children. Even though he has recently “stepped up” in his care for the children, it is clear that the paternal grandmother is still there as a support for him.

Maturity, sex and lifestyle and background of the children and parents

X and Y will, in the fullness of time, enjoy the benefit of parenting from both their mother and father. In their mother’s household, and subject to the continuation of her relationship with her current partner, that will involve life on a working farm with all the benefits that come with this.

Parental attitudes

There is no doubt that both the Mother and Father love the children, and take their responsibilities as to parenthood seriously. The difficulty with litigation is that it tends to bring out the worst in parents in terms of revealing their attitudes towards each other. The Mother’s behaviour in relation to the birth certificate and schooling regrettably suggests an attitude that at times prioritised her own desires, over the best interests of the children. This may be reflected in her proposal, thankfully abandoned, that the children live with her. These are not significant issues.

Orders in the best interests of the children?

That the Mother shall continue to remain engaged with medical professionals for the maintenance of her mental health including undertaking all recommended appointments and treatment and the father shall be at liberty every six (6) months to request a letter from the mother’s General Practitioner or treating practitioner, outlining:
23.1What treatment, if any, has been recommended;
23.2Whether the mother has been participating in such treatment; and
23.3The progress of the same.
That the parents will ensure that they keep each other informed as soon as it is reasonably practical of:
24.1Any significant medical problem or illness suffered by either of the children whilst in either parents care;
24.2Any medications that have been prescribed for either of the children;
24.3Any specialist medical appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor, or therapist regarding either of the children;
24.4Any significant social, school or religious functions which either of the children are to attend;
24.5Any changes to their respective residential addresses at least 72 hours before the expected change;
24.6Any other important matter relevant to the welfare to either of the children.
That both parents are to advise the other parent, and keep the other parent advised, of their current contact telephone numbers and advise the other parent of any changes to these details in writing, within 48 hours of such change occurring.
Both parents authorise by these Orders any school attended by the children (or one of them) to provide to either parent upon request any notices, letters, reports, invitations, photos, and other information or documents relating to the children (or one of them) that are normally provided to a parent of a child, at that parents cost.
Both parents authorise by these Orders in relation to the children (or one of them) that a General Medical Practitioner or any other treating medical practitioner (including a specialist or quasi-medical professional) are to provide to either parent any information, medical reports or other documentation relating to the the children (or one of them) at that parent’s cost.
That both parents are restrained from:
28.1Discussing these proceedings with, or in the presence or hearing of the children, or showing any Court documentation to, the children.
28.2Making critical or derogatory comments about the other parent or members of their family in the presence or within the hearing of the children and will do all things reasonably necessary to immediately remove the children from the presence of anyone else who does so.
That in the event that the mother is unable to personally care for the children during her time with the children, the mother shall notify the father of this as soon as is practicable and give him the option of caring for the children during such period.
That the mother shall ensure that the overnight periods she has with the children are predominantly spent in her home.
That should the mother change her place of residence, she will, within 72 hours of such change, provide the father with a copy of her tenancy agreement.
That should the mother at any time not have a permanent place of residence, the children’s overnight time with the mother shall be suspended and she shall instead spend time in accordance with these orders during the daytime hours of 9.00am until 6.30pm.
That both parties inform the other if they commence residing with a third party (or parties) and shall provide the details of that person(s) including full name and date of birth.
That the mother pay the father’s costs of and incidental to these proceedings.

Final Orders proposed by the Independent Children’s Lawyer

ON AN INTERIM BASIS, IT IS ORDERED:-

The children X born in 2015 and Y born in 2016 live with the Father.
The children spend time with the Mother as follows:-
2.1. From the date of these Orders, until 1 January 2021, as follows:-
2.1.1. Week One:
(a)From 11.00am until 6.30pm Monday, with such time to occur in the absence of the Mother’s current partner’s children;
(b)From the conclusion of preschool, or 3.15pm on a non school day, Thursday, until 6.30pm Friday, with Y to continue to attend preschool on the Friday, and X is not to attend preschool on the Friday, with such time to occur in the absence of the Mother’s current partner’s children;
2.1.2.     Week Two:
(a)From 11.00am until 6.30pm Monday, with such time to occur in the absence of the Mother’s current partner’s children;
(b)From the conclusion of preschool, or 3.15pm on a non school day, Thursday, until 6.30pm Friday, with Y to continue to attend preschool on the Friday, and X is not to attend preschool on the Friday, with such time to occur in the absence of the Mother’s current partner’s children;
2.2.From 1 January 2021 until the commencement of Term 1 2021, as follows:-
2.2.1.     Week One:
(a)From 11.00am until 6.30pm Monday, with such time to occur in the absence of the Mother’s current partner’s children;
(b)From the conclusion of school or preschool, or 3.15pm on a non school day, Thursday, until 6.30pm Friday, with Y to continue to attend preschool on the Friday, and X is not to attend preschool on the Friday, with such time to occur in the absence of the Mother’s current partner’s children;
2.2.2.     Week Two:
(a)From 11.00am until 6.30pm Monday, with such time to occur in the absence of the Mother’s current partner’s children;
(b)From the conclusion of school or preschool, or 3.15pm on a non school day, Thursday, until 6.30pm Saturday, with Y to continue to attend preschool on the Friday, and X is not to attend preschool on the Friday, with such time to occur in the absence of the Mother’s current partner’s children;
2.3.From the commencement of Term 1 2021, until the commencement of Term 3 2021, as follows:-
2.3.1.     Week One:
(a)From the conclusion of school or preschool, or 3.15pm on a non school day, Thursday, until the commencement of school or preschool Friday;
2.3.2.Week Two:
(a)From the conclusion of school or preschool, or 3.15pm on a non school day, Thursday, until 6.30pm Saturday.
2.4.During the school holiday period following Term 1 in 2021, the children’s time with the Mother is to continue in accordance with Order 2.2 of these Orders, however the children’s time with the Mother is to be extended to 6.30pm on the Sunday of Week Two, instead of 6.30pm Saturday;
2.5.During the school holiday period following Term 2 in 2021, the children’s time with the Mother is to continue in accordance with Order 2.2 of these Orders, however the children’s time with the Mother is to be extended to 6.30pm on the Monday of Week Two, instead of 6.30pm Saturday;
2.6.Commencing Term 3 2021, as follows:-
2.6.1.     Week One:
(a)From the conclusion of school or preschool, or 3.15pm on a non school day, Thursday, until the commencement of school or preschool Friday;
2.6.2.Week Two:
(a)From the conclusion of school or preschool, or 3.15pm on a non school day, Thursday, until 6.30pm Sunday.
2.7.During the school holiday period following Term 3 in 2021, the children’s time with the Mother is to continue in accordance with Order 2.6 of these Orders, however the children’s time with the Mother is to be extended to 6.30pm on the Monday of Week Two, instead of 6.30pm Saturday;
2.8.During the school holiday period following Term 4 in 2021, the children’s time with the Mother is to continue in accordance with Order 2.6 of these Orders, however the children’s time with the Mother is to be extended to 6.30pm on the Tuesday of Week Two, instead of 6.30pm Saturday;
That in addition to living with the Father in accordance with Order 1 of these Orders, the children spend time with the Father on the following occasions of special significance:-
3.1.From 3.00pm Christmas Eve until 3.00pm Christmas Day, in odd numbered years;
3.2.From 3.00pm Christmas Day until 3.00pm Boxing Day, in even numbered years;
3.3.From 5.00pm Good Friday until 10.00am Easter Sunday, in odd numbered years;
3.4.From 10.00am Easter Sunday until 5.00pm Easter Monday, in even numbered years;
3.5.In the event that either of the children’s birthdays fall during a time when the children are spending time with the Mother, then the children to spend time with the Father from 9.00am until 3.00pm, in the event that the child’s birthday falls on a non school day, or from the conclusion of school until 6.30pm on a school day, on both of the children’s birthdays of each year;
3.6.In the event that Father’s Day falls during a time when the children are spending time with the Mother, then the children are to spend time with the Father from 6.30pm the Saturday prior to Father’s Day until the commencement of school on Monday immediately following Father’s Day of each year;
That in addition to spending time with the Mother in accordance with Order 2 of these Orders, the children spend time with the Mother on the following occasions of special significance:-
4.1.From 3.00pm Christmas Eve until 3.00pm Christmas Day, in even numbered years;
4.2.From 3.00pm Christmas Day until 3.00pm Boxing Day, in odd numbered years;
4.3.From 5.00pm Good Friday until 10.00am Easter Sunday, in even numbered years;
4.4.From 10.00am Easter Sunday until 5.00pm Easter Monday, in odd numbered years;
4.5.In the event that either of the children’s birthdays fall during a time when the children are living with or spending time with the Father, then the children are to spend time with the Mother from 9.00am until 3.00pm, in the event that the child’s birthday falls on a non school day, or from the conclusion of school until 6.30pm on a school day, on the children’s birthdays of each year;
4.6.In the event that Mother’s Day falls during a time when the children are living with or spending time with the Father, then the children to spend time with the Mother from 6.30pm the Saturday prior to Mother’s Day until the commencement of school on the Monday immediately following Mother’s Day of each year.
That for the purpose of the implementation of these Orders, in the event that changeover is occurring on a school or preschool day, the Mother, or her representative, is to collect the children from school or preschool at the commencement of her time with the children, and is to return the children to school or preschool at the conclusion of her time with the child.
That for the purpose of the implementation of these Orders, in the event that changeover is occurring on a non school day, the Mother, or her representative, is to collect the children from a location as agreed between the parents in writing, and in the absence of agreement, from McDonalds Town B, at the commencement of her time with the child, and the Father is collect the children from a location as agreed between the parents in writing, and in the absence of agreement, from McDonalds Town B.
Both parents are entitled to attend all events involving the children, including but not limited to:-
7.1. Sporting fixtures;
7.2. Extra curricular activities that allow for parental attendance; and
7.3.Pre - school and school functions and pre - school and school events that allow for parental attendance, including but not limited to, concerts, assemblies, sports days, parent and teacher interviews, canteen duties and other school social functions, and the parent who has the children in their care on the day of such activity will be responsible for the children’s day to day care at such event and the children’s transportation to and from that event.
Both parents, when attending any of the events referred to in Order 7, will ensure they behave respectfully towards each other and not expose the children to conflict at those events.
The children are to have the following parental communication:-
9.1.Reasonable telephone conversation with the Father as the children may request,
and the Mother will facilitate the making of such telephone calls;
9.2.Reasonable telephone conversation with the Mother as the children may request, and the Father will facilitate the making of such telephone calls; and
9.3.Privacy during telephone conversations with both parents and each parent is to ensure that they facilitate this.
The parents will ensure that they keep each other informed as soon as it is reasonably practical of:-
10.1.Any medical problem or illness suffered by either or both of the children whilst in either parent’s care;
10.2.Any medications that have been prescribed for either or both of the children;
10.3.Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor, or therapist regarding either or both of the children;
10.4.Any significant social, school or religious functions which either or both of the children are to attend;
10.5.Their current residential address and contact telephone number, including mobile and landline, if applicable, and inform the other parent of any changes to their contact details within 24 hours of such change occurring; and
10.6.Any other important matter relevant to the welfare to either or both of the children.
Both parents authorise by these Orders any school or preschool attended by either or both the children to provide to either parent upon request any reports, photos, other information or documents relating to the children, that are normally provided to a parent of a child, at that parents’ cost.
Both parents authorise by these Orders the children’s General Medical Practitioner or any other treating medical practitioner to provide to either parent any information, medical reports or other documentation relating to the children at that parent’s cost.
Both parents authorise by these Orders the provider of any extra curricular activity to either or both of the children to provide to either parent any information or documentation relating to the children at that parent’s cost.
The Mother continue to attend upon her treating medical practitioners, including but not limited to, her General Practitioner, and any counsellor, therapist, psychologist or psychiatrist as she may be referred to, at such frequency as recommended by those medical practitioners, and to comply with all recommendations and treatment plans as advised by them.
The Mother is to take all medications prescribed by her treating medical practitioners, in accordance with the dosage prescribed by them.
That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of either or both of the children and the Mother shall do all things reasonably necessary to remove either or both of the children from the presence of any person who does so.
That the Father shall refrain from making critical or derogatory remarks about the
Mother or members of her family in the presence or within the hearing of either or both of the children and the Father shall do all things reasonably necessary to remove either or both of the children from the presence of any person who does so.
That within 6 months of the making of these Orders, each parent shall enrol in and complete a parenting after separation course, and provide a copy of their Certificate of Completion to the other parent, or their legal representative.
That within 6 months of the making of these Orders, each parent shall enrol in and complete the 123 Magic Emotional Coaching parenting course, or Triple P Parenting, or a similar parenting course, and provide a copy of their Certificate of Completion to the other parent, or their legal representative, and the Independent Children’s Lawyer.
That within 6 months of the making of these Orders, each parent shall enrol in and complete the Circle of Security parenting course, and provide a copy of their Certificate of Completion to the other parent, or their legal representative, and the Independent Children’s Lawyer.
That within 14 days of the date of these Orders, both parents do all things necessary to arrange for X’s speech and educational needs to be assessed by an appropriately qualified specialist, such as a paediatrician, or other specialist as recommended by X’s preschool or school, with both parents to ensure that X attends upon such medical practitioner at such times at such frequency as recommended by the medical practitioner, and to comply with all recommendations and treatment plans as advised by them, with both parents to share equally in the costs of the same.
That unless otherwise agreed between the parents in writing, both children are to be in enrolled in Q School, and attend Q School, and both parents are restrained from changing the children’s school without first obtaining the written consent of the other parent.

OR IN THE ALTERNATIVE, ON A FINAL BASIS:-

That the parents have equal shared parental responsibility for the children, X born in 2015 and Y born in 2016.
The children live with the Father.
The children spend time with the Mother as follows:-
3.1. From the date of these Orders, until 1 January 2021, as follows:-
3.1.1. Week One:
(a)From 11.00am until 6.30pm Monday, with such time to occur in the absence of the Mother’s current partner’s children;
(b)From the conclusion of preschool, or 3.15pm on a non school day, Thursday, until 6.30pm Friday, with Y to continue to attend preschool on the Friday, and X is not to attend preschool on the Friday, with such time to occur in the absence of the Mother’s current partner’s children;
3.1.2.     Week Two:
(a)From 11.00am until 6.30pm Monday, with such time to occur in the absence of the Mother’s current partner’s children;
(b)From the conclusion of preschool, or 3.15pm on a non school day, Thursday, until 6.30pm Friday, with Y to continue to attend preschool on the Friday, and X is not to attend preschool on the Friday, with such time to occur in the absence of the Mother’s current partner’s children;
3.2.From 1 January 2021 until the commencement of Term 1 2021, as follows:-
3.2.1.     Week One:
(a)From 11.00am until 6.30pm Monday, with such time to occur in the absence of the Mother’s current partner’s children;
(b)From the conclusion of school or preschool, or 3.15pm on a non school day, Thursday, until 6.30pm Friday, with Y to continue to attend preschool on the Friday, and X is not to attend preschool on the Friday, with such time to occur in the absence of the Mother’s current partner’s children;
3.2.2.     Week Two:
(a)From 11.00am until 6.30pm Monday, with such time to occur in the absence of the Mother’s current partner’s children;
(b)From the conclusion of school or preschool, or 3.15pm on a non school day, Thursday, until 6.30pm Saturday, with Y to continue to attend preschool on the Friday, and X is not to attend preschool on the Friday, with such time to occur in the absence of the Mother’s current partner’s children;
3.3.From the commencement of Term 1 2021, until the commencement of Term 3 2021, as follows:-
3.3.1.     Week One:
(a)From the conclusion of school or preschool, or 3.15pm on a non school day, Thursday, until the commencement of school or preschool Friday;
3.3.2.Week Two:
(a)From the conclusion of school or preschool, or 3.15pm on a non school day, Thursday, until 6.30pm Saturday.
3.4.During the school holiday period following Term 1 in 2021, the children’s time with the Mother is to continue in accordance with Order 3.2 of these Orders, however the children’s time with the Mother is to be extended to 6.30pm on the Sunday of Week Two, instead of 6.30pm Saturday;
3.5.During the school holiday period following Term 2 in 2021, the children’s time with the Mother is to continue in accordance with Order 3.2 of these Orders, however the children’s time with the Mother is to be extended to 6.30pm on the Monday of Week Two, instead of 6.30pm Saturday;
3.5.Commencing Term 3 2021, as follows:-
3.5.1.     Week One:
(a)From the conclusion of school or preschool, or 3.15pm on a non school day, Thursday, until the commencement of school or preschool Friday;
3.5.2.Week Two:
(a)From the conclusion of school or preschool, or 3.15pm on a non school day, Thursday, until 6.30pm Sunday.
3.6.During the school holiday period following Term 3 in 2021, the children’s time with the Mother is to continue in accordance with Order 3.5 of these Orders, however the children’s time with the Mother is to be extended to 6.30pm on the Monday of Week Two, instead of 6.30pm Saturday;
3.7.During the school holiday period following Term 4 in 2021, the children’s time with the Mother is to continue in accordance with Order 3.5 of these Orders, however the children’s time with the Mother is to be extended to 6.30pm on the Tuesday of Week Two, instead of 6.30pm Saturday.

That in addition to living with the Father in accordance with Order 2 of these Orders, the children spend time with the Father on the following occasions of special significance:-
4.1. From 3.00pm Christmas Eve until 3.00pm Christmas Day, in odd numbered years;
4.2.From 3.00pm Christmas Day until 3.00pm Boxing Day, in even numbered years;
4.3.From 5.00pm Good Friday until 10.00am Easter Sunday, in odd numbered years;
4.4.From 10.00am Easter Sunday until 5.00pm Easter Monday, in even numbered years;
4.5.In the event that either of the children’s birthdays fall during a time when the children are spending time with the Mother, then the children to spend time with the Father from 9.00am until 3.00pm, in the event that the child’s birthday falls on a non school day, or from the conclusion of school until 6.30pm on a school day, on both of the children’s birthdays of each year;
4.6.In the event that Father’s Day falls during a time when the children are spending time with the Mother, then the children are to spend time with the Father from 6.30pm the Saturday prior to Father’s Day until the commencement of school on Monday immediately following Father’s Day of each year;
That in addition to spending time with the Mother in accordance with Order 3 of these Orders, the children spend time with the Mother on the following occasions of special significance:-
5.1.From 3.00pm Christmas Eve until 3.00pm Christmas Day, in even numbered years;
5.2.From 3.00pm Christmas Day until 3.00pm Boxing Day, in odd numbered years;
5.3.From 5.00pm Good Friday until 10.00am Easter Sunday, in even numbered years;
5.4.From 10.00am Easter Sunday until 5.00pm Easter Monday, in odd numbered years;
5.5.In the event that either of the children’s birthdays fall during a time when the children are living with or spending time with the Father, then the children are to spend time with the Mother from 9.00am until 3.00pm, in the event that the child’s birthday falls on a non school day, or from the conclusion of school until 6.30pm on a school day, on the children’s birthdays of each year;
5.6.In the event that Mother’s Day falls during a time when the children are living with or spending time with the Father, then the children to spend time with the Mother from 6.30pm the Saturday prior to Mother’s Day until the commencement of school on the Monday immediately following Mother’s Day of each year.
Commencing 2022, the children spend time with each of their parents for one half during the New South Wales gazetted school holiday periods following Terms 1, 2 and 3, as agreed between the parents in writing, and in the absence of agreement, as follows:-
7.1.In even numbered years, from the conclusion of school on the last day the children are required to attend school until 6.30pm on the middle Saturday of the holiday period with the Mother, and from 6.30pm on the middle Saturday of the holiday period until the commencement of school on the first day the children are required to attend school in the new school term, with the Father; and
7.1.In odd numbered years, from the conclusion of school on the last day the children are required to attend school until 6.30pm on the middle Saturday of the holiday period with the Father, and from 6.30pm on the middle Saturday of the holiday period until the commencement of school on the first day the children are required to attend school in the new school term, with the Mother.
Commencing 2022, during the Christmas school holiday periods, as agreed between the parents in writing, and in the absence of agreement, as follows:-
8.1.In even numbered years, with the Mother from the conclusion of school on the last day the children are required to attend school until 6.30pm the second Sunday of the school holiday period, with the children to then spend time with the Father until 6.30pm the following Sunday, and each alternate week thereafter, with changeover to occur at 6.30pm each Sunday, until the new school year resumes; and
8.2.In even numbered years, with the Father from the conclusion of school on the last day the children are required to attend school until 6.30pm the second Sunday of the school holiday period, with the children to then spend time with the Mother until 6.30pm the following Sunday, and each alternate week thereafter, with changeover to occur at 6.30pm each Sunday, until the new school year resumes.
That for the purpose of the implementation of these Orders, in the event that changeover is occurring on a school or preschool day, the Mother, or her representative, is to collect the child from school or preschool at the commencement of her time with the children, and is to return the children to school or preschool at the conclusion of her time with the child.
That for the purpose of the implementation of these Orders, in the event that changeover is occurring on a non school day, the Mother, or her representative, is to collect the children from a location as agreed between the parents in writing, and in the absence of agreement, from McDonalds Town B, at the commencement of her time with the child, and the Father is collect the children from a location as agreed between the parents in writing, and in the absence of agreement, from McDonalds Town B.

Both parents are entitled to attend all events involving the children, including but not limited to:-
11.1. Sporting fixtures;
11.2. Extra curricular activities that allow for parental attendance; and
11.3.Pre - school and school functions and pre - school and school events that allow for parental attendance, including but not limited to, concerts, assemblies, sports days, parent and teacher interviews, canteen duties and other school social functions, and the parent who has the children in their care on the day of such activity will be responsible for the children’s day to day care at such event and the children’s transportation to and from that event.
Both parents, when attending any of the events referred to in Order 11, will ensure they behave respectfully towards each other and not expose the children to conflict at those events.
The children are to have the following parental communication:-
13.1.Reasonable telephone conversation with the Father as the children may request, and the Mother will facilitate the making of such telephone calls;
13.2.Reasonable telephone conversation with the Mother as the children may request, and the Father will facilitate the making of such telephone calls; and
13.3.Privacy during telephone conversations with both parents and each parent is to ensure that they facilitate this.
The parents will ensure that they keep each other informed as soon as it is reasonably
practical of:-
14.1.Any medical problem or illness suffered by either or both of the children whilst in either parent’s care;
14.2.Any medications that have been prescribed for either or both of the children;
14.3.Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor, or therapist regarding either or both of the children;
14.4.Any significant social, school or religious functions which either or both of the children are to attend;
14.5.Their current residential address and contact telephone number, including mobile and landline, if applicable, and inform the other parent of any changes to their contact details within 24 hours of such change occurring; and
14.6.Any other important matter relevant to the welfare to either or both of the children.
Both parents authorise by these Orders any school or preschool attended by either or both the children to provide to either parent upon request any reports, photos, other information or documents relating to the children, that are normally provided to a parent of a child, at that parents’ cost.
Both parents authorise by these Orders the children’s General Medical Practitioner or any other treating medical practitioner to provide to either parent any information, medical reports or other documentation relating to the children at that parent’s cost.
Both parents authorise by these Orders the provider of any extra curricular activity to either or both of the children to provide to either parent any information or documentation relating to the children at that parent’s cost.
The Mother continue to attend upon her treating medical practitioners, including but not limited to, her General Practitioner, and any counsellor, therapist, psychologist or psychiatrist as she may be referred to, at such frequency as recommended by those medical practitioners, and to comply with all recommendations and treatment plans as advised by them.
The Mother is to take all medications prescribed by her treating medical practitioners, in accordance with the dosage prescribed by them.
That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of either or both of the children and the Mother shall do all things reasonably necessary to remove either or both of the children from the presence of any person who does so.
That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of either or both of the children and the Father shall do all things reasonably necessary to remove either or both of the children from the presence of any person who does so.
That within 6 months of the making of these Orders, each parent shall enrol in and complete the 123 Magic Emotional Coaching parenting course, or Triple P Parenting, or a similar parenting course, and provide a copy of their Certificate of Completion to the other parent, or their legal representative.
That within 6 months of the making of these Orders, each parent shall enrol in and complete the Circle of Security parenting course, and provide a copy of their Certificate of Completion to the other parent, or their legal representative.
That within 14 days of the date of these Orders, both parents do all things necessary to arrange for X’s speech and educational needs to be assessed by an appropriately qualified specialist, such as a paediatrician, or other specialist as recommended by X’s preschool or school, with both parents to ensure that X attends upon such medical practitioner at such times at such frequency as recommended by the medical practitioner, and to comply with all recommendations and treatment plans as advised by them, with both parents to share equally in the costs of the same.
That unless otherwise agreed between the parents in writing, both children are to be in enrolled in Q School, and attend Q School, and both parents are restrained from changing the children’s school without first obtaining the written consent of the other parent.

[2020] FCCA 3160

20 November 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness

Remedies